author: COWART, Judge. COBB, Judge,

text:
    Donald SILER, Father and Guardian for Lori Siler, and Lori Siler, a minor, Appellants, v. LUMBERMENS MUTUAL CASUALTY COMPANY, etc., et al, Appellees.
    No. 82-145.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    David L. Thomas, DeLand, for appellants.
    J. David McFadden, Daytona Beach, for appellees Dennis E. Bertone and Barbara Bertone.
    Terrence M. White of Cliff B. Gosney, Jr., P.A., Daytona Beach, for appellee Lumber-mens Mut. Cas. Co.
    Frank M. Palmour of Marón E. Lovell, P.A., Winter Park, for appellee American Liberty Ins. Co.
   COWART, Judge.

Simply stated, appellants A (Lori Siler) and B (Donald Siler) sued C (Dennis Ber-tone) and his insurer D (Lumbermens Mutual Casualty Company). C and his wife E (Barbara Bertone) filed an answer and counterclaim against A and B and their insurer F (American Liberty Insurance Company). A, B and F filed an answer to the counterclaim and also filed a cross-claim against C and D. A and B, appellants, settled their main claim and filed the following paper:

VOLUNTARY DISMISSAL WITH PREJUDICE
Comes now the Plaintiffs, Counter-Defendants and Cross-Plaintiffs, DONALD SILER, Father and next friend of LORI SILER, and LORI SILER, a minor, by and through their undersigned attorney, herein voluntarily dismisses the Defendants, Counter-Plaintiffs and Cross-Defendants, LUMBERMENS MUTUAL CASUALTY COMPANY and DENNIS BERTONE, from this action.

Apparently later, counsel for A and B became concerned that this paper not only served to eliminate A and B’s main claim stated in their original complaint against C and D, but also eliminated A and B’s cross-claim against C and D, which was filed in response to C and E’s counterclaim against A, B and F. Accordingly, A and B moved under Florida Rule of Civil Procedure 1.540 for relief from the effect of their “voluntary dismissal with prejudice,” alleging that, by that paper, A and B intended only to dismiss their original complaint and not their cross-claim. The trial judge denied appellant’s motion on the authority of Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), which states that, once a notice of voluntary dismissal under Florida Rule of Civil Procedure 1.420(a)(1) is filed, the action is immediately dismissed without order of court and thereafter the trial court has no discretion or jurisdiction of the cause and no power to grant relief under Florida Rule of Civil Procedure 1.540. A and B, as appellants, take this non-final appeal from this order. Fla.R.App.P. 9.130(a)(5).

First, and most elementarily, Florida Rule of Civil Procedure 1.420 relates only to dismissal of actions and not to dismissal of parties from an action. Notwithstanding what appellants may or may not have intended to accomplish by their paper styled “Voluntary Dismissal with Prejudice,” a careful reading of it shows that it only attempted to dismiss C (Dennis Ber-tone) and D (Lumbermens Mutual Casualty Company) “from this action.” Therefore, since this paper did not dismiss the action, under Rule 1.420 or otherwise, Randle does not apply and the trial court erred in relying on that case. Secondly, even if the paper were considered to be a notice of dismissal under Rule 1.420(a), Randle, and similar cases, must be distinguished because in this case there was a counterclaim filed and, therefore, a voluntary dismissal under Rule 1.420(a)(l) was not authorized; any dismissal of the action must be under Rule 1.420(a)(2), which requires an order from the trial court. Ryder System, Inc. v. O’Connor, 369 So.2d 980 (Fla. 4th DCA 1979); Gull Construction Co. v. Hendrie, 271 So.2d 775 (Fla. 2d DCA 1973); Rice v. Fremow, 165 So.2d 447 (Fla. 2d DCA 1964). Since dismissals under Rule 1.420(a)(2) require an order of court, the mere filing of a notice of voluntary dismissal is ineffective to dismiss the cause and does not cause a loss of jurisdiction in the trial court. Ryder. Carolina Casualty Co. v. General Truck Equipment & Trailer Sales, Inc., 407 So.2d 1095 (Fla. 1st DCA 1982), is contrary to Ryder, but we follow Ryder.

REVERSED and remanded 'for further proceedings.

ORFINGER, C.J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

Florida Rule of Civil Procedure 1.420(a)(1) provides only two exceptions to the power of a party plaintiff to dismiss his action. One is an action where property has been seized or is in the custody of the court. The other is during the pendency of a motion for summary judgment. No exception is mentioned in this section for actions wherein a counterclaim has been filed. In subsection (a)(2) of the rule, it is stated:

If a counterclaim has been served by a defendant prior to the service upon him of the plaintiff’s notice of dismissal, the action shall not be dismissed against defendant’s objections unless the counterclaim can remain pending for independent adjudication by the court. (Emphasis added.)

I do not find any requirement for a court order approving a plaintiff’s dismissal in each instance in which a counterclaim has been filed. The rule simply prevents a plaintiff (counter-defendant) from dismissing a claim against himself where the coun-terclaimant objects and the counterclaim cannot remain pending. I disagree with the majority opinion in the Ryder case and believe the dissent therein correctly interprets the rule.

There is no indication in this record that the counterclaimants objected to the dismissal. I would affirm on authority of Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), and Carolina Casualty Co. v. General Truck Equipment & Trailer Sales, Inc., 407 So.2d 1095 (Fla. 1st DCA 1982).

Moreover, it seems elementary to me that the dismissal of all of the adverse parties is a dismissal of the plaintiff’s action pursuant to Rule 1.420, as the trial judge thought, rather than the mere dropping of a party pursuant to Rule 1.250(b).

Accordingly, I dissent.

      . See, e.g., Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970); Scott v. Permacrete, Inc., 124 So.2d 887 (Fla. 1st DCA 1960).

      . Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970), and Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, Inc., 371 So.2d 492 (Fla. 4th DCA 1979), constitute a line of cases holding that after a voluntary dismissal under Rule 1.420(a)(1) the trial court has no jurisdiction to grant a plaintiffs motion for relief under Rule 1.540. However, Rich, Randle and Sun Bank may only hold that the motions for relief under Rule 1.540 in those cases were insufficient; those cases do not hold that proper grounds for relief under Rule 1.540 from a notice of voluntary dismissal can never be alleged. See Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364 (Fla. 4th DCA 1982).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rickey Anthony TEAGUE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1557.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

COBB, SHARP and COWART, JJ., concur.


author: COBB, Judge.

text:
    Charlie RICHMOND, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, a foreign insurance corporation, and Drum Service Company of Florida, Appellees.
    No. 82-131.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    James C. Fisher, Altamonte Springs, for appellant.
    J. Russell Thacker of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Orlando, for appellees.
   COBB, Judge.

This cause arose when a truck driven by the appellant was allegedly run off the road by an unidentified motor vehicle. The appellant, Charlie Richmond, sued his employer, Drum Service Company of Florida and its liability and worker’s compensation insurance carrier, Liberty Mutual Insurance Company, alleging, inter alia, that section 440.15(3), Florida Statutes (1981), is unconstitutional and that, at the time of his accident, he was engaged in a hazardous occupation, thereby allowing him to by-pass the exclusive liability provision of Chapter 440. Appellant also alleges uninsured motorist coverage against the carrier on the frivolous theory that the vehicle owner’s rejection of such coverage was not a knowing and willing rejection because the owner did not know, and was not advised, that the terms of worker’s compensation coverage had been revised by the state legislature and was subject to constitutional challenge. He also erroneously contends that a written rejection by the insured is mandatory. See Kimbrell v. Great American Ins. Co., 420 So.2d 1086 (Fla.1982); Liberty Mutual Ins. Co. v. Wright, 406 So. 2d 1261 (Fla. 4th DCA 1981), review denied, 413 So.2d 877 (Fla.1982); Del Prado v. Liberty Mutual Ins. Co., 400 So.2d 115 (Fla. 4th DCA), petition for review dismissed, 407 So.2d 1105 (Fla.1981); Glover v. Aetna Ins. Co., 363 So.2d 12 (Fla. 1st DCA 1978). The named insured and the agent agree that no factual dispute is present as to the offer and knowing rejection of uninsured motorist coverage. Therefore, the summary judgment adverse to the appellant was properly entered.

We find no merit in appellant’s constitutional attack on the wage loss provision of section 440.15(3), Florida Statutes (1981), originally enacted in 1977. See Carr v. Central Florida Aluminum Products, Inc., 402 So.2d 565 (Fla. 1st DCA 1981). Moreover, based on the briefs submitted on this appeal, Richmond apparently lacks standing to raise this constitutional attack for the reason that his worker’s compensation claim in regard to this incident is still pending. See Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978).

