text:
    Clara Mirochnik ROFFE, Appellant, v. Moises ROFFE, Appellee.
    No. 80-2040.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 4, 1981.
    Edward Schroll, Miami, for appellant.
    Ana M. Vidal, Miami, for appellee.

      Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

We are presented with an appeal by the wife and a cross-appeal by the husband from various aspects of a final judgment of dissolution. For by far the most part, the challenged rulings embody a sound exercise of the trial court’s discretion with which we may not interfere. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Rosen v. Rosen, 386 So.2d 1268, 1271 (Fla.3d DCA 1980), review denied, 392 So.2d 1378 (Fla.1981); Blum v. Blum, 382 So.2d 52, 55 (Fla.3d DCA 1980); see Swad v. Swad, 363 So.2d 18 (Fla.3d DCA 1978). With one exception, the final judgment is properly affirmable without modification on this basis alone. Several of the points raised, however, merit discussion in some further detail.

The wife claims error in the court’s award as lump sum alimony of her interest in a formerly-rent-producing residence, which at the time of the final judgment was being occupied by Mr. Roffe and their two minor children, whose custody he was granted. In the light of the fact that Mrs. Roffe was similarly granted the husband’s interest in the marital home where she lived, the reciprocal lump sum awards represent an appropriate exercise of the trial court’s power to fashion, by this device, an equitable distribution of the parties’ property—in other words, to “make a property settlement agreement” for them—which we think has been granted by Canakaris v. Canakaris, supra, and Ingram v. Ingram, 379 So.2d 955, 956 (Fla.1980); see Blum v. Blum, supra; Bird v. Bird, 385 So.2d 1090 (Fla.4th DCA 1980); Lewis v. Lewis, 383 So.2d 1143 (Fla.4th DCA 1980).

The wife somewhat inconsistently also argues that the chancellor should have distributed the parties’ interests in each of several other entireties properties between them, rather than, as he did, rendering them tenants in common of those parcels. She complains that the state of the title to these properties, together with Roffe’s recalcitrant refusal to cooperate, has rendered it impossible to refinance the parcels so as to avoid impending foreclosure proceedings, a situation which would have been averted had the entire interest in the respective parcels been granted to one or the other. We cannot agree with this contention. While, as has been indicated, the trial court now has the authority to make such a redistribution of property titled in either or both spouses, it is surely not obliged to do so. The supposed difficulty facing Mrs. Roffe is one which may be expeditiously and properly obviated by partitioning the commonly held realty pursuant to Chapter 64, Florida Statutes (1979). While that was not possible below because of the absence of both pleading and proof which would have permitted such relief, see Covin v. Covin, 403 So.2d 490 (Fla.3d DCA 1981), and cases cited, our decision on this point is obviously without prejudice to the prompt filing and disposition of such a proceeding after remand.

Mrs. Roffe also disputes the award to her ex-husband of a “special equity” of a half interest in a lot in New Jersey titled in her name alone. The trial court based this determination on the undisputed fact that Mr. Roffe had made all the payments for the property. Invoking Ball v. Ball, 335 So.2d 5 (Fla.1976) and its progeny, Mrs. Roffe argues that a special equity is unjustified on this ground because the payments were shown to have been made from the husband’s earnings during coverture rather than a source “unconnected to the marital relationship.” See Ball v. Ball, supra, at 335 So.2d 7, note 7. This principle of the Ball case has, however, no application to the present situation. Ball is explicitly confined to property titled by the entireties, see 335 So.2d at 8, note 11, and on the present issue indicates only that neither husband nor wife may obtain the other’s half interest in such property because of efforts expended during the marriage. Accord, Duncan v. Duncan, 379 So.2d 949 (Fla. 1980). Thus, this holding of Ball is properly viewed (with due regard for the benefit of hindsight) as a reflection and precursor of the notion of marriage as a financial as well as a sociological partnership which underlies the monumental later holding in Canakaris. See Colucci v. Colucci, 392 So.2d 577 (Fla.3d DCA 1980). Those same considerations completely support, rather than militate against the chancellor’s holding with respect to the New Jersey property held by the wife alone. It seems clear to us that Mr. Roffe’s payment of all the consideration fully justifies — if, indeed, it does not require — the imposition of a special equity of half of the property in question, so that he and his wife would indeed be partners with respect to that marriage-acquired parcel. See also, Scheidl v. Scheidl, 343 So.2d 963 (Fla.1st DCA 1977); Wollman v. Wollman, 235 So.2d 315 (Fla.3d DCA 1970); cf. Duncan v. Duncan, supra.

Moreover, even if a “special equity” is not technically permissible, it is apparent that the trial court justifiably felt that the award to the husband of half of the New Jersey lot was equitably appropriate under all the circumstances. The provision would therefore undoubtedly be upheld if it had been referred to as one of lump sum alimony. See Duncan v. Duncan, supra. Since this is true, there is no purpose to be served by returning the case to the trial court merely for a change in nomenclature. McCall v. McCall, 386 So.2d 275 (Fla.2d DCA 1980). Hence, this aspect of the judgment is sustained on this alternative ground as well.

Both sides challenge the provision for the wife of $300 per week for five years in rehabilitative alimony. We reject the husband’s contention that the amount is excessive. Canakaris v. Canakaris, supra. A majority of the court likewise finds no error or abuse of discretion, as Mrs. Roffe contends, in the failure to award permanent alimony. Hence, the periodic alimony award is approved in its entirety.

We find merit only in the wife’s final contention. At the time of the trial, Mr. Roffe was clearly in default, to the tune of an amount in excess of $25,000, of unmodified temporary orders requiring him to make alimony, support, and mortgage and tax payments on the jointly held properties. Nonetheless, apparently on the ground that “the Husband ... is unable to pay on this undetermined amount,” the lower court adjudicated only $3,791.30 in ar-rearages which was ordered satisfied by Roffe’s share of an escrowed fund of rentals from one of the parcels. The failure to enter judgment for the entire amount due was error. By virtue of the husband’s failure to make the required payments, Mrs. Roffe acquired a vested property right in the arrearages, which the court was required to adjudicate. Van Loon v. Van Loon, 132 Fla. 535, 182 So. 205 (1938); Gottesman v. Gottesman, 202 So.2d 775 (Fla.3d DCA 1967), cert. denied, 209 So.2d 671 (Fla.1968); Thomas v. Thomas, 352 So.2d 564 (Fla.2d DCA 1977); Smithwick v. Smithwick, 343 So.2d 945 (Fla.3d DCA 1977); Feder v. Feder, 291 So.2d 641 (Fla.3d DCA 1974). Accordingly, the trial court is directed, after remand, to determine the amount of arrearages and to enter an additional judgment accordingly.

Affirmed and remanded with directions.

      . We reject the argument that Roffe’s pleadings do not support the granting of such relief. See, Caidin v. Caidin, 367 So.2d 248 (Fla.3d DCA 1979), cert. denied, 381 So.2d 765 (Fla.1980).

      . Each of the cases which has followed Ball on the “connected source” point likewise concerns entireties property. E. g., Smith v. Smith, 378 So.2d 11, 18 (Fla.3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); Fiedler v. Fiedler, 375 So.2d 1119, 1120 (Fla.2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980).

      . The author of this opinion dissents from this conclusion. On the authority of Foss v. Foss, 392 So.2d 606 (Fla.3d DCA 1981); Colucci v. Colucci, supra, and many similar decisions, he would order that the alimony provision be made a permanent one.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Felice GINSBERG, Appellant, v. Charlotte GOLDSTEIN, f/k/a Charlotte Ginsberg and Burton Ginsberg, Appellees.
    No. 80-2322.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 4, 1981.
    Linet, Rovenger & Perkins, North Miami Beach, Joseph P. Averill, Miami, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Kendall B. Coffey, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

This is the latest chapter in the continuing saga, which by now more than passingly resembles Jarndyce and Jarndyce, of Charlotte Ginsberg Goldstein’s attempts to collect upon a judgment for past-due alimony which was rendered over two decades ago, on July 26, 1961. In 1979, the ex-Mrs. Ginsberg located and garnished a $2,005.38 checking account in the name of Burton Ginsberg in the Second National Bank of North Miami Beach. Burton asserted in defense that $1,500 of that amount belonged not to him, but to his present wife, Felice, and Felice duly filed a claim to that effect in the garnishment proceeding pursuant to Section 77.16(1), Florida Statutes (1979). The basis of their joint contention was that the $1,500 sum was the proceeds of an Allstate Insurance Company draft in payment on an insurance claim for a valuable statue which had been given to and was owned by Felice when it was stolen from her and Burton’s home. Supported by un-rebutted affidavits to this effect by Felice; Burton; the donor of the statue, Burton’s brother, Daniel Ginsberg; and the insurance adjustor who had secured the issuance of the draft, Felice moved for summary judgment awarding the $1,500 to her. On the basis of the likewise undisputed facts that the judgment debtor, Burton, was the only named insured of the policy in question, the sole payee of the insurance check, and the sole and unqualified holder of the account into which the draft was deposited, Charlotte also sought an order directing the bank to pay her the entire contents of the account. The trial judge ruled that while he thought the “equities” were with Felice, the law was with Charlotte, and entered judgment in her favor. He expressed the hope that this court would reverse his decision. We indulge that desire on the basis of our conclusions that the legal right to garnished property turns upon its equitable ownership and that Felice in fact owns the $1,500 now in dispute.

