author: BERANEK, Judge. HURLEY, Judge,

text:
    Martin Wayne LINDSEY and Allen Scott Brasher, Appellants, v. STATE of Florida, Appellee.
    Nos. 80-95, 80-96.
    District Court of Appeal of Florida, Fourth District.
    June 2, 1982.
    Rehearing Denied July 21, 1982.

      Richard L. Jorandby, Public Defender, Cherry Grant and Jon May, Asst. Public Defenders, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendants were convicted of (1) burglary of a dwelling with intent to commit robbery and in the course thereof committing an assault, (2) robbery with a dangerous weapon, and (3) false imprisonment under Section 787.02, Florida Statutes (1977). They received consecutive sentences of 99 years, 30 years, and 5 years on the respective charges. The burglary constituted a first degree felony pursuant to Section 810.-02(2)(a).

The basic issues in the case relate to how many ways a single criminal episode may be carved up in order to sustain separate crimes and sentences and the sufficiency of the charging document. We find error and reverse in part for resentencing.

The facts are generally that the defendants, while armed, entered a residence at night knowing it to be occupied. They forced a bedroom door open and bound and gagged the woman occupant. A leg wound was inflicted and threats were made regarding the removal of a ring from the victim’s body. Money and jewelry were taken from the home. Fortunately, the police arrived while the crime was in progress and the defendants were caught while attempting to flee. At trial, the theory of defense was that the defendants had been entrapped into committing the offense by the actions of a police informant who was also involved in the burglary. We find no error in the jury’s rejection of the entrapment defense nor the court’s rulings thereon.

Defendants contend the information charging a first degree burglary under Section 810.02, Florida Statutes (1977), was deficient in that the elements of the alleged assault were not stated in the charging document. In this case, the presence of the assault raised the burglary from a second degree felony to a first degree felony. Defendants filed a motion to dismiss the information based on vagueness, and a motion for statement of particulars, both of which were denied. The question, simply put, is whether the State can charge burglary with an assault without stating the factual elements of the assault. Generally, all of the essential elements of the crime must be stated in the charging document. State v. Dye, 346 So.2d 538 (Fla.1977); Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980); Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978), and Ferrell v. State, 358 So.2d 843 (Fla. 3d DCA 1978). Rule of Criminal Procedure 3.140 governs indictments and informations and sub-section (b) specifically provides as follows:

(b) Nature of Indictment or Information. The indictment or information upon which the defendant is to be tried shall be a plain, concise and definite statement of the essential facts constituting the offense charged. (Emphasis added.)

Although the general law and the cited rule of procedure would indicate that the essential facts constituting the elements of a crime must be stated in an information, the courts have not uniformly so held. In Ferrell v. State, supra, the Third District held an information charging aggravated battery and not including the specific elements of the battery was insufficient. In McClamrock v. State, 374 So.2d 1076 (Fla. 2d DCA 1979), the Second District concluded that the absence of the elements of an assault did not render an information improper as the defendant could resort to both the statute and discovery. Also see the special concurring opinion in State v. S. H., 388 So.2d 293 (Fla. 4th DCA 1980), where this court was concerned with a similar problem on an assault charge in a juvenile petition. We choose to follow the general law on the subject and the dictates of Rule 3.140(b), and conclude that an information charging an assault as an aggravating factor in a burglary charge must contain the elements of the assault, that is, the information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. This standard may not be relaxed as to the factual elements of an assault merely because it is charged as an aggravating factor rather than as a direct charge. Although the Second District in McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980), held that sexual battery could constitute an assault within the meaning of the burglary statute, we conclude the word “assault" as used in Section 810.02, Florida Statutes (1977), the burglary statute, should be defined by reference to Section 784.011 and Section 784.021, Florida Statutes (1979). Unless changed by the Legislature, the word assault should have the same meaning in both statutes and the elements of an assault remain the same for both statutes. There can be no question but that the traditional common law definition of assault is the law of this State. State v. White, 324 So.2d 630 (Fla.1976).

Turning to the instant case, we hold that the information was deficient in that the elements of the assault were not stated. We do not find this to be fundamental error. However, in this case the defendants filed both a motion to dismiss for vagueness and a motion for statement of particulars which were denied. Even at this point on appeal, we are not precisely certain of the facts upon which the State relied to prove an assault in this case. The State contends that the defendants were not prejudiced by this omission at trial. But the defendants were certainly prejudiced when they were sentenced for a first degree felony to 99 years. Without the assault, the burglary was a second degree felony punishable by a maximum of fifteen years. We conclude that the sentencing of the defendants to 99 years for the first degree burglary was error. Since the evidence adequately supports a conviction for burglary as a second degree felony, we reverse the first degree burglary conviction and remand to the trial court with directions to enter judgment for a conviction of second degree burglary and to resentence the defendants in this regard. See Section 924.34, Florida Statutes (1979).

Defendants also raise numerous issues which basically question the legality of multiple charges and sentences for various facets of the same criminal episode. There is substantial recent decisional law on this subject, and the decisions are complex and to some extent confusing. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); State v. Hegstrom, 401 So.2d 1343 (Fla.1981); and Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981), aff’d, 415 So.2d 1265 (Fla.1982). The trend, as evidenced by these cases, is to allow separate charges and sentences for different facets of the same criminal transaction. The courts look primarily to the Legislature in this area and the passage of Section 775.021(4), Florida Statutes (1977), has abrogated the single transaction rule.

In view of these trends and precedents, we find no error as to the robbery conviction and the false imprisonment conviction and the separate sentences therefor. The offenses are not lesser included crimes and defendants have not demonstrated error in this regard. We affirm in part and reverse in part and remand for further procedures in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

DOWNEY, J., concurs.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

The false imprisonment charge is based upon the fact that the defendants bound and gagged their victim. As I view it, these acts were part of the force used to effectuate the robbery and, therefore, the crime of false imprisonment merged into the greater crime of robbery. See, e.g., Sloan v. State, 323 So.2d 278 (Fla. 2d DCA 1975); Hernandez v. State, 278 So.2d 307 (Fla. 2d DCA 1973); Adkins, Florida Criminal Law and Procedure, § 32.11 (4th ed. 1977). The First District recently applied a similar rationale and concluded that the confinement was “simply inconsequential or inherent in the nature of the related felony.” Friend v. State, 385 So.2d 696, 697 (Fla. 1st DCA 1980).

With this in mind, I am much troubled by the imposition of a separate sentence for the crime of false imprisonment. Yet I feel compelled to concur in today’s affirmance because of the Supreme Court’s recent decision in Borges v. State, 415 So.2d 1265 (Fla.1982). In Borges the court held that unless a crime qualifies as a “lesser included offense,” it is subject to the separate sentencing requirement of Section 775.021 (4), Florida Statutes (1981).

Although Borges did not discard Brown v. State, 206 So.2d 377 (Fla.1968), the definitional wellspring for lesser included offenses, it placed primary reliance upon the Schedule of Lesser Included Offenses:

The “category four” concept developed there [in Brown] is applicable but of limited utility in the present context. Moreover, the Florida Standard Jury Instructions in Criminal Cases (1981), contains a Schedule of Lesser Included Offenses which guides the trial courts with greater clarity and certainty than the “category four” concept of Brown.

Borges v. State, 415 So.2d at 1267.

Since false imprisonment is not a lesser included offense under Brown or under its codification in the schedule of lesser included offenses, it would appear that a separate sentence is. statutorily mandated. But, Borges also states that “[t]he explicit exclusion of lesser included offenses in Section 775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed.” Id. at 1267. If the doctrine of merger is still viable, then the false imprisonment and robbery in this case were one crime and only one sentence should be imposed.

Recent federal and state case law indicates that the crucial question is, “What did the Legislature intend?” If, as Borges states, the Legislature intended the imposition of only one sentence for the commission of one crime, then the definition of a lesser included offense should be broadened to encompass merged crimes. In light of the Borges decision, however, this is an alteration which can only be accomplished by the Supreme Court or the Legislature. Accordingly, I concur in the opinion of the court.

      . Count I of the information charged that in the course of the burglary defendants “did make an assault upon Lois Eger” who was also alleged to be the victim of the robbery (Count II) and the false imprisonment (Count III).

      . The information here was in three counts. Only the robbery count charged that the defendants used a weapon. Thus, the State could not rely on armed burglary for aggravation to a first degree felony.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    James Avis SCHNEIDER, Appellant, v. STATE of Florida, Appellee.
    No. 81-995.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.
    Rehearing Denied July 12, 1982.
    James W. Denhardt of Denhardt & And-ringa, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Following the denial of motions to dismiss and motions to suppress, appellant/Schneider pled nolo contendere to a two-count information, charging him with possession (I) and sale for consideration (II) of methaqualone. § 893.13, Fla.Stat. (1981). Schneider was given a net total of two years’ incarceration under each count, to run concurrently. Schneider has specifically preserved for appellate review the denial of these motions.