The appellant also contends that the summary judgment entered below was erroneous for the reason that Chapter 769, the Hazardous Occupations Act, removes him from the applicability of the exclusive liability provision of section 440.11, Florida Statutes (1981). This argument fails in three respects. First, we fail to see that driving a truck is encompassed by Chapter 769. Secondly, the complaint failed to allege any causative negligence by Drum. Third, even if Richmond had been injured by the negligence of his employer while engaged in a hazardous occupation, we would still agree with the well-reasoned opinion of Judge Owen in the recent case of Crosby v. Regional Utility Board, City of Gainesville, 400 So.2d 1024 (Fla. 1st DCA 1981). Crosby concluded that an injured employee is limited to the remedies of the Worker’s Compensation Act, with the Hazardous Occupation Act, originally enacted in 1913, remaining an alternative remedy available for those workers in hazardous occupations who sustain injury in the course and scope of employment and whose employer’s liability for some reason does not enjoy the section 440.11 limitation.

AFFIRMED.

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

      . Section 627.727(1), Florida Statutes (1981), reads in part:
      However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage.
      This language was amended by chapter 82-243, section 544, Session Laws (1982) (effective Oct. 1, 1982), to read as follows:
      . .. any insured named in the policy shall reject the coverage in writing.


text:
    STATE of Florida, Appellant, v. Elsie Virginia BOBBITT, Appellee.
    No. II-467.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1982.
    Jim Smith, Atty. Gen., and Wallace E. Albritton, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellee.
   ON RETURN OF MANDATE

PER CURIAM.

The Florida Supreme Court, in its decision of State v. Bobbitt, 415 So.2d 724 (Fla.1982), quashed the decision of this court reported at 389 So.2d 1094 (Fla. 1st DCA 1980), and “remanded for further proceedings consistent with this opinion.”

The issue now presented for our consideration is the effect of the decision of the Florida Supreme Court in reversing one of two holdings of this court’s opinion. Our prior decision held: (1) that the “castle doctrine” instruction should have been given; and (2) that defendant’s evidence as to self-defense created a reasonable doubt as to her guilt, which doubt was not overcome by evidence adduced by the State. The defendant urges that the two holdings are independent of each other; the State argues that they are not. We construe the opinion of the Florida Supreme Court and its mandate to this court to leave the question of the dependence or independence of the holdings in the prior opinion of this court as a matter for our determination.

Accordingly, we have reviewed this issue and determined that, in fact, the two holdings are independent, so that the reversal of the first holding with regard to the “castle doctrine” does not affect the continued validity of the second holding, which is supported by a substantial line of authority dealing with self-defense independent of the “castle doctrine.” Diaz v. State, 387 So.2d 978 (Fla. 3d DCA 1980); Ferguson v. State, 379 So.2d 163 (Fla. 3d DCA 1980); McKnight v. State, 341 So.2d 261 (Fla. 3d DCA 1977), cert. denied, 348 So.2d 953 (Fla.1977); Bolin v. State, 297 So.2d 317, 319 (Fla. 3d DCA 1974), cert. denied, 304 So.2d 452 (Fla.1974); Neveils v. State, 145 So.2d 883, 885 (Fla. 1st DCA 1962); Mayo v. State, 71 So.2d 899, 903 (Fla.1954); Lane v. State, 32 So. 896, 899 (Fla.1902).

In view of this interpretation of our decision in the light of the decision of the Florida Supreme Court, the judgment of conviction below is reversed, and the trial court is directed to discharge defendant from custody.

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

      . Our construction is based upon a comparison of the Supreme Court’s unpublished original opinion rendered April 8, 1982 and its official opinion published at 415 So.2d 724 (Fla.1982). In its original opinion, the Supreme Court stated that:
      Since we hold that the trial court did not err in not instructing the jury that Bobbitt had no duty to retreat in her home, the underlying premise for the district court’s conclusion that she should be discharged no .longer exists. The district court’s holding that the evidence was not sufficient as a matter of law to support the manslaughter conviction was predicated on its preliminary conclusion that Bobbitt had no duty to retreat.
      Accordingly, we quash the decision of the district court and remand with directions to reverse the order of the trial court granting a new trial.
      The official published opinion rendered June 24, 1982, following appellee’s petition for rehearing, states as follows:
      Having determined that there was no duty on the part of Bobbitt to retreat and, therefore, that any finding by the jury regarding failure to retreat was irrelevant, the First District considered in this light whether, as a matter of law, the evidence supported the manslaughter conviction in view of Bobbitt’s plea of self-defense. It held that it did not, and it reversed the conviction and remanded with directions to discharge Bobbitt.

      Accordingly, we quash the decision of the district court and remand for further proceedings consistent with this opinion.


author: SHAW, Judge.

text:
    B & J WINDOWS and Nationwide Insurance Co., Appellants, v. Billie SWEITZER, Appellee.
    No. AG-259.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    B.C. Pyle of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, P.A., Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   SHAW, Judge.

The employer/carrier appeal a workers’ compensation order awarding temporary benefits, wage loss, and an attorney’s fee predicated upon carrier bad faith.

Portions of the record are inaudible, but it is clear that the claimant was restricted by Dr. Newfield to part-time work which the claimant sought unsuccessfully in her home town. Ms. Sherry Ferber, a vocational rehabilitation specialist, reported that the only part-time work she was able to find within the claimant’s limitations was in New Smyrna Beach, twenty miles from the claimant’s home. The deputy commissioner obviously concluded that it was not incumbent upon an injured worker to accept part-time employment twenty miles from her home, necessitating a daily round trip of forty miles. We agree and conclude that wage loss was properly awarded under these facts. However, paragraph three of the decretal portion of the order should be modified to read, “so long as the claimant continues to lose wages as a result of her inability to obtain or keep employment due to her industrial injury,” instead of, “so long as claims for wage loss benefits are filed.”

The carrier asserts that the deputy erred in excluding claimant’s non-covered employment from consideration for purposes of determining the amount of wage loss benefits due during the months of January through March of 1981. This is a mattér that could have, and should have, been brought to the deputy’s attention within twenty days after copies of the order were mailed to the parties as provided for by section 440.25(4)(a), Florida Statutes (1979). The issue not having been presented to the deputy, we will not consider it now. Dade American Hospital Supply v. Perez, 417 So.2d 296 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

The carrier’s denial of benefits in the face of unrefuted medical evidence that the claimant could engage only in part-time work, which she was unable to find within a reasonable distance from her home, affords a basis for the deputy’s award of attorney’s fees. We do not find a clear abuse of discretion. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).

The award, as modified, is AFFIRMED.

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


author: JOANOS, Judge.

text:
    DEPARTMENT OF OFFENDER REHABILITATION and Division of Risk Management, Appellants, v. Bertie Mae GODWIN, Appellee.
    No. AG-265.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.

      John P. Brooks of Jones & Langdon, Gainesville, for appellants.
    David Cox of Barton, Cox & Davis, Gainesville, for appellee.
   JOANOS, Judge.

The employer and servicing agent (“E/C”) appeal a deputy commissioner’s order, entered following remand of a previous order in this case, see Department of Offender Rehabilitation v. Godwin, 394 So.2d 1091 (Fla. 1st DCA 1981). In the order presently under review, the deputy redetermined the date of MMI, found that claimant had incurred an 8% permanent partial disability (based on anatomic impairment), found that a merger of previous injuries with the present injury had occurred, excused the lack of a job search, and determined claimant is permanently totally disabled based on loss of wage earning capacity. E/C contend the deputy erred in finding that a merger occurred (arguing that all of claimant’s problems pre-existed the August 15, 1977 accident), excusing the job search, determining claimant is permanently totally disabled, and determining claimant’s attorney is entitled to a fee award.

Appellants have clearly tied their contention that the finding of merger was error to the argument that all of claimant’s problems pre-existed the August 15, 1977, accident, i.e., they argue there could be no merger because all disability pre-existed the last accident. The deputy’s finding that a merger occurred is incorrect because the prerequisites for merger are not present in the record in this case. That incorrect finding does not necessarily require reversal of the order, however, because a foundation exists for attributing claimant’s disability to the August 15, 1977, accident. First, there is no evidence in the record that the previous injuries resulted in any permanent anatomic impairment or loss of wage earning capacity; claimant was able to return to work after each of her previous injuries. See generally Brevard County School Board v. McCormick, 392 So.2d 1010 (Fla. 1st DCA 1981). Thus the argument that all of claimant’s problems pre-existed the August 15, 1977 accident is rejected. Further, the stipulation sheet in the record reveals that E/C stipulated claimant was injured by accident arising out of and in the course of her employment on August 15, 1977, and that E/C paid benefits for an 8% permanent partial disability attributable to that accident prior to the hearing. Appellant will not now be heard to argue that the medical evidence does not conclusively attribute the 8% impairment to the accident of August 15, 1977, and the finding that claimant incurred an 8% permanent partial disability will not be disturbed on appeal. In addition, except as qualified below, we cannot say the deputy erred in attributing additional loss of wage earning capacity to the August 15, 1977, accident. Id.