In accordance with the basic principle of garnishment that a plaintiff merely stands in the shoes of the judgment debtor, see Howe v. Hyer, 36 Fla. 12, 17 So. 925 (1895); Barsco, Inc. v. H.W.W., Inc., 346 So.2d 134 (Fla. 1st DCA 1977), it is universally held that property which is not actually and in “good conscience” deemed to be owned by the debtor may not be secured by the judgment creditor. 38 C.J.S. Garnishment § 71 (1943); 6 Am.Jur.2d Attachment and Garnishment § 92 (1963). This rule is directly applicable to the bank deposit situation before us. Even though, as here, the debtor holds a general account in his own name, thus creating a simple creditor-debt- or relationship between him and the bank, Camp v. First National Bank of Ocala, 44 Fla. 497, 33 So. 241 (1902), and a concomitant obligation by the bank to pay out the funds at his direction, Aronson v. First Savings & Trust Co. of Tampa, 139 Fla. 240, 190 So. 524 (1939), the depositor’s creditor is not entitled to the money if it is actually owned by somebody else. Instead, the somebody else is. E.g., Susman v. Exchange National Bank of Colorado Springs, 117 Colo. 12, 183 P.2d 571, 573-74 (1947). As is accurately stated, based on the cases collected, at 38 C.J.S. Garnishment § 80 (1943):

Funds of defendant on deposit in a bank are subject to garnishment in the absence of special circumstances creating an exemption. However, the garnishing creditor can reach funds of the depositor only in cases where the depositor is the true owner thereof.
For the purposes of garnishment a bank deposit prima facie belongs to the person in whose name it stands, the general test being whether, but for the garnishment, the deposit would be subject to defendant’s check, or whether defendant could sue the bank therefor in debt or assumpsit. These considerations, however, are not conclusive, and the fact that the depositor can withdraw or maintain an action for the deposit does not in ail cases render the deposit subject to garnishment at the instance of a creditor of the depositor.
******
Deposit in defendant’s name of money of another. Money of another deposited by a debtor in his own name cannot be reached by garnishment as the property of such debtor. This rule is based on the doctrine that in garnishment the equitable title to the property sought to be reached will prevail over the bare legal title, and is especially applicable to deposits of trust funds, and deposits by agents and public officers. However, it has been held that a deposit which amounts to a conversion by the depositor may be reached as his property, [e.s.]

Accord, 6 Am.Jur.2d Attachment and Garnishment § 162 (1963), and cases cited. In at least one instance, Gladden v. Columbiana Savings Bank, 29 Ala.App. 97, 193 So. 185 (1939), cert. denied, 238 Ala. 648, 193 So. 187 (1939), this doctrine has been applied to recognize a claim, like Felice’s, of the wife of the debtor to a general account standing in his name. At 193 So. 185, 186, the court held

It is true that when Mack D. Messer, appellant’s ‘judgment debtor’ in this case, deposited the money in appellee’s bank to his individual credit — the deposit standing in the name of ‘Mack D. Messer, Agent’ (Gladden v. Columbiana Sav. Bank, 235 Ala. 541, 543, 180 So. 548)— that fact, without more, showed prima facie, that it belonged to him, but not conclusively so. If it really belonged to his wife, the fact that her husband, to whom she entrusted it, deposited it in (the) bank to his own credit, did not change her title to it. Bessemer Savings Bank v. Anderson, 134 Ala. 343, 32 So. 716, 92 Am.St.Rep. 38.

The ultimate question, then, is whether Burton or Felice “really” owned the $1,500 in question. Since it indisputably represented and was paid for property which belonged to her, we hold that she did. As the head of the household which contained the statue, Burton had an insurable interest in the property which permitted him to secure insurance coverage upon it even though it was owned by his wife. Jones v. American Eagle Ins. Co., 91 Fla. 565, 108 So. 165 (1926). This fact could not, however, give Burton any greater interest in the insurance proceeds which in effect represented the statue, than he had had in the statue itself. Both Doss v. Roberts, 487 S.W.2d 839 (Tex.Civ.App. 1972), and Rolater v. Rolater, 198 S.W. 391 (Tex.Civ.App. 1917), squarely, and we think correctly, hold that a husband’s receipt of insurance proceeds for property in which his wife held an interest renders him a trustee of those funds which represent that interest. See, generally, 5A J.A. & J. Appleman, Insurance Law and Practice, §§ 3361, 3363 (rev.ed. 1970). As the cases point out, to hold otherwise would be unacceptably to permit the outright and involuntary purchase of the wife’s property by the husband for the minimal cost of an insurance premium. Since it is undisputed that Felice had the entire ownership interest in the statue, it follows that she retained the entire beneficial interest in the insurance payment as well.

Nor does it matter that the proceeds had already changed hands in the form of a draft payable to and endorsed by Burton and deposited in his account at the bank. Since the $1,500 is concededly traceable from the statue to that account, it retained its essential character as an asset held in trust for and equitably owned by Felice. Brown v. Hanger, 368 So.2d 63 (Fla. 3d DCA 1979); 33 Fla.Jur. Trusts § 74 (1960). She, not Burton — and therefore not Charlotte — was entitled to the money.

For these reasons, the judgment below is reversed to the extent of $1,500 and the cause remanded with directions to award that amount to the appellant. As to the remaining $505.38, the judgment is affirmed.

Affirmed in part, reversed in part.

      . The prior appellate history of this case stretches from Ginsberg v. Ginsberg, 113 So.2d 565 (Fla. 3d DCA 1959), and Ginsberg v. Ginsberg, 127 So.2d 137 (Fla. 3d DCA 1961), to Goldstein v. Ginsberg, 399 So.2d 415 (Fla. 3d DCA 1981).

      . An initial challenge by Ginsberg to Charlotte’s right to the $505.38 difference has been withdrawn and only $1,500 is now in issue.

      3. James v. Commercial Bank at Apopka, 310 So.2d 399 (Fla. 4th DCA 1975) involves the converse situation, holding that garnishment properly lay against funds which were “in truth and in fact,” 310 So.2d at 400, owned by the judgment debtor, even though they were under deposit in the name of another. See 38 C.J.S. Garnishment § 80, supra, at nn.68-71. It thus stands for the exact proposition we apply here, that the real rather than the nominal ownership of a bank account controls the result.

      4. Contrary to the appellees’ contention, the Gladden case cannot be meaningfully distinguished on the ground that the account was denominated “[the husband], agent ” instead of “Burton Ginsberg,” as in this case. This is so because, as the Alabama court itself recognized, the addition of the word “agent,” without more, does not affect the status of the account as a general rather than a special one. 10 Am.Jur.2d Banks and Banking § 367 (1963), and cases collected at n.17. See, Coyle v. Pan American Bank of Miami, 377 So.2d 213 (Fla. 3d DCA 1979); 5 Fla.Jur.2d Banks and Lending Institutions §§ 148, 152-53 (1978). Gladden therefore is merely an application (although an a fortiori one) of the rule that the beneficial ownership of the money in any general account is decisive. See 38 C.J.S. Garnishment § 80, supra, at nn.86-88; note 3, supra.

      .The Jones holding to this effect is based on a legal view of the husband-wife relationship which no longer obtains in Florida, see Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981), and may therefore itself be outmoded. The insurable interest question is, however, one which concerned only Burton and the insurer, which did not raise the issue in making payment. It does not affect the quite different problem, which is dis-positive of this case, of who, between Burton and Felice, is entitled to the proceeds.

      . As indicated in the Doss case, Burton would, in theory, have a right to recover from Felice the proportionate amount of the premium he paid Allstate for coverage on the statue. Charlotte made no claim below for his sum, however (which could be no more than nominal in any case), and we therefore do not further consider the issue. See Dober v. Worrell, 401 So.2d 1322 (Fla. 1981.)

      . Note 2, supra.


author: PER CURIAM.

text:
    Patricia A. MORGAN, Appellant, v. William A. MORGAN, Jr., Appellee.
    No. 81-90.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 4, 1981.
    Joseph C. Segor, Eleanor Levingston Schockett, Miami, for appellant.
    Blank, Rome, Comisky & McCauley and Norman Perlberger, West Palm Beach, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. The general rule is that a judgment or decree wholly in favor of a party cannot be appealed by [her], since [she] is not aggrieved thereby. 3 Fla. Jur.2d, Appellate Review § 19 (1978).

The appellant received exactly the relief requested. Accordingly, the Order under review is affirmed. Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927); North Shore Bank v. Town of Surfside, 72 So.2d 659 (Fla.1954).


author: DANAHY, Judge.

text:
    Vince Alan CHAPAS, Appellant, v. STATE of Florida, Appellee.
    No. 80-694.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant was charged with carrying a concealed weapon, specifically a rifle seized from appellant’s automobile. The trial judge denied appellant’s motion to suppress the rifle as evidence and appellant pled nolo contendere, reserving his right to review by this court of the denial of his suppression motion. We affirm.

Shortly after midnight, appellant drove into a Sarasota County park which had been closed to the public less than an hour before by county and city law enforcement officers. Appellant ignored a first officer’s call to stop, but finally brought his car to a halt when Detective Carroll stopped him.

Upon approaching appellant’s car, Detective Carroll formed the opinion that appellant might be intoxicated. The detective ordered appellant out of the car for several field sobriety tests. After appellant failed the tests, Detective Carroll put him under arrest for driving while intoxicated and placed him in a police vehicle.