We find no error in the denial of his motion to dismiss and motion to suppress as it relates to Count I, possession of metha-qualone, and accordingly AFFIRM the judgment and sentence. However, pursuant to a stipulation by the state, we do find error under the adjudication of Count II, as there is no evidence to support the contention that a sale actually took place.

Accordingly, pursuant to the stipulation and State v. Stewart, 374 So.2d 1381 (Fla. 1979), we REVERSE the conviction under Count II and REMAND to the lower court so that this sentence may be VACATED.

RYDER and DANAHY, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Jack W. CLARK and Sandra Clark, husband and wife, Appellants, v. TAMPA ELECTRIC COMPANY, Appellee.
    No. 81-1808.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.
    Rehearing Denied July 12, 1982.

      Edna L. Caruso, and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellants.
    Julian Clarkson and Suzanne S. Barber of Holland & Knight, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Plaintiffs Jack W. and Sandra Clark appeal a final judgment against them in their action against defendant/appellee Tampa Electric Company. We reverse.

Appellants filed a complaint against ap-pellee seeking damages for Jack Clark’s injuries sustained in a fall from a ladder while doing an electrical inspection of a building.

After trial by jury, the jury returned a verdict finding appellee not negligent. Appellants’ motion for new trial was denied. Final judgment was subsequently entered in favor of appellee. This appeal followed timely.

Dr. Elliott, Clark’s psychiatrist, was asked on cross-examination about secondary gain. Elliott testified that he saw no reason to doubt that Clark was telling him the truth and that he did not find secondary gain. Appellee asked if Clark ever complained about finances. Elliott said Clark had complained about finances because he and his family had to live on less than before the accident. Appellee then asked whether it would make any difference in his opinion if he knew Clark was making more money now that he was disabled than when he was employed. Appellants’ objection to this question was overruled. The doctor answered, “It might.” Appellee then asked Elliott how much money Clark said he was making before the accident. Elliott testified that Clark had told him he had earned in excess of $100,000. Appellee then asked what income Clark was now receiving and from what sources. Appellants again objected. Appellee argued that the evidence was admissible on the issue of whether Clark was malingering for financial gain to collect disability income, social security, and workers’ compensation. Appellants moved for a mistrial. When the motion was denied, appellants’ counsel, finding himself between a rock and a hard place, requested the court to give an instruction on the collateral source rule, which the court did. Later in the trial, the court again instructed the jury on collateral sources at appellants’ request.

After a recess, appellants again moved for a mistrial. The trial court denied the motion. In proffered testimony, Elliott testified that he had considered in making his diagnosis and expressing his opinion that Clark was making less money after the accident than before. However, he testified that it was not a factor in his opinion. Appellee then dropped the issue.

Cook v. Eney, 277 So.2d 848 (Fla. 3d DCA), cert. denied, 285 So.2d 414 (Fla.1973), held that allowing defense counsel to question the plaintiff in a medical malpractice suit with respect to his receipt of social security and workers’ compensation benefits was error, notwithstanding the contention that such evidence was offered for the limited purpose of rebutting or impeaching the plaintiff’s earlier testimony concerning his motivation and desire to return to work. The court held that this error was prejudicial, notwithstanding the contention that such error did not affect the plaintiff’s substantial rights since introduction of collateral benefits could affect only the question of recoverable damages, a question on which the jury apparently did not pass inasmuch as no liability was found on the defendant’s part. The court held that it could not be said with any degree of certainty that the jury did not determine that since the plaintiff was otherwise being taken care of, there should be no recovery against the defendant and that the admission of the evidence of receipt of other benefits may have led the jury to believe that the plaintiff was trying to obtain a double or triple payment for one injury. Cook relied on Eichel v. New York Central R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), which stated:

In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension.... It has long been recognized that evidence showing that the defendant is insured creates a substantial likelihood of misuse. Similarly, we must recognize that the petitioner’s receipt of collateral social insurance benefits involves a substantial likelihood of prejudicial impact.

375 U.S. at 255, 84 S.Ct. at 317. Accordingly, the Cook court held that the plaintiff was entitled to a new trial. Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975), involving welfare benefits, and Grossman v. Beard, 410 So.2d 175 (Fla. 2d DCA 1982), involving workers’ compensation benefits, followed Cook.

Knight-Ridder Newspapers, Inc. v. Sosa, 407 So.2d 916 (Fla. 3d DCA 1981) (one dissent), affirmed the trial court’s order granting a new trial where defense counsel argued to the jury that plaintiff had received workers’ compensation benefits, even though no evidence had been adduced which would have supported this argument.

Here no collateral source evidence was actually adduced, nor did appellee make an improper argument to the jury. However, a series of damaging and impermissible questions was asked which very probably prejudiced appellants’ case by leading the jury to believe that Clark was currently receiving more than the $100,000 per year he had allegedly been earning prior to his accident, which was not true; appellee’s counsel appears to have been laboring under a misconception concerning Clark’s pri- or income. In any event, as in Cook, the jury may well have concluded that appellants were already quite financially well off and needed no additional recovery from ap-pellee. The collateral source instruction,

which it should not have been necessary for appellants to request in the first place, was too little and too late to undo the damage done by the series of questions and answers concerning Clark’s finances, which this court and others have clearly and unequivocally held to be impermissible.

Accordingly, the final judgment against appellants is REVERSED and the cause REMANDED for a new trial.

RYDER and DANAHY, JJ., concur.

      . The trial court and the attorneys did not have the benefit of this court’s opinion in Grossman v. Beard, which was decided subsequent to trial of the instant case, and we do not suggest that appellee’s counsel was acting in bad faith in asking these questions.


author: PER CURIAM.

text:
    Edna MUSGROVE and Leon Musgrove, her husband, Appellants, v. Etta Marscheck TIMMS, Wilbur M. Stinchcomb, and Allstate Insurance Company, Appellees.
    No. AH-69.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Rehearing Denied July 23, 1982.
    Richard B. Davis, Jr., Jasper, for appellants.
    Robert Scott Cox of Messer, Rhodes & Vickers, Tallahassee, for appellees Etta Marsheck Timms and Allstate Ins. Co.
    Richard T. Jones of Jones & Langdon, P. A., Gainesville, for appellee Wilbur M. Stinchcomb.
   PER CURIAM.

AFFIRMED. See Carter v. Cross, 373 So.2d 81, 83 (Fla. 3d DCA 1979), cert den., 385 So.2d 755 (Fla.1980).

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


author: COWART, Judge.

text:
    Ralph C. ERWIN and Peggy L. Erwin, his wife, Appellants, v. Morgan SCHOLFIELD and Doris D. Scholfield, his wife, and Surfcoast Realty, Inc., Appellees.
    No. 81-1081.
    District Court of Appeal of Florida, Fifth District.
    June 9, 1982.
    Rehearing Denied July 13, 1982.
    Burke D. Chester, Daytona Beach, for appellants.
    Kenneth D. Morse of Matthias & Matthias, Orlando, for appellees.
   COWART, Judge.

This case involves an action by a seller under a contract to sell land to recover the buyer’s deposit money as liquidated damages.

The parties entered into a contract wherein appellees agreed to sell a condominium to appellants, who deposited with a real estate broker money equal to about ten per cent of the purchase price. Thereafter, a dispute occurred and the sellers instituted an action seeking specific performance and, alternatively, damages for an alleged breach of the contract by the buyers. The buyers answered and filed a third-party complaint against the broker to recover their deposit. Thereafter the sellers, pursuant to motion granted by the court, amended their complaint, alleging the property had been sold to a third party and seeking the deposited money in lieu of actual damages or specific performance. The trial court ultimately granted the sellers’ motion for summary judgment, awarding the sellers the deposited money as liquidated damages plus interest and attorney’s fees.

The contract in question provided that, upon the buyer’s default, the seller at his option could retain the buyer’s deposit as liquidated damages or proceed at law (for damages for breach of contract) or in equity (for specific performance).

We hold that the filing of the action seeking damages and specific performance did not constitute an irrevocable exercise of the seller’s options nor an election between alternative remedies so as to preclude the latter claim for the deposit as liquidated damages. See Williams v. Duggan, 153 So.2d 726 (Fla.1963). Under Florida Rule of Civil Procedure 1.110(g) the sellers could have originally sought all three alternative remedies. See Campbell v. Salman, 384 So.2d 1331 (Fla. 3d DCA 1980). The remedies sought here by the seller are all factually consistent, in that all three are based on the theory that the buyer breached the contract. The remedies, however, are legally inconsistent. Election between legally inconsistent remedies need only occur before judgment is entered. Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); see also Owens v. Smith, 154 So.2d 878 (Fla. 1st DCA 1963).