The deputy further found claimant to be permanently totally disabled based on the 8% permanent partial disability and additional factors bearing on her loss of wage earning capacity, including her age and inability to compete in the open labor market. The deputy excused the requirement of a job search, stating it would be a useless task for this claimant, because of her multiple injuries, age, education, the remoteness of her location, and the lack of a job market in her area. Several of the reasons for excusing the job search are not supported by competent substantial evidence in the record. Appellants assert that the record contains no evidence regarding claimant’s educational background. Appel-lee did not respond to this assertion in her answer brief, and we have been unable to locate such evidence in the record. In addition, the deputy erred in considering the remoteness of claimant’s location and the lack of a job market in her area in excusing the job search requirement for an award based on loss of wage earning capacity. A deputy commissioner may not take judicial notice of surrounding employment or economic conditions. Leffler v. Grand Union Co., 409 So.2d 1145 (Fla. 1st DCA 1982); United States Sugar Corp. v. Hayes, 407 So.2d 1079 (Fla. 1st DCA 1982). The record is devoid of evidence of the remoteness of the job location and lack of a job market in claimant’s area. On remand the deputy shall hold a hearing, receive evidence, and make such additional findings as may be necessary with regard to economic and employment conditions and the excusal of the employment search as these factors relate to claimant’s loss of wage earning capacity.

Since we are reversing the excusal of the job search, the finding that claimant is permanently and totally disabled based on loss. of wage earning capacity and the award of attorney’s fees below must also be reversed and remanded for further proceedings in light of this opinion.

REVERSED IN PART and REMANDED.

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


text:
    Vernon Windell GASKIN, Appellant, v. STATE of Florida, Appellee.
    No. AH-136.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We affirm the conviction of grand theft, but remand to the trial court for correction of the sentence.

Appellant was arrested and convicted on an information containing the following allegations:

VERNON WINDELL GASKIN, on the 13th day of April, 1981 in the state and county aforesaid did unlawfully obtain or use, or endeavor to obtain or use the property of Brantley Jewelry, Blounts-town, Florida, to-wit: One tray containing eleven assorted rings, having a value of more than $100.00, with the intent to deprive or defraud the said Brantley Jewelry of a right to said property or a benefit therefrom or to appropriate said property to his own use or to the use of any person not entitled thereto, in violation of Section 812.014, Florida Statutes.

In this appeal, appellant presents an argument not raised in the trial court, i.e., that the information was fundamentally defective because it did not contain an allegation that he intended to permanently deprive the owner of his property. Appellant urges this court to follow the Fifth District Court’s opinion in Faison v. State, 390 So.2d 728 (Fla. 5th DCA 1980), holding that the specific intent to permanently deprive was a requisite element of the crime charged, and that the failure to so charge and instruct the jury required reversal. We need not consider the Faison rule in this case because, as that same court has more recently held, a charging document which substantially but imperfectly charges a' crime is not fundamentally deficient. Such imperfections should therefore be deemed harmless when not attacked by motion to dismiss. Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982). We find that the charging document in this case, as in Green, substantially alleged the essential elements of the crime charged. Therefore the failure to challenge the information in the proceedings below waived the right to do so on appeal.

We have examined the other points raised by appellant and find them to be without merit. However, the case must be remanded for the purpose of correcting the sentence to properly reflect the amount of jail time credit.

The judgment and conviction are affirmed; the cause is remanded for correction of the sentence.

McCORD, BOOTH and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Cecil L. GRIGGS, Jr., Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-493.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.

      Cecil L. Griggs, pro se, appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Griggs pled nolo contendere to a charge of arson and was sentenced to serve 15 years in confinement. He also pled nolo contendere to burglary of a structure, grand theft, and two counts of forgery. The sentences on all of these latter offenses were to run concurrently with his 15-year sentence.

In setting his presumptive parole release date, the Commission aggravated Griggs by a total of 83 months for the latter four offenses. Griggs contends that the Commission has in effect breached the plea agreement whereby he was to receive concurrent sentences in return for his plea. This contention is without merit. Aggravation for multiple offenses with concurrent sentences is proper under Rule 23-19.01(5), Florida Administrative Code. Sala v. Florida Parole and Probation Commission, 414 So.2d 263 (Fla. 1st DCA 1982); Perkins v. Florida Parole and Probation Commission, 414 So.2d 264 (Fla. 1st DCA 1982).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    INTERNATIONAL FOOD SERVICE, OF MIAMI, et al., Appellant, v. Jose Manuel OLAZABAL, Appellee.
    No. AK-10.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Ronnie Klein Witlin of Witlin & Witlin, Miami, and Lanza, Sevier & Womack, P.A., Coral Gables, for appellant.
    Paul W. Humbert of S. Peter Capua Law Offices, Miami, for appellee.
   PER CURIAM.

Although our review of the case has been made more laborious by the absence from the deputy’s order of particular findings and analysis supporting his determination that the carrier acted in bad faith in evaluating the dependents’ entitlement to death benefits, so delaying payment from April 21,1981, to September of that year, we find substantial competent evidence supporting that ultimate finding. Florida Erection Services v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). No other error, properly reserved before the deputy, appears.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and MILLS and THOMPSON, JJ., concur.


text:
    Nathan VARIANCE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-283.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Nathan Variance in pro. per., appellant.
    Earl H.'Archer, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

There is no constitutional impediment to the commission’s consideration of a prisoner’s multiple offenses when it establishes his presumptive parole release date, even though the trial judge may have sentenced him concurrently on those offenses. Glisson v. Florida Parole and Probation Commission, 420 So.2d 336 (Fla. 1st DCA 1982); Gaddy v. Florida Parole and Probation Commission, 416 So.2d 836 (Fla. 1st DCA 1982).

AFFIRMED.

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Edwin Ray BOWERS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AM-230.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.

      Edwin Ray Bowers, Jr., pro se, appellant.
    No appearance for appellee.
   MILLS, Judge.

Bowers pled guilty to: (1) burglary of a dwelling [Section 810.02(3), Florida Statutes (1981) ]; (2) sexual battery with the threat of force [Section 794.011(4)(b), Florida Statutes (1981)]; and (3) aggravated battery [Section 784.045(l)(a), Florida Statutes (1981)]. He now appeals the trial court’s denial of his motion for post-conviction relief, Rule 3.850, Florida Rules of Criminal Procedure, contending that his sentences were illegal and that he was denied effective assistance of counsel. We affirm.

Bowers’ sentences were not imposed in violation of Section 775.021(4), Florida Statutes (1981). None of the offenses to which he pled guilty is a lesser included offense of any of the others. Nor was Bowers denied effective assistance of counsel. Knight v. State, 394 So.2d 997 (Fla.1981).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: WENTWORTH, Judge.

text:
    TRANSAMERICA INSURANCE CO., Appellant, v. John WEED and Conrad Bishop, d/b/a The Diamond Shop, Appellee.
    Nos. XX-19, ZZ-296.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    Fred M. Johnson and Baya Harrison, III, of Fuller, Johnson & Harrison, Tallahassee, for appellant.
    Stephen A. Smith, of Smith & Smith, Lake City, for appellee.
   WENTWORTH, Judge.

After denial of their motion to compel arbitration, Transamerica filed a petition for writ of common law certiorari seeking review of that denial. However, there was no stay of the proceedings below and the case went to a jury trial. Final judgment was entered against Transamerica before this court ruled on the petition for certiora-ri. Transamerica then perfected a timely appeal primarily raising the arguments which were presented in the petition. On Transamerica’s motion, the appeal and petition have been consolidated. We affirm the judgment and deny the writ.

Transamerica issued an insurance policy to “The Diamond Shop” covering loss due to fire damage of the building, its contents, and inventory. Sometime thereafter, all were destroyed by fire. Transamerica paid the policy limits for the damage to the building. However, the parties could not agree on the amount of loss as to the contents and inventory. On March 7,1980, The Diamond Shop filed a complaint demanding judgment against Transamerica for all covered losses. Transamerica answered on April 3, 1980, asserting the following affirmative defense:

2. Plaintiffs have failed and refused to comply with their obligation under the provisions of their policy of insurance with the Defendant and consequently the Defendant is not liable to them in any amount.

On the same day, Transamerica filed an interrogatory requesting a detailed description, quantity, and cash value of each item included in the inventory loss. On April 15, 1980, The Diamond Shop filed a motion to set the case for trial, to which Transamerica did not object. On April 23, 1980, Trans-america answered interrogatories propounded by The Diamond Shop, and on May 5, 1980, The Diamond Shop filed a detailed statement of inventory loss. On May 21, 1980, Transamerica offered a $30,000 settlement which was rejected on June 5, 1980. After a second offer was rejected, Trans-america demanded an appraisal pursuant to paragraph 16 of the policy. On June 23, 1980, the attorney for The Diamond Shop informed Transamerica’s attorney that his clients would not voluntarily submit to an appraisal. Finally, on June 24, 1980, Trans-america filed a motion to compel appraisal, the denial of which gave rise to the now consolidated petition for writ of common law certiorari and appeal from final judgment in favor of The Diamond Shop.

