text:
    Raul Elias DAIZI, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1917.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 8, 1981.
    Carhart & McGuirk and James McGuirk, Miami, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The final judgment of conviction and sentences under review by this appeal are affirmed upon a holding that: (a) it appears with unmistakable clarity that the trial court understood its responsibility to determine the voluntariness of the defendant’s confession and properly discharged such responsibility at the conclusion of the hearing on the motion to suppress herein by stating that it accepted the testimony of the interrogating police officer herein [which established the voluntariness of said confession] and that it was denying the motion to suppress, as it appears that a specific trial court finding of voluntariness under these circumstances is not fatal to the admission of said confession and evidence, Peterson v. State, 382 So.2d 701 (Fla. 1980), affirming, 372 So.2d 1017 (Fla. 2d DCA 1979); (b) the defendant did not preserve for appellate review the point on the admissibility of officer Roberson’s testimony relating to the complainant’s two out-of-court statements as no objection was made below on the ground now urged on appeal, to wit: hearsay, and in any event, the belated hearsay objection has no merit as the contents of the two out-of-court statements were never admitted in evidence, see e. g., Castor v. State, 365 So.2d 701, 703 (Fla.1978); Black v. State, 367 So.2d 656 (Fla. 3d DCA), cert. denied, 378 So.2d 342 (Fla.1979); compare Van Gallon v. State, 50 So.2d 882 (Fla.1951); (c) the consecutive sentences imposed in this cause are entirely lawful although we interpret those sentences to mean that the defendant will be eligible for parole after he has served a total of three years of the aggregate of the two sentences imposed herein; see e. g., §§ 775.087(2Xb), 947.16(1), Fla.Stat. (1979); see also Brown v. United States, 256 F.2d 151 (5th Cir. 1958); 18 U.S.C.A. § 4205 (Supp.1980); and (d) the remaining points on appeal have no merit.

Affirmed.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    AUSTIN’S RACK, INC., Appellant, v. Jack AUSTIN, Appellee.
    No. 80-993.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 6, 1981.

      Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and David L. Ross, Miami, for appellant.
    Joseph S. Paglino, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The employment agreement between the parties gave to Austin’s Rack, Inc. the right to terminate the employment of its employee, Austin, for cause or for certain specified derelictions, one of which was Austin’s making false warranties or representations when he sold Austin’s Rack, Inc. to its new owners. Austin was terminated, and he brought suit for damages and other relief, alleging that the company wrongfully breached the employment agreement.

At the non-jury trial, it was indisputably shown that at the time of the sale of the company, Austin warranted as true and correct a financial statement of the company, which included accounts receivable known by Austin to be illusory and excluded accounts payable known by Austin to exist. This increase of assets and decrease of liabilities made the company’s worth on paper nearly $100,000 more than its actual worth, and, under the circumstances of this case, including the modest size of the company, necessarily constituted a material and significant misrepresentation in the financial statement.

The trial court entered judgment in favor of Jack Austin upon findings that the company “did not have good cause to terminate the Employment Agreement” and that there was “no justification on the part of the Defendant to justify a termination of the contract” [sic]. We reverse and remand with directions to enter judgment for Austin’s Rack, Inc.

Parties to an employment agreement are free to contract with one another that the employee may be terminated for the commission of a specific act; see Haiman v. Gundersheimer, 130 Fla. 109, 177 So. 199 (1937); Placet, Inc. v. Ashton, 368 So.2d 404 (Fla.3d DCA 1979), and courts are not authorized to substitute their judgment for that of the parties and rewrite the agreement. Home Development Co. of St. Petersburg, Inc. v. Bursani, 178 So.2d 113 (Fla. 1965); International Expositions, Inc. v. City of Miami Beach, 274 So.2d 29 (Fla.3d DCA 1973); Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla.2d DCA 1963). The inclusion of a provision that the employee may be terminated on the general ground of “good cause” does not qualify the clear and unambiguous right of the employer to discharge the employee for the breach of a more specific provision. Thus, the trial court’s finding that “good cause” for the firing of Austin was not established, even if arguably supported by the evidence, is, at most, a determination that the firing of Austin on that ground was unjustified. If; however, the finding that the company did not have good cause or the finding that the firing was “unjustified” was intended by the trial court to include a determination that Austin did not make false warranties and representations, then such a finding was contrary to the manifest weight of the uncontradicted evidence and cannot stand. Lee Construction Corp. v. Newman, 143 So.2d 222 (Fla.3d DCA 1962); McLendon v. Davis, 131 So.2d 765 (Fla.3d DCA 1961); Caranci v. Miami Glass and Engineering Co., 99 So.2d 252 (Fla.3d DCA 1957). Moreover, the fact that the employer did not immediately exercise its right to discharge Austin when it learned that he had made some false representations concerning the financial condition of the company (which, although not a basis for the trial court’s ruling, is said here to support the judgment) does not change our view, since, as a matter of law, the company cannot be said to have ratified Austin’s breach when its decision to discharge Austin indisputably and justifiably depended on the magnitude and certainty of the false representations of which it did not become fully cognizant until shortly before it terminated Austin. See Durr v. Clear Lake Park Co., 205 Iowa 279, 218 N.W. 54 (1928); Daniels v. Boston & Maine Railroad Co., 184 Mass. 337, 68 N.E. 337 (1903); Hill Cattle Corporation v. Killorn, 79 Mont. 327, 256 P. 497 (1927); Jerome v. Queen City Cycle Co., 163 N.Y. 351, 57 N.E. 485 (1900); Johnson v. E. Van Winkle Gin & Machine Works, 130 N.C. 441, 41 S.E. 882 (1902); Spotswood Arms Corporation v. Este, 147 Va. 1047, 133 S.E. 570 (1926); Gordon v. Dickinson, 100 W.Va. 490, 130 S.E. 650 (1925); Williston on Contracts § 725 (3d Ed. 1961) (condonation of one breach of contract, which would afford a ground for employee’s discharge, does not prevent the employer from considering the employee’s entire record when a further breach has been committed); Restatement (Second) of Agency § 409(2) (1958) (where agent commits subsequent breaches of duty, a principal is not prevented from electing to treat initial breach as cause for discharge). See also Ehringer v. Gross, 182 So.2d 460 (Fla.1st DCA 1966). Compare Bernecker v. Bernecker, 60 So.2d 399 (Fla.1952).

In light of our conclusion that Austin may not recover compensation for the unexpired term of the employment agreement, it is unnecessary to consider the company’s further point that the trial court failed to offset sums earned by Austin from employment since his discharge against amounts due him under the agreement, see, e. g., Reed Construction Corporation v. Zimmerman, 133 So.2d 579 (Fla.3d DCA 1961).

Reversed and remanded with directions to enter judgment for Austin’s Rack, Inc.

      . In Haiman, the court, reversing a judgment for the employee, held that it was not up to the jury to determine whether the failure of the employee to make reports in the manner and form required by the employment agreement would constitute a breach of the agreement warranting the discharge of the employee. That report-making requirement was, as a matter of law, reasonable, and the jury’s function was only to determine whether the reports were made. Similarly, in the present case, it was not the fact-finder’s function to determine if the making of false warranties or representations (as a matter of law, a reasonable requirement for the company to have imposed) constituted good cause, but rather to determine whether false warranties or representations were made. Obversely, in Placet, this court implicitly recognized the separateness of grounds for discharge by holding that where the agreement provided for termination only upon the ground of failure to attend to regular duties for a period of thirty days, the employer could not terminate for general unsatisfactory performance.


author: HENDRY, Judge.

text:
    Meyer WEISSMAN and Anna Weissman, his wife, Appellants, v. K-MART CORPORATION, Mark Alverez, Metropolitan Dade County, a political subdivision of the State of Florida and Carl Barnett, Appellees.
    No. 80-1674.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 6, 1981.