The trial court did not err in permitting the complaint to be amended to claim the liquidated damages. Also, full recovery of the deposit as liquidated damages in this instance does not appear to be unconscionable. See Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972); McNorton v. Pan American Bank of Orlando, N.A., 387 So.2d 393 (Fla. 5th DCA 1980), pet. denied 392 So.2d 1377 (Fla.1981); Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975). The summary final judgment was otherwise proper and is hereby affirmed. However, from the record and statements at oral argument, it appears that the sellers sought and recovered all attorney’s fees expended in this cause, including those relating to the abandoned claims for damages and specific performance, as well as those relating to the prosecution of the second amended complaint seeking recovery of the liquidated damages. Therefore, we reverse the award of attorney’s fees and remand with directions for the trial court to determine and allow only a reasonable attorney’s fee for services necessary to prosecute the claim for liquidated damages.

AFFIRMED in part; REVERSED in part.

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


text:
    Roger H. HARPER and Sue Harper, his wife, Appellants, v. Joseph W. FORDHAM et al., Appellees.
    No. 81-1135.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied June 30, 1982.

      Roger H. Harper and Sue Harper, pro se.
    Thomas A. Bell of Marchbanks, Bell & Eisen, P.A., Boca Raton, for appellees.
   PER CURIAM.

The only point with merit in this appeal involves the unauthorized settlement of a lawsuit. We reverse the judgment and remand the case for further proceedings upon authority of Cross-Aero Corp. v. Cross-Aero Service Corp., 326 So.2d 249 (Fla. 3d DCA 1976); Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977) and Bushing v. Garrett, 375 So.2d 903 (Fla. 1st DCA 1979).

Reversed and remanded.

BERANEK, DELL and WALDEN, JJ., concur.

      . We base our decision upon the record presented. Counsel for appellants at the time of the alleged settlement has since withdrawn and is not a party. He did not testify and was not called to testify or present his version of his private settlement conversations with the appellants. Therefore, we have before us only the appellant’s recital of the happenings. We make this footnote as a caveat that this decision finding the settlement to be unauthorized is not, and should not be construed, as determinative in any subsequent action that might ensue between appellants and their former counsel.


text:
    Joan L. LANG, Appellant, v. Robert H. LANG, Appellee.
    No. 81-1346.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied July 29, 1982.
    Mary M. Viator of Reynolds & Reynolds, Chartered, Boca Raton, for appellant.
    John C. Thomas, Boca Raton, and Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. We do not believe the appellant has demonstrated reversible error on the limited record that is available to this court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).

ANSTEAD and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge.


text:
    Bobby JONES, Acting Director of Dade County Department of Public Safety and Dade County Police Benevolent Association, Appellants, v. The MIAMI HERALD PUBLISHING CO., a division of Knight Bidder Newspapers, Inc., a Florida corp. and Heath Meri-wether, the Miami Daily News, Inc., and Howard Kleinberg, Appellees.
    No. 81-1601.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied July 30, 1982.
    Robert A. Ginsburg, Dade County Atty., and Roy Wood, Asst. County Atty., for appellants.
    Paul & Thomson and Frank G. Burt, and Richard J. Ovelmen, and Joseph P. Averill, Miami, for appellees.

      Before NESBITT and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Whether the Director's categorical denial of access to his Internal Review files was unreasonable so as to justify an award of attorney’s fees under Section 119.12(1), Florida Statutes (1977) was a question of fact for the trial court. Cape Coral Medical Center, Inc. v. News-Press Publishing Co., Inc., 390 So.2d 1216, 1218 (Fla. 2d DCA 1980). The finding of unreasonableness was not contrary to the manifest weight or legal effect of the evidence, Whitman v. Pet Incorporated, 335 So.2d 577 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 951 (Fla.1977), and must be affirmed.

Affirmed.


author: HERSEY, Judge.

text:
    Mary Anita KOZLIK, Appellant, v. Joseph R. KOZLIK, Appellee.
    No. 81-1197.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied July 22, 1982.
    Michael J. Ferrin of Beverly & Freeman, West Palm Beach, for appellant.
    Alexander Myers, West Palm Beach, for appellee.
   HERSEY, Judge.

After a New York divorce the former husband, appellee in this appeal, moved to Florida. In due course appellant filed in the appropriate Florida court a Complaint to Establish Foreign Decree as Florida Judgment. Appellant also requested enforcement of the terms of the decree after establishment.

Pursuant to a motion for judgment on the pleadings an agreed order was entered establishing the New York decree as a Florida judgment. Subsequently, pursuant to the recommendations contained in a master’s report, the trial court entered an order finding that appellee-husband was in arrears in the amount of $1,050.00 of child support, which arrearages accrued prior to domestication of the foreign decree. The order required appellee to pay $75.00 per week as child support and contained other provisions not pertinent to the issues on appeal. Appellee thereupon moved to strike the case from the trial calendar, which motion was granted on the grounds that all issues framed by the pleadings had been resolved. Appellant takes this appeal from that order, raising two points for our consideration.

Among other things, the trial court denied appellant’s request for attorneys’ fees. Having in mind the ameliorating effect of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we nevertheless are inclined to the view that appellant does not meet the test of Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976) and related cases that require a showing of abuse of discretion before an award concerning attorneys’ fees in a dissolution action will be disturbed on appeal. We are further persuaded to affirm for lack of evidence in the record to show appellant’s inability to pay attorney’s fees. Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).

The second point on appeal complains of the trial court’s refusal to enforce payment of the arrearages in child support, specifically, by contempt, or generally, by some other appropriate remedy.

Even if the New York decree had established an amount of arrearages and ordered appellee to make payment (which it did not) that commandment is not enforceable by contempt in a Florida court. Grotnes v. Grotnes, 338 So.2d 1122 (Fla. 4th DCA 1976). Further, there is no order or judgment of a Florida court requiring ap-pellee to pay the arrearages in child support. Consequently, contempt proceedings are not available to enforce such payment. Appellant is, however, entitled to a judgment for the arrearages found in the order of June 3,1981, for which appropriate application may be made upon remand. We note that the trial court has retained jurisdiction to enter further orders and jurisdiction will reattach upon issuance of the mandate from this court.

In our view the trial court has not refused to enter a judgment for arrearages nor taken nor failed to take any other action that prejudices appellant’s position. Accordingly, we affirm.

On remand appellant may notice a hearing to determine her entitlement to attorney’s fees for this appeal, which the trial court may grant upon a showing of appellant’s need and appellee’s ability to pay.

AFFIRMED but REMANDED for additional proceedings.

GLICKSTEIN, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.


text:
    LANDIN, LTD., etc., Appellant/Cross-Appellee, v. The LOXAHATCHEE RIVER ENVIRONMENTAL CONTROL DISTRICT, etc., Appellee/Cross-Appellant. The LOXAHATCHEE RIVER ENVIRONMENTAL CONTROL DISTRICT, etc., Appellant, v. LANDIN, LTD., Appellee.
    Nos. 81-1289, 81-1575.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied July 28, 1982.

      Jack M. Coe of Lee, Schulte, Murphy & Coe, P.A., Miami, for Landin, Ltd.
    W. Jay Hunston, Jr. of DeSantis, Cook, Gaskill & Silverman, North Palm Beach, for The Loxahatchee River Environmental Control Dist.
   PER CURIAM.

This appeal questions two summary judgments and an assessment of costs against appellant. Our review of the pleadings, depositions and affidavits filed in the cause convinces us that the contract between the parties contains latent ambiguities which preclude the entry of a summary judgment. The appropriate rule is found in Morton v. Morton, 307 So.2d 835 (Fla. 3d DCA), cert. denied, 324 So.2d 90 (Fla.1975), where the court held:

Where there was presented the necessity, in construing the contract, to resolve the latent ambiguity which was disclosed to be involved as to the contingencies mentioned, it was error for the court to render a summary judgment construing the contract, with respect to such latent ambiguity, without regard to extrinsic evidence bearing on intent, and particularly when there was some conflicting evidence as to the intention of the contracting parties, notwithstanding the case when tried would be before the same judge. Id. at 842.

Accordingly, the judgments on appeal are reversed and the cause is remanded for further proceedings consistent with this opinion.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    Earlene WERK, Appellant/Cross-Appellee, v. Louis W. WERK, Jr., Appellee/Cross-Appellant.
    No. 80-2220.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied July 26, 1982.

      Edna L. Caruso, West Palm Beach, for appellant/cross-appellee.
    E. Louis Fields, P. A., Fort Lauderdale, for appellee/cross-appellant.
   PER CURIAM.