While the sobriety tests were being conducted, Detective Geary approached appellant’s car and looked through the windows, first from the driver’s side and then from the passenger’s side. He saw a blue blanket on the front seat covering an object which, he said, appeared to be a rifle. However, it was only after Detective Geary put his head through one of the car windows that he was able to see and identify a portion of a rifle barrel which the dashboard had blocked from view outside the window. Detectives Carroll and Geary then opened one of the car doors to get a better look and seized the rifle. Appellant was thereupon arrested for carrying a concealed weapon.

Since our consideration of the arguments in this case, our supreme court and the Supreme Court of the United States have rendered opinions which are pertinent to our discussion.

The state justified the warrantless search and seizure in this case on the ground that the rifle was in “open view.” Appellant countered that if the rifle was in open view, it could not also be considered a concealed weapon prohibited under section 790.01, Florida Statutes (1977). Our supreme court has recently rejected appellant’s argument, holding that an object observed by a trained police officer to be a weapon can also simultaneously be a concealed weapon for purposes of section 790.-01. Ensor v. State, 403 So.2d 349 (Fla.1981).

Alternatively, appellant argued that the rifle was not in the open view of Detective Carroll because it was not identified as a rifle until the detective impermissibly intruded into the interior of the car by putting his head through the window. Even assuming the rifle was in open view, however, that circumstance would only have supplied probable cause for a search. Ensor v. State, supra. That search was not constitutionally permissible without a warrant unless there were exigent circumstances. We question whether there were such exigent circumstances in this case.

The warrantless search of an automobile based upon probable cause is generally considered to be coupled with exigent circumstances and is often termed the “automobile exception” to the warrant requirement. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Accordingly, where contraband in a lawfully stopped vehicle is observed in open view, an immediate seizure of the contraband may be constitutionally permissible. Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d (S.Ct.1980).

We agree that the “automobile exception” to the warrant requirement does not invariably apply simply because an automobile is involved. Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979) (dictum). But see State v. Francoeur, 387 So.2d 1063 (Fla. 5th DCA 1980), and State v. Lopez, 369 So.2d 623 (Fla. 2d DCA 1979). Here, the driver and sole occupant of the automobile had been placed under arrest and was in a police vehicle at the time of the search. The automobile was parked in an area cordoned off by law enforcement officers and was subject to impoundment. Thus there was not the element of mobility which supplies the exigent circumstance in the usual case involving an automobile. There was no risk that the automobile would be moved and the evidence disappear in the time required to obtain a search warrant.

Accordingly, if the constitutionality of the search and seizure in this case rested solely on the existence of probable cause coupled with exigent circumstances, we would have some difficulty finding that there were exigent circumstances. That question no longer confronts us, however. The decision of the Supreme Court in New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (S.Ct.1981), requires that we uphold the search and seizure in this case as a constitutionally permissible search incident to arrest.

In the Belton case, the Supreme Court adopted what it called a “straightforward rule” that the scope of a search incident to an arrest includes the interior of an automobile where the arrestee is the recent occupant of the automobile. While we might not agree that this rule should apply in all cases, and might find that the facts in the instant case are clearly distinguishable from those involved in Belton, we believe the Supreme Court in the Belton case has foreclosed the option of determining on a case-by-case basis whether the interior of an automobile is within the scope of a search incident to arrest. We read Belton as establishing a rule applicable to all cases involving the arrest of a recent occupant of an automobile, without regard to the facts in the particular case. The Court said:

[A]s one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments “can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.” LaFave, “Case-by-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 142. This is because “Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. . . .” Id., at [141].
In short, “a single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” Dunaway v. New York, 442 U.S. 200, 213-214 [99 S.Ct. 2248, 2257, 60 L.Ed.2d 824],
So it was that, in United States v. Robinson, 414 U.S. 218, [94 S.Ct. 467, 38 L.Ed.2d 427] the Court hewed to a straightforward rule, easily applied, and predictably enforced: “[In] the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement, but it is also a ‘reasonable’ search under that amendment.” In so holding, the Court rejected the suggestion “that there- must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” 414 U.S. at 235 [94 S.Ct. at 477],
But no straightforward rule has emerged from the litigated cases respecting the question involved here — the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial, arrest of its occupants. . . .
When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While [Chimel v. California, 395 U.S. 752 [89 S.Ct. 2034, 23 L.Ed.2d 685] (1969)] established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of “the area within the immediate control of the arrestee” when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within “the area into which an arrestee might reach in order to grab a weapon or evidentiary item.” Chimel, supra, at 763 [89 S.Ct. at 2040]. In order to establish the workable rule this category of cases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

In this case, as in the Belton case, appellant was the occupant of an automobile who had been removed from the vehicle and placed under arrest. Applying the Belton rule, we hold that the search of appellant’s automobile and seizure of the rifle therein were constitutionally permissible as a search incident to arrest. Accord, Patterson v. State, 402 So.2d 1190 (Fla. 5th DCA 1981).

AFFIRMED.

SCHEB, C. J., and HOBSON, J., concur.

      . The state did not attempt to justify the search as an inventory search incident to impoundment of appellant’s car and, because Belton had not been decided, it did not seriously contend that the search was valid as a search incident to arrest.

      . See the author’s discussion of the permissible scope of a search incident to arrest in Ulesky v.
        State, 379 So.2d 121 (Fla. 5th DCA 1979), cited in the Belton decision. We interpret Belton as tacitly disapproving the view on the subject as expressed in Ulesky.


author: WENTWORTH, Judge.

text:
    S. L. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. XX-310.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    Rehearing Denied Nov. 13, 1981.
    Michael Allen, Public Defender, Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant was charged by delinquency petition with the offense of sexual battery upon a person eleven years of age or younger. § 794.011(2), Florida Statutes. Following presentation of the state’s case, appellant’s motion for judgment of acquittal was granted as to the offense of sexual battery, and the cause proceeded on the offense of attempted sexual battery. At the close of all the evidence, appellant was adjudicated delinquent for the offense of lewd, lascivious or indecent assault under § 800.04, Florida Statutes (1979), which offense the trial judge found, over objection, to be a lesser included offense. On appeal, appellant contends he was adjudicated delinquent for an offense not within the charge against him. We affirm.

Although lewd assault is not a necessarily lesser included offense (category three) of attempted sexual battery, we find that the accusatory pleading herein sufficiently alleged all of the elements of lewd assault and that the facts supported such a charge so that lewd assault was properly found to be a Brown category four lesser included offense.

The fact that attempted sexual battery and lewd assault are both second degree felonies does not in our opinion preclude a determination that lewd assault was a lesser included offense of attempted sexual battery. The discussion in Ray, supra, of “permissible lesser included offenses” appears to be directed to fundamental error issues not involved in the present case. We do not view Ray as imposing an absolute requirement that in order to be a proper lesser included offense under category three or four of Brown, the offense must be one subject to a lesser penalty.

AFFIRMED.

BOOTH and SHAW, JJ., concur.

      . See Brown v. State, 206 So.2d 377 (Fla.1968).

      . Walker v. State, 351 So.2d 382 (Fla. 4th DCA 1977); Ray v. State, 403 So.2d 956 (Fla.1981).


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    Harmon W. SHIELDS, Appellant, v. Nevin G. SMITH, as Secretary of Administration, and A. J. McMullian, III, as State Retirement Director, Appellees.
    No. ZZ-413.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.

      Thomas M. Ervin, Jr., and E. C. Deeno Kitchen of Ervin, Yarn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Augustus D. Aikens, Div. Atty., Div. of Retirement, Dept, of Administration, Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

Shields, the former executive director of the Department of Natural Resources, appeals a circuit court judgment that his conviction of federal crimes committed while he held State office requires forfeiture of his State retirement benefits. Section 121.-091(5Xf), Florida Statutes (1979). We affirm.

In August 1980 the United States District Court for the Northern District of Florida convicted Shields on three counts of violating the Hobbs Act, 18 U.S.C. § 1951 (1976), which provides in pertinent part:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, ... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
(b) As used in this section—
(2) The term “extortion” means the obtaining of property of another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (Emphasis supplied)

The jury returned general verdicts of guilt to all three counts of an indictment charging Shields and real estate broker Jack Quick with one count of conspiring and two counts of attempting to obtain money to which they were not entitled from another broker, H. Bruce Mclver, whose clients wanted to sell certain properties to the State under DNR’s program for the acquisition of environmentally endangered lands. Chapter 259, Fla.Stat. (1979). Key sections of the indictment alleged that Shields conspired and attempted to obtain money by extortion “under color of official right,”

in consideration for the defendant’s official acts as Executive Director, State of Florida Department of Natural Resources, so that the defendant SHIELDS would suspend his independent and unbiased judgment on the merits when considering the recommendation of the purchase of certain lands . . . pursuant to the State’s Environmentally Endangered Lands program.

Section 121.091(5)(f), Florida Statutes, forfeits the benefits otherwise payable to a member of the State retirement system who is “found guilty by verdict of a jury, or by the court trying the case without a jury,” of specified crimes committed before retirement, including “bribery in connection with the employment, or other felony specified in chapter 838.” The trial court rightly held that the “acts charged and for which the defendant was found guilty” constituted requesting or soliciting unlawful compensation for official behavior, a third degree felony proscribed by Section 838.-016(1), Fla.Stat. (1979). That statute provides:

It is unlawful for any person corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept, any pecuniary or other benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act or omission which the person believes to have been, or the public servant represents as having been, either within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty... .