      Sidney L. Syna, Miami, for appellants.
    Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., Corlett, Merritt, Killian & Sikes and Gerald E. Ros-ser, Miami, for appellees.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   HENDRY, Judge.

Meyer and Anna Weissman, plaintiffs in the trial court, seek review of adverse summary final judgments for the ap-pellees in this suit for false arrest, false imprisonment, and malicious prosecution.

The facts giving rise to the instant suit were somewhat in conflict. On September 12,1979, the appellants were shopping separately in a K-Mart store on Biscayne Boulevard. Mr. Weissman alleges that he purchased two items, left the store, and returned a few minutes later. Upon re-entering the store, an employee stapled a colored slip .of paper to his prior purchase to allow him to bring it into the store with him. While inside, he opened the bag to ensure that he had bought the right items. In so doing, the staple came off, and he picked up a rubber band from the floor to secure the colored slip to the bag. He then departed the store through an unauthorized side exit. At that point he was approached by appel-lee Alvarez, K-Mart’s chief security officer, who displayed a badge to Mr. Weissman and invited him into the store’s security office.

Mr. Alvarez, on the other hand, claims to have observed Mr. Weissman through a one-way mirror, looking around suspiciously with two items in his hand. Mr. Weissman then took a paper bag, colored slip of paper, and rubber band from his pocket. Placing the items in the bag and the colored slip on the outside, he secured it with the rubber band.

The events occurring subsequent to Mr. Alvarez’s stop of Mr. Weissman are undisputed. Mrs. Weissman was paged, the police were called, and Dade County officer Barnett arrived within fifteen to twenty minutes. Mr. Weissman was unable to produce a cash register receipt for his purchases; however, he pleaded without success for Alvarez and Barnett to speak with a cashier who would affirm that the items had been paid for.

Mr. Weissman was charged with shoplifting. He signed a document promising to appear in court, and was released on his own recognizance. The entire detention did not exceed thirty minutes.

At Mr. Weissman’s trial, the K-Mart cashier on duty on the day in question appeared pursuant to a subpoena issued by defense counsel. The state’s main witness, Alvarez, was out of town and failed to appear. As a consequence, the trial judge discharged the case for lack of prosecution.

After the trial, appellants filed their complaint for false arrest, malicious prosecution, slander, and intentional infliction of emotional distress. The trial court granted summary judgment for all appellees. This appeal ensued.

The issue before us is whether the court properly granted appellees summary judgment in light of the facts disclosed.

We first analyze the false arrest claim. Under Florida law, merchants, their employees, and peace officers who comply with the requirements of Section 812.015(3), Florida Statutes (1979), are not civilly liable for false imprisonment or arrest in detaining a person suspected of retail theft. To avoid liability, the person so detaining the suspect must (a) have probable cause to believe merchandise has been taken; (b) detain the suspect in a reasonable manner for a reasonable time; and (c) call a peace officer to the scene immediately after the suspect is taken into custody. Probable cause is also required to make an arrest. Section 812.015(4), (5).

Viewing the evidence most favorably to appellants, Furlong v. First National Bank of Hialeah, 329 So.2d 406 (Fla. 3d DCA), cert. denied, 341 So.2d 291 (Fla.1976), we must ascertain whether appellees sufficiently complied with the terms of the statute to avail themselves of the protection it affords. Appellants concede that Mr. Weiss-man was treated courteously, detained in a reasonable manner for a reasonable time, and that an officer was promptly called to the scene. They argue, rather, that probable cause was lacking for the detention and arrest, and that the trial court erroneously took the issue from the jury.

Our state supreme court recently had occasion to examine the probable cause requirement in a malicious prosecution case and held:

“ ‘What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court; the latter for the jury. This subject must necessarily be submitted to the jury when the facts are in controversy; the court instructing them what the law is.’ . . ”

[Citations and emphasis omitted] City of Pensacola v. Owens, 369 So.2d 238, 330 (Fla. 1979) (quoting with approval Glass v. Parrish, 51 So.2d 717 (Fla.1951)).

Applying this rule of law, we observe that the facts upon which officer Barnett relied in determining whether probable cause existed to arrest Mr. Weissman for theft were not in dispute. The trial court was thus competent to determine this issue as a matter of law. We are satisfied, moreover, that the issue was correctly decided. The information furnished to officer Barnett by Mr. Alvarez was sufficient to provide him with probable cause to believe that Mr. Weissman had shoplifted. See § 812.-015(4), Fla.Stat. (1979). First hand knowledge by an officer is not required; the receipt of information from someone who it seems reasonable to believe is telling the truth is adequate. Salas v. State, 246 So.2d 621 (Fla. 3d DCA 1979); Walker v. State, 196 So.2d 8 (Fla. 3d DCA 1967). See 1969 Op.Att’y Gen.Fla. 069-6 (Feb. 18, 1969). Facts constituting probable cause for an arrest need not meet the standard of conclusiveness and probability required of circumstantial facts upon which conviction must be based. State v. Outten, 206 So.2d 392 (Fla.1968). We hold that summary judgment was properly entered for appel-lees Barnett and Dade County on the false arrest claim.

We find otherwise with respect to Mr. Alvarez and his employer, K-Mart. Since there was conflicting testimony, the existence of probable cause by Mr. Alvarez to detain and effect the arrest of Mr. Weissman should have gone to the jury for resolution. City of Pensacola v. Owens, supra. While recognizing that the statute does not explicitly require a merchant or employee to investigate potential alibis raised by the suspect, on retrial Mr. Alvarez’ failure to speak with the cashier must be taken into account in determining the existence of probable cause. See Jefferson Stores, Inc. v. Caudell, 228 So.2d 99 (Fla. 3d DCA 1969).

We caution, however, that the degree of probable cause necessary to support a temporary detention of a suspected shoplifter by a merchant or a merchant’s employee does not reach the level of probable cause required to support a later prosecution. Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980); Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2d DCA 1976); Rothstein v. Jackson’s of Coral Gables, Inc., 133 So.2d 331 (Fla. 3d DCA 1961). With this in mind, and finding the existence of material issues of fact, the summary judgment granted to appellees Alvarez and K-Mart on the false arrest claim is reversed.

Now directing our attention to appellants’ other cause of action, we note that the limited protection afforded by Section 812.015 does not extend to claims of malicious prosecution. Six elements must be established by the plaintiff in a malicious prosecution case: (1) a criminal proceeding was commenced or continued against the plaintiff; (2) the defendant commenced or caused the commencement of such proceedings; (3) the criminal proceeding had a bona fide termination in the plaintiff’s favor; (4) there was no probable cause for commencing criminal proceedings; (5) the defendant acted with malice; and (6) the plaintiff suffered damage. Shidlowsky v. National Car Rental Systems, Inc., 344 So.2d 903 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 516 (Fla.1978).

Appellants contend that the trial court’s discharge of the case for lack of prosecution constitutes a bona fide termination of the criminal proceedings.

The law is settled that the third element of a malicious prosecution action may be satisfied by either a favorable decision on the merits or a bona fide termination of the proceedings. Gatto v. Publix Supermarket, Inc., supra; Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla. 3d DCA 1977); Davis v. McCrory Corp., 262 So.2d 207 (Fla. 2d DCA 1972).