The provisions of the policy which are pertinent to this appeal provide:

15. Duties Of The Named Insured After A Loss. In case of loss the named insured shall:
(c) prepare an inventory of damaged personal property showing in detail, quantity, description, actual cash and amount of loss. Attach to the inventory all bills, receipts and related documents that substantiate figures in the inventory.
16. Appraisal. If the named insured and the Company fail to agree on the amount of the loss, either can demand that the amount of loss be set by appraisal. If either party makes a written demand for appraisal, each shall select a competent independent appraiser. Each shall notify the other of the selected appraiser’s identity within twenty (20) days of the receipt of the written demand. The two appraisers shall select a competent, impartial umpire. If the appraisers are unable to agree upon an umpire within fifteen (15) days, the named insured or the Company may petition a judge of a Court of Record in the state where the insured premises is located to select an umpire.
The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to the Company, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of loss.
Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and compensation of the umpire shall be paid equally by the named insured and the Company.

The appraisal clause found in paragraph 16 is one which has been held to be a condition precedent to the right of the insured to maintain an action on the policy. New Amsterdam Casualty Co. v. Blackshear, 116 Fla. 289, 156 So. 695 (1934). Transamerica argues that it acted promptly and in good faith in invoking the appraisal clause, so that the Shop’s failure to submit to arbitration precluded recovery. Had Transamerica acted promptly, their contention would be persuasive. Under the circumstances of this case, however, we reach a contrary conclusion.

As a party to the insurance contract, Transamerica was clearly aware of the arbitration provision. It was also aware, prior to answering the complaint, that the amount of loss was in dispute and that the insured had not complied with the paragraph 15 requirement of submitting a detailed inventory of lost merchandise. Although Transamerica’s general allegation of failure of the insured to comply with it’s obligations under the policy might be considered a reference to paragraph 15, it plainly does not invoke or assert rights under the arbitration clause. Florida Rule of Civil Procedure 1.120(c) requires that the denial of performance of a condition precedent shall be made specifically and with particularity. The general statement in Transamerica’s answer and affirmative defense neither specifically nor particularly refers to the arbitration agreement.

In addition, Transamerica’s subsequent activities in the court proceedings do not indicate a timely election of its right to arbitration. On the contrary, Transamerica engaged in discovery proceedings, tacitly agreed to setting the case for trial and generally participated in the suit for nearly four months before filing its motion to compel arbitration. Under these circumstances we find that Transamerica took a position and utilized procedures inconsistent with arbitration, resulting in waiver of the right to compel that contractual remedy. See Winter v. Arvida Corp., 404 So.2d 829 (Fla.3d DCA 1981); Ojus Industries Inc. v. Mann, 221 So.2d 780 (Fla.3d DCA 1969); Mike Bradford & Co. v. Guif States Steel, 184 So.2d 911 (Fla.3d DCA 1966).

Transamerica also challenges the trial court’s order awarding attorney’s fees to the plaintiff. We find no abuse of discretion or illegality in the award, and therefore affirm on this point also.

McCORD and BOOTH, JJ., concur.

      . The “appraisal” provision in the policy is in fact an agreement to submit to arbitration in the event of disagreement on the amount of loss. See Southern Home Insurance Co. v. Faulkner, 57 Fla. 194, 49 So. 542 (Fla.1909).

      . Failure to properly raise a defense results in waiver. Fla.R.Civ.P. 1.140.


text:
    FLORIDA FARM BUREAU FEDERATION, a Florida corporation, Appellant, v. CHARLES R. PERRY CONSTRUCTION, INC., a Florida corporation, Argonaut Insurance Company, a California corporation, and United States Fidelity and Guaranty Company, a Maryland corporation, Appellees.
    No. AG-159.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    L. William Graham of Dell, Graham, Willcox, Barber, Henderson, Monaco & Cates, P. A., Gainesville, for appellant.
    Martin J. Mickler of Bullock, Sharp, Childs, Mickler & Cohen, P. A., Jacksonville, and Jones & Langdon, P. A., Gainesville, for appellees.
   PER CURIAM.

AFFIRMED. See Florida Farm Bureau v. Charles R. Perry Construction, Inc., 414 So.2d 6 (Fla. 1st DCA 1982).

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Myran Ruth Merritt POSEY, Appellant, v. Jacky DeWayne MERRITT, Appellee.
    No. AG-416.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    Gillis E. Powell, Jr. of Powell, Powell & Powell, Crestview, for appellant.
    James W. Grimsley of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellee.
   SHAW, Judge.

Appellant wife seeks reversal of a judgment granting a change of custody of a child from the mother to the father. We find no error and affirm.

The appellee husband seeks taxation of costs and allowance of attorney fees against appellant. The motion for costs should be served in the trial court in accordance with Florida Rule of Appellate Procedure 9.400(a).

Normally, when a motion for appellate attorney fees in a marriage dissolution action is received, there has been a previous determination by the trial court that an economic disparity existed between the parties and that the moving party was entitled to fees in the trial court. Predicated on this trial court determination, unless we deny the petition outright, we provisionally grant the award and remand for a determination of a reasonable fee and the portion of it, if any, that the non-moving party should be required to pay because of a continuing disparity in the parties’ needs and ability to pay. See Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977). Here, however, so far as the record on appeal shows, there has been no determination of an economic disparity between the parties. We follow the Dresser procedure but modify it to provide for such a determination.

We AFFIRM the judgment and REMAND appellee’s motion for allowance of attorney’s fees to the trial court for determination of appellee’s entitlement to fees and the amount, if any, to be paid by appellant.

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


author: THOMPSON, Judge.

text:
    RISK MANAGEMENT SERVICES, INC., Appellant, v. Nealy McCRANEY and Inez McCraney, his wife, Appellees.
    No. AK-29.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    Dennis K. Larry of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellant.
    Stanley Bruce Powell of Powell, Powell & Powell, Niceville, for appellees.
   THOMPSON, Judge.

Risk Management Services, Inc., (appellant) appeals from a final judgment contending that the trial court erred in determining the amount of its lien pursuant to § 440.39, Fla.Stat., and in failing to provide for a lien on future benefits to be paid. We affirm as to the first issue, but reverse as to the second.

Appellee Nealy McCraney, while working as a truck driver, sustained compensable injuries in a vehicular accident caused by the negligence of a third party. McCraney received workers’ compensation benefits from appellant. He thereafter sued the third party tort-feasor and her employer, which suit, because of limits of insurance coverage and collectability, was subsequently settled for less than the full value of McCraney’s damages. When appellant and McCraney were unable to agree as to the amount the appellant should recover from the settlement proceeds, the issue was submitted to the trial court. At the hearing on the matter, the only disputed issue concerned the full amount of McCraney’s damages. Both parties agreed that once the trial judge had determined the true value of the claim, the carrier’s pro rata share of McCraney’s actual recovery was to be computed according to the formula set out in National Ben Franklin Insurance Company v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976). The lower court’s final order, which was expressly predicated on the authority of National Ben, provided that appellant was to recoup $5,679.93 of the $26,465.72 it had paid out. This order amounted to a finding that appellant was entitled to recover 21.5% of benefits paid.

Appellant now urges us to find the trial judge in error, on grounds that the National Ben formula is based on the 1975 version of § 440.39, and is incorrect under the 1979 version of the statute which is applicable in this case. This we shall not do. Although appellant correctly argues that National Ben was no longer applicable because of changes in the statute, Lee v. Risk Management, Inc., 409 So.2d 1163 (Fla.3d DCA 1982); Risk Management Services, Inc. v. Scott, 414 So.2d 220 (Fla. 1st DCA 1982), the record in this case clearly demonstrates that appellant induced the error by representing to the trial judge that National Ben was controlling. Appellant contends that no change in the law occurred until publication of the opinion in Lee v. Risk Management. This suggestion is incorrect. The law on which National Ben was based was changed on July 1, 1977, the effective date of § 440.39(3)(a), Fla.Stat. (1977), or approximately four years prior to the date of the hearing wherein appellant argued the applicability of National Ben. Accordingly, we conclude that this is a clear case of “invited error,” see e.g., Behar v. Southeast Banks Trust Company, N.A., 374 So.2d 572 (Fla.3d DCA 1979), and affirm as to this issue.

We do, however, find that the trial judge erred in failing to include in his order a provision allowing the carrier to recover or retain a pro rata portion of any future compensation benefits which it may be obligated to pay to MeCraney. Section 440.-39(3)(a), Fla.Stat. (1979) clearly contemplates a lien on future benefits providing: “The employer or carrier shall recover . . . what it has paid and future benefits to be paid . . . .” (emphasis supplied)

Therefore, this case is remanded with instructions to the trial court to allow appellant to deduct from any future benefits to be paid its pro rata share of McCraney’s recovery on the tort claim. Having invited the error in the computation of its share of the settlement proceeds, appellant shall be bound by it, and shall reduce any future benefits to be paid by 21.5%. The appellant shall recommence payment of full benefits, if and when the sum of the amounts recovered and retained pursuant to its lien equals McCraney’s net recovery on the tort claim.

Affirmed in part, reversed in part and remanded.

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


author: PER CURIAM. MILLS, Judge,

text:
    FAIRFAX HOTEL and Old Republic Insurance Company, Appellants, v. Maria VALDEZ, Appellee.
    No. AK-219.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.