Forfeiture Based on Federal Conviction

The recital of disqualifying crimes in Section 121.091(5Xf) contains no express reference to federal court convictions or to convictions in the courts of other states. On that account, arguing a strict interpretation of this forfeiture statute, Shields argues that the only disqualifying crimes are Florida crimes adjudicated by the State courts of Florida. We do not agree. A federally adjudicated crime is cause for forfeiture if it otherwise satisfies the specifications of the statute.

The disqualifying crimes pertinent to this case are, in the terms of Section 121.091(5)(f), “bribery in connection with the employment, or other felony specified in chapter 838.” Shields was not convicted of any crime entitled “bribery,” so we must decide whether he was convicted of a felony specified in chapter 838. Encountering the word “felony” when it appears in Florida statutes, we are bound to give it the meaning assigned by Florida’s Constitution. See Rotstein v. Dept. of Professional and Occupational Regulation, 397 So.2d 305, 308 (Fla. 1st DCA 1981) (On petition for rehearing). Article X, Section 10 of the 1968 Constitution provides:

The term “felony” as used herein and in the laws of this state shall mean any criminal offense that is punishable under the laws of this state, or that would be punishable if committed in this state, by death or by imprisonment in the state penitentiary.

Rotstein characterized this constitutional definition as a “compelling instrument of statutory construction.” 397 So.2d at 309. That definition, which is incorporated also in the general statutory definition of the term felony, unmistakably encompasses crimes committed against other sovereigns, which if committed in Florida would be punishable by a Florida court as a felony.

The fact that Shields’ federal offenses were indeed committed in Florida, in a geographic sense, does not exempt them from the disqualifying list on grounds that they were directly prosecutable in Florida State courts, but were not so prosecuted, and therefore do not qualify as crimes “that would be punishable [as a felony] if committed in this state.” Such a construction would give disqualifying effect to judgments of conviction entered by a court of any other State or of any United States court save only the courts of the Northern, Middle, and Southern Districts of Florida. There is no reason to attribute such a meaning to the statute, and the Supreme Court has not on that ground disregarded the convictions of federal courts, sitting in Florida, for crimes committed in Florida against the United States. See In re Weathers, 159 Fla. 390, 31 So.2d 543 (Fla.1947), where the Court concluded that a Jacksonville physician’s mailing of nonmailable matter, resulting in conviction by a Florida federal court, was not a felony supporting license revocation, but only because the federal crime was not an act constituting a felony under Florida laws.

Acts for which Shields was Convicted

Focusing now on the acts for which Shields was convicted, as described in the charging instrument, we find that those acts constitute and would support a Florida conviction of a Chapter 838 felony, namely, requesting or soliciting unlawful compensation for official behavior. Section 838.-016(1). We disregard Shields’ conspiracy conviction because the crime of conspiracy as interpreted by the federal courts under the Hobbs Act lacks essential elements of Chapter 838 felonies. Turning to the attempt convictions, we note that the Hobbs Act requires proof of two basic elements: interference with commerce and extortion. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Since nothing in the Florida statute requires interference with interstate commerce, that element of the federal crime is superfluous here. Ignoring that element has no effect on our further analysis, for in federal law the proscribed attempt is directed at the extortion of property rather than at the interference with commerce. See United States v. Rosa, 560 F.2d 149, 152-53 (3d Cir. 1977), cert. den., 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 135 (1977); United States v. Frazier, 560 F.2d 884 (8th Cir. 1977), cert. den., 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978).

The acts of Shields that are pertinent here are those constituting extortion. The clearly predominant view of the federal courts of appeals is that Hobbs Act extortion may be attempted in either of two ways under 18 U.S.C. § 1951(b)(2): extortion by threat, force of duress, which is plainly foreign to our analysis; or extortion “under color of official right,” which like the Florida unlawful compensation crime contains no element of threat or duress. See United States v. Williams, 621 F.2d 123, 124 (5th Cir. 1980), cert. den., 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981), and cases cited. The indictments on which Shields was convicted charge that he attempted to obtain money from another under color of official right. That, consequently, is the crime for which Shields was convicted, and which must now be examined for elements constituting a Chapter 838 felony.

Elements of Florida Crime and Extortion under Official Right

Acts constituting essential elements of the federal extortion indictment also constitute the offense proscribed by Florida’s unlawful compensation statute. First, Shields’ “color of official right,” required by the federal statute, was his office as executive director of DNR, which assuredly is a public office addressed by Florida Statute 838.016(1). See generally An-not., 70 A.L.R.3d 1153 (1976) (extortion under color of office).

Secondly, Shields was convicted of threatening to prevent the State’s purchase of Mclver’s clients’ land if certain payments to him were not forthcoming. We consider that by “attempting to obtain” this money, in the manner charged and proved for the federal conviction, Shields “requested” or “solicited” payments in the sense those terms are employed by the Florida statute. Doubtless, every request or solicitation of money (the Florida elements) is an attempt to obtain money (the federal elements); more to the point, the converse is also true: it having been federally adjudged that Shields attempted to obtain illegal payments in connection with the performance of his duties, we are satisfied that Shields, by words or equivalent conduct, requested or solicited those payments. There is no general federal statute proscribing attempts to commit crimes punishable under other statutes; under federal law, attempts to commit a crime are punishable, if at all, as the generic crime itself, and by the same statute. We therefore need not cope with abstract definitions of criminal attempts considered as detached from the object crime. Shields was forbidden by federal law to attempt to get illegal payments, and his unlawful attempt to get them was the substantial equivalent of requesting or soliciting those payments. We therefore need not inquire whether it was theoretically possible, using abstract common law rationalizations of criminal attempts, for Shields to have been federally convicted for attempting, by means short of a request or solicitation by word or deed, to extract illegal compensation.

Thirdly, we find that the federal and Florida statutes similarly describe the benefit which the public servant must have sought to obtain, in order to constitute the specified offense. Appellant argues that the Florida statute requires the benefit to flow directly to the public servant, while there is no such requirement under the federal statute. While appellant’s reading of the federal statute is correct in this respect, e. g., United States v. Cerilli, 603 F.2d 415, 420 (3d Cir. 1979), cert. den., 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980), it is not necessary under the Florida statute, either, that the benefit flow into the public servant’s hands. The definition of “benefit” in Section 838.014(1), Fla.Stat., includes “the doing of an act beneficial to any person in whose welfare he [the public servant] is interested.”

Fourthly, the Florida statute’s requirement for a “corrupt” request or solicitation was satisfied by Shields’ federal conviction. “Corruptly” is defined by Section 838.014(6) to mean in part “with a wrongful intent.” The “wrongfulness” element of the federal crime is implicitly included in the concept of “under color of official right” when accompanied by charges of knowing and willing conduct. United States v. Trotta, 525 F.2d 1096, 1099 n. 5 (2d Cir. 1975), cert. den., 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976). Shields was charged with having acted knowingly and willingly, therefore corruptly.

The final element of the Florida statute, also a part of the “corruptly” definition, is that the public servant requested the forbidden benefit “for the past, present, or future performance, nonperformance, or violation of any act” either believed or represented as being “within the official discretion of the public servant, in violation of a public duty, or in performance of a public duty.” In other words, the public servant must be shown to have granted some consideration, touching on his duties, in exchange for the solicited benefit. We recognize that the “under color of official right” language of the federal statute has been read more broadly than this by federal courts, seeking to accommodate Hobbs Act prosecutions of local corruption when, for one reason or another, there was no state prosecution. See Ruff, Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy, 65 Geo. L.J. 1171, 1174-96 (1977); Comment, 1977 Wash.U.L.Q. 326 (1977). The federal courts do not require proof that the public servant actually performed or did not perform his duties, so long as “the motivation for the payment focuses on the recipient’s office.” United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974), cert. den., 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Trotta, supra. Nevertheless, the federal cases do require some relationship between the benefit received and the public servant's office. In this case, Shields was charged with making a rather straightforward arrangement to obtain money “in consideration for” his “official acts” as DNR executive director, so that Shields “would suspend his independent and unbiased judgment on the merits when considering the recommendation of the purchase of certain lands” under the endangered lands program.

In sum, we find that the federal convictions included all the elements necessary to prove the Florida felony of soliciting or requesting unlawful compensation for official behavior. While this laborious process of matching up elements of a foreign crime with those of a Florida felony is more difficult than simply determining that under foreign law the offense was a felony, this process is more likely to ensure that disabilities are imposed only for conduct the forum considers reprehensible. This is the approach of the Uniform Act on the Status of Convicted Persons (ULA) § 2, which requires the forum state to use its own laws to characterize crimes. Under this analysis, civil disability statutes of the forum state, such as the benefit forfeiture statute here, should apply to convictions outside the forum only if the offense in question is a disabling crime under the forum’s own laws. See generally The Collateral Consequences of a Criminal Conviction, 23 Vand. L.Rev. 929 (1970). Justification aside, this analysis is plainly required by our Constitution’s Article X, Section 10, definition of “the term felony.”

Other Issues

Turning to other issues, we decline to accept appellant’s ingenious argument that when Shields completed 10 years of State service in 1974, entitling him to termination benefits, his rights vested in the sense of freezing the list of forfeiture crimes then existing, not including “other felonies specified in Chapter 838,” which was added in 1975. Whatever vested rights Shields may have had protecting him from alteration of benefits, Grady v. Division of Retirement, 387 So.2d 419 (Fla. 1st DCA 1980), we cannot conceive that his vested rights included the right to commit, with impunity, any but a particular list of felonies.