In State v. Anders, 388 So.2d 308 (Fla. 3d DCA 1980), this court found that the trial court’s dismissal of criminal charges against the defendant for lack of prosecution was “clearly intended” to be with prejudice (and thus a termination to the proceedings) where the prosecution was unprepared to commence with trial and did not seek a continuance or take a nolle prosse. The trial transcript in the instant case reveals that the underlying criminal proceedings were also dismissed for lack of prosecution, and that the state failed to take any action to keep the case alive.

This court’s holding in Freedman v. Crabro Motors, Inc., 199 So.2d 745 (Fla. 3d DCA 1967), also dictates the conclusion that there was a bona fide termination to the proceedings. In that case we determined that the failure of the complaining witness to appear and prosecute, resulting in the dismissal of the charge against the accused, was not bona fide because it was bargained for and obtained by the accused on his promise of restitution. Conversely, a case which results in a dismissal of the charges for failure of the complaining witness to appear and prosecute which is not bargained for is bona fide.

We conclude, therefore, that there was a bona fide termination of the proceedings below, establishing the third element of appellants’ claim.

Despite this conclusion, we nonetheless affirm the summary judgment as to officer Barnett and Dade County on the malicious prosecution count, evolving from our previous determination that Barnett had probable cause to detain and ultimately arrest Mr. Weissman.

As for Mr. Alvarez and K-Mart, we find that the facts which would determine whether there was probable cause for these appellees to press criminal charges against Mr. Weissman were contradicted, and thus present a question for the jury. City of Pensacola v. Owens, supra. Specifically, whether Mr. Alvarez should have spoken with the cashier prior to preferring charges must be resolved:

[W]here it would appear to a “cautious man” that further investigation is justified before instituting . .. proceeding[s], then liability may attach for the failure to do so.

Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560, 563 (Fla. 2d DCA 1976); Liabos v. Harman, 215 So.2d 487, 488 (Fla. 2d DCA 1968). The determinative factor is whether the suit was brought without reasonable prospect of success, and dismissal alone does not establish its improbability. City of Pensacola v. Owens, 369 So.2d 328, 330 (Fla.1979) (England, C. J., concurring).

Upon retrial, appellants will have the burden of proving all six elements of their malicious prosecution claim; a failure on any one element will destroy their cause of action. Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980); Bieley v. duPont, Glore, Forgan, Inc., 316 So.2d 66 (Fla. 3d DCA 1975).

For the reasons stated and upon the authorities cited, the summary judgment as to officer Barnett and Dade County is affirmed; the summary judgment entered in favor of appellees Alvarez and K-Mart is reversed and remanded for proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part, and remanded.

      . False arrest and false imprisonment are different labels for the same cause of action. See Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721, 723 (Fla. 3d DCA 1977).

      . The Weissman’s do not challenge the denial of their claims for slander and intentional infliction of emotional distress on this appeal.

      . See 1 Harper & James, The Law of Torts § 4.4 (1956): “[I]f the complaint is dismissed either by reason of insufficient evidence or because the complaining witness fails to appear or abandons the prosecution, the proceedings have terminated in the plaintiffs favor.”

      . The trial court’s ruling must be sustained if correct, regardless of the reasons therefor. Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980).


author: PER CURIAM.

text:
    MANAGEMENT CORPORATION OF AMERICA, INC. and Alan Weiselberg, Petitioners, v. Hon. Rhea Pincus GROSSMAN, Respondent.
    No. 80-2468.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 6, 1981.
    Bartel, Shuford & Dubitsky and Stanley Jay Bartel, Miami, for petitioners.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for respondent.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The petitioners seek a writ of prohibition to prevent the respondent from continuing to exercise jurisdiction as trial judge in a civil action now pending in the Dade County Circuit Court styled Management Corporation of America, Inc. and Alan Weiselberg v. Ted Weiselberg, Case No. 80-18018 CA (14). We grant the relief sought for the reasons which follow.

We deem it unnecessary to detail the allegations made in the motion for disqualification and accompanying affidavits or to decide whether the respondent ruled correctly when she denied the motion as legally insufficient. Our ruling is predicated on the singular fact, so obviously reflected in the respondent’s ten-page order denying the motion (attached to which are twenty-two exhibits consisting of hundreds of pages), that the respondent went to great lengths to refute the charge that she was prejudiced against counsel for the petitioners. This effort by the respondent, as understandable as it may have been, makes her disqualified to further preside in the case below.

As the Supreme Court stated in Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978):

“Regardless of whether respondent ruled correctly in denying the motion for disqualification as legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disquali-ficátion ‘shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.’ Fla.R.Crim.P. 3.230(d); see, e. g., Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); Suarez v. State, 95 Fla. 42, 115 So. 519 (1928); Theo Hirsch Co. v. McDonald Furniture Co., 94 Fla. 185, 114 So. 517 (1927). When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case — the creation of ‘an intolerable adversary atmosphere’ between the trial judge and the litigant. See Department of Revenue v. Golder, 322 So.2d 1, 7 (Fla.1975) (On Reconsideration).” (emphasis supplied).

Accordingly, we grant the petition for writ of prohibition. We are confident that it is unnecessary for us to issue the writ, and we therefore remand the cause to the Circuit Court for further proceedings consistent with this opinion.

      . The petitioners alternatively sought the issuance of a writ of certiorari. On December 23, 1980, we issued an order determining that the proceedings be by way of certiorari. Upon further consideration, after oral argument of this cause, we have decided that the remedy of prohibition is proper.


author: NESBITT, Judge.

text:
    Jeffrey COLQUITT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2407.
    District Court of Appeal of Florida, Third District.
    April 14, 1981.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor and Calianne P. Lantz, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The dispositive point on this appeal is whether the state established that the defendant’s confession was freely and voluntarily obtained after he was in custodial restraint and had exercised his right to counsel. Finding that it did not, we reverse the defendant’s judgment of conviction of first degree arson, order that his confession be suppressed, and remand the cause for a new trial.

The defendant worked at a hotel. He was under surveillance as a suspect in connection with a series of unexplained fires. On February 1,1978, a fire inspector for the City of Miami Beach arrived at the hotel where the defendant was employed. Minutes after the fire inspector’s arrival, an unexplained fire was detected at the hotel. About thirty minutes later, the defendant was taken into custody as a suspect in connection with that fire as well as other unexplained fires. He was placed under formal arrest at approximately 10:15 P.M. on the same evening and given Miranda warnings. It is undisputed that after such advisory he requested assistance of counsel. Despite his request, the initial team of interrogators subjected him to a polygraph examination which he failed. Following the polygraph examination, the defendant was advised of the results. A new team of interrogators assumed responsibility for his further custodial interrogation. This new team of interrogators again gave him Miranda warnings and he reiterated his desire for counsel.

Sometime between 4:00 A.M. and 5:00 A.M. on the morning of February 2nd, an effort was made by the police to obtain the public defender’s services on the defendant’s behalf but to no avail. Subsequently, he was given a telephone book in an effort to reach an attorney of his choosing which also failed. At approximately 5:00 A.M. on the morning of February 2nd, the defendant telephoned his father-in-law about obtaining the services of an attorney. Shortly after that conversation, which was the only supportive assistance the defendant received, he allegedly gave a written waiver of his right to counsel and a confession. This was shortly followed by a taped waiver of his right to counsel and a taped confession.

