author: HURLEY, Judge. BERANEK, Judge,

text:
    Linda PETERSEN, now known as Linda Cowan, Appellant, v. Henrik PETERSEN, Appellee.
    No. 79-973.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1980.
    Rehearing Denied Jan. 26, 1981.

      Andrew A. Graham, Cocoa, for appellant.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellee.
   HURLEY, Judge.

Linda Cowan, the mother of Gregory and Stephanie Petersen, appeals the denial of her petition for modification wherein, due to the adverse impact of inflation, she requested an increase of child support from $30 to $60 per week. We reverse and remand.

Linda (now Cowan) and Henrik Petersen were married in 1964. They had two children, Gregory and Stephanie. Their marriage ended in divorce in 1969 and the final judgment of dissolution awarded primary custody of the children to the mother and required the father to pay the total sum of $30 per week as child support.

In 1978, nine years after the divorce, Mrs. Cowan filed a petition for modification of the final judgment of dissolution. She averred, in part, that she was “unable to properly provide for the children’s welfare on $30 per week and Respondent is well able to afford to pay increased child support.” Testimony at the hearing indicated that Mrs. Cowan had remarried but remained unemployed. She testified that Gregory and Stephanie, who were 4 and 2 at the time of the divorce, are now 14 and 12 and that $30 per week was simply insufficient to provide for their support. Mr. Petersen, in turn, admitted that he could afford a $20 per week increase and testified that his weekly salary had risen from approximately $235 in 1969 to $325 in 1979. Next, Mrs. Cowan’s attorney introduced into evidence, without objection, a chart prepared by the federal Bureau of Labor Statistics which indicated that the purchasing power of the dollar had decreased substantially since 1969.

Considering Mr. Petersen’s salary increase, the court reasoned “[tjhat inflation has affected Respondent’s salary to the extent that his current salary is approximately the same as the former salary as far as buying power is concerned.” Therefore, the court denied the request for an increase in child support, finding that “there has been no change in circumstance upon which a modification of child support could be based.” We respectfully disagree.

The court’s reasoning is flawed in that it fails to consider the adverse impact of inflation on both parties. Though Mr. Petersen’s purchasing power-despite salary increases-remains at the 1969 level, Mrs. Cowan’s purchasing power has decreased substantially below the 1969 level. It is erroneous to consider one without the other; seen together, they establish a substantial change in one of the parties’ circumstances. Moreover, in a proceeding for modification of child support, a court should consider evidence as to the increased needs of the children as well as the father’s increased ability to pay. Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978). In the case at bar, there is substantial competent evidence of (1) the adverse impact of inflation; (2) increased needs of the children caused by their reaching adolescence; and (3) Mr. Petersen’s increased income. Viewed collectively, these factors justify a finding of a change in circumstances sufficient to warrant an increase in child support. Addington v. Addington, 48 Ill.App.3d 859, 6 Ill. Dec. 859, 363 N.E.2d 151 (1977).

In Pope v. Pope, 342 So.2d 1000 (Fla. 4th DCA 1977), we announced the principle that loss in the purchasing power of the dollar is a relevant factor to be considered in modifying an award of alimony. See also Greene v. Greene, 372 So.2d 189 (Fla. 3d DCA 1979). The principle is equally applicable to modifications of child support. Further the proof in the case at bar did not limit itself to a general showing that the cost of living had risen throughout the nation. Mrs. Cowan’s testimony was sufficient to demonstrate the adverse impact of inflation upon the original child support award. Thus, there was competent evidence that the-national problem of inflation was related to this case in that the buying power of one of the parties was so reduced as to constitute a substantial change in circumstances. See Powell v. Powell, 386 So.2d 1214 (Fla. 3d DCA 1980).

Accordingly, the cause is REVERSED and REMANDED for further proceedings consistent with this opinion.

DOWNEY, J., concurs.

BERANEK, J., concurs specially.

BERANEK, Judge,

concurring specially.

I concur specially for the purpose of noting that the modification in this case was based on the effects of inflation on the particular litigant and the increased salary of the former husband. I would not approve reliance upon national inflationary trends alone as a basis for modification. The particular exhibit in question which was presented to the trial court in support of the inflation argument was entitled, “Bureau of Labor Statistics, Washington, D.C. 20212 Consumer Price Index for Urban Wage Earners and Clerical Workers U.S. City Average: All Items-Series A.” The document has 182 numerical entries, but to be frank, I am not at all sure how to interpret it. I have not the slightest idea that this document is particularly applicable to the situation presented in this case.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    SUNLAND DEVELOPMENT CENTER AT FORT MYERS, Appellant, v. Agnes C. EUANS, Appellee.
    No. UU-34.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    Rehearing Denied Jan. 27, 1981.

      Peter C. Burkert and Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Meyers, for appellant.
    Dudley Burton, Sanibel, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeals a workers’ compensation order appointing a physician for a routine examination and evaluation of the claimant under circumstances indicating that is not the sole point in controversy between the parties. We conclude that such an order disposes of incidental aspects rather than an “essential element” of the claim. See Patrylo v. Nautilus Hotel, 142 So.2d 279 (Fla.1962). The order appealed is therefore interlocutory in nature under standards previously applicable. Dade County School Board v. Hill, IRC Order 2-3414 (April 26, 1978), cert. dismissed, 366 So.2d 880 (Fla.1978); Peters v. General Telephone Co., IRC Order 2-3153 (May 16, 1977); Lehman v. Goodwin, 7 FCR 55 (1972).

Appeals from interlocutory orders in workers’ compensation cases are governed by the provisions of Fla.R.App.P. 9.130(a)(3). Fidelity & Casualty Co. of New York v. Scott, 386 So.2d 315 (Fla. 1st DCA 1980). Rule 9.130(a)(3) contains no provision which would authorize review of the order appealed in the present case; the order is thus not reviewable except in connection with an appeal from a final order disposing of the claim.

The appeal is dismissed without prejudice to appellant’s right to raise the issue upon review of a final order.

ERVIN and SHAW, JJ., concur.


author: PER CURIAM.

text:
    R. M. P., a child, Petitioner, v. Carlton JONES, Superintendent, Duval Regional Detention Center, Respondent.
    No. ZZ-9.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1980.
    Rehearing Denied Jan. 27, 1981.

      William P. White, Chief Asst. Public Defender, and Claudia Wright, Asst. Public Defender, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Rose, a 15-year old girl, petitions this court for a writ of habeas corpus, seeking release from the remainder of a 40-day sentence she is serving for contempt of court. Upon reviewing the circuit court orders of Judge Safer and based upon the legal analysis contained therein and incorporated below, we decline to issue the writ.

The record indicates, and petitioner does not contest, that petitioner specifically violated the court’s orders, which violations resulted in the contempt finding.

Petitioner asserts the adjudications of guilt and sentences entered are illegal because (1) the court has no authority to place conditions upon a child who is subject to a dependency action and (2) there is no provision under Florida law for the placement of a child judged guilty of contempt in a secure detention facility, thus the child cannot be placed within the custody of HRS.

Following Judge Safer’s finding of guilt and imposition of sentence, petitioner submitted a motion in the trial court to vacate the sentence. In denying petitioner’s motion to vacate, Judge Safer explained in some detail the basis for his decision. We extract those portions relevant to the instant petition:

* * if! * * *

Child’s Contentions

1. That the powers of disposition as set forth in Section 39.41(1), Florida Statutes, do not authorize the Court lawfully to place conditions upon this dependent child. Therefore, the conditions being unlawfully imposed could not form a basis for holding the child in contempt upon her failure to abide by said conditions.

2. Even assuming that there were a proper contempt proceeding and adjudication (which child argues there was not), the sentence of the child to a secure detention facility is unlawful as such placement is not authorized by any section of Chapter 39.

HRS Contentions

Although no formal pleading was filed in this case by HRS, the Court invited HRS to be present at all of the contempt hearings and advised its counsel of the hearing on motion to vacate and invited such'counsel to advise the Court of the HRS position on such sentence.

In response, HRS offered testimony which will be summarized hereafter.

HRS contends that the Legislature has provided for secure detention facilities only for the temporary care of children pending delinquency adjudication or court disposition (Senate Bill 409, effective July 1, 1980, amending § 39.01(31), F.S.).

Therefore, HRS concludes the Court cannot impose a burden upon HRS which the Legislature has not given HRS power to handle. Specifically, in this case, the Court has ordered a child, who is not a delinquent child, to be incarcerated in a secure detention facility.

* ’ * * * * *

Discussion of the Issues

As mentioned in the Motion to Vacate Judgment, the issues named are matters of first impression in the State of Florida and are of a unique and complex nature. These issues are important because they affect the conduct of the juvenile court system. * * *

[A summary of the actions leading up to the trial court’s order finding petitioner guilty of contempt follows:]

1. By order entered on November 4, 1980, the child’s dependency was reaffirmed, she was placed in the temporary care, custody and control of her mother subject to HRS’ supervision and the Court imposed eight conditions relating to the child’s behavior. (Although the case history of this particular child would be interesting to relate, it is not material to the legal issues to be determined in this case.)

2. The Court followed Rule 8.820 [8.280], Fla.RJuv.P., which deals with Indirect Criminal Contempt.

3. The child was adjudicated guilty of two separate indirect contempts in that she violated two separate conditions of the Court’s order entered November 4, 1980.

4. The child was not adjudicated a delinquent and it is my understanding that such an adjudication is prohibited by the case of J.M.J. decided by Florida District Court of Appeal on October 22, 1980.