The dissolution of this childless two and one-half year marriage was accomplished by an amended final judgment which:

1) awarded the husband a special equity in a dairy owned by the wife amounting to $15,000 net;
2) ordered the wife to pay the husband $13,500 in accrued but unpaid temporary alimony;
3) ordered the wife to pay all of the joint obligations of the parties that pertained to the dairy;
4) ordered the wife to pay the husband permanent periodic alimony of $250 per week, less any worker’s compensation benefits he received;
5) ordered the wife to pay the husband’s attorney’s fees of $10,000.

The wife seeks reversal of all of the foregoing aspects of the judgment, and the prejudgment award of temporary alimony. The judgment was superseded by the wife, whereupon the trial court entered an order awarding the husband “permanent periodic alimony,” pending appeal, in the amount of $250 per week, less the husband’s worker’s compensation award. During the pendency of this appeal we relinquished jurisdiction to the trial court which entered an order terminating the alimony pending appeal.

We have carefully considered all of appellant’s complaints regarding the temporary and permanent awards in the trial court and hold that they generally represent matters within the sound judicial discretion of the trial judge. There is evidence in the record that the husband left his business in Broward County and moved to Okeechobee, where he spent the entire period of the marriage working full time as manager in the wife’s dairy. This evidence supports the finding of a special equity. Upon filing of this suit, the husband was excluded from the dairy and the marital domicile owned by the wife, so he was without income or support. This circumstance justifies an award of temporary alimony and attorney’s fees.

Somewhat belatedly the husband developed back trouble from an alleged injury incurred at the diary and received $130 per week as worker’s compensation. An award of post judgment alimony was therefore appropriate. However, the award should have been termed rehabilitative instead of permanent periodic. Ordinarily we would remand for a change in the type of post judgment alimony. However, on this record, it is our view that the husband has received sufficient post judgment alimony, by whatever name. Therefore, on remand, the permanent periodic alimony provision should be vacated and no further alimony award should be made.

We find no merit in appellee’s two points presented by way of cross-appeal.

In view of the foregoing, we affirm the amended final judgment in all respects except as to ¶ 8, which awards permanent periodic alimony. As to that award the judgment is reversed.

AFFIRMED IN PART, REVERSED IN PART; and remanded with directions.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    Elias A. SAFIE, Appellant, v. Laura C. SAFIE, Appellee.
    No. 82-199.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Heller & Kaplan and Lisa H. Green, Miami, for appellant.
    J. James Donnellan, III, Miami, for appel-lee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court’s order holding the appellant-husband in contempt for failure to pay certain court-ordered temporary support payments to his wife and providing for the husband’s incarceration in the event that the determined arrearages are not fully paid within seven days is reversed because the order does not contain the requisite finding that the husband willfully failed to make such payments despite his then-present ability to do so. Garo v. Garo, 347 So.2d 418 (Fla.1977); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); DuBois v. DuBois, 412 So.2d 23 (Fla. 3d DCA 1982); Halpern v. Halpern, 384 So.2d 889 (Fla. 3d DCA 1980); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980); Failla v. Fallia, 379 So.2d 1329 (Fla. 3d DCA 1980); Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979); Hamra v. Hamra, 350 So.2d 538 (Fla. 3d DCA 1977). This deficiency in the trial court’s order is not remedied, as the wife contends, by the fact that the husband’s financial affidavit, filed a month earlier, reflects that in fact he had the ability to pay. Murphy v. Murphy, supra.

Reversed.

      . Nor does the order contain the possible alternative finding that the husband willfully rendered himself unable to pay by divesting himself of assets.


author: DELL, Judge.

text:
    Richard ASMER, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1521, 81-1751.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Rehearing Denied July 28, 1982.

      Richard L. Jorandby, Public Defender, Jerry Schwarz, Asst. Public Defender, and Ronald McRae, Legal Intern., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Richard Asmer appeals his conviction of trafficking in Methaqualone in an amount exceeding 200 grams but less than 5 kilograms. He contends the trial court erred in denying his motion for judgment of acquittal for failure to prove the offense as charged, and in denying his motions for new trial and in arrest of judgment for failure to charge “knowingly” in the information.

The information alleges that appellant [D]id . .. unlawfully deliver ... a controlled substance, to wit: Methaqualone, or a mixture containing Methaqualone, in an amount of two hundred (200) grams or more, but less than five (5) kilograms, contrary to F.S. 893.(l)(e)(l).... (emphasis added)

This statute provides a minimum sentence for “any person who knowingly sells” between 200 grams and 5 kilograms of Metha-qualone or of any mixture containing Meth-aqualone (emphasis added).

Appellant’s counsel moved to dismiss the information on various constitutional and procedural grounds, but did not challenge the sufficiency of the information based on the use of the word “unlawfully” rather than “knowingly.” At trial, the State’s expert witness testified that she determined the net weight of the tablets at 795.7 grams, and that she tested one tablet at random and found it to contain Methaqua-lone. During the jury charge the trial judge read the information and the statute and specifically charged the jury that it must find beyond a reasonable doubt that appellant knowingly delivered methaqua-lone in the proper amount.

Appellant first contends the State failed to prove the offense charged because the expert testimony did not establish that appellant sold 200 grams of Methaqualone alone. This point is without merit. In Purifoy v. State, 359 So.2d 446 (Fla.1978), on which appellant relies, the Supreme Court construed a statute which required the State to separate proscribed material from legal material in order to prove that the weight of the contraband alone exceeded the statutory amount. Section 893.135(1)(e) prohibits the sale of any mixture containing Methaqualone. The State cannot be expected to draw distinctions so fine as to treat all law violators with the precision of a computer. State v. Yu, 400 So.2d 762 (Fla.1981). To require the State to test each tablet of the 1,000 tablets delivered by appellant and prove that enough tablets contained enough pure Methaqualone to satisfy the statutory amount is patently unreasonable.

Appellant next claims that the use of the word “unlawfully” rather than “knowingly” renders the information invalid. He compares his case to prosecutions for battery of a law enforcement officer, where the courts stated that without an allegation that the defendant knew the person battered to be a law enforcement officer, the circuit court was without jurisdiction. Analysis of these eases indicates that reversal was not granted because no crime was charged, but rather because without an allegation that the defendant knew the victim to be a law enforcement officer, the crime charged could be no more than a misdemeanor and thus jurisdiction was in county court rather than circuit court. See Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA 1979). Herein appellant claims that the greatest offense charged is violation of Section 893.13(l)(a), delivery of Methaqualone. Violation of this statute is a third degree felony, however, and jurisdiction was properly in circuit court.

Rule 3.190(b) Florida Rules of Criminal Procedure requires all defenses other than that of not guilty to be made only by motion to dismiss the information. Failure to so raise the defense waives the defect, unless the information wholly fails to charge a crime, Tracey v. State, 130 So.2d 605 (Fla.1961), State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973). Failure to allege one ingredient of an offense does not necessarily render the charge void as wholly failing to state a crime, State v. Taylor, supra, particularly where the information charges the specific section of the statute under which the prosecution proceeds. Ha-selden v. State, 386 So.2d 624 (Fla. 4th DCA 1980), Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980), Bass v. State, 263 So.2d 611 (Fla. 4th DCA 1972).

The principles reviewed herein have enjoyed long standing and consistent application by the courts of this State. A defendant may not thwart the ends of justice by sitting on a technical defect which has occasioned him no prejudice, holding it in reserve as a trap to spring on the State in the event the jury renders an adverse verdict.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ, concur.


author: MILLS, Judge.

text:
    Louis E. FULLER, Jr., Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-282.
    District Court of Appeal of Florida, First District.
    June 24, 1982.
    Ronald D. Combs, Gainesville, for appellant.
    Catherine L. Dickson, Asst. Gen. Counsel, for appellee.
   MILLS, Judge.

Fuller appeals Commission action establishing his presumptive parole release date. We affirm.

The actual shooting of a correctional officer is not essential to and is more serious than escape and attempted murder. There is no error in an additional aggravation.

McCORD and SHIVERS, JJ., concur.


author: McCORD, Judge.

text:
    Jerry Lee GRIMES, Appellant, v. STATE of Florida, Appellee.
    No. WW-431.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his conviction for possession of more than 100 pounds but less than 2,000 pounds of marijuana. Among other points raised on appeal, appellant contends the trial court erred in not suppressing as evidence the marijuana found in his van. We affirm.