Finally, we do not find the unlawful compensation statute unconstitutionally vague. Cf. State v. DeLeo, 356 So.2d 306 (Fla.1978) as interpreted in Sandstrom v. Leader, 370 So.2d 3 (Fla.1979).

Because the trial court correctly concluded that appellant had committed a felony violating Chapter 838 of the Florida statutes, the judgment declaring that Shields had forfeited his termination benefits is AFFIRMED.

JOANOS and THOMPSON, JJ., concur.

      . Section 121.091(5)(f) provides:
      Any member who has been found guilty by a verdict of a jury, or by the court trying the case without a jury, of committing, aiding, or abetting any embezzlement or theft from his employer, bribery in connection with the employment, or other felony specified in chapter 838, committed prior to retirement, or who has entered a plea of guilty or of nolo conten-dere to such crime, or any member whose employment is terminated by reason of his admitted commitment, aiding, or abetting of an embezzlement or theft from his employer, bribery, or other felony specified in chapter 838, shall forfeit all rights and benefits under this chapter, except the return of his accumulated contributions as of his date of termination.

      . Section 775.08(1), Fla.Stat. (1979).

      . E. g., United States v. Shelton, 573 F.2d 917, 919 (6th Cir. 1978), cert. den., 439 U.S. 827, 99 S.Ct. 99, 58 L.Ed.2d 120 (1978). The general federal statute proscribing conspiracy to commit an offense against the United States, 18 U.S.C. § 371 (1976), and accompanying case law require only proof of an agreement between two or more persons to commit the specific offense and an overt act in furtherance of the conspiracy. United States v. Butler, 618 F.2d 411, 414 (6th Cir. 1980), cert. den., 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980).

      . At common law, the elements of attempt were an intent to commit a target crime, some act beyond mere preparation toward its commission, and a failure to complete the crime. 22 C.J.S. Criminal Law § 75 (1961). In determining what constitutes an attempt under specific federal statutes, the federal courts do sometimes consider these elements. E. g„ United States v. Mandujano, 499 F.2d 370, 376-77 (5th Cir. 1974), cert. den., 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975).


author: DANIEL S. PEARSON, Judge.

text:
    James AGRELLA, Petitioner, v. The Honorable Leonard RIVKIND, as Judge of the Eleventh Judicial Circuit, in and for Dade County, Florida, and Bobby Jones, as Sheriff of Dade County, Florida, Respondents.
    No. 81-2150.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1981.
    Glass, Rastatter & Tarlowe and Patrick C. Rastatter, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for respondents.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

James Agrella has filed a petition for writ of habeas corpus alleging that he is incarcerated without bond as a result of being held in civil contempt of an order requiring him to testify before the Dade County Grand Jury. The judgment of civil contempt provides, inter alia, (a) that Agrella was lawfully subpoenaed before the Grand Jury; (b) that he appeared, was duly sworn, and was given transactional immunity pursuant to Section 914.04, Florida Statutes (1979); (c) that despite the grant of immunity, Agrella continued to assert his privilege against self-incrimination and continued to refuse to answer questions asked of him; (d) that the court thereafter expressly ordered Agrella to answer specific questions put to him by the Grand Jury, and despite that order, Agrella continued to refuse to answer the questions; (e) that the questions which Agrella was ordered to answer were relevant and material questions designed to obtain information necessary to the Grand Jury’s pending investigation into criminal activity and the commission of criminal offenses in Dade County; and (f) that Agrella has presented no legal excuse sufficient to countenance his refusal to answer the questions. Based upon these essential findings, the trial court ordered Agrella to be imprisoned in the Dade County Jail until the expiration of the term of the Grand Jury on November 10, 1981, or until such time as Agrella chose to appear and testify before the Grand Jury and purge himself of the contempt, whichever occurred sooner. The trial court denied Agrella bond pending his appeal to this court.

We see no abuse of the trial court’s discretion in refusing to grant release on bail pending appeal of the civil contempt judgment. Agrella’s only contentions are (1) that the purpose of the questioning before the Grand Jury was to elicit testimony in connection with an already returned indictment, and (2) that the State’s grant of immunity was incomplete, since it did not guarantee him that he would not be prosecuted by the Federal Government for offenses about which he might testify.

In support of his first claim, Agrella relies on Federal cases, see, e. g., Beverly v. United States, 468 F.2d 732 (5th Cir. 1972); United States v. Doe, 455 F.2d 1270 (1st Cir. 1972); In re September Grand Jury, 454 F.2d 580 (7th Cir. 1971); United States v. Dardi, 330 F.2d 316 (2d Cir. 1964), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964), for the proposition that the Grand Jury may not be used as a tool of discovery for a pending case. His reliance is misplaced. First, those very cases hold there is no abuse of the grand jury function unless it can be shown that the sole and dominant purpose is to gather evidence for the pending trial. In the present case, the Assistant State Attorney, while admitting that Agrel-la’s testimony could be used for the prosecution of individuals who have already been charged, also represented to the court at Agrella’s contempt hearing that the testimony was sought in connection with investigation of crimes which were not yet the subject of any indictment. Second, the limited function of the Federal Grand Jury which causes this constraint upon its use bears no relationship to the much broader function of the State Grand Jury.

Agrella’s second claim that the State’s grant of immunity did not protect him from a future Federal prosecution is also unavailing. The Constitution requires only that Agrella’s testimony under a state grant of immunity not be used against him by the Federal Government. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). See Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). It is this use immunity which Agrella is assured by Murphy that supplants any right against self-incrimination that he may have. Murphy v. Waterfront Commission, supra.

We do not intend to prejudge the merits of Agrella’s appeal, which by separate order we have expedited. We determine only that the trial judge has not clearly abused his discretion in denying bail and make that determination on the limited record before us. Beverly v. United States, supra; Smith v. United States, 434 F.2d 612 (5th Cir. 1970); Welsh v. United States, 404 F.2d 333 (5th Cir. 1968); McCoy v. United States, 357 F.2d 272 (D.C.Cir.1966); Kaufman v. United States, 325 F.2d 305 (9th Cir. 1963).

Accordingly, the petition for writ of ha-beas corpus is denied.

      . Assuming, arguendo, that Agrella has standing to make such a claim. But see Martin v. State, 194 So.2d 8 (Fla. 3d DCA 1967).


text:
    CITY OF ST. AUGUSTINE and Travelers Insurance Co., Appellants, v. Edward ALLEN, Appellee.
    No. XX-77.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    Rehearing Denied Nov. 13, 1981.
    Lloyd C. Leemis, of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P.A., and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier appeal from the deputy’s order awarding permanent total disability benefits and finding that the two-year statute of limitation, which otherwise would bar the claim, was tolled by the employer’s payment to Allen of wages in lieu of disability compensation within two years before the claim was filed. Section 440.19, Florida Statutes (1977). We find the claim was barred. Without reaching the contested issue of- whether Allen’s disability is compensable under Chapter 440, we reverse the order appealed and dismiss the claim.

Allen scraped a leg at work in his employment by the City of St. Augustine on June 17, 1977. Notice of the injury was promptly given. Allen lost no time from work immediately but healing was slow and problematic because, it was later determined, Allen was diabetic. The carrier voluntarily paid bills for medical treatment from July through November 1977, and when the wound became infected, absenting Allen from work for about ten days in late August and early September, the carrier voluntarily wrote checks for temporary total disability benefits. Allen endorsed those checks over to the City at its request, for the City continued paying Allen his full wages.

Though his leg lesions had not healed, Allen returned to regular work on September 8 and he worked as usual for two months. On November 7, he was hospitalized for treatment of swelling and ulcers on both legs. Then learning the extent of Allen’s diabetic condition, the carrier paid no more medical bills after November 16 and refused to renew payment of disability benefits, citing Allen’s pre-existing diabetes as the cause of his difficulties. The City’s personnel manager advised Allen that workers’ compensation was no longer available and counseled him concerning the use of his extensive earned sick leave, the possibility of benefits from an employees’ disability insurance program (which didn’t materialize), and, finally, retirement as of July 1978. Allen did not work after November 25,1977 and his leg lesions were debrided or grafted under general anesthetic in December 1977 and repeatedly in 1978 through April. Allen continued to receive his regular paycheck during that period, and the payments were described in the City’s record, though not on the checks themselves, as salary payments to an employee on sick leave.

In December 1978, after personality changes and loss of memory and balance, Allen was neurologically diagnosed as suffering organic brain damage. In January 1980, more than two years after the carrier stopped paying Allen temporary total disability compensation in September 1977 and stopped paying medical benefits in November 1977, an attorney filed a claim in Allen’s behalf for permanent total disability benefits. Allen was unable to testify at the hearing held in April 1980 because he was disturbed mentally and completely disabled physically. The deputy found those conditions, as well as the previous leg swelling and ulcers, were the result of the industrial injury aggravating the diabetes. The deputy awarded benefits including permanent total disability payments, finding that “the most reasonable and logical cause” for Allen’s brain damage “is the hospitalization in December, 1977.” The deputy did not further elaborate her “logical cause” finding.

The carrier having stopped payment to Allen of any sort of workers’ compensation benefits more than two years before his claim was finally filed on January 15, 1980, the claim would indisputably have been barred by Section 440.19(l)(a) had the City of St. Augustine not continued paying Allen’s wages without interruption until July 1978, when he was retired. The deputy found:

I further find that the Statute of Limitations defense is not applicable in this case in that the City of St. Augustine during the summer of 1977 paid the Claimant’s full salary whether he was working or not, and maintained this policy of full salary until July 1, 1978, and I find these payments tó be payments in lieu of compensation.