In this case, it is clear that both sets of interrogators had knowledge of the defendant’s desire for counsel. Thus, it is clear from the state’s own witnesses that the defendant continuedly asserted his right to counsel during the more than ten hours that he was in custodial restraint. Consequently, it is also clear that the admission of his confession over objection violated the principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Once the defendant requested counsel, there should have been no further interrogation or re-interrogation unless the defendant either had the opportunity to talk with counsel or chose to reinstitute the questioning himself. Rhode Island v. Innes, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

This is not a case where the interrogation was terminated after a suspect requested counsel and was later resumed only under circumstances where it was apparent the defendant had changed his mind and desired to make a statement. Rivera Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969); see, Michigan v. Mosley, supra. Here, the defendant continuously indicated his desire for an attorney and consequently the state completely failed to show that the defendant thereafter exercised a knowing and intelligent waiver of his right to remain silent. Jones v. State, 346 So.2d 639 (Fla.2d DCA 1977); Singleton v. State, 344 So.2d 911 (Fla.3d DCA), cert. denied, 354 So.2d 986 (Fla.1977).

For the foregoing reasons, the defendant’s judgment of conviction is reversed with directions to grant his motion to suppress the confession and to grant a new trial.

Reversed and remanded.


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

text:
    Robert Allen TEFFETELLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-572.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.

      James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment and sentence for aggravated assault. Appellant raises as error the imposition of a sentence to run consecutively with undetermined future sentences. The judgment and sentence stated: “a term of five (5) years less 225 days heretofore served in the Volusia County Jail, to run consecutively with any additional sentences you are or will be serving.”

Section 921.16, Florida Statutes (1979), provides that sentences of imprisonment for offenses not charged in the same indictment, information or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently. See also Benyard v. Wainwright, 322 So.2d 473 (Fla.1975). Here, only one offense was charged in the information and if appellant is presently serving a sentence for another offense, the sentence involved must be served consecutively. Therefore, the language setting the condition that the five year term is “to run consecutively with any additional sentences you are . .. serving” can be treated as mere surplusage. Perkins v. Mayo, 92 So.2d 641 (Fla.1957); Rice v. State, 243 So.2d 226 (Fla. 4th DCA 1971).

The trial court was apparently aware of other charges pending against appellant and intended that this five year term commence after the sentences for the other crimes were served. However, as worded, this sentence could commence after the imposition of a sentence for any future unrelated crime. This indefinite commencement of the five year sentence is improper. Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); Keel v. State, 321 So.2d 87 (Fla.2d DCA 1975).

The judgment of conviction is AFFIRMED, the sentence REVERSED and this cause is REMANDED for correction of the sentence.

DAUKSCH, C. J., and COWART, J., concur.


author: COBB, Judge. COWART, Judge,

text:
    Harold Toney BATES, Petitioner, v. The Honorable Richard B. KEATING, as Circuit Judge, in and for the Ninth Judicial Circuit of the State of Florida, Orange County, Florida, Respondent.
    No. 81-60.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.

      Harry W. Carls, III, Public Defender, and Glenn Klausman, Asst. Public Defender, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   COBB, Judge.

Petitioner seeks a writ of prohibition based on the expiration of his speedy trial time.

Petitioner was arrested for drug trafficking and moved for a continuance to prepare a challenge to the drug trafficking statute. The motion was granted and the speedy trial time was “waived for the period of this continuance.” On October 17, 1979, petitioner filed a motion attacking the drug trafficking statute as unconstitutional.

The following day, October 18,1979, petitioner filed a demand for speedy trial, and his trial was set for December 17, 1979. Due to a conflict with the trial court’s trial schedule, the petitioner’s trial was reset for December 19, 1979. No order granting an extension of the speedy trial time for exceptional circumstances was rendered.

On December 19, 1979, petitioner moved for discharge on the ground that more than sixty days had run from the date of his demand for a speedy trial. Fla.R.Crim.P. 3.191(a)(2). The trial court denied the motion. Petitioner seeks to have the trial court prohibited from further exercising jurisdiction over him.

While we understand the rationale of Judge Cowart’s dissent that prohibition is not a proper remedy, the Florida Supreme Court has already decided that prohibition is a proper remedy when a trial court improperly fails to discharge a defendant whose speedy trial time has expired. Dick-off v. Dewell, 152 Fla. 240, 9 So.2d 804 (1942); Feger v. Fish, 106 Fla. 564, 143 So. 605 (1932). We are obliged to follow that precedent. Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). Indeed, we have done so in previous cases. Gordon v. Savage, 383 So.2d 646 (Fla. 5th DCA 1980); Deiches v. Kaney, 375 So.2d 584 (Fla. 5th DCA 1979).

In the case at hand, the sixty-day period had expired, and no order of extension had been rendered. Therefore, petitioner is entitled to be discharged. State v. Acurse, 347 So.2d 828 (Fla.3d DCA 1977). Accordingly, the writ of prohibition is granted and the case remanded to the trial court with orders to discharge the defendant.

Prohibition GRANTED; REMANDED with directions.

DAUKSCH, C. J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I agree petitioner is entitled to a discharge because of a violation of his speedy trial rule rights. I realize that this and other courts have previously granted prohibition in such instances. However, the common law writ of prohibition is concerned only with preventing a tribunal from exercising jurisdiction it does not have. Here, as in the usual case involving speedy trial rights, there is no question but that the circuit court has both subject matter jurisdiction over the felony charge and jurisdiction over the person. In such cases the trial court has the authority, power and jurisdiction to hear, consider and decide the question presented and that jurisdiction does not terminate with the running of a speedy trial time, a statute of limitation or any other such event regardless of the effect such matters may have upon the rights of the litigant before the court.

Peculiarly a trial court’s jurisdiction never depends on any ruling it makes. If it does not have jurisdiction, no ruling it can make can bestow it. Conversely, if it does have jurisdiction it never loses that jurisdiction by merely ruling whether its ruling is correct or not, because a court’s jurisdiction to decide a matter always necessarily includes the power to rule erroneously as well as correctly. In many instances an accused is entitled, upon a correct preliminary ruling on a point of law, to be free from the further restraints, concerns and hazards incidental to a criminal prosecution but an erroneous ruling does not deprive the trial court of its jurisdiction. Erroneous rulings relating to speedy trial rights are no different than other rulings which, if correct, would summarily dispose of the case and should be treated the same. If policy directs that denials of discharge for violation of speedy trial rights be given a speedy review the appellate rules could provide for their review as non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3) by a specific reference such as is proved in Florida Rule of Appellate Procedure 9.140(c)(1)(E) for appeals by the State from an order discharging a defendant. The omission of such a provision indicates that no interlocutory appeal of such orders was intended or is permitted. The use of prohibition in such cases in effect gives an accused an appeal which only the State is authorized to take. See Fla.R.App.P. 9.130(a)(2), 9.140(b) and 9.140(c)(lXE). Many speedy trial questions are presented to appellate courts by appeal (most such questions are presented after a nolo conten-dere plea with express reservation of right to appeal) thereby indicating that appeal is an adequate remedy in such cases although not as speedy as the accused would prefer. Only in those unusual cases where the point of law involves the trial court’s jurisdiction over the subject matter or over the person of the petitioner is the use of the extraordinary remedy of prohibition justified. I agree with the majority in Sherrod v. Franza,-So.2d-, No. 80-2003 (Fla. 4th DCA March 4,1981) [1981 F.L.W. 551]. For those reasons1 would deny the remedy of prohibition in this case but would reverse on a proper appeal.

      . For the same reasons we should not blithely apply Florida Rule of Appellate Procedure 9.040(c) and give the same summary interlocutory review by an original certiorari proceeding under Florida Rule of Appellate Procedure 9.030(b)(2)(A). See also Hawaiian Inn v. Snead Const Corp., 393 So.2d 1201 (Fla. 5th DCA 1981).


author: BERANEK, Judge.

text:
    Robert C. MALT, Appellant, Cross/ Appellee, v. R. J. MUELLER ENTERPRISES, INC., a Florida Corporation, Appellee, Cross/Appellant.
    No. 79-295.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.