5. The child’s sentence involved placement with HRS to be incarcerated in secure detention for 20 days on each contempt, to be served consecutive. She was placed with HRS as a person guilty of indirect criminal contempt of court, not as a delinquent child nor as a dependent child.

I. The first issue is what power does a Juvenile Court Judge have under Chapter 39, as amended by Senate Bill 409, to impose conditions on a dependent child?

Section 39.41(l)(a) states:

(1) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to: (a) place the child under the protective supervision of an authorized agent of a department, either in the child’s own home or, the prospective custodian being willing, in the home of a relative of the child or in some other suitable place under such reasonable conditions as the child mav direct._” (emphasis supplied)

Child contends the underlined portion means that the conditions are solely to be imposed in connection with the placement of the person with whom the child is to be placed.

I do not read the underlined language as being so restricted. I must take into consideration the mandate of the Legislature in Section 39.001(3), that “This chapter be liberally interpreted and construed in conformity with its declared purpose.” One of the declared purposes as set forth in Section 39.001(2)(b) is to assure that children who appear before the Court under this Chapter, be they delinquent or dependent, obtain the care, guidance and control-which will best serve the moral, emotional, mental and physical welfare of the child and the best interest of the State.” It is important to note that the “best interest of the State” must be taken into account by the Judge.

% * * * * *

Under child’s contention, I had no right under Chapter 39 to discuss placement with the child, giving the child an alternative upon her agreeing to certain conditions. Under child’s contention, the Court’s power of disposition was to discuss with the mother conditions to be imposed upon the mother if she wanted to have the child returned.

To presume that the child’s contention is the legislative intent, would be to undermine the entire concept of the Judge having the ability to analyze the child’s problem, to discuss the problem with the child, to obtain a commitment from the child, all in the process of making a reasonable determination as to the proper disposition beneficial to the child and the State.

Therefore, I must reject the basic contention of the State that a Juvenile Court Judge cannot reasonably impose conditions on a dependent child.

II. The second issue is that assuming that the Juvenile Court Judge can impose a condition on a dependent and failure of the child to abide by the condition does not constitute any violation of the law, can the child be held in indirect criminal contempt?

Child relies on the case of In re Ronald S., [69 Cal.App.3d 866,] 138 Cal.Rptr. 387 (Court of Appeal, 4th District, 1977). The opinion of Justice Gardner sets forth forthrightly the problems faced by the California Juvenile Court system upon its juvenile code, which are very similar to the situation in this State if it is held that the Juvenile Court Judge has no inherent power to enforce his orders. It is a jewel and should be required reading by all legislators. However, it is not determinative of the issues in this case.

In Ronald S., a runaway child was sent to ... a crisis center and was ordered by the court to stay there. He left the day he arrived. Thereupon, a petition was filed alleging a violation of the code. I have not researched the California code, but I assume such petition alleged a contempt similar to the contempt mentioned in § 39.01(8), F.S., based upon a portion of the opinion identified as Bootstrapping, page 390. This was contrary to California Statute per 1976 amendment, page 391. Child was found guilty and detained in a secure facility.

Thus, it appears that Ronald S. involved in the same situation that was addressed by the First DCA in J. M. J. when it held “appellant cannot be adjudicated a delinquent for committing the contempt alleged here.” Nowhere in Ronald S. is there a comment on the Judge’s inherent power to hold a child in contempt. The California Judge brought a delinquent petition based upon statute. He did not rely on his inherent power.

The Juvenile Court Judge in the California case is accused then of doing by indirection that which cannot be done directly. That is true because he used a delinquency procedure to make a delinquent out of a dependent that cannot be done.

By using my inherent power of the Court as I have done, I have not made a delinquent out of the child. I have not done anything by indirection that I couldn’t do directly, namely, enforce my order.

My authority to enforce my own order is set forth in Section 38.22, F.S., entitled Power to Punish Contempts, to-wit:

“Every court may punish contempts against it whether such contempts be direct, indirect or constructive, and in any such proceedings, the court shall proceed to hear and determine all questions of law and fact.”

It is not derived from Chapter 39. As established in the cases which are cited in footnote number 4 to J. M. J. of November 25, 1980, children can be punished for contempt. In one of the cases, a child.broke a Court’s order concerning activity on a college campus. Except for the Court’s order what the child did was not a violation of law. I see no difference between that Court’s order and my order for Rose “not to associate with Michelle”.

III. The third issue is where should the child be placed for punishment?

From the testimony presented by HRS, the Duval Regional Detention Center is the secure detention facility serving six counties in this area. It has five modules, all of which currently have some occupancy. However, overall occupancy is not at capacity at the present time, the population being 59 below capacity. To house a child who has been held in contempt would require the placement of the child in an isolation cell (which I would consider cruel and inhuman punishment) or in a separate module, requiring removal of all delinquent children therefrom. A complete program would have to be administered for the contemnor child including eating, play, shower and other phases of living there.

All of this assumes that she is a dependent and that she could not have any contact with a delinquent [as under Section 39.-402(4), prior Florida Statute].

HRS has a shelter facility for dependent girls, but it has no locks on the doors and windows. The staff is instructed not to physically restrain a child who wants to leave. Obviously, the placement in such a shelter would not be the punishment desired by the Court.

I am not unmindful of the administrative problems created for the superintendent of the Duval Regional Detention Center when a Judge sends him a child who does not fit into the delinquent category. However, the judicial system cannot operate effectively if it must conform its punishment to available facilities and the regulations governing them.

I classify imprisonment into two categories-jail for adults; detention for juveniles. Since judicial process requires Rose to be imprisoned for contempt, it must be in a detention facility.

Further, I believe HRS is in error in considering Rose as a dependent child. She has been held in indirect criminal contempt.

I digress to propose another question. Assuming a Judge holds a child in civil contempt for failure to testify before a grand jury and the Judge orders the child imprisoned subject to the child’s purging himself by agreeing to testify. (This was the situation in several of the cases set forth in footnote number 4 of the J. M. J. opinion.) Where would the child be placed? Would HRS refuse to accept the child because the child is not a delinquent?

The Legislature has determined that HRS is the proper authority to handle juveniles.

Therefore HRS must be prepared to handle unusual situations and is not able to use the argument, “The Legislature didn’t tell us we had to do that.”

* * # * * *

Conclusions

1. A Juvenile Court Judge has the right to impose reasonable conditions on the behavior of the dependent child, consistent with the welfare of the child and the interest of the State.

2. A Juvenile Court Judge has the inherent power to hold a child in contempt for failure to abide by the Court’s order.

3. A child who has been adjudged guilty of contempt can be placed in secure detention by HRS.

* * * * * #

After reviewing the child’s petition for writ of habeas corpus and Judge Safer’s discussion of the issues above, we find we are in agreement with Judge Safer’s conclusions. To find otherwise would restrict the powers of juvenile judges in a manner not intended by the Legislature. Accordingly, the petition for writ of habeas corpus is DENIED.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.

      . Judge Safer’s Order of November 4, 1980, reflects in relevant part the following:
      On October 13, 1980, the child appeared at detention charged with being a runaway. At the hearing, Rose told the court she had been with one or more older gentlemen, had smoked marijuana and had consumed alcohol. She would not promise not to run away.
      ******
      Today, Rose appeared for a review of detention. Her mother told the court she would like Rose to return home if she will behave. The counselor had mixed feelings, but thought it would be all right if Rose behaved.
      ♦ * * * * *
      I discussed with Rose the conditions which would be imposed upon her and gave her the choice of returning to her mother or going to a foster home. Rose chose her mother.
      ******
      I explained to Rose that any breach of the conditions would lead to a contempt proceeding, which might end up with her being charged as a delinquent. She said she understood and that she could live under all the conditions.
      ORDERED AND ADJUDGED that the dependency of child is reaffirmed and the child is placed in the temporary care, custody and control of her mother ....
      FURTHER ORDERED AND ADJUDGED that:
      ******
      2. The child shall reside with mother ... and shall not run away.
      ******
      6. The child shall not associate with or have any contact with Michelle, a neighbor.
      ******
      The following week, Rose was again in trouble. Judge Safer ordered the child’s counsel to show cause why Rose should not be charged and convicted of contempt. Following a plea of not guilty and hearings on the matter, judgment of guilt was entered. Judge Safer’s “Judgment of Guilt of Indirect Criminal Contempt and Sentence”, continues the story:
      * * * * * *
      [At the hearing held November 19, 1980, the child’s mother] ... testified for the State under oath in essence:
      (a) She received a copy of the Court’s order (11/4/80) on the Thursday after it was entered. She discussed it with Rose by reading it to her and telling her she had to obey it.
      (b) Michelle ... is the neighbor whom Rose was prohibited by the order from associating with. The witness saw Rose with Michelle every day that week. Witness told Rose not to associate with Michelle, but Rose responded “Michelle is my friend.”
      * * * * # *

        In reaching the guilty decision the court finds that it has been proven beyond any reasonable doubt that:
      (1) The order of November 4, 1980, contained two specific conditions, namely:
      2. The child reside with mother ... and shall not run away.
      6. The child shall not associate with or have any contact with Michelle, a neighbor.
      (2) Child disobeyed condition number two in that on Saturday, November 8, 1980, child did run away from the home of the mother without permission and mother did not see the child again until the child was picked up by police on November 9, 1980.
      (3)Child disobeyed condition number six in that child associated with Michelle each day following the entry of the order and was with Michelle in the police car on November 9, 1980. Judge Safer noted there was no contention that the conditions had not been violated.