      Mary Ann Stiles of Mary Ann Stiles, P.A., Tampa, and John F. McMath of John F. McMath, P.A., Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellee.
   PER CURIAM.

We find that the deputy commissioner is correct in his conclusions and the order is AFFIRMED.

Appellee’s petition for an attorney’s fee is conditionally granted. This case is remanded to the deputy commissioner to determine whether a fee is awardable under Section 440.34(2)(a-c): Florida Statutes (1979). Should the deputy rule in claimant’s favor, an attorney’s fee of $2,000 is granted on appeal.

ERVIN and WIGGINTON, JJ., concur.

MILLS, J., specially concurs.

MILLS, Judge,

concurring specially:

Although I concur with the majority opinion, the time has come to express concern about this Court’s method of awarding appellate attorneys’ fees in workers’ compensation cases.

Section 440.34(5), Florida Statutes (1981), gives this Court authority to award appellate attorneys’ fees. The only guidelines are that “the Court may allow or increase the attorney’s fee, in its discretion, which shall be paid as the Court may direct.” This Court has not adopted implementing rules.

This Court is presently awarding a $2,000 fee to a claimant’s attorney who prevails at the appellate level without oral argument and is awarding a $2,750 fee with oral argument. In addition, some panels are selecting cases which are set for oral argument with the provision that if not settled before oral argument and if the employer/carrier loses, they will be required to pay claimant’s attorney a fee of $3,000 to $3,500. This Court is awarding a fixed or flat fee without consideration of effort expended or of the benefit achieved and without consideration of the cost of transportation, lodging, and meals, if travel to Tallahassee is necessary.

The awards of attorneys’ fees are made with no evidence of their reasonableness. The Court does not use any criteria for the establishment of fees.

All trial courts are required to take evidence, Should this Court take evidence? It should. All trial courts are required to follow established criteria. Should this Court follow established criteria? It should.

This Court need only adhere to Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968). “If the parties are unable to stipulate on an amount deemed to be reasonable it is appropriate that evidence as to amount be obtained ... by affidavit of qualified and experienced lawyers . .. . ”

The criteria to be considered by the Court in establishing fees are:

1) the time and labor required; and
2) the novelty and difficulty of the questions involved; and
3) the skill requisite properly to conduct the case; and
4) the customary charges of the Bar for similar services; and
5) the amount involved and the benefits resulting to the client; and
6) the contingency or certainty of the fee.

See Lee Engineering, supra, and Section 440.34(1), Florida Statutes (1981).

Claimant’s attorney should file his or her affidavit setting forth the time necessary to conclude the appeal and the costs of traveling to Tallahassee, if applicable, along with an affidavit of an attorney stating his or her opinion as to a reasonable fee. The affidavits should include such evidence concerning the above criteria as the attorneys feel appropriate. The employer/carrier’s attorney should file an appropriate countering affidavit of an attorney.

With this evidence and following the criteria set forth above, the Court could establish a reasonable attorney’s fee based on evidence and known criteria. The fee would not be fixed. The fee would be based on merit.


text:
    David ARNETT, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-320.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    David Arnett, pro se, appellant.
    Earl H. Archer, Tallahassee, for appellee.
   MILLS, Judge.

Arnett appeals Florida Parole and Probation Commission action establishing his presumptive parole release date. We affirm.

There is no ex post facto violation in applying the matrix in effect at the time of interview when the crime was committed prior to enactment of parole guidelines, Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA, 1982).

The sufficiency of the notice given Arnett before the amendment of the objective parole guidelines is an issue for rule challenge proceedings, Canter v. Florida Parole and Probation Commission, 409 So.2d 227 (Fla. 1st DCA 1982).

ERVIN and WIGGINTON, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Michael O’SHAUGHNESSY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1211.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Bennett H. Brummer, Public Defender and Bruce Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The issue in this ease is whether the defendant parted with his jacket under circumstances which showed that he no longer retained any justified expectation of privacy in it which could have been invaded by a search of the jacket.

O’Shaughnessy, at a police officer’s insistence, accompanied the officer to a house in the neighborhood where the defendant had been stopped by the officer. The purpose of going there was to verify the defendant’s explanation of his presence in the neighborhood, the defendant having told the officer that he had just come from a visit to the house. At some point while the officer and the defendant were in front of the house, the defendant removed his jacket and laid it on a hedge near the porch of the house. Finding no one home, the officer and de-' fendant turned and began to walk away. The officer believed that the defendant had removed his jacket because he was hot or nervous. He picked up the jacket to hand it to the defendant and, feeling that the jacket was heavy and noticing a bulge in the jacket pocket which he admittedly did not suspect to be a weapon, he proceeded to search the jacket and uncovered jewelry and a jewelry box, the objects which the defendant unsuccessfully sought to suppress.

Not every physical separation of the person and the object he is carrying or wearing constitutes an abandonment of such property and a loss of rights protected by the Fourth Amendment. Thus, where the defendant, carrying an object covered with a blanket sets it down while he makes a phone call some twenty or thirty feet away, United States v. Boswell, 347 A.2d 270 (D.C.1975), or puts a suitcase down and takes a few steps away from it when a drug enforcement agent and policeman address him, United States v. Jackson, 544 F.2d 407 (9th Cir. 1976), the property is held not to have been abandoned. See also Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960) (a “passenger who lets a package drop to the floor of the taxicab in which he is riding can hardly be said to have ‘abandoned’ it”); Hackett v. State, 386 So.2d 35 (Fla. 2d DCA 1980) (where defendant leaves luggage at motel exhibiting at that time an intention to return for it when he obtains funds to pay outstanding bill, luggage not abandoned). Compare Morton v. State, 284 Md. 526, 397 A.2d 1385 (1979) (one who places one’s personal belongings on the sidelines of a basketball court does not ipso facto forfeit legitimate expectation of privacy and invite unfettered governmental intrusion) with People v. Loveless, 80 Ill.App.3d 1052, 36 Ill.Dec. 120, 400 N.E.2d 540 (1980) (one who places coat on a table in a busy tavern can be said to reasonably expect that the coat will be touched or handled by someone who desires to use the table; thus no expectation of privacy is offended when police officer picks up jacket and package containing contraband falls out).

The conclusion that a person abandoned his property, in the context of forfeiting his right to complain of a search of it or seizure from it, is said to be an ultimate fact based generally upon a combination of action and intent, United States v. Alden, 576 F.2d 772 (8th Cir. 1978); Friedman v. United States, 347 F.2d 697 (8th Cir. 1965), or inferred from the words, acts and other objective facts, United States v. Kendall, 655 F.2d 199 (9th Cir. 1981). In its argument both before the trial court and us, the State asserted that the defendant’s intent to abandon the coat could be inferred from the fact that he knew that incriminating evidence was in the coat. The insidiousness of this suggestion is that an intent to abandon can be inferred in every case where the ultimate search turns up incriminating evidence, as unpalatable a proposition as that a search can be justified by what it uncovers. Moreover, if the defendant’s subjective intent were to be taken into account, that subjective intent would likely include the defendant’s goal to retrieve the jacket at a later time, the antithesis of an intent to abandon. Thus, those courts which have addressed the issue have concluded that the test to be applied in determining whether a person has abandoned property is an objective one — the words used, the conduct exhibited, and other objective facts such as where and for what length of time the property is relinquished and the condition of the property. United States v. Kendall, supra; United States v. Williams, 569 F.2d 823 (5th Cir. 1978); Morton v. State, supra.

We think it clear from the words, acts and other objective facts of the present case, which are fully set forth, that by removing his jacket, placing it on a hedge a few feet from him, and commencing to walk away in front of the officer, the defendant did not renounce his justified expectation of privacy in the jacket or its contents.

“An abandonment must be made to appear affirmatively by the party relying on it, and an intention to abandon will not ordinarily be presumed, and this is particularly true if the conduct of the owner can be explained consistently with a continued claim. Proof of abandonment must be made by the one asserting it by clear, unequivocal and decisive evidence.” Friedman v. United States, supra at 704.

See also United States v. Boswell, supra at 274; Peyton v. United States, 275 A.2d 229, 230 (D.C.1971). The evidence supporting the trial court’s conclusion of abandonment in the present case is neither clear, unequivocal, nor decisive. Indeed, there is, in our view, no fact more supportive of the opposite conclusion than the officer’s act of picking up the jacket to return it to the defendant. That fact alone belies any belief on the officer’s part that the jacket was abandoned. See United States v. Boswell, supra (where, as in the present case, the police officer who was the only eyewitness to the defendant’s actions did not believe the property to have been abandoned). While the defendant might be said to have no expectation that the officer would not touch or handle the jacket to return it to him, he cannot be said to have lost his expectation that the jacket would not be searched. See People v. Loveless, supra.

Our conclusion that there was no abandonment makes it unnecessary for us to reach the separate question whether the defendant’s act of placing his jacket on the hedge was a result of unlawful police action and thus involuntary. Compare State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979); People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. denied, 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383 (1979) with Martinez v. State, 414 So.2d 301 (Fla. 4th DCA 1982); Monahan v. State, 390 So.2d 756 (Fla. 3d DCA 1980); United States v. Beck, 602 F.2d 726 (5th Cir. 1979); Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980); Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); State v. Chopin, 372 So.2d 1222 (La.1979).