      Timothy W. Gaskill of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for appellant, cross/ap-pellee.
    Linda F. Albritton, Law Office of Haines & Rossow, P. A., North Palm Beach, for appellee, cross/appellant.
   BERANEK, Judge.

This is an appeal and cross appeal from the final judgment entered by the Circuit Court in a landlord/tenant controversy. There were two basic claims before the trial court. The landlord sued for eviction of the tenant and the tenant counterclaimed for reformation of the lease and damages growing out of the landlord’s alleged breaches of the main lease and a further sublease. The trial court found for the tenant, reformed the lease and granted damages and attorney’s fees to the tenant. On appeal the landlord asserts the trial court erred in failing to evict the tenant and in granting reformation of the lease based upon the theory of mutual mistake. On cross appeal the tenant contends that the court awarded inadequate damages on the counterclaim for the breach of the sublease and for overpayments made on the main lease. The tenant also contends that the trial court awarded inadequate attorney’s fees. We affirm.

The building in question was a warehouse which the tenant (Mueller) rented for $38,-500 per year. At the same time a sublease was agreed to whereby the landlord (Malt) was to sublease from the tenant (Mueller) 2,000 square feet of the same building for $2,400 per year. The lease began in May, 1978, and suit was filed four months later in September. The landlord alleged nonpayment of rent and various other defaults including improper maintenance of the building, alterations of the building and failure to pay taxes. The tenant counterclaimed seeking a reduction in rent through reformation of the lease based upon the lessor’s misrepresentations as.to the size of the building or alternatively upon the theory of an alleged mutual mistake of fact between the parties. The tenant sought damages of $370.58 for overpayments of the rent paid on the main lease before reformation. The tenant also sought damages growing out of the sublease asserting that the landlord had used substantially more than the agreed 2,000 square feet and that no rent whatsoever had been paid under the sublease.

The case was tried on conflicting evidence and the trial court found for the tenant on most factual issues. The main areas of the controversy related to the theory of mutual mistake of fact. The trial court eventually adopted this theory in finding in favor of the tenant. The tenant asserted and the trial court found that rent on the building was to be $1.75 per square foot. The tenant claimed the landlord represented the building to be 22,000 square feet but that immediately upon taking possession, the tenant realized the building was smaller. As a result, the tenant requested reformation of the lease by reducing the rent payments to $1.75 per actual square footage occupied. The matter is further complicated by the counterclaim relating to the sublease. The tenant claimed landlord occupied more than the agreed upon 2,000 square feet and had paid no rent whatsoever. At trial it appeared that the actual square footage of the building was somewhere close to 19,640 square feet and that landlord/sublessee had occupied more than the agreed upon 2,000 square feet. The result was that the tenant had use of considerably less than 22,000 square feet.

The facts were complex and conflicting and after reviewing the briefs, transcript and evidence, we cannot say that the court erred in deciding these conflicts in favor of the tenant. LaCroix v. Higgins, 289 So.2d 743 (Fla. 4th DCA 1974).

The building here was leased to the tenant, who in turn leased a portion of it back to the lessor. There were conflicts about the size of the building which determined the amount of rent and about the space actually used by the owner under his sublease. From the beginning, both parties engaged in disputes over issues of space, adjustments, rent, acceptance of back rent, and other breaches. Under these circumstances, the landlord was not entitled to insist upon eviction by strictly applying the lease. The landlord accepted late rent payments from the tenant and was also found to be in substantial breach of the sublease. The landlord admitted never paying any rent on this sublease and the trial court could, thus, have properly considered those as equitable defenses to eviction. See Palm Corporation v. 183rd Street Theater Corporation, 344 So.2d 252 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 516 (Fla.1978). We conclude that the trial court did not err in refusing the landlord’s request for eviction.

As to the reformation issue, we also find no demonstration of error. A court will reform a contract if it fails to express the parties’ intentions because of fraud, mutual mistake, accident or inequitable conduct. Hardaway Timber Company v. Hansford, 245 So.2d 911 (Fla. 1st DCA 1971). Here, the tenant offered clear and convincing evidence of a mutual mistake, the size of the building, and the trial court properly reformed the contract. Vanater v. Allstate Insurance Company, 279 So.2d 40 (Fla. 4th DCA 1973), aff’d 297 So.2d 293 (Fla.1974).

On cross appeal the tenant asserts the finding of $1,600 for breach of the sublease was inadequate. The tenant also contends the court erred in failing to award approximately $370 in damages in overpay-ments on the main lease. Under the complex facts of this case, we conclude that the amount of these damages was in dispute and that the trial court did not err in the amounts actually awarded. We note that final judgment herein does not actually contain judgment on which execution could issue for these amounts but since the court entered final judgment on the other issues, we have accepted jurisdiction. The tenant also asserts that the trial court awarded an insufficient amount of attorney’s fees but we find no error in this regard. The award of attorney’s fees has not been demonstrated to have constituted an abuse of the trial court’s discretion and it is therefore affirmed.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: MOORE, Judge.

text:
    Joan Frances ZELLER, Appellant, v. Donald J. ZELLER, Appellee.
    No. 78-2639.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Steven J. Gutter of Bofshever, Redlich & Gutter, Fort Lauderdale, for appellant.
    Sheldon Evans of Freeman & Evans, P. A., Miami, for appellee.
   MOORE, Judge.

The wife, in a dissolution of marriage case, appeals a final judgment, which, inter alia, provides:

(1) That the wife shall have exclusive occupancy of the marital home for three years during which she is to be responsible for the mortgage, tax and insurance payments;

(2) That the marital home shall be sold at the end of three years and the proceeds divided between the husband and wife;

(3) That upon the sale of the marital home the wife shall receive a credit of one-half of the mortgage, tax and insurance payments she has made and a credit of $6,400 representing an accrued arrearage in temporary support, and;

(4) That upon the sale of the marital home, the husband shall be entitled to a credit of $13,500 representing one-half of funds withdrawn by the wife from the parties’ joint account at the time of their separation.

The appellant contends that these provisions are erroneous and require reversal of the final judgment. We agree that reversal is in order.

The parties were married in 1967. In 1974 they purchased a home in Hollywood, Florida as tenants by the entireties which became the marital home in question. The purchase of this home was partially financed with $36,000 acquired from the wife’s father in whose favor the husband executed a promissory note for that amount. After the parties separated, the appellant withdrew $30,000 from their joint account and disbursed $27,000 to her mother in partial repayment of the $36,000.

Although three children were born of the marriage, the oldest child was tragically killed in an automobile accident during the pendency of the dissolution proceedings. At the time the final judgment was entered, the other two children were approximately six and five years of age.