In Florida as elsewhere, when compensation for disability or remedial treatment is furnished by the employer and then is terminated, the limitation period on claims for additional compensation begins to run, the statute specifies, from “the last payment of compensation” or “the last remedial treatment furnished by the employer.” But in Florida as elsewhere judicial decisions have ameliorated that bar by postponing the limitation period during the time the employer pays the employee his wages in lieu of compensation payable under Chapter 440. E. g., Townsley v. Miami Roofing and Sheet Metal Co., 79 So.2d 785 (Fla.1955); Chemstrand Co. v. Enfinger, 231 So.2d 816 (Fla.1970).

Deciding that wages were paid in lieu of compensation, or not, and by that conception granting or barring as stale otherwise meritorious compensation claims, is a hazardous rational exercise. Presumably the Chapter 440 limitation period is like limitation periods generally, intended to guard against the possibility of lost witnesses, discarded records, faded memories, and the accompanying prejudice to potential defenses of the employer and carrier. A limitation statute justifies barring stale but otherwise meritorious claims because filing a claim within an ample prescribed period is so simply done, and is so decisive as notice to prepare one’s defenses, that claimant’s delay beyond that period is presumed to have been prejudicial.

When it can be shown that the employer and carrier didn’t even know for a long time that the employee suffered an arguably compensable industrial accident, a decision to bar the stale claim, filed beyond the limitation period, is in good harmony with the conventional purposes of limitation statutes. But that isn’t the case here, or in any case in which workers’ compensation benefits undeniably were provided by a carrier acknowledging at the outset a covered injury; and to some extent the claimant’s giving of notice of the accident, as distinguished from his filing of a claim, satisfies purposes of a limitations statute. Here, in any event, the employer and carrier knew there was a compensable injury, paid compensation for a time, and then made an informed decision to stop further payments. The employer and carrier’s defensive proofs apparently did not suffer from the passage of time; paradoxically, it was claimant whose testimony time ravaged by progressive disease.

So there are undeniable incentives to find that the bar of the limitation statute was trumped by the City’s payment of wages to Allen in lieu of Chapter 440 compensation within two years before his claim was filed in January 1980. And the trumping doctrine is conveniently malleable: everybody must agree that Allen was paid wages in lieu of compensation in August and September 1977, when he was paid regular wages for no work and he endorsed back to the City the carrier’s disability compensation checks; and from Allen’s point of view, at least, the wages he continued to receive for no work, until he retired in July 1978, were also in lieu of the Chapter 440 compensation he asserts and the deputy now has found he was contemporaneously due, but for the wages paid. Allen would say he should not be required to have ungraciously demanded, from an employer who already was paying him full wages for no work, Chapter 440 disability compensation as well; yet that is the consequence of holding that the limitation statute ran unabated after November 1977 and throughout eight months of salaried sick leave until his retirement. Larson aptly described Allen’s dilemma in these circumstances:

Suppose the employer voluntarily pays wages for eleven months, and then gets tired of paying a disabled man and stops the wages. The claimant may be in a position of having had no occasion to make claim sooner, and yet of having an almost impossibly short time left of his claim period in which to discover what has happened and assert his formal rights.

3 A. Larson, Workmen’s Compensation Law § 78.43(c) (1976).

These apparent snares notwithstanding, and despite only faint praise for the rule, the Florida decisions including Chemstrand appear to have interpreted Section 440.19(l)(a) as liberally as that statute permits, allowing the payment of wages to trump the limitation statute only if the payment was “intended to be made on account of compensation liability, or if the employee reasonably believed it was so intended.” Chemstrand, 231 So.2d at 818-19, quoting Larson. Thus, whatever may have induced the injured employee not to press his claim, and whatever he himself may have thought about his entitlement to Chapter 440 benefits, the two-year bar of the statute applies unless the employer intended, or the employee reasonably believed the employer intended, to pay wages in lieu of Chapter 440 disability benefits — not as sick pay, not as a gratuity, not as the act of enlightened labor management, but specifically in lieu of Chapter 440 benefits considered to be due.

In this case the employer and carrier’s testimony shows without contradiction that Allen’s Chapter 440 benefits were terminated no later than November 1977 precisely because the employer and carrier considered, correctly or not, that no further benefits were payable. They testified, and Allen was in no position or condition to deny, that Allen himself was so advised. That being so, the continuing wage payments were not intended by the employer as in lieu of Chapter 440 compensation, and Allen could not reasonably have thought the employer so regarded those payments. Allen being thenceforth on notice that the employer and carrier denied further workers’ compensation coverage, there was no further reason to stay the running of the statute. Allen mistakenly accepted the surcease of continued wages without preserving by asserting his compensation claim; and after two years his claim was barred.

REVERSED.

JOANOS and THOMPSON, JJ., concur.

      . Section 440.19(l)(a) provides:
      The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within 2 years after the time of injury, except that if payment of compensation has been made or remedial treatment has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer.

      . Larson, § 78.43(c) at p. 15-139, characterizes the rule as “theoretically correct” but “difficult to apply with perfect accuracy.” See Chemstrand Co,, supra, 231 So.2d at 818.


author: THOMPSON, Judge.

text:
    IVY H. SMITH COMPANY and United States Fidelity & Guaranty Company, Appellants, v. Alfred A. WINGO, Appellee.
    No. AB-220.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    Rehearing Denied Nov. 13, 1981.
    Jack Langdon of Jones & Langdon, Gainesville, for appellants.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, Ocala, for appel-lee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending that the claimant’s injury did not arise out of his employment. We agree and reverse.

In March 1980, the claimant was employed by the appellant Ivy H. Smith Company (“the Company”). The claimant, along with two other employees, lived in Ocala but worked on a construction site in Brevard County. He would drive himself and his two coemployees to the job site, leaving Ocala on Monday morning and returning there on Friday night. The company did not provide any compensation for the costs of this travel.

The claimant had an agreement with one of his co-employees whereby that co-employee was to pay the claimant $15.00 a week for transportation between Ocala and the job site. When returning to Ocala one Friday night, the claimant told the co-employee that he would not transport him to the job site on Monday morning because the co-employee had not paid him $15.00. On Monday morning, the claimant did not pick up this co-employee when he traveled to the job site. Later that morning, the co-employee appeared at the job site and assaulted the claimant with a weapon, causing an injury to his shoulder. The Deputy Commissioner found that this injury was com-pensable.

In San Marco Co., Inc. v. Langford, 391 So.2d 326 (Fla. 1st DCA 1980), this court discussed the appropriate test for determining if an assault and its accompanying injuries arise out of employment. We stated that:

[w]hen it is clear that the origin of the assault was purely private and personal, and that the employment contributed nothing to the episode, whether by engendering or exacerbating the quarrel or facilitating the assault, the assault should be held noncompensable. . . .

Id. at 327, quoting 1A Larson, The Law of Workmen’s Compensation, § 11.21 (1978). In this case, the apparent origin of the assault was.a purely private and personal agreement relating to a car pool arrangement. That arrangement was not a part of employment, as is clear from George v. Woodville Lumber Co., 382 So.2d 802 (Fla. 1st DCA 1980), where this court affirmed the denial of compensation to an employee who was injured while transporting two co-employees to work in a car pool arrangement that was very similar to the one at bar.

In the present case, the claimant’s employment contributed nothing to the assault —instead, the basis for that assault was a car pool arrangement that was not a part of employment. Therefore, the claimant did not sustain an injury arising out of employment, and his claim for compensation should have been denied.

The Deputy Commissioner’s Order is reversed, and this cause is remanded for discharge. In view of our holding, we need not address the other issue raised by the appellants.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.


author: ANSTEAD, Judge.

text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., Appellant, v. DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, a state agency, Gary R. Rutledge, as Director of the Division of Pari-Mutuel Wagering, and Hialeah, Inc., a Florida Corporation, Appellees.
    Nos. 81-669, 81-698.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.

      Leonard Romanik and David S. Romanik of Landefeld & Romanik, Hollywood, for appellant.
    David M. Maloney, Staff Atty., Tallahassee, for appellees Florida Pari-Mutuel Commission and Division of Pari-Mutuel Wagering, Department of Business Regulation.
    Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for ap-pellee Hialeah, Inc.
   ANSTEAD, Judge.

This is an appeal by Gulfstream Park Racing Association from an order of the Florida Pari-Mutuel Commission which awarded the most lucrative dates of the upcoming 1981 — 1982 racing season to Hialeah Race Course, Inc. We affirm the order of the Commission.

Gulfstream and Hialeah have competed for the racing dates in question for many years and in most cases the issue has been finally resolved in court. Cited chronologically, these cases are Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, 245 So.2d 625 (Fla.1971); Gulfstream Park Racing Association, Inc. v. Division of Pari-Mutuel Wagering, 253 So.2d 429 (Fla.1971); Hialeah Race Course, Inc. v. Board of Business Regulation, 270 So.2d 366 (Fla.1972); State of Florida ex rel. Hialeah Park, Inc. v. Board of Business Regulation, 287 So.2d 679 (Fla.1973); Gulfstream Park Racing Association, Inc. v. Board of Business Regulation, 318 So.2d 458 (Fla. 1st DCA 1975); Hialeah Park, Inc. v. Board of Business Regulation, 339 So.2d 287 (Fla. 3d DCA 1976).