Appellant, driving his van, passed the Hamilton County Agricultural Inspection Station without stopping. Further down the highway, appellant had stopped to buy gasoline when a uniformed agricultural inspector driving an official car with a blue flashing light pulled up behind him. The inspector identified himself and told appellant he had come through the inspection station without stopping and asked appellant if he could see in the back of his van. Appellant then responded affirmatively, opening the back door of the van. The inspector testified that when the door was opened, “I saw bales of something wrapped up in burlap bags and plastic all up in back of the van.” (It later developed that these were 24 bales or packages of marijuana.) The inspector testified that he then examined appellant’s driver’s license and asked him to drive back to the inspection station, which appellant did. At the station, appellant again opened the back of the van upon request, and Deputy Sheriff Pease was called. Pease testified that upon approaching the van, he detected a very strong odor of marijuana and that the cargo area of the vehicle was for all purposes full of these large bags. He was qualified as to his familiarity with the odor of marijuana, testifying that he had previously had occasion to view marijuana in excess of 45 times. Inspector Pease then slit one of the bags with a knife, removed a green, grassy-like substance which he smelled, and advised appellant he was under arrest for possession of marijuana.

Appellant contends the search of his van and the opening of one of the bags of marijuana was an unreasonable search. We disagree. Considering the evidence in the light most favorable to the ruling of the trial court, which we must do, appellant consented to the opening of his van. Although he did not consent to opening one of the plastic bags, Deputy Pease, upon noticing the strong smell of marijuana, had probable cause to believe the vehicle contained marijuana. Having probable cause to search the vehicle for marijuana, the officer had authority to open the plastic bags contained therein. United States v. Boss, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d -; State v. Zimmerman, 413 So.2d 838 (Fla. 1st DCA 1982), 7 F.L.W. 1023.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and SHIVERS, J., concur.

      . Section 570.15(2), Florida Statutes (1979), makes it a misdemeanor of the second degree for any truck to pass any official road guard inspection station without first stopping for inspection.


text:
    Dan PEARL, Larry Hoffman, Bill Colon, Stephen W. Effman, and John Montgomery, as Councilmen of the City of Sunrise, Florida, Appellants, v. John LOMELO, Jr., as Mayor of the City of Sunrise, Florida, Appellee.
    No. 81-2068.
    District Court of Appeal of Florida, Fourth District.
    June 30, 1982.
    Rehearing Denied July 29, 1982.

      Philip J. Montante, Jr., Pompano Beach, for appellants.
    David R. MacKenzie, Lauderhill, for ap-pellee.
   HERSEY, Judge.

This case presents the classic example of an internecine struggle between the executive and legislative branches of the government of a municipality to control its purse strings. The precise issue is whether the mayor or the city council of the City of Sunrise ultimately establishes the city’s budget.

The mayor, appellee here, prepared and submitted to the city council a proposed budget for the 1981-82 fiscal year. The city council amended the budget in several material respects and then adopted the amended budget by ordinance. The mayor then vetoed the ordinance, whereupon his veto was overridden by vote of the council.

The mayor refused to implement the budget ordinance and the city council filed suit seeking injunctive and declaratory relief by petition for writ of mandamus. The mayor counter-claimed seeking similar relief.

The trial court determined that under the Home Rule Charter of the City of Sunrise the city council was empowered only to accept or reject the budget as submitted by the mayor and was without authority to adopt amendments to the budget. Ordinance No. 534-X, the budget ordinance, was therefore declared invalid. The city was directed to operate on its 1980-81 budget on a month-to-month basis “until such time as the Mayor submits a budget to the City Council which will then be either accepted or rejected by the City Council. This process will continue until such time as the City Council accepts a budget submitted by the Mayor and adopts said budget.” The trial court also awarded attorneys’ fees and costs to both parties, to be paid by the City of Sunrise because the “controversy affects the public interest of the citizens of Sunrise.... ”

The members of the city council filed this appeal seeking to have the final judgment reversed as it (1) invalidated the budget ordinance and (2) awarded attorneys’ fees to the mayor.

We determine that attorneys’ fees were properly awarded and affirm that aspect of the final judgment. City of Hialeah v. Bennett, 376 So.2d 483, 484 (Fla. 3d DCA 1979), adopted the following rule as set out in Cahn v. Town of Huntington, 29 N.Y.2d 451, 328 N.Y.S.2d 672, 676, 278 N.E.2d 908, 910 (1972):

[A] municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting.

The validity of the budget ordinance depends upon interpretation of the Home Rule Charter of the City of Sunrise and any possible application to it of Chapter 166, Florida Statutes (1981), the Municipal Home Rule Powers Act.

We find nothing in that statute or in the general law that would prohibit a municipality from conferring the budget power on either the executive or the legislative branch, or on some combination of both branches.

Each party to this appeal strongly urges that the answer is to be found in three sections of the city charter. Predictably the parties vie for interpretations that are diametrically opposed one to the other.

The powers and duties of the mayor are established by section 4.04 of the charter which includes:

(e) Prepare and submit the annual budget and capital program to the council as provided under article Y.
(f) Submit to the council and make available to the public within a reasonable time a report on the finances and administrative activities of the city as of the end of each fiscal year.
(h) Keep the council advised as to the financial condition and future needs of the city and make recommendations to the council concerning the affairs of the city.
(i) Purchase supplies and noncapital equipment and contract for repairs and improvements for the various departments of the city in an amount which shall be determined by ordinance from time to time by the council.

The mayor’s veto power is set out in Section 4.05 as follows:

Any ordinance or resolution adopted by the council shall be presented promptly to the elected mayor for his consideration and recommendations. The mayor shall have at least ten (10) days in which to accept or veto such ordinance or resolution. If he approves the ordinance or resolution, he shall sign it; and it shall become effective according to the terms thereof. If he disapproves, he shall veto and return the ordinance or resolution to the council without his signature, accompanied by a message indicating the reasons for disapproval and recommendations. The council may override the may- or’s veto by a four-fifths vote of the whole council at the meeting in which the disapproval of the mayor is received.
Any ordinance or resolution adopted by the council may be vetoed by the mayor and shall be returned to the council at or prior to the next regular meeting of the council occurring ten (10) days or more after the date when the ordinance or resolution was delivered to the mayor’s office for consideration.

The mayor contends and the trial court held that the mayor is to submit a proposed budget to the city council which may either approve (by enacting it as an ordinance) or disapprove the budget. In the case of non-approval the budget is to be returned to the mayor who may then make such changes as he deems appropriate and the budget is to be then resubmitted to the council which, again, may either approve or disapprove. This exchange continues until a budget obtains the approval of the city council.

Appellants, on the other hand, argue that a budget submitted by the mayor may be approved, disapproved or changed, item by item, by the council, and resubmitted to the mayor for signature. The mayor may approve and sign or he may veto the budget ordinance. The city council may override such a veto whereupon the budget is deemed approved and final.

This latter interpretation is much more practical than the result mandated by the final judgment. Particularly is this so in view of the fact that the city is required to proceed month to month on the budget for the preceding fiscal year until a current budget is finally approved. Population growth and inflation factored into the financial picture make it obvious that a municipality so encumbered would soon be in dire straits.

We are satisfied that in the majority of cases where the fiscal responsibility of government is shared between the legislative and executive branches the ultimate authority lies in the legislative branch. Appellants’ expert witness testified that such was the case in municipal charters in the State of Florida with which he had a working knowledge (involving some 383 cities) and that this trend was supported by much broader historical precedent nationally and internationally. This view is persuasive but obviously not controlling.

The language of the city charter places the responsibility for preparation of the budget and budget message on the mayor and the responsibility for adopting a budget, in the form of an ordinance, on the city council. It does not specifically speak to impasse resolution should the mayor and council ultimately be unable to agree. There is language in the charter, however, which supports the conclusion that raising and expending sums of money is, in the final analysis, a legislative function to be performed by the council.

Sections 3.01 and 3.07 provide that the city council shall have and exercise all lawful legislative powers of the city and shall make all policy except as otherwise provided by the charter.

Section 4.04 which authorizes the mayor to purchase supplies and noncapital equipment and contract for repairs and improvements for the departments of the city limits the mayor’s authority in that regard to such amounts as may be determined by ordinance from time to time by the city council.

The mayor prepares a five year capital program under section 5.03 which the council may adopt by resolution.

Supplemental appropriations during the year from surplus revenues may be made by the council pursuant to section 5.05(1).

Section 5.05(2) gives the council the power during the year to reduce one or more appropriations when a deficit is anticipated.

In an emergency the council, by section 5.05(5), is authorized by emergency ordinance to make an emergency appropriation.

These provisions of the charter would seem to indicate that ultimate fiscal responsibility reposes in the city council rather than the mayor.