Initially, we hold that the trial court erred in ordering partition of the marital home in the absence of a specific pleading requesting it. As this Court opined in Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974):

To justify partition one of the parties must plead a right thereto in accordance with Chapter 64, F.S.1971, F.S.A. A prayer for a division of the property of the parties is insufficient. Wilkerson v. Wilkerson, Fla.App.1965, 179 So.2d 592, 598; Toby v. Toby, Fla.App.1973, 280 So.2d 523. That requirement is no idle whim since partition involves certain rights, such as the right to partition in kind, a determination of the respective interests of the parties in the property, and the proper distribution of the proceeds from a sale. If the division of property is based upon an oral agreement of the parties, the record should clearly reflect that agreement. In the present case there was no written or oral contract of the parties agreeing to the awards made. True, the court found in the final judgment that the parties desired “the court to determine the distribution of their various assets.” The only basis in the record for such a finding is the general language contained in the complaint and counterclaim praying for an adjudication of the respective interests of the parties. We do not believe that such general statements in the pleadings form a sufficient basis for a division of the parties’ jointly held property, since cases abound in this jurisdiction holding that if either of the parties wants his jointly held property divided in a manner other than that provided by 689.15, F.S.1971, F.S.A., he must agree to the manner of the division or properly plead a right to partition. Bergh v. Bergh, supra; Rankin v. Rankin, supra; Coykendall v. Coykendall, Fla.App.1972, 260 So.2d 558. We find the present record insufficient to justify the awards in question either on the basis of an agreement of the parties or on the basis of an appropriately pleaded prayer for partition.

See also, Muhlrad v. Muhlrad, 375 So.2d 24 (Fla. 3rd DCA 1979); Stetson v. Stetson, 356 So.2d 53 (Fla. 4th DCA 1978); Sniffen v. Sniffen, 352 So.2d 113 (Fla. 4th DCA 1977). The only pleadings which conceivably could have supported the partition order were those of the husband wherein he requested that the parties’ joint property and other property rights be adjusted and determined. This is precisely the sort of generalized pleading that was held to be insufficient to vest the trial court with authority to partition in Niemann, supra.

The trial court also erred in limiting the wife’s exclusive occupancy of the marital home to a three year period following the dissolution of the marriage. At the expiration of three years, the children will be approximately nine and eight years of age. Under the circumstances of this case, the trial court should have awarded the wife exclusive occupancy of the marital home until the children attain the age of majority or otherwise become emancipated. Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); Dolch v. Dolch, 368 So.2d 618 (Fla. 2nd DCA 1979). Although the failure to award exclusive possession of the marital home unto the custodial parent until all of the children attain majority or become emancipated would not always constitute error, such awards are so frequently ordered that they have become a generally accepted principle of the law of divorce. These awards are proper because they are in the nature of maintenance and support. Alford v. Alford, 364 So.2d 1255 (Fla. 2nd. DCA 1978); Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978); Robinson v. Robinson, 340 So.2d 935 (Fla. 4th DCA 1976). The husband is a medical doctor specializing in pathology and earns in excess of $85,000 per year. The wife is a certified teacher currently receiving approximately $21,000 per year in combined alimony and child support, but she is presently unemployed and has been unemployed for most of the parties’ married life. In light of these considerations and the ages of the two children in the wife’s custody, together with the desirability of preventing further disruption to the stability of the household, the trial court should have awarded the wife exclusive occupancy of the marital home until the younger of the two children reaches majority or otherwise becomes emancipated. Exclusive possession of the marital home for only a three year period was an inadequate method of protecting the future welfare of the children.

We further conclude that the trial court erred in finding that the money given to the parties by the wife’s father was a gift as opposed to a loan. This finding was contrary to the manifest weight of the evidence. The wife introduced into evidence the promissory note which is apparently in the handwriting of the husband and states:

Donald J. Zeller, M.D.
1665 A. Cedar Street
Fort Dix, New Jersey 08640
6 Oct, 1973
To Herbert Kresler
I owe you Thirty six Thousand dollars ($36,000.) Payable at the rate of a minimum of 05% of my annual income once my full time pathology practice has begun.
Donald J. Zeller, M.D.

The only explanation offered by the husband in support of his contention that the $36,000 was a gift was the following testimony:

I interpreted that if he wanted the monies back, I would pay it back. Okay. That was the intent of the letter. It was discussed with my wife and myself. It was my idea. I never assumed he would want the monies back. The man. had several million dollars. He always lived a good life, and he was always very generous with us. It was my attempt. It wasn’t making any money. It was my attempt to make myself feel a little better about accepting this.

As would be expected, the wife testified that although both of the parties’ parents gave them monetary gifts, the $36,000 given by her father was a loan to be used as a downpayment on their home.

As stated at 38 C.J.S. Gifts § 6:

A loan is not a gift; the terms “to give” or “to donate” are the precise antithesis of the term “to loan,” which implies a promise to repay or return. An obligation to return or repay the thing received, or to pay interest thereon, or even an expectation of repayment, is inconsistent with the theory of a gift. A transaction cannot be changed from a loan to a gift by loose declarations of one that he has given money to another, or by permission to the borrower to keep it as long as he wishes, especially where there is an absence of complete delivery, (footnotes omitted).

See also, Schekter v. Michael, 184 So.2d 641 (Fla.1966). The wife’s testimony corroborated the plain language of the note, and even the husband admitted that there was a possibility that he would be required to repay the money. It therefore becomes obvious that the payment of the money by the wife’s father was in the nature of a loan and not a gift. Accordingly, the basis on which the trial court relied to award the husband a one-half interest in the $27,000 removed by the wife from the joint account is erroneous. That is not to say, however, that no basis exists for the award. As with the other two contentions of the appellant, we remand this issue for renewed consideration by the trial court.

The appellant also contends that the trial court erred in deferring payment of the $6,400 owed by the husband until the marital home is sold. She further contends that the trial court erred in imposing on her the obligation of paying the carrying charges for the marital home during the three year period of her exclusive occupancy. Since we have concluded that both the three year period of the wife’s exclusive occupancy and the partition and sale of the marital home at the end of that period are erroneous, we do not decide these latter issues, but instead remand them for renewed consideration by the trial court.

The final judgment is reversed insofar as it is inconsistent with this opinion. This cause is remanded to the trial court for the purpose of

(1) Entering a final judgment awarding the wife exclusive occupancy of the marital domicile until the youngest of the two children in her custody attains majority or otherwise becomes emancipated, and

(2) Reconsideration of the financial awards discussed in this opinion.

In all other respects, the final judgment is affirmed.

AFFIRMED IN PART and REVERSED IN PART and REMANDED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: HERSEY, Judge.

text:
    Willie Byron HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-644.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.

      Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

The record implicates appellant in two robberies. Separate incriminating statements were given by him as to each robbery. This is an appeal from the denial of a motion to suppress statements made as to one of those robberies. Because of the grounds upon which we reverse, it is not necessary to consider the possible interrelationships between either the substantive or the procedural aspects of the two crimes, except those specifically mentioned here.

Appellant was advised of his Miranda rights at the time of his arrest. Subsequently, at the police station, Miranda rights were again reviewed and appellant and two detectives initialed a “rights” card.

During the course of interrogation concerning the latter of the two robberies the following colloquy between appellant and a detective occurred:

Q If you cannot afford an attorney, one will be appointed for you free of charge, do you understand?
A Yeah.
Q If you decide to answer my questions now you can stop answering any time you want, do you understand?
A Yes.
Q Do you fully understand each of your rights.
A Yes, I do.
Q Do you wish to answer questions at this time?
A Well, I want to ask a question first.
Q Okay.
A Uh, is I want an attorney. Could I have one now?
Q Not right this minute, no. That means the court will appoint you an attorney at a later date.
A Oh. Might be a week from now, two?
Q Possibly, yes.
A Okay.

No significant discussion concerning appellant’s rights took place between the time of this exchange and appellant’s interrogation later the same day by another detective concerning the earlier robbery. The incriminating statements made during this second interview were the subject of the motion to suppress, denial of which occasioned the present appeal.

We interpret the conversation quoted earlier as a request that counsel be present before any questioning take place. But even if the language be construed as a question as to timing, the response given by the detective was at least misleading.