Reversed.

HENDRY, J., dissents.

      . The trial court found that O’Shaughnessy was illegally stopped. That finding is irrelevant to our decision.

      . The facts set forth are from the testimony of the police officer, the only witness at the suppression hearing.


text:
    Timmy THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1911.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Bennett H. Brummer, Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.

      Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Davis v. State, 373 So.2d 382 (Fla. 4th DCA 1979); In the Matter of the Use By the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, 6 F.L.W. 305 (April 16, 1981).


author: FERGUSON, Judge. JORGENSON, Judge, NESBITT, Judge

text:
    Juan Antonio PESCI, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1984.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.

      Stephen F. Bazzano, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., Janet Reno, State Atty., and Russell R. Killinger, Asst. State Atty., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

This appeal presents what the state deems a significant question: whether the fruits of an arrest and search based on a non-existent warrant may be admitted in evidence on grounds that a police officer acted in good faith. We decline the invitation to depart from supreme court precedent, Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), and join a sibling court in holding that as a lower appellate court we are precluded from considering any good faith exception to the Florida constitutional exclusionary rule. Lovett v. State, 403 So.2d 1079 (Fla. 1st DCA 1981); Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981).

The facts in this ease are as follows. Appellant, while otherwise lawfully operating a vehicle, was stopped by a police officer who observed an expired inspection sticker on the automobile. The officer radioed for a routine record check and received information that there was an outstanding alias capias for appellant on an aggravated assault charge. On that information appellant was arrested and searched and a small quantity of cocaine in his possession was uncovered. It was later learned that the alias capias had been quashed and the aggravated assault charges abandoned by the state approximately two months before appellant was arrested.

The written order denying the motion to suppress states:

The court has determined that even though the alias capias had been quashed, the arrest and subsequent search of the defendant was made in good faith. Officers will slways arrest persons for whom they know a warrant is outstanding. Absent some showing that the arresting authorities knew the warrant had been quashed — which doesn’t exist in this case — the court finds that the defendant’s rights granted by the United States and Florida Constitutions had not been violated.

Assuming for the sake of further discussion that neither the constitution nor state supreme court precedent is a bar to consideration of the question presented it is our opinion that the arrest and search in this case would not qualify under any of the still-mostly-doctrinal exceptions to the exclusionary rule. See United States v. Williams, 622 F.2d 830 (5th Cir. 1980), citing Ball, Good Faith and the Fourth Amendment: The “Reasonable” Exception to the Exclusionary Rule, 69 J.Crim.L. & Criminology 635, (1978). The court in Williams said it was following the United States Supreme Court and other federal courts which have recognized all but explicitly, the “technical violation” facet of the rule exceptions and which has recognized at least implicitly, a “good-faith mistake” exception to the rule. A technical violation is said to have occurred when an officer relies upon a statute which is later ruled unconstitutional, a warrant which is later invalidated, or a court precedent which is later overruled. A good-faith mistake occurs when an officer makes a judgmental error concerning the existence of facts sufficient to constitute probable cause. Williams, 622 F.2d at 841.

The police officer in this case was not exercising any judgment as to whether the facts known to him constituted probable cause, but was instead relying solely on information received by radio that there was an outstanding alias capias. There is no contention or showing here that the officer, at the time he stopped appellant for a minor traffic infraction, had any other justification for intruding upon appellant’s protected Fourth Amendment interest, therefore the “good-faith mistake” exception cannot apply. Neither would the “technical violation” exception have any application here because the warrant (alias capias) was void or nonexistent at the time appellant was arrested. The exception would apply only if the warrant had been presumptively valid at the time of the arrest but was invalidated by a subsequent judicial determination. Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). An otherwise illegal arrest is not insulated from challenge by the fact that the executing officer relied on erroneous radio information dispatched by a fellow officer or employee. Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

We hold, as has the New York Court of Appeals, that an arrest is invalid when the arresting officer acts upon information in criminal justice system records which, though correct when put into the records, no longer applies and which, through fault of the system, has been retained after the information should have been removed. People v. Jennings, 54 N.Y.2d 518, 446 N.Y.S.2d 229, 430 N.E.2d 1282 (C.A.N.Y.1981). Accord People v. Decuir, 84 Ill.App.3d 531, 39 Ill.Dec. 912, 405 N.E.2d 891 (1980); Carter v. State, 18 Md. App. 150, 305 A.2d 856 (1973). The law is quite settled that a void or nonexistent warrant may not be the basis for a legal arrest and search. See Whiteley v. Warden of Wyoming Penitentiary; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); United States v. Cox, 475 F.2d 837 (9th Cir. 1973).

Because the evidence should have been suppressed we reverse and remand with instructions to discharge the defendant.

JORGENSON, Judge,

specially concurring.

I agree that reversal is required here for the reasons set forth in the majority opinion and write separately only to point out that the result obtained does nothing to deter “police” misconduct. Indeed, in future cases we would expect an officer, given the same information, to react in precisely the same manner as was done in the case sub judice. If the purpose of the exclusionary rule is to deter police misconduct, then it is clearly frustrated here, since all the officer did is that which was expected of him.

But for a hypertechnical rule which we are required to apply, common sense would compel an affirmance of the trial court.

NESBITT, Judge

(specially concurring): I emphatically concur with the majority because the good faith exception does not exist in Florida. However, any discussion beyond that point anticipates the viability of the good faith exception and thus makes a premature announcement concerning the application of a nonexistent rule. Because I do not care to be bound, even by way of dictum, I would limit this decision to a holding that good faith is not an exception to the warrant requirement.

      . Article I, Section 12:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures ... shall not be violated.. .. Articles or information obtained in violation of this right shall not be admissible in evidence.

        See Blatch v. State, 389 So.2d 669, 675 n. 6 (Fla. 3d DCA 1980) citing Norman v. State, 388 So.2d 613 (Fla. 3d DCA 1980), (the effect of making the exclusionary rule a part of the Florida Constitution in 1968 was to give the existing exclusionary rule constitutional dimension immunizing it from possible future retreat by the United States Supreme Court’s holding in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). If recognition by the federal court of good-faith exceptions to its judicially created exclusionary rule be deemed a retreat from Mapp v. Ohio, then to that extent the Florida constitutional exclusionary rule would loom broader. The state could accomplish a reconciliation of its rule to the federal rule only by a constitutional change.

      . For purpose of the motion to suppress, the parties stipulated to the facts. There is also a stipulation that our determination of the issue presented will be dispositive of the case.

      . We have been unable to find any case, contrary to the statement in United States v. Williams, where a majority of the United States Supreme Court has implicitly recognized a “good-faith mistake” exception to the exclusionary rule. Certainly there has not been an expressed recognition by the Florida Supreme Court of either of the exceptions noted in Williams.

      . United States v. Williams is of doubtful prec-edential value. Ten members of the twenty-three member court, in a specially concurring opinion, sharply criticized the majority as having utilized the case as a vehicle to disseminate a doctrine. The court had unanimously agreed that the arrest and search was based on good and sufficient probable cause so it appears that the exclusionary rule exception discussion was unnecessary to a disposition of the case.


text:
    Eugenio CORREA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2034.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Gino P. Negretti, Miami, for appellant.
    Jim Smith, Atty. Gen., and Faith Mesne-koff, Asst. Atty. Gen., Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Downer v. State, 375 So.2d 840 (Fla.1979); State v. Freber, 366 So.2d 426 (Fla.1978); Estrada v. State, 400 So.2d 562 (Fla. 3d DCA 1981).


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Julio C. ANTA and Maria Anta, his wife; United States Fidelity & Guaranty Co.; Gladys E. Lamelas and Mel Lamelas, Appellees.
    Nos. 81-2268, 81-2480.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Leo West, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Oceanic International Corporation v. Lantana Boat Yard, 402 So.2d 507 (Fla. 4th DCA 1981).


text:
    The WACKENHUT CORPORATION, Appellant, v. F.A. CONNER, Appellee.
    No. 81-2589.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.

      Susan Minor, Tallahassee, for appellant.
    Don G. Nicholson, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

In order to maintain an action for breach of an oral contract a plaintiff must first establish performance on its part of the contractual obligations assumed. Babe, Inc. v. Baby’s Formula Service, Inc., 165 So.2d 795 (Fla. 3d DCA 1964).

Where the defendant continually complained that the requested services were not being performed, the plaintiff may not recover upon a theory of account stated, Merrill-Stevens Dry Rock Co. v. Corniche Express, 400 So.2d 1286 (Fla. 3d DCA 1981), and cases collected therein.

The trial judge’s finding that appellant failed to make a case on either theory is supported by the record and will not be disturbed on appeal. Basic Food Industries, Inc. v. Wackenhut Corp., 323 So.2d 1 (Fla. 3d DCA 1975).