Another factor that we have taken into account in attempting to interpret the charter on this issue is the rule of construction that an interpretation of legislation that would produce unreasonable consequences is to be avoided. See, e.g., Wakulla County v. Davis, 395 So.2d 540 (Fla.1981). Under the mayor’s interpretation of the charter, the budget could conceivably pass back and forth between the mayor and council ad infinitum. The city might never have a current budget. Such a drastic result is not lightly to be imputed to a legislative scheme. Appellants’ position, on the other hand, involves a built-in mechanism for impasse resolution. The budget is prepared by the mayor, submitted to the council, approved, or amended and approved, by the council, returned to the mayor for final approval or, should the mayor exercise his veto power, then finally approved by council’s action in overriding the veto. It is true that an impasse might be created even under appellants’ interpretation if the council could not muster enough votes to override the mayor’s veto but that possibility is not before us in this case.

We therefore reverse the final judgment and remand for such further proceedings as may be required to effectuate the interpretation which we here place upon the city charter concerning approval and adoption of the city’s budget.

REVERSED and REMANDED.

HURLEY and DELL, JJ., concur.


author:
COBB, Judge. SHARP, Judge,
      COWART, Judge,

text:
    Donald WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1368.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The defendant below was convicted of escape in violation of section 944.40, Florida Statutes (1979), which provides:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

The definition of the word “prisoner” in the foregoing statute is supplied by section 944.02, Florida Statutes (1979):

(4) “Prisoner” means any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department, as provided by law. (Emphasis added.)

The trial evidence presented by the state showed only that the defendant was confined in the jail, and that such confinement was reflected by the sheriff’s jail log, and that he had been transported from the jail to the hospital emergency room, when the alleged escape occurred. The fact that the escape was from the hospital rather than directly from jail is not determinative of the issue raised by this appeal. Johnson v. State, 357 So.2d 203 (Fla. 1st DCA), cert. denied, 362 So.2d 1054 (Fla.1978). The issue is whether or not the state established a prima facie case sufficient to sustain an escape conviction merely by showing that the defendant was confined in a penal institution at the time.

It was necessary for the state to prove, as an essential element of the crime of escape, that the accused was in “lawful custody” as that term is defined in the above statutes. The requisite quantum of proof in a criminal case is “proof beyond and to the exclusion of reasonable doubt.” The state, merely by a showing of custody, even though such showing may support a reasonable inference of lawful custody, has not met the test to support a criminal conviction. King v. State, 42 Fla. 260, 28 So. 206 (Fla.1900); Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979); Abbott v. State, 326 So.2d 204 (Fla. 1st DCA 1976); Estep v. State, 318 So.2d 520 (Fla. 1st DCA 1975); Maggard v. State, 226 So.2d 32 (Fla. 4th DCA 1969); Fulford v. State, 113 So.2d 572 (Fla. 2d DCA 1959). A reversal based on insufficiency of the evidence precludes retrial because of the double jeopardy clause. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Accordingly, the judgment of conviction for escape is

REVERSED.

SHARP, J., concurs specially with opinion.

COWART, J., dissents with opinion.

SHARP, Judge,

concurring and concurring specially.

I agree with the logic of the dissent in this case, but I am bound by the rules set down in Florida cases which have construed the “escape” statute. In the context of pre-conviction and post-conviction escapes, the Florida appellate courts have required proof of something more than mere custody. For prisoners escaping after conviction, it is necessary to prove the prisoner had been convicted of a crime. For persons escaping before trial, it is necessary to prove they were in the “lawful custody” of the police officers — which means proof of facts and circumstances to show the arrest was made, and that it was lawful. Estep v. State, 318 So.2d 520 (Fla. 1st DCA 1975).

I agree with Judge Cowart that proof of a lawful arrest (i.e. probable cause to arrest or the commission of a misdemeanor in the presence of an officer) beyond a reasonable doubt may be a tall order, and accordingly may make proof of a pre-judgment escape charge unduly difficult. If this be so, then the Legislature should reexamine and redefine this crime. Until then, the courts will continue to read into section 944.40, Florida Statutes (1979) the element of “lawful custody” from section 944.02(4), Florida Statutes (1979).

COWART, Judge,

dissenting:

This case involves the sufficiency of evidence in a trial for escape to support a jury finding that the defendant was in lawful custody.

Appellant was in custody in the Marion County Jail when he was escorted and transported by Deputy Sheriff Reagan to Munroe Hospital for emergency treatment. At the hospital, appellant assaulted Deputy Reagan, took his service revolver and fled. He was later apprehended and charged with escape, in violation of section 944.40, Florida Statutes (1979), which provides in part:

Any prisoner confined in any prison, jail ... or being transported to or from a place of confinement who escapes . . . shall be guilty....

Section 944.02(4), Florida Statutes (1979), provides:

“Prisoner” means any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed ... as provided by law.

The only evidence at trial relating to appellant’s original commitment came from Deputy Sheriff Spangler. He testified that, as the correction sergeant working at the booking desk of the Marion County Sheriff’s Department, he had custody of the sheriff’s jail log, which records were kept in the normal course of business, and that those records showed that appellant was arrested and was in custody in that jail. Deputy Spangler identified appellant at trial as the prisoner whose custody he, Deputy Spangler, turned over to Deputy Reagan to transport to the hospital emergency room.

Appellant moved for a judgment of acquittal at the close of the State’s case and argued that the evidence was insufficient to prove lawful confinement under a valid arrest. From a final judgment of conviction, appellant appeals the trial court’s ruling denying his motion for judgment of acquittal on that ground.

First, I am not convinced that “lawfulness” is an element of the crime. Because the statute defining the crime of escape does not contain the qualifying adjective “lawful” before the word custody and because this criminal statute is displaced in the midst of a chapter dealing primarily with the administration of the state correctional system, insofar as the offense of escape is concerned, the legislative intent in placing the word “lawful” in the definition of “prisoner” is not clear. In fact, since the word “lawful” is not contained in section 944.40, which defines the crime of escape, and is contained only in the ancillary definition of the word “prisoner,” it could reasonably be argued that the unlawfulness of the confinement is an affirmative defense to be raised by the defendant under the language in Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), which stated the correct test to be:

[I]f there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is matter of defense, and is to be shown by the other party.
Id. 7 So. at 372 [emphasis added].

However, my real problem in this case is not with the statute or its construction. Even assuming that “lawful” custody or confinement is an element of the offense of escape to be alleged and proved, I believe the State presented sufficient evidence to withstand a motion for judgment of acquittal and to take the case to the jury.

Florida Rule of Criminal Procedure 3.380(a) provides that if, at the close of the evidence for the State or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to warrant a conviction, it may, and on motion shall, enter a judgment of acquittal. Numerous cases hold that, in moving for a judgment of acquittal, a defendant admits, not only all facts in evidence, but also every conclusion favorable to the State that the jury might fairly and reasonably infer from the evidence.

Sometimes criminal statutes themselves purport to make proof of one fact presumptive or prima facie evidence of another fact. Such provisions have been attacked, usually upon constitutional due process grounds, but, with certain qualifications, they have been upheld. The legal analysis and rationale developed in such attacks on such statutory presumptions provide an apt analogy for use in the analysis of the question of what proven facts are sufficient as the basis upon which a jury may be legally permitted to draw an inference as to the existence of other facts essential to guilt in a criminal case. As to this analogy, the one important factor in determining the validity or constitutionality of a presumption contained in a criminal statute is the reasonableness of the relation between the presumed fact and the proven fact from which it is presumed. In order that a criminal statute creating a presumption from certain facts be valid, there must be some rational connection between the fact proven and the ultimate fact presumed and the inference of one fact from proof of another cannot be so unreasonable as to be purely arbitrary.

I see this case to be analogous to other well known instances where juries are permitted to draw similar inferences. The best known, perhaps, is the unexplained possession of recently stolen property which is now uniformly held to be legally sufficient to sustain a jury finding that the possessor was the thief, burglar or robber who stole the property, although in doing so the jury may reject other reasonable and plausible explanations for such possession which are consistent only with an innocent possession. As in the presumption permitted to be drawn from the unexplained possession of recently stolen property, such a holding does not deprive the defendant of his opportunity and right to present any proper evidence as to the “unlawfulness” of his custody for the jury to consider on that issue.

Under our jury trial system, the jury is uniquely qualified to determine the inferential connection, if any, between a given fact and an ultimate fact essential to guilt and to measure the strength and reasonableness of any rational connection. Since the process of determining the rationality of the connection between a fact proved and an ultimate fact presumed is, by its very nature, highly empirical, courts usually accord great weight to the jury’s capacity to amass its collective broad experience and common sense in everyday affairs of life, to consider the particular factual situation and to draw, or decline to draw, the inference that the State urges should be drawn from the proven fact, and as to weigh the strength of the inference in determining whether the State has met its burden of proving, to the satisfaction of the jury, guilt beyond a reasonable doubt.