      . 389 So.2d 1208 (1980, Fla. 1st DCA).


text:
    Alan D. VETTERICK and Nancy Vetterick, Appellants, v. SEARS, ROEBUCK AND CO., a New York Corporation, Appellee.
    No. 79-2338.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Rehearing Denied Jan. 29, 1981.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellants.
    Helliwell, Melrose & DeWolf and Douglas S. Lyons, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Whitten v. Miami Dade Water & Sewer Authority, 357 So.2d 430 (Fla. 3d DCA 1978); Wilson v. Florida Processing Company, 368 So.2d 609 (Fla. 3d DCA 1979).


author: SCHWARTZ, Judge.

text:
    WALTER E. HELLER & COMPANY, SOUTHEAST, a Florida Corporation, Appellant, v. POINTE SANIBEL DEVELOPMENT CORPORATION, Appellee.
    Nos. 80-368, 80-780.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Rehearing Denied Jan. 26, 1981.

      Litman, Muchnick & Wasserman and Steven R. Rosenthal, Hollywood, for appellant.
    Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell and Robert L. Donald, Cape Coral, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Quality Wood Products assigned a claim against Pointe Sanibel Development Corp. to an entity designated as “Walter E. Heller & Company of Florida.” Subsequently, a party-plaintiff which described itself as “Walter E. Heller & Company Southeast” brought an action on the claim against Pointe Sanibel. After the granting of a motion to dismiss, an amended complaint was filed which specifically alleged that “Heller of Florida” had merely changed its corporate name to “Heller Southeast” and that the present plaintiff therefore had the right to maintain the action. Pointe Sani-bel denied this allegation in its answer. At the conclusion of a non-jury trial which exclusively concerned the merits of the underlying claim, the defendant moved for dismissal on the ground that there had been no evidence that the plaintiff was the same entity as the assignee. The trial judge agreed and specifically stated that, although “Heller of Florida” was entitled to receive $4,000.83, it was not shown to have been the plaintiff in the case. On the sole ground that “this record does not reflect that [Heller Southeast] is the same as the assignee,” judgment was entered against the named plaintiff and in favor of the defendant. Southeast appeals. We are compelled to affirm.

Because, without such a showing, there would be no basis for concluding that, notwithstanding the similarity in names, “Heller Southeast” is anything but a separate interloper to the transaction with no right to recover, the appellant does not, and could not, dispute the indispensability of establishing that it actually was the entity to which the cause of action in question had been assigned. Weisser v. Federal Deposit Ins. Corp., 365 So.2d 1034 (Fla. 3d DCA 1978); Mansell v. Foss, 343 So.2d 910 (Fla. 3d DCA 1977); Hertz International, Ltd. v. Richardson, 317 So.2d 824 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 18 (Fla.1976); see, Grandin Industries, Inc. v. Florida Nat. Bank at Orlando, 267 So.2d 26 (Fla. 4th DCA 1972); American Ladder & Scaffold Co. v. Miami Ventilated Awning Co., 150 So.2d 268 (Fla. 3d DCA 1963). Southeast argues, however, (a) that there was adequate proof to this effect at the trial and (b) that the defendant may not now claim otherwise. The record supports neither position.

As the appellant conceded at the oral argument, there was no direct and straightforward evidence in any form that Southeast and Florida were identical. Moreover, particularly in the light of the specific framing of the issue in the pleadings, the mere fact that the witnesses and counsel referred to “Heller of Florida” and “Heller Southeast” interchangeably cannot be deemed to have established the plaintiff’s allegation by implication. Cf., Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA 1980).

Nor did the defendant somehow become estopped to assert the lack of evidence on this issue. Pointe Sanibel did not explicitly withdraw its denial or admit the truth of the plaintiff’s averment either orally or in writing at any stage of the proceedings below. At the most, its counsel did not affirmatively dispute statements at the beginning of the trial by Heller’s lawyer and the court outlining the issues in dispute, which did not include this one. A stipulation or agreement cannot, however, be effected by such silence or acquiescence. Miami Herald Publishing Co. v. Payne, 358 So.2d 541 (Fla.1978); see, Fla.R.Jud.Admin. 2.060(g), incorporating former Fla.R.Civ.P. 1.030(d). While it is now also claimed that Southeast was “lulled” into its failure to present testimony on the point during the trial and was “surprised” by the defendant’s motion after all the evidence had been received, it is noteworthy that its counsel never sought leave to reopen its case so as to cure the omission. Because the defect was supposedly such an inadvertent one and could have been remedied so easily, the denial of leave to do so, even if requested after the parties had rested or the court had ruled, would probably have constituted an abuse of discretion. 32 Fla.Jur. Trial § 46, nn. 8-9, § 47, nn. 4-5 (1960). But the trial judge was not called upon to rule on such a motion.

There is thus no way under the law to do other than affirm this judgment. The appellant’s brief plaintively suggests that “[t]he principles of equity, justice and fair play ‘cry out’ ” for reversal. And it may be indeed the case that “Heller Southeast” is in fact “Heller of Florida” and should have prevailed. No more than any other court, however, we may not base our decisions on what we suspect or speculate is true but only upon what is shown in the record. The rule that a party must prove its case is not a technicality-it is the substantive foundation of our system. The plaintiff failed to present any competent evidence to establish that it was entitled to win, and therefore rightfully lost.

Affirmed.

      . The defendant based its denial and demand “for strict proof’ of this allegation upon an avowed lack of knowledge as to its truth. The ability to recover on the asserted claim concerns the question of whether the plaintiff is the real party in interest under Fla.R.Civ.P. 1.210(a), rather than its “capacity ... to sue” under Fla.R.Civ.P. 1.120(a). See, Catalfano v. Higgins, 4 Storey 548, 54 Del.Super. 548, 182 A.2d 637 (1962), rev’d on other grounds, 5 Storey 548, 55 Del. 470, 188 A.2d 357 (1962). We therefore need not decide whether Pointe Sanibel’s answer constituted the “specific negative averment” required by the latter rule. See generally, 5 Wright and Miller, Federal Practice and Procedure § 1294 (1969).

      . We commend and recommend for future cases the trial court’s entry of alternative findings, which would have permitted a termination of the litigation on this appeal even if we disagreed with the court’s ultimate judgment. See, Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA 1980).

      . If “Heller Southeast” were merely a change of name from “Heller of Florida,” the fact could have been established by any number of means, including propounding a request for admission of that fact, Fla.R.Civ.P. 1.370; the admission of a certificate of the secretary of state or an amendment to the articles of incorporation, Sec. 607.177(2)(a), Fla.Stat. (1979), or even perhaps by simply posing the direct question to Heller’s corporate representative at the trial. None of this was ever done.

      . Since this was true, Fla.R.Civ.P. 1.190(b), which deals with trial by consent of issues not raised by the pleadings, has no application. The sole question is whether the plaintiff presented any proof of its . disputed allegation concerning its right to sue or was relieved of the obligation to do so.

      . See note 3, supra.

      . After the trial judge announced his decision, counsel did move to amend the complaint so as to reflect that the plaintiff was Heller of Florida, “now known as” Heller Southeast. We do not address the propriety of the denial of that motion, but see Stewart v. Preston, 80 Fla. 473, 479, 86 So. 348 (1920), because the issue has not been presented on this appeal, which is prosecuted only by “Southeast.”

      . We express no opinion as to the viability of any future action brought by a differently named plaintiff.


text:
    Norma GARCIA-RIOS, as Personal Representative of the Estate of Manuel Garcia-Rios, Deceased, Appellant, v. DADE COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 80-675.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Rehearing Denied Jan. 26, 1981.
    Goldstein Professional Ass’n and Phillip Goldstein, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Jack M. Sobel, Asst. Comity Atty., for ap-pellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The principal point on this appeal is whether or not a Metro bus driver is an interested party within the “deadman’s” statute, Section 90.05, Florida Statutes (1977), and therefore precluded from testifying in a negligence action brought against his employer, Metropolitan Dade County.

We hold that the bus driver, not being a party to the litigation, is not an “interested” party within the meaning of the statute and, therefore, the trial judge was correct in permitting him to testify. Atlantic Coast Line Railway Company v. Mallard, 54 Fla. 143, 44 So. 366 (1907); Allstate Insurance Company v. Doody, 193 So.2d 687 (Fla. 3d DCA 1967).

The other points urged for reversal have been examined and found to be without merit. Jackson v. Whitmire Construction Co., 202 So.2d 861 (Fla. 2d DCA 1967); Chastain v. Civil Service Board of Orlando, 327 So.2d 230 (Fla. 4th DCA 1976); City of St. Petersburg v. Reed, 330 So.2d 256 (Fla. 2d DCA 1976); City of Miami v. Fraternal Order of Police, 346 So.2d 100 (Fla. 3d DCA 1977).

Therefore, the final judgment here under review is hereby affirmed.

Affirmed.


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Solomon BYNES, Appellee/Cross-Appellant.
    No. 79-1287.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Rehearing Denied Feb. 4, 1981.
    David H. Bludworth, State Atty. and Moses Baker, Jr., Asst. State Atty., West Palm Beach, for appellant/cross-appellee.
    Joseph A. Murphy, III, of the Law Offices of W. George Allen, Fort Lauderdale, for appellee/cross-appellant.
   PER CURIAM.

The state brings this appeal from an order suppressing physical evidence found in the defendant’s wife’s purse. We reverse.