In either event we would be compelled to conclude that appellant’s constitutional rights had not been sufficiently protected. The mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) is clear:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning: If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

We have previously held that questioning cannot continue after assertion by an accused of his or her right to counsel. Wakeman v. State, 281 So.2d 61 (Fla. 4th DCA 1970). The prohibition applies where the assertion is made by indirection or suggestion, as well as in the case of direct, positive assertion. Singleton v. State, 344 So.2d 911 (Fla. 3d DCA 1977).

For these reasons we reverse the conviction and remand for new trial with instructions that the motion to suppress be granted.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    James I. ADAMS, Irvin Fried and Thelma Fried, Max Schorr and Ruth Schorr, John B. McDowell and Marie G. McDowell, and Florence B. Smith and Irving T. Smith, Individually and as Representative Members of a Class of Ad Valorem Taxpayers of Palm Beach County, Florida, Appellants, v. David L. REID, as Property Appraiser of Palm Beach County, Florida, and Harry L. Coe, Jr., as Executive Director of the Department of Revenue, State of Florida, Appellees.
    No. 79-1984.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    H. L. Cooper, Jr., of O’Connell & Cooper, P. A., West Palm Beach, and Max Schorr, Palm Beach, for appellants.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, and E. Wilson Crump, II, Asst. Attys. Gen., Tallahassee, for appellee Dept, of Revenue.
    Jay R. Jacknin of Christiansen, Jacknin & Myers, Palm Beach, for appellee David L. Reid.
   DOWNEY, Judge.

James I. Adams and others filed a class action suit against David L. Reid, Property Appraiser of Palm Beach County, and others for declaratory and monetary relief relative to the ad valorem tax assessment for the year 1978. From a final order dismissing their Second Amended Complaint plaintiffs perfected this plenary appeal.

In pertinent part, the general allegations of the Second Amended Complaint are that the suit was brought on behalf of condominium owners who “suffered increases in valuation of their apartments for the year 1978 for ad valorem tax purposes,” none of whom sought administrative relief from said assessments. On January 1, 1978, there were approximately 1,567 condominium apartment buildings or complexes containing approximately 62,413 dwelling units in Palm Beach County. The property appraiser reviewed for valuation purposes only approximately 200 of said condominium buildings or complexes, resulting in the reassessment of condominium apartment dwelling units in only approximately 150 of said buildings within Palm Beach County. The Property Appraiser failed to reassess any single family dwelling properties in the county other than those sold, demolished, or under significant improvement. He also failed to reassess a significant percentage of the commercial property for the 1978 tax assessment period.

After the foregoing general allegations, Count I of the Second Amended Complaint asserts in material part that the appellants’ condominium apartment units were singled out to suffer an increase in tax assessment while substantially all other condominium apartments in the county were systematically and intentionally omitted from the increased tax assessment and therefore those other apartments were assessed at a lower valuation than appellants’, resulting in unjust and unequal valuations constituting unequal protection of the law in violation of the Florida and Federal Constitutions and thereby placing a greater tax burden on appellants than that borne by other taxpayers. To the extent of the tax attributable to the increase of the 1978 assessment over 1977 levels appellants have been taxed unequally in comparison to substantially all of the other residents of Palm Beach County. Finally, appellants allege that the appraiser intentionally selected appellants’ properties for increased 1978 assessments in violation of law, which resulted in valuations unjust and unequal, abstractly and relatively, and further resulted in having substantially all other property in the county being systematically assessed at a value less than the assessments of appellants’ property, thereby singling out and specifically discriminating against appellants vis-a-vis the other taxpayers generally in Palm Beach County. Count I concludes with a prayer for: a declaration that the 1978 tax assessments of appellants’ property are void; a decree ordering a reduction in said assessments to 1977 levels; and a refund of excess payments of 1978 taxes in the amount of the excess taxes paid.

Count II seeks similar relief based on the Appraiser’s alleged failure to observe the mandatory requirements of Sections 193.-023(1) and 192.011, Florida Statutes (1977).

The trial court dismissed the Second Amended Complaint because it found that, under the allegations of said complaint, the assessments were, at most, voidable rather than void, requiring appellants (who had not sought any administrative remedy) to exhaust their administrative remedies as a condition precedent to judicial relief. Our study of the case (Deltona Corporation v. Bailey, 336 So.2d 1163 (Fla.1976)) upon which both sides placed primary reliance below to support their antagonistic positions and which both sides cite here for their position leads us to conclude that the trial court’s finding is erroneous. ‘Thus, we must reverse.

As recited earlier in this opinion appellants alleged their 1978 tax assessments were examined and increased over 1977 while others were examined and not increased and still others were not examined at all. In addition, it is charged that single family residences and significant commercial property was not examined for the 1978 tax year.

Appellees argue that the failure of appellants to allege that their properties were assessed in excess of “just value” or that other properties examined which did not incur an increased tax assessment were assessed at less than “just value” and that the single family dwellings in the county and the “significant percentage of commercial property” not examined were not assessed at “just value” is significant and supports affirmance. However, appellee seems to ignore appellants’ allegations that the Property Appraiser has systematically and intentionally increased appellants’ assessments so that they are higher than the assessments of substantially all other property in the county, thereby specifically discriminating against appellants in relation to all other taxpayers in the county.

In Deltona Corporation v. Bailey, 336 So.2d 1163 (Fla.1976), the taxpayer alleged that the Assessor had reassessed the taxpayer’s property at a value higher than its lawful value and at a level higher than the general level of assessment for similar properties in Volusia County, thereby requiring one taxpayer to bear a disproportionate and unequal share of the county tax burden and violating the taxpayer’s right to equal protection. The Supreme Court pointed out that those allegations omitted an essential element to a cause of action, viz., an allegation that a11 or substantially all of the other property in the county was systematically assessed at a value less than the value at which the taxpayer’s property was assessed. For emphasis we quote the pertinent portion of the opinion:

Although the quoted allegations appear to contain the elements required by Salter [Dade County v. Salter, 194 So.2d 587 (Fla.1967)] and Southern Bell Tel. & Tel. Co. [v. County of Dade, 275 So.2d 4 (Fla.1973)], a reading of Count II in its entirety indicates that an essential element is missing. Deltona fails to allege that all (or even substantially all) other property in the county is systematically assessed at a value less than the assessment of Delto-na’s property. When speaking of the general level of assessments in the county the amended complaint avers that Delto-na’s property is assessed at a level higher than the general level of assessment for similar properties in Volusia County, Florida. Since Deltona failed to plead that it is being “singled out” and specifically discriminated against vis-a-vis the other taxpayers generally in Volusia County, it has no standing to challenge its assessment on equal protection grounds, for that is an essential ingredient in Salter and Southern Bell.

336 So.2d at 1168.

Appellants have taken the lesson of Deltona, filled in the missing ingredients, and thus met their pleading burden to state a cause of action. Thus, taking the allegations of the complaint as true, as we must on a motion to dismiss, the Property Appraiser’s actions constitute a purposefully discriminatory assessment, when one compares appellants with substantially all other taxpayers in the county, and thus the assessments are void. See Coe v. ITT Community Development Corp., 349 So.2d 654, 657 (Fla. 1st DCA 1977), quashed on other grounds, 362 So.2d 8. Given a void assessment the appellants are entitled to seek relief in the circuit court without complying with the doctrine of primary jurisdiction by exhaustion of available administrative remedies.

Appellants via two other points on appeal argue that, because of the provisions of two statutes dealing with tax assessments, the final judgment should be reversed. Neither argument has merit.