The question in this case is whether it is reasonable to infer from proof of the fact that a person is actually confined as a prisoner in a legitimate prison or jail or is in the actual custody of a genuine law en-forcemeat officer as his prisoner that such prisoner is in “lawful” custody. The jury made that inferential deduction in this case. Since it was based on a logical and probable connection with the antecedent fact, I decline to hold that the jury was unreasonable, as a matter of law, in doing so. I am aware that other district courts have held to the contrary in similar situations. Two such cases are Abbott v. State, 326 So.2d 204 (Fla. 1st DCA 1976), and Maggard v. State, 226 So.2d 32 (Fla. 4th DCA 1969). However, I feel those opinions and the majority opinion invade the province of the jury-

Courts and lawyers are accustomed to considering the word “lawful” as relating only to a legal conclusion reached after a disciplined inquiry by a trained, official, judicial entity, such as a trial court, and then considering whether the status of being “lawful” exists or not as a matter of some definite legal certainty. To the contrary, all proof exists only as a matter of probabilities and I see no logical error to view in that light the element of this offense added by the word “lawful” before the word “custody” in the statutory definition. As a matter of statistical probability, the chance of error inherent in allowing a jury to infer “lawfulness” of custody from the adduced fact of actual confinement by authorized law enforcement officers in authorized county jails and state prisons is substantially less than the chances of error necessarily inherent in allowing a jury to infer other ultimate facts relating to identification, requisite mental intent, etc. This is especially true in view of the usual questions of credibility and reliability always involved in testimony and other evidence. Since this was a reasonable inference based on the evidence adduced, the trial court correctly denied the appellant’s motion for judgment of acquittal.

What evidence would the majority require? Must the State present a hypothetical question to a qualified expert witness (a lawyer) to obtain evidence in the form of an expert opinion that the accused’s confinement was “lawful” because it was based on an arrest that was “lawful” because the arresting officer had probable cause or acted on a warrant that was legally sufficient? I do not believe that this element was intended to invariably require proof of the technical correctness of the circumstances underlying the original arrest of the prisoner, such as the validity of any warrant or compliance with the details of statutes, such as section 901.15, Florida Statutes, permitting arrests by officers without a warrant. Neither do I believe that this element was intended to infer that those in custody who believe they are innocent of crime, or that their custody is subject to legal technicalities, are entitled to attempt to escape. Prisoners are usually confined together where the creation of an avenue of escape for one would aid others to escape and that is itself, of course, a crime. Also, as in this case, an escape usually entails an assault with physical violence upon a law enforcement officer. Even where an escape would not unlawfully aid others to escape or would not necessitate the unlawful use of force against law enforcement officers, such actions do create a substantial likelihood of injury to a person attempting to escape from actual custody and others and, therefore, particularly in view of present day speedy and fair trials, all persons in the custody of lawful authorities should look to the law for their deliverance and not attempt self-help.

I would not hold as a matter of law that all prisoners in all public jails and prisons are in lawful custody; only that in an escape case a trial judge does not err in denying a motion for a judgment of acquittal and in permitting a jury to consider evidence that a particular defendant was in the actual custody of the lawful authority as a prisoner as an inferential basis for a factual finding that such defendant was in lawful custody. When a jury is so satisfied by such evidence that they believe beyond a reasonable doubt such custody was lawful, the jury’s finding is not unreasonable as a matter of law and is sufficient to support a verdict as to this particular. I see this as going to the weight of evidence and not as being a rule of substantive law to be decided by the judge. The jury knows when it does or does not have a doubt and measures the degree and reasonableness of its doubts. It speaks by its verdict.

The quantum of proof in a criminal ease, being “beyond a reasonable doubt,” is for the jury and in this case (and in Abbott and Maggard) the jury’s composite common sense and experience in everyday affairs told them that it was reasonable and safe (beyond a reasonable doubt) to infer that a person in actual custody of genuine law officers or confined in official government jails and prisons was for all practical purposes there “lawfully.” The trial judge in those cases agreed. Appellate cases reversing that finding are holding as a matter of law that such inferences are unreasonable and that there is no rational connection between the fact proven (actual custody) and the ultimate fact inferred by the jury (lawful custody). Such is beyond the proper province of an appellate court review. As stated by the Florida Supreme Court,

an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. (emphasis added)

Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981). The appellate court here, as in Abbott and Maggard, is merely reweighing the inferential aspect of the evidence and substituting their opinion for the jury’s determination. Court cases reversing criminal convictions because of mere disagreement with a reasonable, common sense finding of fact by a jury are perhaps the chief cause of public dissatisfaction with our criminal justice system. Matters determined by inductive reasoning, such as the reasonableness of inferences, should be determined by the experience of many, not the opinions of few. When there is absolutely no direct evidence and no evidence from which the jury can draw a reasonable inference as to an essential fact, then a judgment of acquittal must be entered, but not otherwise. Under the majority’s holding, the State must, as to all factual findings, convince beyond a reasonable doubt, first the trial judge, then the jury and last the appellate court.

      . § 944.40, Fla.Stat. (1979).

      . Abbott v. State, 326 So.2d 204 (Fla. 1st DCA 1976); Brochu v. State, 258 So.2d 286 (Fla. 1st DCA 1972); Abigando v. State, 239 So.2d 646 (Fla. 1st DCA 1970); Maggard v. State, 226 So.2d 32 (Fla. 4th DCA 1969); Fulford v. State, 113 So.2d 572 (Fla. 2d DCA 1959). Accord, United States v. DeCicco, 415 F.2d 799 (5th Cir. 1969); Harding v. State, 248 Ark. 1240, 455 S.W.2d 695 (1970); People v. Rivera, 37 Colo. App. 4, 542 P.2d 90 (1975); State v. Brothers, 472 S.W.2d 415 (Mo.1971); State v. Renstchler, 444 S.W.2d 453 (Mo. 1969); State v. Ledford, 9 N.C.App. 245, 175 S.E.2d 605 (1970); Rodriguez v. State, 457 S.W.2d 555 (Tex.Crim.App. 1970).

        .See also King v. State, 42 Fla. 260, 28 So. 206 (1900); State v. Akers, 367 So.2d 700 (Fla. 2d DCA 1979); Johnson v. State, 357 So.2d 203 (Fla. 1st DCA 1978), which upheld informations in pre-conviction escape cases although they only alleged the defendant was in the authorities’ “lawful custody.” They infer, however, that proof of the circumstances of the arrest will be required at trial.

      . See Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981).

      . As cogently stated by the supreme court in Lynch v. State, 293 So.2d 44 (Fla.1974):
      A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.

        Id. at 45.

      . See Annot., 23 L.Ed.2d 812 (1970); Annot., 13 L.Ed.2d 1138 (1965); Annot., 162 ALR 495 (1946); Annot., 86 ALR 179 (1933); Annot. 51 ALR 1139 (1927) (all relating to the constitutionality of criminal statutes making one fact presumptive or prima facie evidence of another).

      . Note the public policy in section 776.051(1) which provides, without reference to whether or not an attempted arrest is valid, that a person is not justified in the use of force to resist an arrest by a law enforcement officer who is known to be, or reasonably appears to be, a law enforcement officer. See Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978).

      . While the majority concedes that a showing of custody may support a reasonable inference of lawful custody, they reverse the trial court’s ruling on a judgment of acquittal because the State has failed to carry its requisite quantum of proof.


author: SHARP, Judge.

text:
    Meredith J. COHEN, Appellant, v. Leroy HARDMAN d/b/a Action Bail Bond, and Dependable Insurance Co., Inc., Armond Savoie, James Lee Savage, and State of Florida, Appellees.
    No. 81-447.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.

      Eli H. Subin and Ralph C. Losey of Subin, Shams, Rosenbluth & Moran, Orlando, for appellant.
    Joel A. Spector, Orlando, for appellees.
   SHARP, Judge.

Cohen appeals from a trial court order setting aside a remission of forfeiture and requiring him to deposit into the registry of the Clerk of the Circuit Court of the Ninth Judicial Circuit, five thousand one hundred fifty dollars ($5,150). We reverse.

James Lee Savage was the principal on two bail bonds, totalling five thousand two hundred fifty dollars ($5,250), posted by Dependable Insurance Company through its surety agent Leroy Hardman, d/b/a Action Bail Bond. The bonds were estreated in November, 1979, after Savage failed to appear in court to answer to charges of trafficking in stolen property. Hardman paid the forfeitures to the Clerk of the Court and the bonds were discharged. Armond Savoie, allegedly involved with Savage, indemnified Hardman.

Savage was arrested again for the charges in May, 1980 and he retained Cohen as his attorney. Pursuant to plea negotiations, Savage entered a plea of nolo conten-dere to one charge, subject to certain conditions. Two of the conditions were Savage’s cooperation with the State in related proceedings and the State’s remission of the forfeited bonds at the conclusion of the police investigations. Savage was sentenced pursuant to these terms, and he eventually sought remission of the bonds.