Defendant and his wife were jointly charged with possession of cocaine. Only Solomon Bynes, however, moved to suppress the cocaine which had been found in his wife’s purse. The trial court granted the motion, apparently applying the “automatic standing” rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Since the rendition of the order, however, the Supreme Court has expressly overruled Jones in United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Thus, we reverse and remand for further proceedings without prejudice to the defendant’s right to attempt to establish a legitimate expectation of privacy in the area searched. See Rawlings v. Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Norman v. State, 388 So.2d 613 (Fla. 3d DCA, 1980), 1980 FLW 1849; State v. Muzevsky, 388 So.2d 21 (Fla. 4th DCA 1980).

REVERSED AND REMANDED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Thomas James AMERSON, Appellee.
    No. 79-1386.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Rehearing Denied Jan. 28, 1981.
    David H. Bludworth, State Atty., and Debra E. Pole, Asst. State Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
   HERSEY, Judge.

The state appeals from an order granting a motion to suppress evidence as illegally obtained. The evidence consists of jewelry alleged to be stolen. Some of this jewelry was handed over to the police without a search. The remainder was obtained as the result of a written consent to search form sighed by appellee.

The issue in this appeal is whether the consent was voluntary. The appropriate test for voluntariness to be applied here depends upon the legality of a prior stop and subsequent circumstances which we now detail.

During the course of a routine patrol, Officers Rodriguez and Sylvester of the Delray Beach Police Department received a radio communication to be on the lookout for a black male wearing a short-sleeved yellow shirt who had been observed in the vicinity of a coin laundry that had been robbed. Our Supreme Court has recently had occasion to articulate the formula for testing the validity of a stop made by law enforcement personnel on the basis of information received from an anonymous source. In Hetland v. State, 387 So.2d 963 (Fla.1980), it was held:

A valid stop and frisk may be based on information obtained from an anonymous tipster if that information appears sufficiently reliable because of the surrounding circumstances or the nature of the information given in the tip itself.

The present case involves a Bolo which may well have been based upon an anonymous tip. In any event it must either be shown to have been based upon reliable information or it must be shown to meet the test applicable to information received from an anonymous source. To this extent the rule embodied in our holding in St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978) must be considered to have been modified by the Hetland case. In Re G.A.R., 387 So.2d 404 (Fla. 4th DCA 1980).

The officers observed appellee, a black male in a short-sleeved yellow shirt, carrying a paper bag and approaching from the general direction of the coin laundry. It was approximately 5:00 a. m., there was no one else on the street and appellee was described as “kind of hastily crossing the street with a brown paper bag, sort of looking ahead of himself. And well, just walking ahead of himself, kind of hastily.”

While probable cause is not required to justify a temporary detention, something more than mere suspicion is required. In State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978), this court held:

To justify temporary detention, only “founded suspicion” in the mind of the detaining officer is required .... A “founded suspicion” is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. “Mere” or “bare” suspicion, on the other hand, cannot support detention.... Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification.

As an example of circumstances not giving rise to a founded suspicion, the court delineated the following:

Merely driving around town in an out-of-state van, or walking along a street late at night, or looking or pointing at policemen, or pulling out of a parking lot when the police come into view, with nothing more, is insufficient to justify an individual’s detention. Id.

In the instant case, the trial court found that the officers had not observed facts sufficient to form the founded suspicion necessary to justify the stop. We note that the learned trial judge did not have the benefit of the rationale expounded by the Hetland court. Based on that opinion we disagree with the trial court’s findings.

We therefore hold that the stop was justified. Florida’s Stop and Frisk Law, Section 901.151, Florida Statutes (1979), requires that a law enforcement officer, encountering an individual, may temporarily detain him if the encounter occurs “under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county.” The initial stop here meets the statutory minimum.

The initial interrogation of appellee was conducted by Officer Rodriguez who was a rookie in training. As appellee was walking away the two officers concluded that additional matters should have been inquired into. They overtook appellee within thirty seconds of the first stop whereupon Officer Sylvester conducted further inquiry. As a result, they were told that he was returning from work at Sambo’s Restaurant; however, later investigation disclosed that appellee was not at that time employed by Sambo’s Restaurant.

Appellee urges that this second stop was illegal per se, construing the Stop and Frisk Law as permitting only one stop of a very limited duration and confined to a relatively small area.

Officer Rodriguez was a trainee. His first interrogation of appellee fell short of obtaining information which would be of any real value. That interrogation should have been carried out in the presence of Officer Sylvester, who then could have and should have supplemented the interrogation by making such additional inquiries as were appropriate under the circumstances. We therefore criticize the training technique but find that the ineptitude with which it was conducted, requiring two stops rather than one, does not constitute that invasion of appellee’s constitutional rights required to invalidate the stop. There will be circumstances under which it will be reasonable to make more than one stop under the statute and in each instance the facts must be examined to determine whether multiple stops are valid. They are not and should not be absolutely prohibited by the language of the statute.

As a result of a written report of these two encounters filed by the officers, detectives from the police department picked up appellee and brought him to the police station for further questioning. Jewelry believed to be stolen was observed on appel-lee’s person which he then voluntarily turned over to the police. In addition, he signed a consent to search form as a result of which his place of residence was searched and additional jewelry was recovered. At the suppression hearing appellee’s counsel stipulated that some of the jewelry was obtained by virtue of a consent to search form signed by appellee and that the balance of the jewelry was given to the police by appellee “and they did not have to search him.”

The record therefore discloses that appellee walked into the police -station wearing some of the jewelry in plain view. There was testimony that he voluntarily turned over the jewelry on his person to the police officers. He then executed a written form of consent to search his residence. He was not under arrest and the evidence is devoid of any suggestion of coercion or the presence of other factors that might detract from the voluntariness of the consent. In view of the fact that appellee offered no evidence whatsoever of involuntariness that might have shifted the very substantial burden of going forward with the evidence back to the state, mandating affirmance at this level, we find that the state carried its initial burden on the issue of the voluntariness of the consent.

In summary we find that both stops were lawful and that the evidence was obtained by virtue of knowing and voluntary consents.

Accordingly, we reverse the order appealed from and remand this cause to the trial court for further proceeding.

REVERSED AND REMANDED.

ANSTEAD and BERANEK, JJ., concur.


text:
    William L. FOX, Appellant, v. Florence E. FOX, Appellee.
    No. 79-2183.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Rehearing Denied Feb. 3, 1981.
    William L. Fox, Jupiter, pro se.
    No appearance for appellee.
   PER CURIAM.

Only one point on appeal is meritorious and requires discussion. The record supports appellant’s argument that he is entitled to be reimbursed in compliance with the court order dated March 9, 1978, in the amount of $262.50. Said amount is apparently being held in the escrow account of Clayton Robin, the court-appointed commissioner, pending court order for distribution. We remand to the circuit court with directions to enter an appropriate order to enable appellant to recover the $262.50.

In all other respects, we affirm.

AFFIRMED in part, REVERSED in part and REMANDED.

DOWNEY, MOORE and GLICKSTEIN, JJ., concur.


author: DANAHY, Judge.

text:
    Leslie PORTEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1144.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.
    Rehearing Denied Jan. 15, 1981.
    Jack O. Johnson, Public Defender, and Geoffrey A. Foster, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant was charged in count I of an information as follows:

[Appellant] ... unlawfully did sell a controlled substance, to-wit: Cannabis, for consideration, in violation of Section 893.13, Florida Statutes ....

Count II of the information alleged that appellant possessed more than five grams of cannabis.

Appellant was convicted on each count and was sentenced separately for each offense. Appellant contends that the trial court violated the single transaction rule when it imposed separate sentences for both the sale and the possession of marijuana. We disagree and affirm.

The evidence adduced at trial revealed that two undercover narcotic agents met three individuals at the Crossroads Bar in Lake Placid. One of the individuals indicated to the agents that they could obtain a quantity of marijuana. The undercover agents were driven by their new companions to Richmond’s Bar. When they arrived, several people, including appellant, approached the driver’s window of the automobile. Appellant asked the occupants of the car what they wanted and the driver replied, “an ounce.” Appellant entered the bar apd a couple of minutes later returned with a baggie containing marijuana. Appellant gave the marijuana to the driver and after it was inspected, one of the undercover agents paid appellant $20.00.

To determine whether the trial court violated the single transaction rule when it imposed separate sentences for each offense, we look to section 775.021(4), Florida Statutes (1977), which provides:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

Prior to the enactment of this section the single transaction rule as applied in the courts of this state was succinctly stated in Orange v. State, 334 So.2d 277 (Fla.3d DCA 1976), as follows:

[ Wjhen a defendant is convicted of two crimes committed in a single transaction and each of the crimes is a facet of the same transaction, it has been held repeatedly that sentence should be imposed for only one of the crimes, being that of the highest offense charged.

The enactment of section 775.021(4) substantially limited the application of the common law single transaction rule. Under the current law separate sentences are mandated where a defendant violates two or more criminal statutes, so long as one of the crimes is not a lesser included offense of the other.

In Fundak v. State, 362 So.2d 295 (Fla.2d DCA 1978), the defendant was separately convicted of the possession and sale of a single marijuana cigarette. A single judgment was entered by the trial judge and appellant was sentenced to one year in prison. The judgment did not provide whether the sentence was for one or both convictions. We held that section 775.021(4) required a separate judgment and sentence to be imposed for each offense. In doing so, we noted that the two offenses constituted violations of separate criminal statutes and that under the facts of the case the possession of marijuana was not a lesser included offense of the sale of marijuana.