Affirmed.


text:
    Ernest R. GERLACH, Appellant, v. DADE COUNTY GRAND JURY FINAL REPORT, SPRING TERM, 1981, RELATING TO the DADE COUNTY METRO TRANSIT AGENCY, Appellee.
    No. 81-2684.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Jeffrey P. Raffle, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Miami Herald Publishing Co. v. Marko, 352 So.2d 518 (Fla.1977); Sec. 905.28(1), Fla.Stat. (1981).


text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 81-2737.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Dismissed as moot. United States Fidelity & Guaranty Company v. Helms, 413 So.2d 767 (Fla. 3d DCA 1982).


text:
    Edward G. ARAHILL, Appellant, v. DADE COUNTY SCHOOL BOARD, Appellee.
    No. 82-4.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Du Fresne & Du Fresne and Elizabeth Du Fresne, Miami, for appellant.
    Phyllis 0. Douglas, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Knight v. Munday Plastering Co., 220 So.2d 357, 360 (Fla.1968); Black v. Blue Ribbon Laundry, 161 So.2d 532, 535 (Fla.1964); § 120.68(14), Fla.Stat. (1981).


text:
    Nidia CALLEJAS, as Personal Representative of the Estate of Jesus Garcilaso, deceased, and as Personal Representative of the Estate of Mercedes Garcilaso, deceased, Appellant, v. Richard P. BRINKER and Janet Reno, Appellees.
    No. 82-64.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Silver, Levy & Hershoff and Jay Levy, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joe Belitzky, Asst. Atty. Gen., for appellee Janet Reno.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy and Leonard George, Jr., Miami, for appellee Richard P. Brinker.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Berry v. State, 400 So.2d 80, 84 (Fla. 4th DCA), pet. for review denied, 411 So.2d 380 (Fla.1981); Ferlita v. State, 380 So.2d 1118, 1119 (Fla. 2d DCA 1980); Weston v. State, 373 So.2d 701 (Fla. 1st DCA 1979).


text:
    Willie Frank BURNS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-142.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Bennett H. Brummer, Public Defender and Harold T. Fields, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

A trial judge’s findings should not be disturbed unless they are unsupported by the evidence. Sired v. State, 399 So.2d 964 (Fla.1981). In this court, a trial court’s ruling on a Motion to Suppress is clothed with a presumption of correctness, McNamara v. State, 357 So.2d 410 (Fla.1978), and reasonable inferences favor affirmance of the trial court. See Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980); Churney v. State, 348 So.2d 395 (Fla. 3d DCA 1977).

Affirmed.


text:
    Alton JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-203.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Bennett H. Brummer, Public Defender and Brian W. Pariser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

While it may have sprung temporarily in the defendant’s breast, his hope that he would retain his job and not be arrested and prosecuted for grand theft from his employer, which, according to him, occasioned his confession, was not engendered by any statement or action of the police or the employer, acting in concert with them. Compare, e.g., Foreman v. State, 400 So.2d 1047 (Fla. 1st DCA 1981). Accordingly, the trial court’s determination that the confession was freely and voluntarily given is amply supported by the record, and the judgment of conviction is affirmed.

Affirmed.


text:
    Adrine Jerome HOWARD, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-918.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Adrine Howard, in pro. per.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

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


text:
    Albert John MYLES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 82-1872.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Albert John Myles, Jr., in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


author: PER CURIAM. FERGUSON, Judge

text:
    Henry AMOS, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1931.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.

      Henry Amos, in pro. per.
    Jim Smith, Atty. Gen., for respondent.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

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

FERGUSON, Judge

(dissenting).

I would postpone any final disposition of this pro se appeal and grant petitioner sixty days to file a coherent petition.


text:
    Azell ARCHIE and Derek Archie, Appellants, v. The STATE of Florida, Appellee.
    No. 82-1963.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Azell Archie and Derek Archie, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellants, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of their motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellants are entitled to no relief, the denial of their motion is affirmed.


text:
    Gordon Russell WASHINGTON, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1978.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Gordon Washington, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


author: ORFINGER, Chief Judge.

text:
    Marvin Dewitt PURVIS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1255.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1982.
    James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Chief Judge.

Appellant appeals from an order revoking his probation, contending that double jeopardy principles apply. We affirm.

On a previous appeal, we reversed an order revoking appellant’s conviction because only hearsay evidence had been introduced at the revocation hearing. Upon remand, appellant moved to dismiss the proceedings on double jeopardy grounds. The trial court denied the motion, conducted another hearing, and revoked appellant’s probation. He now contends that the charges should have been dismissed because “the defendant’s prior revocation of probation had been reversed on appeal for insufficiency of evidence and thus the second hearing subjected the defendant to double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, section 9, of the Florida Constitution.”

A reversal of a probation revocation hearing because only hearsay evidence has been presented does not present constitutional double jeopardy problems. A probation revocation hearing is informal and not like a regular trial; its purpose is to satisfy the conscience of the court as to whether a violation of probation has occurred. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947). Thus, the rules of evidence are relaxed and hearsay evidence may be admitted and considered by the court. The only limitation imposed with reference to hearsay evidence is that it may not be the only type of evidence upon which the revocation order is based. Purvis v. State, supra.

Here, the reversal was not for insufficient evidence. There was sufficient admissible evidence, albeit hearsay, to sustain the revocation. We reversed because we applied the principle invoked by the other district courts that a revocation should not be based solely on hearsay. Thus, even if double jeopardy principles apply in probation revocation proceedings, a point we expressly do not decide here, the rule of law which prohibits retrial when a conviction is reversed for insufficiency of evidence (as opposed to the weight of the evidence) is not applicable here. See Tibbs v. State, 397 So.2d 1120 (Fla.1981); aff’d Tibbs v. Florida, - U.S. -, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

We find appellant’s remaining points to be without merit.

The order revoking appellant’s probation is AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, Jr. JJ., concur.

      . Puvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981).

      . While not expressly deciding the issue on double jeopardy grounds, all the other district courts have directly or impliedly held that another probation revocation proceeding may be held when a revocation order based only on hearsay testimony has been reversed. Reeves v. State, 366 So.2d 1229 (Fla. 2d DCA 1979); Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975); White v. State, 301 So.2d 464 (Fla. 1st DCA 1974); Hampton v. State, 276 So.2d 497 (Fla. 3d DCA 1973).


text:
    Bert William LANE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-1545.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1982.
    James B. Gibson, Public Defender, and Cynthia-Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982).

COBB, SHARP and COWART, JJ., concur.


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

text:
    Rosa NEWKIRK, as Personal Representative of the Estate of Harold Eugene McKay, Sr., and Rosa Newkirk, as Personal Representative of the Estate of Alma Jean Newkirk, Appellant, v. SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, Appellee.
    No. 81-1592.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1982.

      David M. Hammond of Meyers, Mooney, Adler & Hammond, P. A., Orlando, for appellant.
    John Dem. Haines of Winderweedle, Haines, Ward & Woodman, P. A., Winter Park, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Rosa Newkirk, as the personal representative of the estates of Harold McKay, Sr. and Alma Newkirk, has appealed from a final summary judgment denying recovery on a joint life insurance policy applied for by McKay and Newkirk just prior to their deaths. Appellant contends that the decedents had made a payment on the policy and hence the policy went into effect on the date of application. We agree with appellant’s contention and reverse the summary judgment.

On November 10,19.77, Curtis Jaggers, an agent for appellee Southern Life, took an application for an insurance policy covering McKay and Newkirk. An application for a separate policy for their son was also made. McKay and Newkirk were told that the standard monthly premium for persons of their age was $17.83. No money exchanged hands at this time and the applications were marked C.O.D.

On November 23, 1977, Jaggers visited McKay and Newkirk and told them that their son’s policy could not be issued C.O.D. because of the small monthly premium. McKay and Newkirk gave Jaggers the sum of $10 and instructed him to pay the first monthly premium on their son’s policy and apply the remaining portion toward their policy. Jaggers issued McKay and Newkirk a receipt for the $10.

Several days later, Southern reviewed the application and determined that the standard rate would not apply because of the applicants’ obesity. Southern assessed the parties an additional premium and printed a policy in their names. The policy was mailed to Jaggers, who upon visiting the home of McKay and Newkirk, was advised of their deaths on the preceding day.

The application in question contained the following language:

I HEREBY DECLARE that all the statements and answers to the above questions, those on the reverse side, and to the questions of any medical examination required are complete and true and I AGREE (1) that they, together with this agreement, shall form the basis and be a part of any policy issued hereunder; (2) that except as otherwise provided in the Company’s receipt for %C.O.D. (hand written) tendered with this application, the insurance herein applied for shall not take effect until a policy therefor is delivered to me and the first premium paid while each person proposed for insurance is in good health.. . . (emphasis added)

Appellant concedes that the application indicates that the policy does not take effect until delivery and payment of the first premium by the applicant while in good health. See Gulf Life Ins. Co. v. Ellis, 145 Fla. 262, 198 So. 836 (1940). Appellant, however, contends that the conditions of coverage were altered by the receipt given by Jaggers on November 23, 1977. This receipt provided as follows:

If this is a receipt for a payment made with an application for a policy of insurance, the insurance applied for shall go into effect, in accordance with the terms and provisions of the policy (except that the maximum amount payable under such insurance shall be $20,000) on the date of the completed application if each person proposed for insurance was in sound health on such date, and shall continue in force until the expiration of the period covered by the payments receipted for herein unless the Company has declined to issue the insurance applied for, in which event the amount paid will be returned to the applicant, (emphasis added)

For the receipt to alter the coverage of the policy, several conditions must be met under the provisions of this receipt:

1) the insurance company must not have declined to issue the insurance policy;
2) the applicant must have been in sound health on the date of the completed application;
3) the receipt must have been for a payment made with an application for an insurance policy.