Over the years the legislature has set varying standards for the Commission to utilize in determining which track should receive the more lucrative dates. Originally, the Commission was to allocate the racing dates to the competing tracks “in a fair and impartial manner.” § 550.02, Fla.Stat. (1941). Subsequently, the best dates were to be awarded to the track producing the largest amount of tax revenues in the preceding year. § 550.081, Fla.Stat. (1947). Under this policy Hialeah received the dates for 24 years in a row. In 1971, the Florida Supreme Court invalidated Section 550.081 on the grounds that it operated to perpetuate a system whereby Hialeah would always be entitled to the best dates since the initial award of the best dates usually dictated which track would produce the most tax income for the state. Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, supra. In the litigation ensuing the following year the Supreme Court indicated that a system of rotating the dates annually between the two competitors may be required “unless strong and compelling reasons otherwise dictate.” Gulfstream Park Racing Association, Inc., v. Division of Pari-Mutuel Wagering, supra. The court also pointed out seven factors that the Commission should consider in making its decision:

1. interest of the state
2. interest of the track owner
3. good will
4. quality of horses
5. track facilities
6. geography
7. skill in management

In 1972 the Supreme Court held that “all other factors being equal, tracks with records as best producers of revenue should prevail unless strong, compelling reasons otherwise dictate.” Hialeah Race Course, Inc. v. Board of Business Regulation, supra. This rule governed until 1975 when, even though Gulfstream had demonstrated that it was the best producer, the choice dates were awarded to Hialeah on the grounds that the combined revenue for the state from all winter dates would be greater and the state’s long-term interests would best be served since Hialeah might not survive financially without the better dates. The 1975 Legislature appeared to endorse this action by enacting Section 550.081(l)(c), Florida Statutes (1975) which provided:

In allocating the racing dates.. . the Board.. . shall take into account the ability of all winter permitholders to maximize handle throughout the entire 144 day racing period so as to generate overall the maximum state revenue from winter per-mitholders collectively.

The award of the dates to Hialeah in that year was upheld by the First District Court of Appeal in Gulfstream Park Racing Association, Inc. v. Board of Business Regulation, supra.

Gulfstream was awarded the middle dates for 1976-1977 and the Third District upheld the award in Hialeah Park, Inc. v. Board of Business Regulation, supra. Thereafter, Hialeah and Gulfstream agreed between themselves to annually rotate the best dates and for the four year period of 1978 — 1981, the tracks did not compete for dates. Under that agreed rotation plan Gulfstream received the choice dates in 1981.

The 1975 legislative revision of Section 550.081(l)(c) continued in effect until 1980, when the legislature enacted Section 550.-081(4), Florida Statutes (1980), which simply provided that the racetracks were to file requests for racing dates for the following year on or before January 4th of each year and permits were to be issued by February 15. No standards of any kind are set out in the statute to guide the Commission in allocating racing dates and to date the Commission has enacted no standards of its own.

This year the two tracks did not agree to continue rotation of the best dates between themselves. However, upon hearing, the Commission awarded the dates in question to Hialeah, which would have been entitled to the dates if rotation had continued. This was done despite the fact that Gulfstream was found to have produced the most tax revenue in the last several years for the dates in question.

The Commission maintains that its decision to continue a system of rotation should be upheld because, absent unusual circumstances not present here, rotation has been proven to serve the interest of the state in raising revenue and to equitably accommodate the interests of the two competing tracks, Gulfstream Park Racing Association v. Division of Pari-Mutuel Wagering, supra. The Commission suggests that it would be especially inequitable to discontinue rotation this year because Hialeah, unlike Gulfs-tream, has not had an opportunity to operate under a new taxing scheme enacted by the legislature prior to the 1980-81 racing season which reduced the amount of revenue to be extracted from the tracks by the state.

Hialeah asserts that the state’s financial interest is best served when Hialeah is awarded the middle dates and Gulfstream the remaining dates because that arrangement produces the most state revenue from the winter permit holders collectively. § 550.081(l)(c), Fla.Stat. (1975); Gulfstream Park Racing Association, Inc. v. Board of Business Regulation, supra.

Gulfstream, on the other hand, contends that the issue should be controlled by the Supreme Court’s decision in Hialeah Race Course, Inc. v. Board of Business Regulation, supra, mandating that tracks with the record as the best producer should prevail. Under this view, since the Commission has admittedly found Gulfstream to be the best producer, Gulfstream would be awarded the dates.

The main difficulty which this court faces in deciding this case is the lack of standards of any kind provided by the legislature or the Commission. Normally, this deficiency alone might serve as a basis for challenging the validity of the Commission’s action. State ex rel Palm Beach Jockey Club, Inc. v. Florida State Racing Commission, 158 Fla. 335, 28 So.2d 330 (1946). However, Gulfstream has expressly declined to challenge the Commission action on this ground or to raise this issue for our consideration. In addition, all of the parties have urged the court to rule promptly because of the approach of the 1981-82 racing season and the need for extensive preparation by the tracks. Under these circumstances we do not address herein any issues involving the lack of express standards governing the Commission’s action. We must address, however, the nature and extent of the authority vested in the Commission by the legislature and more specifically the issue of the intent of the legislature in enacting the current laws governing the allocation of racing dates.

As noted, supra, Section 550.081(4), without setting out any specific criteria, vests the Commission with the authority to allocate racing dates. In enacting Section 550.-081(4), we believe the legislature intended to free the Commission from the restraints of any specific formula such as that contained in the statute which preceded the current enactment. We do not believe the legislature intended that the Commission’s discretion be limited to any single test such as the maximum state revenue theory set out in the prior act and advanced by Hialeah, or the best producer concept evolved from the Supreme Court’s review of the 1947 legislation and advanced by Gulfs-tream. However, we do not perceive that the legislature intended to prohibit the Commission from considering the criteria set out in the prior legislation or case law. Rather, we believe that the legislature was well aware of the prior legislation and litigation concerning the allocation of racing, dates and the various criteria which have previously been utilized by the courts and the legislature in allocating racing dates. By intentionally omitting specific criteria, it appears that the legislature intended to vest the Commission with broad discretion to consider any factor necessary to best serve the interest of the state and equitably accommodate the interests of the competing tracks.

At one time or another numerous factors, all set out in previous legislation or court decision, including the seven factors noted previously have been recognized as valid and important factors to be considered. But the previous criteria have been valid and relevant only to the extent that at the time invoked they best served the interest of the state and did not unlawfully discriminate against the rights of any of the tracks. Based on our analysis of the intent of the legislature, we are unable to conclude that the Commission, in deciding to continue a system of rotation, has abused its discretion in the case at hand. The rotation system, assuming only two competitors for the dates in question as has been the case for some time, has previously been recognized as a proper and equitable method of awarding the dates, absent compelling reasons to the contrary. Gulfstream Park Racing Association, Inc. v. Division of Pari-Mutuel Wagering, supra. There has been no demonstration that the Commission abused its discretion in concluding that there were no compelling reasons to the contrary in this instance. In addition, given our view of the legislature’s grant of discretion to the Commission, we are unable to conclude that the Commission erred in considering application of the new taxing scheme as a proper factor in its decision. In sum we find that the Commission has acted within the grant of authority of the legislature and that there is substantial competent evidence in the record to support the Commission’s decision.

Accordingly, the final order of the Commission is affirmed.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . The record does reflect that after the Commission voted to grant Hialeah the dates in question for 1982 the Commission also unanimously approved the following motion made by Commissioner Abramson:
      MR. ABRAMSON: Mr. Chairman, I would like to make a motion, if I may, as a matter of clarification of my previous motion to award the middle dates for 1982 to Hialeah.
      It is the intention of this Commission that in the event that Hialeah fulfills the obligations to the public, the State and horsemen, as discussed today the Commission will continue a rotation of the middle dates in the year 1983 and four.

      . In 1977 the legislature, in Chapter 77-167, Laws of Florida, determined that § 550.081, as amended (maximum aggregate handle), should continue in effect until July 1, 1979, at which time the former language of the section would be revived. In 1979, the legislature postponed the reversion to the 1947 statutory scheme until July 1, 1980. However, in 1980 the legislature enacted Chapter 80-57, Laws of Florida, which entirely deleted the 1947 scheme from § 550.081, and instead changed § 550.081(4) to provide the Commission with the authority to grant the dates but provided no guidelines, either directly or by reference to prior legislation.

      . Gulfstream has also challenged Hialeah’s late filing of its application for the dates in question. However, we believe it was within the Commission’s jurisdiction to consider the application which was not filed until January 5, 1981 (instead of by January 4, 1981, a Sunday), at the Commission’s own urging.


text:
    FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, a corporation, Appellant, v. Alfred DuPont DENT and Dent and Andrew G. P. Hobbs, individually and doing business as Computer Institute of North America, Inc., Appellees.
    No. OO-113.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1981.

      John W. Harrell of Harrell & Perrine, Jacksonville, and David W. Foerster of Foerster & Hodge, Jacksonville, for appellant.
    John F. Fannin, Jacksonville, for appel-lees.
   PER CURIAM.

Florida First National Bank of Jacksonville (bank) seeks review of the trial court’s order denying its motion for new trial and for directed verdict. We affirm.