Recently, with increasing frequency, we have been confronted with cases wherein the appellant has alleged that the trial court erred in sentencing him both for the sale and the possession of a controlled substance. Apparently, our decision in Fundak requires clarification and this case provides us with such an opportunity. Generally, the determinative question presented, as in the case at bar, is whether or not the possession of the contraband was a lesser included offense of the sale of that substance.

In Brown v. State, 206 So.2d 377 (Fla.1968), the court identified four categories of lesser included offenses. The first two categories considered crimes divisible into degrees and attempts to commit the crime charged. Obviously, the crimes involved in the case before us are not included in either of these categories. Therefore, if the appellant’s position is to prevail, the possession offense must be either a Brown category three or category four lesser included offense.

The court in Brown defined category three offenses as those which are necessarily included in the greater offense. As the court explained, a necessary lesser included offense is an offense which is an essential ingredient of the major offense charged. While a seller of marijuana might in the ordinary ease also possess the marijuana sold, possession is not an essential aspect of the sale. For instance, in Daudt v. State, 368 So.2d 52 (Fla.2d DCA 1979), the evidence established that the defendant was an intermediary in a marijuana transaction. He was convicted of both the possession and the sale of the marijuana. After noting that Daudt had neither actually nor constructively possessed the contraband, we reversed the possession conviction. Daudt clearly illustrates a situation in which a sale of marijuana can be accomplished without the. seller ever committing the offense of possession. Accordingly, we must conclude that the possession of marijuana is not a category three lesser included offense.

The fourth category identified in Brown is composed of offenses which may or may not be included in the greater offense depending on the accusatory pleading and the evidence adduced at the trial. An offense is included within this category when the count of the information charging the greater offense also alleges a finding of the commission of the lesser offense. In the instant case, count I of the information did not allege any of the elements of possession. Therefore, the possession of marijuana in the case at bar, charged in count II, is not a category four lesser included offense of the charge in count I.

The appellant relies heavily upon Williams v. State, 377 So.2d 755 (Fla. 1st DCA 1979), and Drayton v. State, 372 So.2d 983 (Fla.3d DCA 1979). While those cases would at first appear to support his position, we are convinced that they involve an application of the single transaction rule as it existed prior to the enactment of section 775.021(4):

In the Drayton case the defendant was charged in separate counts with the sale and possession of cocaine. He was found guilty on each count and sentenced to two separate five-year terms of imprisonment. The court, without reference to section 775.-021(4), held that the two convictions would not support separate sentences. The three cases cited in support of this holding were all decided before the enactment of Section 775.021(4).

In Williams v. State the defendant sold marijuana to a police informant. ' He was convicted for both the sale and the possession of the marijuana and sentenced to five years in prison for each offense. The court, also without reference to section 775.021(4), held that Williams should have only been sentenced for the sale of the marijuana. In so holding, the court relied upon Drayton v. State, supra, and Jackson v. State, 311 So.2d 811 (Fla. 1st DCA 1975). The Jackson decision was unquestionably grounded upon the pre-1977 common law version of the single transaction rule.

Because we believe that the cases cited by the appellant in support of his position do not involve an application of the current single transaction rule, we decline to follow them. Rather, we hold that section 775.-021(4) requires that separate sentences be imposed where a defendant is convicted of both the sale and possession of marijuana, unless the possession is a lesser included offense of the sale. As we have said, the appellant’s possession of marijuana in this case was not a lesser included offense of his sale of that substance. Accordingly, the separate sentences imposed by the trial court are affirmed.

AFFIRMED.

SCHEB, C. J., and GRIMES, J., concur.


text:
    Alexander HARVIN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2003.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1980.
    Rehearing Denied Jan. 29, 1981.
    Alexander Harvin, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Louise APPLEWHITE, Appellant, v. Sam KREIGER d/b/a Merchants Collection Service, and Levell Applewhite, Appellees.
    No. 79-636.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Jan. 29, 1981.
    Robert M. Hustead of Florida Rural Legal Services, Homestead, and Arlyne Wars-hall of Florida Rural Legal Services, West Palm Beach, for appellant.
    Albert S. Sims of Sims & Henry, West Palm Beach, for appellees.
   HERSEY, Judge.

Bethesda Memorial Hospital, after providing certain medical services to appellant and her husband, retained appellee to collect the amounts due for those services. Such collections were to be divided between appellee and the hospital on a predetermined basis with the costs of any litigation to be borne by the hospital. Appellant appeals the final judgment requiring her to pay for those medical services.

Implicit in the trial court’s determination that appellant is liable for the medical bills was a factual finding that she was the primary obligor. Troup Brothers, Inc. v. State, 135 So.2d 755 (Fla.2d DCA 1961). Findings of fact come to us clothed in a presumption of correctness and that presumption is not overcome by the record before us. In re Estate of Donner, 364 So.2d 742 (Fla.3d DCA 1978).

We therefore hold that appellant was properly found to be liable for the medical services rendered to her and her husband and we therefore affirm.

AFFIRMED.

LETTS, C. J., and DOUNEY, J., concur.


text:
    Benita Barbara GERBER a/k/a Benita Gerber, Appellant, v. Lewis GERBER, Appellee.
    No. 79-1249.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearing Denied Jan. 29, 1981.

      James Fox Miller of Miller & Schwartz, P.A., Hollywood, for appellant.
    Robert L. Gossett of Brooks, Bunin & Gossett, P.A., Hollywood, for appellee.
   HERSEY, Judge.

This is an appeal from an amended final judgment of dissolution of marriage.

During some fifteen years of marriage the wife never worked, although she began working on a part-time basis after the parties separated. She has a high school education with no special training.

The husband owns an automobile repair business. He valued the business on his financial affidavit at $5,000. Husband’s net income for tax purposes was not less than $17,000 per year. During the marriage, however, a significant portion of family expenses were paid directly by the husband’s business corporation. These economic benefits were not reflected on the tax returns. The parties jointly owned a small portfolio of intangibles and the marital residence, the latter having a value of $60,000 and being encumbered by a mortgage of $15,000.

The parties have three children, ages 5, 6 and 12 at the time of the final hearing. The eldest is under treatment for psychological difficulties and he and the middle child require tutoring.

The final judgment awarded custody of the children to the wife together with exclusive possession of the marital residence. The husband was directed to pay $30 per week as periodic rehabilitative alimony terminating upon emancipation of the children, and $32.50 per week per child as child support. The husband was required to pay all reasonable medical, dental and related expenses of the children. The wife was required to pay mortgage payments, real property taxes, insurance, repairs and maintenance charges in connection with the residence. At the time of its subsequent sale the proceeds were to be divided, with the wife receiving credit for principal payments made on the mortgage by her.

The award of alimony is rehabilitative. However, it is structured to terminate upon the same conditions as would permanent periodic alimony (remarriage, death, etc.). It also has a characteristic of child support in that it terminates upon emancipation of the children. More importantly, there was absolutely no evidence presented to show that wife had the ability, with rehabilitation, to become self-supporting. Permanent alimony should have been awarded.

As to the amount of the award, assuming that family expenses are to be borne equally by the wife and three children, the alimony does not even cover the cost of wife’s one-fourth of the mortgage and groceries. In view of her small monthly income, the amount of alimony awarded is inadequate.

The financial needs of one spouse and the ability of the other spouse to provide the necessary funds are the two factors determining the amount of an award of alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Husband’s direct financial obligation to his former wife and three children is established by the final judgment as $6,620 per year. As previously mentioned, husband’s net income is at least $17,000 per year in addition to which he has available the economic benefits furnished by his business corporation. These figures demonstrate an ability on the husband’s part to contribute more to the necessary support of his ex-wife and three children.

This brings us to consideration of the adequacy of the amount of child support awarded. The amount awarded does not even cover the children’s share of the mortgage and groceries. Wife’s salary is insufficient to defray these expenses; thus, the award is inadequate.

We further note that the wife pays all expenses in connection with the residence and upon sale receives credit only for mortgage payments representing principal. Thus, in effect, the wife is required to loan the husband each month one half of the principal portion of mortgage payments which loan is repayable to her only upon resale and without any interest. All other required residence-connected expenses she must pay in full with no expectation of repayment. It could fairly be said, then, that one-half of all such payments constitutes rent which the wife is required to pay to the husband. The interest-free loan aspect and the rent aspect, neither of which the wife can afford to pay, are simply not justifiable under the facts and circumstances of this case.

The financial aspects of the judgment appealed from demonstrate an abuse of discretion in failing to provide for even minimal sustenance to the wife and three minor children. 'Since the financial provisions are interrelated, we reverse the final judgment in its entirety with the exception of the provisions dissolving the marriage and providing for custody. Aguiar v. Aguiar, 386 So.2d 280 (Fla. 4th DCA 1980).

The final issue which we must consider is whether the trial court erred in directing husband to pay only a portion of wife’s attorneys’ fees. As we have stated on numerous occasions, the purpose for allowing attorneys’ fees in matrimonial litigation is to ensure that both parties will have similar ability to secure competent legal counsel. Hill v. Hill, 376 So.2d 472 (Fla. 4th DCA 1979); Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978). The record here demonstrates that wife does not have the ability to pay attorneys’ fees; therefore, husband should be required to pay all of wife’s attorneys’ fees.