As to the first condition, there is no evidence that Southern refused or declined to issue the policy. It was obvious that the company was willing to insure the applicants at an additional premium. Regarding the second condition, Southern’s argument that the applicants obviously were not in good health because of their obesity lacks merit. It is clear that their health was acceptable at the additional premium and the policy was prepared with an awareness of that condition.

The third condition involved a “payment made with an application for a policy of insurance. . . . ” The term “payment” is not defined in the policy or receipt. Southern argues that the term should be construed here as meaning the first monthly premium in its entirety. In contrast, appellant urges this court to use its plain meaning, that is, a payment is any amount of money required or accepted by Southern. It is well-established that insurance contracts are construed against the drafter in the face of any ambiguities. Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938 (Fla.1979). We therefore interpret the word “payment” as used in the receipt here against the insurance company and hold that it means any amount for which the receipt was given.

We recognize that insurance companies are not required to accept partial payments of fixed premiums. Hilson v. Sun Life Assur. Co. of Canada, 132 F.2d 989 (5th Cir. 1943). However, if Southern did not want to process the application until the full premium had been paid, it could simply have returned the application until the requisite amount had been tendered. Or, Southern could have provided language in its receipt to the effect that no coverage under the policy would commence until delivery of the policy and receipt of the first month’s premium in full.

REVERSED and REMANDED for further proceedings consistent with this opinion.

COBB and COWART, JJ., concur.

      . We might find merit in Southern’s argument had the parties’ deaths resulted from their condition. Here, however, the parties died from carbon monoxide poisoning.


text:
    HEDRON CONSTRUCTION COMPANY, INC., Appellant, v. DISTRICT BOARD OF TRUSTEES OF BREVARD COMMUNITY COLLEGE, Appellee.
    No. 82-115.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1982.
    Christopher C. Skambis of Van Den Berg, Gay & Burke, P.A., Orlando, for appellant.
    Stephen M. Brewer of Matheny & Brewer, P.A., Titusville, for appellee.
   COBB, Judge.

The issue in this case is whether the trial court erred in refusing to transfer venue. We hold it did and reverse and remand for transfer to Seminole County.

Appellant, Hedron Construction Company, served a demand for arbitration on the appellee, District Board of Trustees of Bre-vard Community College, on August 21, 1981. On October 28, 1981, the Board filed a petition to stay arbitration in the Brevard County Circuit Court. Hedron then filed a motion to transfer venue to Seminole County, which it claimed was its sole place of business. This motion was denied by the trial court and Hedron filed this appeal.

Appellant correctly contends that section 682.19, Florida Statutes (1981), which provides for venue in arbitration actions, displaces the general venue provisions of section 47.051.

If a suit is brought under a specific state statute, and that statute provides for its own individual venue, then such specifically prescribed venue governs. Stewart v. Carr, 218 So.2d 525 (Fla.2d DCA 1969). See also: Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975). Deeb, Inc. v. Board of Public Instruction of Columbia County, 196 So.2d 22 (Fla.2d DCA 1967).

Therefore, the trial court ruled improperly in denying the change of venue and the cause is reversed and remanded for transfer to Seminole County.

REVERSED and REMANDED WITH INSTRUCTIONS.

SHARP and COWART, JJ., concur.

      . This appeal is brought pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).

      . Section 682.19 reads as follows:
      Venue. — Any application under this law may be made to the court of the county in which the other party to the agreement or provision for arbitration resides or has a place of business, or if he had no residence or place of business in the state, then to the court of any county. All applications under this law subsequent to an initial application shall be made to the court hearing the initial application unless it shall order otherwise.

      . This result renders moot the trial court’s dismissal of the Board’s petition, which is currently on appeal before this court (No. 82-217).


author: HURLEY, Judge.

text:
    Robert V. SHUNK, Trustee, Appellant, v. PALM BEACH COUNTY, Florida, Appellee.
    No. 80-1864.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Rehearing Denied Nov. 9, 1982.
    Howard K. Cherna of Preddy, Kutner & Hardy, Miami, for appellant.
    Richard L. Martens of Boose, Ciklin & Martens, West Palm Beach, for appellee.
   HURLEY, Judge.

We are asked, on this appeal, to reverse the trial court’s finding that an unrecorded contractual agreement, never included or referred to in any deed of record, is not a covenant running with the land. Since the trial court’s position espouses a principle implicit in Florida law, we affirm.

In late 1969 Guardian Investment Properties Ltd. purchased a piece of real property in Palm Beach County. A water and sewer treatment plant stood on this property. On April 14,1971, Guardian entered into a contract for the sale of a twenty-five acre portion (parcel B) of the property to one Lillian Porter. The sale contract specifically stated that Guardian agreed to furnish water and sewer service to the property line of Ms. Porter’s parcel. It is undisputed that this contract was never recorded. On June 10, 1971, Guardian conveyed parcel B to Ms. Porter by warranty deed. This deed made no mention of the contract agreement to provide water and sewer service.

On May 13,1971, Guardian entered into a contract to sell the remainder of the land (parcel A) including the water treatment plant. The contract specified that Mr. Ken Partiss and Mr. Jack Steinberg (the purchasers) would acknowledge the validity of the provision regarding water service in the contract between Guardian and Ms. Porter. This contract was not recorded. Next, Guardian conveyed parcel A to Messrs. Par-tiss and Steinberg. Again, no mention of the sales contract or the provision for water and sewer services was included in the warranty deed. To facilitate the purchase of parcel A, Messrs. Partiss and Steinberg gave a mortgage on that piece of property. By a subsequent assignment, First National Bank of Atlanta became the mortgagee.

On November 1, 1973, Lillian Luntta née Porter, conveyed parcel B to the appellant, Robert V. Shunk, as trustee. This warranty deed made no mention of the water or sewer rights. On November 3, 1973, however, Ms. Luntta assigned to Mr. Shunk her rights under the April 14, 1971, contract of sale with Guardian. This assignment was not recorded. On April 22,1977, Mr. Shunk conveyed a portion of parcel B to one Gary Garrison. This warranty deed made no mention of water and sewer rights.

On July 8, 1977, after foreclosure proceedings against Messrs. Partiss and Stein-berg, the First National Bank of Atlanta received a clerk’s title to parcel A. On December 30, 1977, First National conveyed parcel A to the appellee, Palm Beach County, by warranty deed. Once again, no mention of water or sewer rights appeared in the deed. Moreover, Palm Beach County bought only the land constituting parcel A. Title to the water and sewage treatment plant remained with First National Bank of Atlanta.

Appellant Shunk sued Palm Beach County for specific performance under the contract to gain water and sewer rights, or, in the alternative, to receive damages. After numerous interrogatories, requests for admission, etc., Palm Beach County moved for summary judgment. The court granted summary judgment, concluding that the failure of the various deeds to mention the water and sewer rights precluded, as a matter of law, a finding of a covenant running with the land. This appeal ensued.

No Florida case expressly states that a covenant running with the land must be included in the deed transferring the grant- or’s interest in order to bind subsequent grantees to'the covenant. We believe, however, that this proposition is one of ‘black letter’ law. A respected commentator has stated that “[cjovenants affecting land may also be created by contract between the owner and another without the necessity of a formal deed. But to constitute constructive notice such collateral agreements must be duly recorded.” 7 G. Thompson, Real Property § 3150 (1962). Furthermore, “[t]he weight of authority seems to be that the owner of land is bound by restrictive covenants only if they appear in his own chain of title.” Id. at § 3155. See 21 C.J.S. Covenants § 59 (1940); 20 Am.Jur.2d Covenants Conditions and Restrictions § 33 (1965); see also 19 Fla.Jur.2d Deeds § 167 (1980). The Florida cases concerning covenants running with the land, moreover, uniformly appear to be construing language contained in deeds in the record chain. See, e.g., Maule Industries v. Sheffield Steel Products, Inc., 105 So.2d 798 (Fla. 3d DCA 1958), cert. denied, 111 So.2d 41 (Fla.1959); Frumkes v. Boyer, 101 So.2d 387 (Fla.1958); Field Properties, Inc. v. Fritz, 315 So.2d 101 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 16 (Fla.1976).

Since the evidence is undisputed that the purported covenant in this case does not appear in the record chain of title, this covenant could not run with the land. For this reason, we affirm the order of the trial court.

AFFIRMED..

ANSTEAD and HERSEY, JJ., concur.