Attached to motions for remission of the forfeited bail bonds were affidavits in which Savage alleged he had paid the surety and, thus, was entitled to receive the funds. Cohen represented Savage in these proceedings. Copies of the motions for remission were sent to the assistant state attorney, but no notice was sent to Hard-man, Savoie, or Dependable.

Because he allegedly feared for his own safety, Savage requested the trial court to remit the forfeited bond funds to him through his attorney, Cohen. The court did so in June, 1980. The record shows Cohen disbursed the funds from his trust account. Cohen’s disbursal statement shows he retained two thousand dollars ($2,000) as the balance due for his attorney’s fees, he applied one hundred dollars ($100) towards court costs, and he disbursed the remaining three thousand one hundred fifty dollars ($3,150) to Savage. After Savage testified against his former associates, his probation was terminated in December, 1980. Pursuant to the terms of the negotiated plea, Savage moved out of the State and assumed a new identity.

Claiming Savage had not reimbursed him for the forfeited bonds and that he was entitled to receive the funds, Hardman filed a motion in February, 1981 to set aside the bond remission. Savage was not served or notified of Hardman’s motions and was not represented at the hearing. Sua sponte, the court added Savoie as a necessary party. Savoie then moved the court to order Cohen to deposit the bond proceeds ($5,250) with the Clerk of the Circuit Court. After a hearing with Cohen, Hardman and Savoie present, the trial court set aside the bond remissions and ordered Cohen to return the funds to the registry of the court, pending a determination of who was entitled to them.

The facts in this case are so unique we have found no case in point. However, the remedy granted is analogous to the propriety vel non of a prejudgment attachment of property or preliminary injunction requiring the payment of funds to the court’s registry in advance of trial. Such court orders are only appropriate in extraordinary circumstances or when legal remedies are shown to be inadequate, and the right to recover is clear. Haber v. Nassitts, 12 Fla. 589 (1869); Oxford International Bank & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979). None of these facts are established by the record in this case.

Cohen no longer has the bond proceeds which the court has ordered remitted. His trust account checks and his disbursal statement show the money has been disbursed. The court’s order setting aside the remissions of forfeiture necessarily requires that Cohen deposit his own funds into the court registry to replace the disbursed ones. It also states the court has not determined who is entitled to the funds, and it does not impose on Cohen any liability for his handling of the matter. This premature action is similar to ordering the imposition of a constructive trust on a person’s assets before there has been a determination that the trust should be imposed. Cf. Palmland Villas I Condominium Association, Inc. v. Taylor, 390 So.2d 123 (Fla. 4th DCA 1980). Even if the funds from an express trust were (allegedly) wrongfully or negligently disbursed by the trustee, it puts the cart before the horse to require their restoration before the trustee’s liability has been determined. Thomas v. Carlton, 106 Fla. 648, 143 So. 780 (1932).

Because we conclude the trial court exceeded its powers in ordering Cohen to deposit his own funds to replace the bond proceeds in advance of determining his liability therefore, the appealed order is

REVERSED.

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


author: ORFINGER, Chief Judge.

text:
    Carolyn E. WHITNEY and Laurence J. Whitney, her husband, Appellants, v. MARION COUNTY HOSPITAL DISTRICT, a corporation, d/b/a Munroe Regional Medical Center, and formerly d/b/a Munroe Memorial Hospital, Samuel L. Renfroe, M.D., P.A., a professional service corporation, formerly known as Renfroe, Guin and Sabol, P.A., Florida Patient’s Compensation Fund, an association created and controlled by Section 768.54 of the Florida Statutes and Ruby G. Guin, as personal representative of the Estate of Thomas D. Guin, deceased, Appellees.
    No. 81-718.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.

      Neal D. Evans, Jr., Jacksonville, for appellants.
    Edwin C. Cluster of Ayres, Cluster, Curry, McCall & Briggs, P. A., Ocala, for appel-lee Marion County Hosp. Dist.
    No appearance for appellees Renfroe, Florida Patient’s Compensation Fund and Guin.
   ORFINGER, Chief Judge.

This is an appeal from a final summary judgment in a medical malpractice action. The trial court found that the action was barred by section 95.11(4)(b), Florida Statutes (1977) (the two-year limitation on medical malpractice actions), and that plaintiffs had failed to comply with section 768.28(6), Florida Statutes (1977), the notice provision under the waiver of sovereign immunity act. We reverse.

In a multi-count complaint filed April 2, 1980, directed to appellee hospital (Hospital) and other defendants not involved in this appeal, plaintiffs alleged that the defendants had been guilty of breach of contract and of negligence when they completely failed to perform a requested tubal ligation on Carolyn Whitney, as a result of which she later became pregnant. The complaint alleged that the matter had been submitted to a medical mediation panel which, on February 20, 1980, had rendered a decision in favor of the Hospital. Following extensive pleadings, the trial court entered the summary judgment appealed from.

The Hospital’s motion for summary judgment was essentially based on two grounds: (1) the two-year statute of limitations [section 95.11(4)(b), Florida Statutes (1977)], had expired prior to the filing of the suit; and (2) because defendant Hospital was a subdivision of the State of Florida, created by chapter 65-1905, Laws of Florida, Special Acts of 1965, the notice requirements of section 768.28(6) were applicable, and plaintiffs had not complied therewith.

The Hospital contends that it is an agency of the State. Section 768.28(1), Florida Statutes (1977), provides that the state and its agencies and subdivisions, waive sovereign immunity in tort cases to the extent provided in the section and such “actions ... to recover damages in tort ... may be prosecuted subject to the limitations specified in this act.” The statute of limitations for actions based on negligence or on any other “wrongful act or omission” brought against a state agency, is four years from the date the claim accrues. § 768.28(11), Florida Statutes (1977).

The statute of limitations for a medical malpractice action under section 95.11(4)(b), Florida Statutes (1977), is two years from the date the incident occurred or was discovered, but no more than four years from the date of the incident. However, Chapter 95 also specifically provides that where a different statute of limitations is provided elsewhere in dhe statutes, that different statute of limitations will apply. § 95.011, Florida Statutes (1977). On its face, therefore, because the Hospital is admittedly a State agency, chapter 95 unambiguously requires application of the limitation period provided in § 768.28(11) for tort actions against the state. See DuBose v. Auto-Owners Insurance Company, 387 So.2d 461 (Fla. 1st DCA 1980).

Thus, even if we were to ignore the applicability of the tolling provision of section 768.44(4) during the pendency of the medical mediation proceeding, it is clear that less than four years elapsed from either the date on which the procedure was to have been performed or the date on which the failure to perform the procedure was discovered, until the date (April 2, 1980) on which the instant complaint was filed. The summary judgment was improperly entered on the limitations ground.

The summary final judgment also relies on appellant’s alleged failure to comply with the notice requirements of section 768.28(6), Florida Statutes (1977). The statute requires written notice to the agency and to the Department of Insurance. Suit may be instituted when the appropriate agency or the Department of Insurance denies the claim in writing. The record before the trial court shows that a written demand for medical mediation was served upon the Hospital and contained a detailed statement of the nature of the claim, how and when it allegedly occurred and the damage claimed to flow from it. By affidavit filed in opposition to the Hospital’s motion for summary judgment, it appears that the Hospital subsequently responded to the mediation demand by filing a written denial of the claim. Since section 768.28(6) does not specify the form or manner of submitting the claim, except that it be in writing, it follows that any manner of submitting a written notice of the claim to the agency involved that sufficiently describes or identifies the occurrence so that the agency may investigate it, satisfies the statute. Similarly, the written denial of the claim in the mediation proceeding satisfies that requirement of the statute, since the statute mandates no particular form for denial except that it be in writing. The record reflects that the Department of Insurance was notified of the claim and has disclaimed any interest in the matter.

The summary final judgment is therefore reversed, and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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

      . A demand for medical mediation was filed August 31,1979. The decision of the mediation panel was rendered February 20, 1980. Under section 768.44(4), the period of limitation would have been tolled between those dates, so even if the two-year limitation statute applied, the action would have been timely.

      . The Special Act of the Legislature which created the Hospital District gives it all the powers of a body corporate including the power to sue and be sued. Additionally, it waives sovereign immunity for claims for “damages” to the extent of liability insurance carried by the Board of Trustees, and prohibits the insurance company from availing itself of the defense of governmental immunity. There is nothing in the act requiring notice to the Board of Trustees as a condition precedent to filing suit.

      . Section 768.28(6), Florida Statutes (1977) provides:
      An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to § 768.14.


text:
    Patrick James DORTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-863.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.

      James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA, 1982).

FRANK D. UPCHURCH, Jr., SHARP, and COWART, JJ., concur.