Appellee’s motion for attorneys’ fees on this appeal is denied. Appellant’s motion is granted and the trial court is directed to enter an award for reasonable attorneys’ fees for prosecuting this appeal.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


author: ANSTEAD, Judge.

text:
    Carlos Julio INCHAUSTEGUI, Appellant, v. STATE of Florida, Appellee. Jose Manning TERAN, Appellant, v. STATE of Florida, Appellee. Robert Anthony LEE, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-2145, 79-2228 and 79-2238.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Rehearings Denied Jan. 28, 1981.

      Geoffrey C. Fleck of Kogen & Kogan, P.A., Miami, for appellants Carlos Julio In-chaustegui and Robert Anthony Lee.
    Milton M. Ferrell, Jr., of Ferrell & Ferrell, Miami, for appellant Jose Manning Teran.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

These are consolidated appeals by the appellants, Inchaustegui, Teran, and Lee, from judgments and orders of the lower court placing them on probation for five years for delivery of marijuana. Adjudication of guilt was withheld as to appellants Teran and Lee but imposed as to appellant Inchaustegui. Each of the appellants pled nolo contendere to the charges, specifically reserving the right to appeal the denial of their motions to suppress. They all contend that the lower court erred in concluding that they lacked standing to challenge the search and seizure of the marijuana involved.

In our view the United States Supreme Court’s recent decisions in Rawlings v. Commonwealth of Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) and United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed. 619 (1980) require affirmance of the trial court’s denial of the motions to suppress on the basis that each of the defendants lacked a reasonable expectation of privacy in the area searched.

Upon the filing of the motions to suppress, the state challenged appellants’ standing to contest the legality of the search and seizure. The standing issue was specifically tried before the court. The only evidence presented on that issue was presented by the state in the form of the testimony of Deputy Sheriff Richard Green. Other than cross-examining Green the appellants submitted no evidence on the standing issue. In essence Green’s testimony established that the premises where the search and seizure took place were exclusively occupied by a person other than the appellants and that the appellants’ only connection with the premises was in delivering numerous bales of marijuana thereto. This delivery took place in the plain view of Green who was operating undercover at the time.

In Rawlings and Salvucci, supra, the United States Supreme Court receded from the automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) and announced that in applying the Fourth Amendment the critical inquiry is to determine not whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched. The Supreme Court has also declared that distinctions developed in property and tort law between guests, licensees, invitees, and the like, are not controlling factors and the fact that one may be legitimately on the premises, while relevant to one’s expectation of privacy, is not determinative of the issue. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

In the present case, the appellants physically handled the marijuana when they conveyed it from a vehicle outside into the house in which it was seized. Almost immediately after the marijuana was brought inside the house the appellants were arrested together in the living room where the marijuana was seized. We do not believe the fact that appellants may have possessed the marijuana while transporting it into the house constitutes a showing that they had a legitimate expectation of privacy in the area searched. In fact, the appellants failed to make any showing as to their interest in the goods or the premises. It was also shown that the marijuana which they transported into the house was in plain view of Deputy Green while in their possession. Appellants neither owned the house nor resided in it as tenants, and it appears that their presence in the house was only a momentary one resulting from their participation in the offense for which they were prosecuted. Under these circumstances, we believe appellants simply failed to demonstrate a legitimate expectation of privacy in the area searched.

The appellants also contend that under Article I, Section 12 of the Florida Constitution they should not be required to demonstrate standing. We disagree. While we do not decide today whether our Constitution gives rise to any different standard for determining standing, it is our view that some demonstration of standing beyond mere presence on the premises is required under both the U.S. and Florida constitutions. See Mixon v. State, 54 So.2d 190 (Fla.1951). No such demonstration was made here.

Accordingly, the judgment of the trial court is affirmed.

LETTS, C. J., and HURLEY, J., concur;


text:
    Fred C. PENDLEY, Appellant, v. STATE of Florida, Appellee.
    No. UU-431.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 3, 1981.

      Michael J. Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals a judgment and sentence finding him guilty of direct criminal contempt. Appellant contends that his refusal to testify was, if anything, indirect criminal contempt, and that therefore he was entitled to prior notice, a reasonable opportunity to prepare a defense, and representation of counsel before being found guilty of any contempt offense. We agree and reverse.

Appellant was subpoenaed as a witness before a grand jury to give testimony concerning his knowledge of a jewelry store robbery. Before he was questioned, he was told he would be granted immunity for everything except perjury. Later, appellant was asked a series of questions concerning his knowledge of certain drug transportation activities. When he asked whether he was still under immunity, he was told that if it came to a point where he must refuse to answer because his answer would incriminate him, he should tell the prosecutor and they would talk about it. Then, appellant, who had recently been sentenced to ten years for drug trafficking, was asked to tell the jury about the source of drugs in his case. He refused. The grand jury requested a hearing before the Circuit Court to hold appellant in contempt of court. A few hours later, a hearing was held before the Circuit Judge. At the hearing, appellant admitted that he refused to answer questions regarding the source of drugs in his case. The court asked him if he would return to the grand jury and answer the questions, and appellant stated he would not. The court found appellant in direct civil contempt and ordered him incarcerated until he answered the questions propounded by the grand jury. When asked if this would cause him to answer the questions, appellant stated it would not. At this point, the court proceeded on the basis of criminal contempt. The judge asked appellant whether he would testify to the grand jury if ordered to do so by the court, and appellant answered no. The court then found appellant in direct criminal contempt of court and sentenced him to five months and 29 days in jail.

We agree with appellant that Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) controls this case. In Harris, the United States Supreme Court held that a witness’ refusal to comply with a direction of a federal district judge to answer questions propounded before a grand jury was not within the purview of the Federal Summary Contempt Rule 42(a) and therefore summary punishment of contempt was not authorized. The court found that Federal Rule 42(b), requiring notice of the charges and a hearing, was the governing rule in the case of a witness’ refusal to testify before a grand jury. In so holding, the court noted that summary contempt proceedings were reserved “for exceptional circumstances” such as “acts threatening the judge or disrupting a hearing or obstructing court proceedings.” The court further stated that in the situation presented by Harris, the dignity of the court was not being affronted, no disturbance had to be quelled, and no insolent tactics had to be stopped. The court concluded that “swiftness was not a prerequisite of justice here” and the “delay necessary for a hearing would not imperil the grand jury proceedings.”

This case is distinguishable from the situation presented when a defendant’s refusal to testify occurs during an ongoing trial. United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975). In the latter situation, the refusal disrupts and frustrates an ongoing proceeding and summary contempt must be available to vindicate the authority of the court. However, as the court recognized in Wilson, a grand jury ordinarily deals with many inquiries and cases at one time and can easily suspend action on one and turn to another, therefore the delay necessary for a contempt hearing does not imperil the grand jury proceedings. Accordingly, we agree with appellant that the proceedings below should have been handled pursuant to Florida Rule of Criminal Procedure 3.840 rather than Rule 3.830 which outlines the summary procedure. In addition, in view of our conclusion that the alleged contempt cannot be treated, under Harris and Wilson, as a contempt “in the actual presence of the court” (Rule 3.830, supra), appellant should have been given the opportunity to obtain counsel in defending against the contempt charge. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); see also Harris, footnote 4.

The judgment and sentence is reversed and the cause remanded for proceedings consistent with this opinion.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: MILLS, Chief Judge.

text:
    Benjamin H. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. UU-486.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 3, 1981.
    No appearance of counsel for the parties.
   MILLS, Chief Judge.

We affirm the trial court’s denial of Benjamin Williams’ Motion to Vacate under Rule 3.850, Fla.R.Crim.P.

On 19 December 1979, the trial court entered an order denying Williams’ motion after a hearing at which counsel for Williams was present. On 23 January 1980, Williams wrote a letter to the trial court which appears to have been treated by the judge as a motion for rehearing and by the clerk as a second motion to vacate.

Although a motion for rehearing is authorized by Rule 3.850, it must be filed within fifteen days of the service of the order. This was not done; therefore, if it was a motion for rehearing, it was untimely. There was no appeal taken from the December order.

If, on the other hand, the letter was a second motion to vacate, it raised the same issues as those in the prior motion and would be properly denied for that reason. Rule 3.850 provides, “[T]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” See also State v. Piehl, 184 So.2d 417 (Fla.1966); Blount v. State, 203 So.2d 49 (Fla. 1st DCA 1967).

AFFIRMED.

BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Sidney SCHONFELD and Marie Schonfeld, his wife, Petitioners, v. HUGHES SUPPLY, INC., Respondent.
    No. YV-220.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 3, 1981.

      Richard T. Jones of Jones & Langdon, Gainesville, for petitioners.
    Christopher J. Weiss of Marguire, Voor-his & Wells, Orlando, for respondent.
   PER CURIAM.

The Schonfelds seek review by certiorari of an order requiring them to increase the amount of their “transfer bond” to insure attorney’s fees for Hughes in Hughes’ suit to foreclose on a mechanic’s lien.

Hughes, a building supply company, sued the Schonfelds, owners of a shopping center, to foreclose on a mechanic’s lien of $4,013.05. Pursuant to Section 713.24(1), Florida Statutes, the Schonfelds filed a surety bond with the court and transferred Hughes’ lien from the shopping center to the bond. Although the amount of the bond is not indicated in the record, Section 713.24(l)(b) specifies that the amount shall be “equal to the amount demanded in such claim of lien, plus interest thereon at six per cent per year for three years plus $100 to apply on any court costs which may be taxed in any proceeding to enforce said lien.” That subsection further provides: “Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded, and costs not to exceed $100.” The prevailing party in a mechanic’s lien action is entitled to attorney’s fees, to be taxed as part of his costs, pursuant to Section 713.29.