On August 22, 1969, the Computer Institute of North America (CINA), lessee, executed a lease agreement with the bank, lessor. The instrument was signed by the bank’s cashier and by an assistant vice president. CINA’s president and secretary signed the document as did Hobbs and Dent. On October 2,1969, Dent and Hobbs signed a guaranty agreement providing they would guarantee all obligations which CINA owed the bank. CINA never took possession due to a disagreement within its corporate self. Dent, Hobbs and other CINA stockholders then formed the Computer Institute of Florida (CIF), a separate corporate entity which moved onto the premises originally leased by CINA. Dent and Hobbs owned over fifty percent (50%) of the CIF stock. In 1971, Dent, CIF’s president, asked the bank to find another tenant because CIF was closing. The bank sued Dent and Hobbs on the lease individually, as partners and as guarantors. At trial, the court refused to admit the leasing agreement because it had been improperly executed. No other evidence was admitted and the court directed a verdict in favor of Hobbs and Dent.

On appeal, this court held that although the agreement was improperly executed, the lease was admissible as evidence of an underlying agreement for which Hobbs and Dent could be liable under the guaranty agreement. Florida First National Bank v. Dent, 350 So.2d 481 (Fla. 1st DCA 1977). This court remanded the cause and the trial court retried the matter on the issues of whether appellees ratified the lease by occupying the premises and whether they were liable under the guaranty agreement. The jury returned the verdict finding Hobbs and Dent had not ratified the lease, that the guaranty agreement covered indebtedness due the bank from CINA but there was no corporate indebtedness. The bank moved for a new trial and renewed its previous motion for a directed verdict. The trial court entered an order denying the motions. The bank appeals this denial.

The trial court enjoys broad discretion in considering whether to grant a motion for new trial and that discretion will not be disturbed on appeal absent a clear showing of abuse. Saunders v. Smith, 382 So.2d 1254 (Fla. 4th DCA 1980); Cloud v. Fallis, 110 So.2d 669 (Fla.1959). Further, a trial court should not grant a motion for new trial unless a jury of reasonable people could not have reached the verdict rendered. City of Hollywood v. Jarkesy, 343. So.2d 886 (Fla. 4th DCA 1977); Griffis v. Hill, 230 So.2d 143 (Fla.1969). The bank has failed to demonstrate reversible error. Dent testified he and Hobbs were not partners. Mason, one of the bank’s executives, testified that CINA never moved onto the leased premises, that the bank was aware CIF moved onto the leased premises, and that the bank was aware CIF was a separate corporate entity. Mason also testified Dent and Hobbs did not maintain a personal office on the leased premises. This evidence is sufficient to sustain the jury’s determination. The trial court was, therefore, correct in denying the motion for new trial.

A motion for directed verdict after the jury returns a verdict should be granted only when the evidence, taken in a light most favorable to the opposing party, demonstrates a jury could not reasonably differ on the existence of a material fact and the moving party is entitled to a judgment as a matter of law. Forshee v. Peninsular Life Insurance Co., 370 So.2d 842 (Fla. 3rd DCA 1979). The evidence presented below does not meet this standard. Therefore, the motion was appropriately denied. The bank’s other contentions do not warrant reversal. Accordingly, the order is affirmed.

AFFIRMED.

McCORD and WENTWORTH, JJ„ and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Isiah WILLIAMS, Appellant, v. BRANNEN PRESTRESS CO., INC., et al., Appellee.
    No. XX-392.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1981.
    Ivan Matusek, St. Petersburg, for appellant.
    Jeffrey R. Fuller of Williams, Brasfield, & Wertz, P. A., of St. Petersburg, for appel-lee.
   PER CURIAM.

The claimant presents the following points in this workers’ compensation appeal: (1) that the deputy erred in failing to award penalties; (2) that the deputy erred in failing to make a finding regarding claimant’s alleged psychiatric disability; (3) that the deputy erred in not finding claimant permanently and totally disabled; and (4) that the deputy erred in denying claimant’s motion to present additional evidence.

In his order, the deputy commissioner discusses the evidence regarding claimant’s alleged psychiatric disability and, in fact, appears to agree that there is a psychiatric component to the disability. However, in an otherwise detailed order, he makes no specific ultimate findings on this issue. Therefore, we find it necessary to remand on this issue for the deputy to decide whether, and to what extent, claimant has a psychiatric disability.

The deputy also erred in failing to award penalties due to the carrier’s belated payment of certain compensation benefits, for Section 440.20(5), Florida Statutes (1977) provides:

If any installment of compensation payable without an award is not paid within 14 days after it become due, . . . there shall be added to such unpaid installment an amount equal to 10% thereof .... (emphasis supplied)

While there are several statutory exceptions to this general rule, none are applicable to this situation.

We have considered the remaining points on appeal and find them to be without merit.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

McCORD and SHIVERS, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Charles H. WARDLOW, Jr., Appellant, v. CITY OF MIAMI, Robert Murphy and Garland Watkins, Appellees.
    No. 78-1283.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Gilbride & Heller and James F. Gilbride, Miami, for appellant.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellees.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 26, 1979 (372 So.2d 976) affirming in part and reversing in part the final summary judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 30, 1981 and mandate now lodged in this court, quashed a portion of this court’s judgment.

NOW, THEREFORE, It is Ordered that this court’s mandate heretofore issued in this cause on August 13,1979 is withdrawn, the judgment of this court filed in this cause on June 26, 1979 except as is affirmed by the judgment of the Supreme Court dated July 30, 1981, 403 So.2d 414, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, and the final summary judgment of the trial court is hereby reinstated. Costs allowed shall be taxed in the trial court (9.400 a Florida Rules of Appellate Procedure).


text:
    Sara Jane W. BYRNES, Appellant, v. John J. BYRNES, Appellee.
    No. 80-2420.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Lawrence & Daniels and Adam Lawrence, Miami, for appellant.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Wife appeals from a final judgment of dissolution alleging multiple error on the part of the trial court.

We find no abuse of discretion on any issue except for the court’s failure to reserve jurisdiction to award further rehabilitative alimony. In that respect, the judgment below is reversed with directions to reserve jurisdiction to make such further order as may be justified at the conclusion of the rehabilitative period. Mumm v. Mumm, 353 So.2d 134 (Fla. 3d DCA 1977); Hyatt v. Hyatt, 315 So.2d 11 (Fla. 3d DCA 1975).

Affirmed in part; reversed in part. Remanded with directions.


text:
    BECKER, POLIAKOFF & STREITFELD, P.A.; Alan Becker and Gary S. Poliakoff, individually, Appellants, v. Peter S. SACHS, Appellee.
    No. 80-1325.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Schwartz, Klein & Steinhardt and Jay S. Weiss, Miami, for appellants.
    Patterson, Maloney, Blyler & Feige and Hans C. Feige, Fort Lauderdale, for appel-lee.
    HENDRY and Before BARKDULL, BASKIN, JJ.
   PER CURIAM.

We reverse the summary judgment entered in favor of appellee in his counterclaim upon our finding that the counterclaim should have accompanied the transfer of the claim for damages to Broward County where a prior action is pending. See Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81 (Fla.3d DCA 1975); Zuckerman-Vernon Corp. v. Zelikoff, 303 So.2d 391 (Fla.3d DCA 1974); McCue v. Lane, 228 So.2d 101 (Fla.3d DCA 1969).


text:
    William MUSGRAVE, Appellant, v. CALDER RACE COURSE, INC., Appellee.
    No. 81-234.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Donald J. Vestal, Pembroke Pines, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Anthony L. Pietrofesa, Miami, for ap-pellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Butler v. Metropolitan Dade County, 298 So.2d 552 (Fla. 3d DCA 1974); Nemeth v. DeLauega 354 So.2d 418 (Fla. 3d DCA 1978).


text:
    Richard A. KATZ, Appellant, v. PREFERRED EQUITIES CORPORATION, etc., Appellee.
    No. 81-477.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Colson & Hicks, Miami, for appel-lee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Katz appeals from a default entered against him as a result of failing to make discovery. Florida Rule of Civil Procedure 1.380 provides for an order of the court prior to imposing the ultimate sanction of default. Rashard v. Cappiali, 171 So.2d 581 (Fla.3d DCA 1965); Santuoso v. McGrath and Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980).

Reversed and remanded.


author: NESBITT, Judge.

text:
    Eddie Lee THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1151.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.
    Bennett H. Brummer, Public Defender and Steven Wisotsky, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

The defendant was charged by a two-count information with: (1) burglary of a dwelling contrary to Section 810.02(3), Florida Statutes (1977); and (2) involuntary sexual battery in violation of Section 794.-011(5), Florida Statutes (1977). As to Count I, he was found guilty of the lesser included offense of trespass to a structure. He was found guilty as charged with respect to the involuntary sexual battery. The defendant was sentenced to fifteen years in the state penitentiary for the crime of rape and one year for trespass, with appropriate credit for time served. He contends here that the multiple punishments were not authorized because the trespass to the structure was a lesser included offense of the rape.

We do not agree that this is a category four lesser included offense as defined by the leading case of Brown v. State, 206 So.2d 377 (Fla.1968):

In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense.

206 So.2d at 383. Count II of the information which charges the sexual battery alleges none of the elements of a trespass. While it may be that the defendant had to enter the structure in order to get to the victim who was inside, this connection is insufficient under the crimes as alleged, since the defendant could have been convicted of rape without a conviction for trespass. It was only after the defendant had fully committed the offense of trespass to a structure that he then, separately and independently, committed the involuntary sexual battery.

Accordingly, the sentence appealed from is affirmed.