Hughes filed a motion requesting the court to require the Schonfelds to post “additional security” to cover fees for the services of Hughes’ attorney. The motion relied upon Section 713.24(3), which provides:

Any party having an interest in [the] security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited for an order to require additional security, reduction of security, change or substitution of sureties, payment or discharge thereof or any other matter affecting said security.

The trial court granted the motion and ordered the Schonfeld’s bond increased by $3,000.00. The Schonfelds then petitioned this Court for a writ of certiorari.

Certiorari will not lie unless the ruling below departs from essential requirements of law and will cause a material injury, throughout the remainder of the proceedings, for which there will be no adequate remedy on appeal. See, Dairyland Insurance Company v. McKenzie, et al., 251 So.2d 887 (Fla. 1st DCA 1971). Such is the case here.

The mechanic’s lien statute creates a mechanism beneficial to both sides in a lien dispute; a defendant may unencumber his property while the plaintiff may obtain his judgment from a cash or surety bond. Section 713.24(l)(b) requires that the amount of the bond be computed by considering the amount of the claim, interest, and a maximum of $100 in costs. The statute does not provide that the trial court may consider the possibility of an award of lienholder’s attorney’s fees when determining the amount of the bond. Such a practice would be speculative at best. Here, the record does not reveal the basis for the trial court’s determination that $3,000.00 would be a reasonable fee in this case. Further, Hughes’ statutory interpretation that Section 713.24(3) may permit it to require “additional security” to cover prospective attorney’s fees would have the effect of insuring plaintiff’s attorney’s fees without providing such insurance for defendants, although either party may eventually prevail and be entitled to fees pursuant to Section 713.29.

Requiring the Schonfelds to post a bond to cover Hughes’ prospective attorney’s fees is a departure from the essential requirements of law. Because the issue is collateral to the merits of the case, the order below creates an injury for which the Schonfelds will have no remedy on appeal. Accordingly, the writ is granted, the order of the trial court is vacated, and the cause is remanded for further proceedings not inconsistent with this opinion.

The petitioners’ motion for attorney’s fees on appeal is denied without prejudice to refile the motion in circuit court, should petitioners finally prevail in this action. Section 713.29, Florida Statutes.

MILLS, C. J., and LARRY G. SMITH, J., concur.

BOOTH, J., dissents.


text:
    JULIAN E. JOHNSON & SONS, INC., Appellant, v. BURGMAN SUPPLY CO. et al., Appellee.
    No. WW-301.
    District Court of Appeal of Florida, First District.
    Dec. 31, 1980.
    Rehearing Denied Feb. 3, 1981.
    Stephen H. Durant of Martin, Ade, Birch-field & Johnson, Jacksonville, for appellant.
    Robert Aguilar and Howard C. Coker, Jacksonville, for appellee.
   PER CURIAM.

Upon consideration of the record, briefs, and oral argument, we find genuine issues as to material facts precluding summary judgment.

REVERSED.

ROBERT P. SMITH, Jr. and THOMPSON, JJ„ and WOODIE A. LILES (Retired), Associate Judge, concur.


author: PER CURIAM. DOWNEY, Judge,

text:
    Randy NYE, by and through his parents, natural guardians and next of friends, Robert Nye and Ethel Nye, Appellants, v. Alphe SEYMOUR and Southern Bell Telephone and Telegraph Company, Appellees.
    No. 78-2183.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.
    Frank Maloney, Jr., Fort Lauderdale, and Frank E. Hamilton, III, and Earle Lee Butler of Hamilton & Douglas, P.A., Fort Lauderdale, for appellants.
    Davis W. Duke, Jr., and Eugene L. Heinrich of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellee, Southern Bell Tel. and Tel. Co.
   PER CURIAM.

AFFIRMED.

BERANEK and HURLEY, JJ., concur.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

concurring specially:

Appellee Seymour was an employee of appellee Southern Bell. His work required him to drive a van type vehicle owned by his employer. On the date in question Seymour had driven to his home for lunch and was in the process of backing the van out of his driveway and into the street. One of his neighbors, Nye, a juvenile with whom Seymour was unfriendly, rode along side the van and called Seymour an obscene name. The evidence is conflicting on what transpired during this period; however, we will recite the evidence most favorable to appellant since the matter was disposed of on summary judgment. Nye testified in his deposition that he was riding his bicycle down the street and Seymour came out of his house to go to his van. Nye called him an obscene name. Nye crossed over the road to get away from Seymour in the van, but Seymour drove across the road and ran Nye off the road. When Seymour neared Nye, Nye spit on him. Then his bike went over the curb. Seymour stopped the van, got out and attacked Nye.

Nye’s parents sued Seymour and Southern Bell in two counts:

1) for damages for assault and battery growing out of the use of a dangerous instrumentality, and
2) for damages for assault and battery based upon the master-servant relationship and for negligent retention of a known violent and dangerous employee.

From a summary judgment for Southern Bell this appeal was perfected.

The record refutes the negligent retention theory as well as the theory of Southern Bell’s responsibility under the master-servant principle, showing that Seymour was not in the scope of his employment when he proceeded down the street after Nye in the wake of the obscene remark.

The feature of this case which I believe warrants some judicial comment is the question raised as to the liability of the employer under the dangerous instrumentality doctrine for intentional torts of his employee regardless of the fact that the employee was not acting within the scope of his employment at the time of the incident giving rise to this suit.

There is authority for holding that the employer is not liable for the intentional torts of his employee committed outside the scope of his employment simply because the act was committed while operating a dangerous instrumentality owned by the employer.

The Restatement of the Law of Agency, Second, § 238, sets forth the following rule:

Except where he is at fault or fails to perform a non-delegable duty, a master is not liable for harm caused by the use of instrumentalities entrusted by him to a servant when they are not used in the scope of employment.

Comment (e) to that rule provides, in material part, as follows:

Dangerous instrumentalities. Under the rule stated in this Section, the mere entrusting of even a highly dangerous instrument to a servant does not cause the master to be liable for injuries caused by the servant’s using it in sport or revenge, to satisfy a purpose of his own....

Illustration 1 under comment (e) recites:

The P railroad employs A as an engineer. For the sole purpose of scaring T, A blows the whistle, causing the horse being driven by T to run away. P is not liable to T.

The decision of the Supreme Court of Pennsylvania in Vadyak v. Lehigh & New England R. Co., 318 Pa. 580, 179 A. 435 (1935), also supports the rule that an employer is not liable for an intentional tort of an employee operating a dangerous instrumentality, so long as the employee is not acting in the scope of his employment.

Accordingly, having disposed of the problem created by the employee’s use of a dangerous instrumentality owned by the employer, I join in the affirmance of the summary judgment for Southern Bell.


text:
    D. D. S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-693.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith,- Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Appellant’s adjudication of delinquency is reversed on a finding that the circumstantial evidence relied upon by the state was not shown to be inconsistent with a reasonable hypothesis of innocence. Circumstantial evidence did not rise to that reasonable certainty that the accused committed the offense. Pate v. State, 72 Fla. 97, 72 So. 517 (1916); see also, 13 Fla.Jur. Evidence § 417 and cases cited therein.

Reversed.


text:
    Craig WALL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-426.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1981.
    Peter F. K. Baraban and Hy Shaprio, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., and Michael A. Vandetty, Legal Intern, Miami, for appel-lee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Shapiro v. State, 390 So.2d 344 (Fla.1980).


text:
    Kenneth ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-474.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1981.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon his nolo contendere pleas, Anderson was convicted and sentenced for violating Section 893.13, Florida Statutes (1979), by possessing (Count I) and selling (Count II) methaqualone. Anderson’s nolo contendere pleas are not impediments to his claim that he could not be sentenced on both counts. Robinson v. State, 373 So.2d 898 (1979); Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980). They do, however, bar his claim that the convictions on both counts cannot stand. Davis v. State, supra.

The factual basis supporting the two violations was that the same controlled substance was possessed and sold. The offense of possession was, under these circumstances a category four lesser-included offense of the sale under Brown v. State, 206 So.2d 377 (Fla.1968). Lesser-included offenses are excluded from the separate sentencing requirement of Section 775.021(4), Florida Statutes (1979).

Therefore, the sentence imposed on the possession count (Count I) is reversed and vacated. Williams v. State, 377 So.2d 755 (Fla. 1st DCA 1980); Drayton v. State, 372 So.2d 983 (Fla. 3d DCA 1979). Cf. Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978) (holding that the robbery charged and proved was a category four lesser-included offense of felony murder). The judgments of conviction are affirmed.

Affirmed in part; reversed in part.


text:
    Marshall BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-344.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1981.

      Richard L. Jorandby, Public Defender and Douglas Duncan, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The convictions for armed robbery and conspiracy to commit a felony are affirmed. We reverse the conviction for grand larceny which arose out of the robbery. The trial judge recognized that the larceny was a lesser included offense of the robbery and withheld imposition of sentence. Nevertheless, a defendant cannot be convicted of a lesser included offense and the higher offense arising out of the same transaction. The conviction for grand larceny is reversed. Haynes v. State, 377 So.2d 771 (Fla. 4th DCA 1979).

AFFIRMED in part, REVERSED in part.

ANSTEAD and BERANEK, JJ., and RIVKIND, LEONARD, Associate Judge, concur.


text:
    Le CHATEAU ROYAL CORPORATION, a corporation, Appellant/Cross-Appellee, v. Chester W. SARN et ux., and Gus King, etc., et al., Appellees/Cross-Appellants.
    No. 80-149.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1981.
    Frank J. Sinagra and Valerie A. Stott of Britton, Cohen, Kaufman, Benson & Schantz, Miami, for appellant/cross-appel-lee.
    Margaret L. Cooper of Jones & Foster, P. A., West Palm Beach, for appel-lee/cross-appellant, Chester W. Sarn.
   PER CURIAM.

We affirm upon the issue of liability, but reverse and remand upon the issue of damages which appellees must establish with reasonable certainty. If actual damages are not shown, judgment may be entered for nominal damages. We find appellees’ cross-appeal for damages to be without merit.

HERSEY and GLICKSTEIN, JJ., and RIVKIND, LEONARD, Associate Judge, concur.


text:
    Edith ABBLETT, Personal Representative of the Estate of Robert R. Abblett, deceased, and as survivor of Robert R. Abblett, and as a representative of the survivors of Robert R. Abblett, Appellant, v. The FIRST NATIONAL BANK & TRUST COMPANY OF RIVIERA BEACH, a National Banking Association, Appellee.
    No. 80-808.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1981.
    John C. Rayson and Ronald N. Dubner of Edwards & Dubner, Sherman & Rayson, Fort Lauderdale, for appellant.
    John Hoy of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
   PER CURIAM.

After transacting business with the ap-pellee bank, appellant’s decedent was kidnapped from the bank’s parking lot, robbed and murdered. The amended complaint is replete with conclusory allegations. The trial court properly dismissed the amended complaint for failure to state a cause of action. However, the appellant may be able to allege sufficient facts to state a cause of action. Ergo, we believe appellant should have further opportunity to amend so that the trial court may consider such additional facts in the light of the principles set forth in Drake v. Sun Bank & Trust Co., 377 So.2d 1013 (Fla.2d DCA 1979).

AFFIRMED IN PART; REVERSED IN PART.

HERSEY and GLICKSTEIN, JJ, and RIVKIND, LEONARD, Associate Judge, concur.

      . The amended complaint with formal parts omitted alleges as follows:
      4. The Defendant bank is a banking institution open to the public. Among its other functions, the Defendant bank invites members of the public to utilize the bank for the purposes of depositing, saving, withdrawing and borrowing money.
      5. Due to the nature of the banking business wherein substantial cash sums are deposited and withdrawn on a daily basis during banking hours, the Defendant, THE FIRST NATIONAL BANK & TRUST COMPANY OF RIVIERA BEACH, during all times material hereto, owed a duty to all of its customers to protect them from unreasonable risks of harm, including but not limited to providing a safe place to transact business and to secure against robberies and great bodily harm often associated therewith.
      6. On or about Friday, January 12, 1979, the Plaintiffs decedent, ROBERT R. ABBLETT was a customer and business invitee of the Defendant bank. ROBERT R. ABBLETT entered the bank to transact business and among other banking transactions with THE FIRST NATIONAL BANK & TRUST COMPANY OF RIVIERA BEACH, a National Banking Association, obtained a sum of cash from the bank in excess of $1,700.00. ROBERT R. ABBLETT was a regular customer at the bank, known to several banking employees, who often transacted business with the Defendant bank in his duties as comptroller of Rybovich Marina, Inc. As he exited the inside of the bank building with due regard to his own safety, ROBERT R. ABBLETT was assailed at gunpoint and forced into a car parked in the bank parking lot by an armed gang who had conspired in the bank’s own parking lot to commit their action against ROBERT R. ABBLETT. ROBERT R. AB-BLETT was abducted from the bank premises, robbed and murdered. MR. ABBLETT was shot four times in the back of the head and his body was thrown into a canal. 7. The Defendant, THE FIRST NATIONAL BANK & TRUST COMPANY OF RIVIERA BEACH, breached its duty, as aforestated, owed to ROBERT R. ABBLETT. As a result of its negligence, wanton, willful, and reckless disregard for the safety of ROBERT R. ABBLETT, he was kidnapped from the bank premises and murdered.
      Crimes such as that perpetrated against ROBERT R. ABBLETT are foreseeable risks inherent in the banking business which a bank such as the Defendant had an absolute duty to secure against. At said time and place, Defendant bank owed a duty to Plaintiffs decedent to provide him a reasonably safe premise to transact business and for ingress and egress to and from his car while on the bank’s property.
      8. Defendant bank further owed Plaintiff’s decedent a duty to protect him from the risk of reasonably foreseeable criminal activities occurring on its premises and the incident in question was reasonably foreseeable.
      9. Defendant bank further owed Plaintiff’s decedent a duty to protect him from persons lurking about the premises and lying in wait by adequately inspecting the premises, including the parking area, so as to discover the whereabouts of such persons on the premises so as to discourage the criminal acts.
      10. Defendant bank further owed a duty to prevent the assault and abduction upon ROBERT R. ABBLETT and/or to come to his aid and rescue in the event of an attack upon him.
      11. Defendant bank further owed ROBERT R. ABBLETT a duty to warn him as to the risks to his safety and well being in walking to his car in the bank parking lot.
      12. Defendant bank owed ROBERT R. AB-BLETT a duty to provide adequate security in its parking areas and to discover breaches of security.
      13. At said time and place, the Defendant bank knew or should have known that numerous crimes against banking institutions in the area had recently occurred as well as a rash of armed robberies to other businesses and that such were likely to be committed again unless adequate security measures were employed by the Defendant bank; the decedent had no knowledge of the increased danger and risk.
      14. At said time and place, Defendant bank employed only one security guard who was inside of the bank and provided no security for the outside drive-in tellers or the bank parking lot and such was grossly, negligently and recklessly inadequate to protect the Plaintiff’s decedent against the foreseeable harms to be secured against.
      15. Defendant further breached its duty to ROBERT R. ABBLETT in that they knew, or by the exercise of reasonable care, should have known that the bank parking lot provided for its customers was and is a high risk crime area and grossly inadequate security was furnished to those lawfully using the premises.
      16. Defendant bank further breached its duty to Plaintiff’s decedent in that the security guard used by the Defendant bank to protect its invitees was incapable, insufficient and inadequate to properly patrol the bank and parking area so as to protect ROBERT R. ABBLETT from being criminally assaulted, kidnapping and murdered.
      17. Defendant further breached its duty to the Plaintiff’s decedent in that with knowledge of the fact that the bank parking lot was foreseeably an area where crimes could easily be perpetrated against bank customers, they failed to adequately surveil, secure, and patrol the parking lot and exterior bank drive-in areas, thus enabling and affording an opportunity to persons of criminal intent to lurk about, loiter and lie in wait on the bank premises creating an unreasonable risk to bank customers such as ROBERT R. AB-BLETT which risk was reasonably foreseeable to the Defendant bank.
      18. As a result of the careless, negligent, willful and reckless conduct of the Defendant bank and Defendant bank’s breach of its aforestated duties, the Plaintiff’s decedent, ROBERT R. ABBLETT was attacked, abducted and murdered in a horrible, grisly and cold blooded manner. ROBERT R. ABBLETT suffered pain, anguish and the loss of his life. ROBERT R. ABBLETT is survived by his wife and three minor children who themselves suffered pain and mental anguish as well as a loss of income and support all causing damage. The surviving minor children of ROBERT R. ABBLETT are Abby Abblett, age 17, born December 12, 1962; Terese Abblett, age 16, born January 21, 1964; and Thomas Ab-blett, age 14, born October 4, 1965. In addition, ROBERT R. ABBLETT left four (4) other children who have previously attained their majority.


author: GRIMES, Judge.

text:
    Mac GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1382.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1981.
    Jack, 0. Johnson, Public Defender, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant pled nolo contendere to aggravated assault, resisting an officer with violence, and petit theft. The court placed him on probation for the first two offenses for concurrent periods of five years upon the condition that he spend six months in county jail. The court also placed him on probation for a concurrent period of sixty days for the petit theft. As a result of a subsequent violation of the conditions of probation, the court modified the probation for aggravated assault and resisting an officer with violence by extending appellant’s probationary period for five more years and by requiring him to spend an additional year in jail. Appellant appeals from the order of modification.

There is sufficient evidence to sustain the finding that appellant violated his probation, and this point needs no further discussion. However, appellant’s argument that the court improperly modified the terms of his probation merits further consideration.

Aggravated assault and resisting an officer with violence are both felonies of the third degree. §§ 784.021, 843.01, Fla. Stat. (1979). The maximum sentence for a felony of the third degree is five years. § 775.082(3)(d), Fla.Stat. (1979). Unless expressly provided by law, a probationary term may not exceed the maximum sentence prescribed for the crime. Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). Thus, the court originally set appellant’s probationary term for both crimes at the maximum of five years.

The order of modification is not entirely clear in that it refers to both crimes; yet, it purports to extend the period of probation in the singular in the nature of a general sentence. Therefore, if the order of modification is read to mean that the court was extending the term of probation for both of the crimes to ten years, albeit concurrently, it would be illegal. However, we choose to construe the order in a manner which will uphold its validity. The court could have originally placed appellant on probation for consecutive five year terms but chose to impose the two concurrently. Now that appellant has violated his probation, there is nothing to prevent the court from imposing a sentence which would have been originally authorized. § 948.06(1), Fla. Stat. (1979). Accordingly, we hold that the order of modification simply had the effect of making the probation terms consecutive.

AFFIRMED.

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