However, because we hold that the Second Amended Complaint contains sufficient factual allegations, which, if proved, would demonstrate that the assessments in question were void, we reverse the final judgment of dismissal with prejudice and remand the cause with directions that the circuit court reinstate appellants’ second amended complaint.

REVERSED AND REMANDED, with directions.

LETTS, C. J., and GEIGER, DWIGHT L., Jr., Associate Judge, concur.


author: PER CURIAM. BERANEK, Judge,

text:
    Randall Alan JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 80-484.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s order denying defendant’s motion to suppress, but remand the cause with instructions to delete probation condition # 9 which requires the probationer to “live honorably at all times.” Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980).

HERSEY and HURLEY, JJ., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. I do not believe there is anything legally wrong with requiring a person placed on probation to live honorably. I see no reason to strike such a condition of probation in the abstract. It is my belief that we should recede from Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980).


text:
    George G. VANDERSLICE, Appellant, v. Carolyn D. VANDERSLICE, Appellee.
    No. 78-2616.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    J. Kaylor Young, Fort Lauderdale, for appellee.
   MOORE, Judge.

The husband appeals from a final judgment of dissolution of marriage which expressly provided, inter alia, (1) that the husband’s interest in the marital home and a one-half interest in his boat and motorcycle, be awarded to the wife as lump sum alimony, and (2) that the court reserved jurisdiction to determine the appropriate amount of attorneys fees to be awarded the wife. The final judgment explicitly rejected the husband’s claim of a special equity in the marital home. We affirm the final judgment in all respects.

The wife is 42 years of age and is employed at a private school, ostensibly as a teacher. Her net monthly income is $699.02, although she occasionally recéived between $30.00 and $40.00 a week from special tutoring. Since the parties’ separation in April, 1976, the wife has been the basic source of support for the parties’ three children, ages 15, 13 and 10. During the duration of the separation, the wife has paid the carrying charges on the marital home, and as a result thereof, she has incurred considerable indebtedness. Her only assets consisted of her one-half interest in the marital home and about $1,400 in other personal property. While presently in fair health, the wife has undergone five surgical operations during the course of the marriage.

The husband is 39. His tax returns from 1972 to 1976 indicate an income ranging from $13,500 in 1972 to $5,000 in 1976. From April, 1976 until June, 1978, the husband was out of work and received approximately $12,000 in disability insurance payments and approximately $12,000 in workmen’s compensation benefits. At the time of the final hearing, the workmen’s compensation carrier had refused to continue further disability payments, but offered instead to settle the husband’s claim. At the final hearing a court appointed doctor testified that the husband has no permanent disability and can resume employment. During the one year period of separation immediately prior to the final hearing, the husband contributed only $250.00 toward the support of the wife and the three minor children. The husband currently resides with a lady friend and her three minor children, and contributes, at least to some degree, to the support of that household. At the time of the final hearing, the husband’s assets consisted primarily of his interest in the marital domicile, some antiques from his mother’s estate, two boats and two motorcycles.

The husband contends that the trial court erred in awarding the husband’s interest in the marital domicile, and the one-half interest in the boat and motorcycle as lump sum alimony. We disagree for the following reasons: the husband can pay the lump sum award without imposing an undue burden upon him; the wife has a need for the award to sustain a modest standard of living in the future; in fact, the award is necessary to insure her bare security; the marriage was of seventeen years duration; during the marriage, the wife contributed as a housewife and a mother in addition to her outside employment; the wife’s current health status is questionable in comparison to the husband’s; and the husband abandoned his duties as a provider during the term of their legal separation, while the wife dutifully sustained the needs of the household. See, McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). We are not prepared to say that reasonable minds could not differ as to the propriety of the trial court’s action in this regard. The trial court did not abuse its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). See also, Lewis v. Lewis, 383 So.2d 1143 (Fla. 4th DCA 1980); Costich v. Costich, 383 So.2d 1141 (Fla. 4th DCA 1980).

We reject the husband’s claim of a special equity in the marital domicile as there was substantial competent evidence to support the trial court’s finding that no special equity existed.

We decline to review the propriety of the trial court’s reservation of jurisdiction to enter an award of attorneys fees in favor of the wife. Since no such award has actually been entered, this issue is not ripe for our consideration. This holding, of course, in no way prejudices the husband’s right to contest the validity of such an award, when, and if, an award of attorneys fees is eventually entered.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    CITY OF DEERFIELD BEACH, Appellant, v. OLIVER-HOFFMAN CORPORATION OF DEERFIELD BEACH, Appellee.
    No. 80-582.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied May 6, 1981.
    G. Carlton Marlowe, Fort Lauderdale, for appellant.
    F. Kendall Slinkman, West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The sole point on appeal challenges the trial court’s award of attorney’s fees under Section 57.105, Florida Statutes (1979). We reverse upon the holding that the position asserted by the appellant-city below, while held to be erroneous on the merits, was not frivolous — that is, entirely devoid of even arguable substance — as is required to invoke the statute. See Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980); compare T. I. E. Communications, Inc. v. Toyota Motor Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1980); Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980). Indeed, as in Denes and Denes & Associates, Inc. v. Walter E. Heller & Co., 396 So.2d 760 (Fla. 3d DCA 1981), the existence of a “justiciable issue of law or fact,” precluding the applicability of the statute, was affirmatively demonstrated by the court’s denial of a motion for summary judgment against the city on the ground that the issues could be properly resolved only by trial. Cf., White v. The Montebello Corp., 397 So.2d 326 (Fla. 5th DCA 1981). While the statute serves a salutary purpose indeed, it may not properly be extended to every case and every unsuccessful litigant. See, Allen v. Estate of Dutton, supra, at 175. (“Merely losing ... is not enough to invoke the operation of the statute.”) Since the rigorous statutory prerequisites which insure against any such result were not met here, the order under review is

REVERSED.

BERANEK and HERSEY, JJ., concur.

      . The city had cleared the appellee’s lot and imposed a lien for the expenses pursuant to a municipal code provision which permits this to be done if the property is in an unsightly or unsanitary condition. The primary issue below was whether the lot was in fact in a state to justify the city’s action. On this question, the evidence at the trial was conflicting and disputed.

      . We do not suggest that the denial of a summary judgment motion alone and invariably requires denial of fees under Sec. 57.105. If, for example, the showing in opposition to the motion is presented in bad faith, the statute may well be appropriately applied. While the appellee argues otherwise, we find that no such conduct or its equivalent was involved in this case.


text:
    Ralph LEONARD, Appellant, v. William LAWSON, Appellee.
    No. 80-209.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Jon H. Gutmacher, Fort Lauderdale, for appellant.
    Williams S. Isenberg of Law Offices of Harlan Street, P. A., North Miami, for ap-pellee.
   PER CURIAM.

Appellant Ralph Leonard sued appellee William Lawson to recover money owed him from a joint business venture involving the importation and sale of foreign automobiles and parts. Lawson filed a counterclaim for monies owed him by Leonard.

The case was tried by the court without a jury or a court reporter. Final judgment was entered for Lawson for $11,136.04. After denial of all post trial motions, Leonard instituted this appeal. Since no transcript of the testimony was available the parties stipulated to certain facts and then appellant attempted to have the court reconstruct the evidence pursuant to Florida Appellate Rule 9.200(b)(3). However, the parties could not agree on the testimony and the court stated he could not remember the details of the testimony sufficiently to recollect how he arrived at the amount of the final judgment.

Leonard has a theory on how the trial court arrived at the amount of the judgment, but Lawson contends Leonard’s theory is pure speculation and we agree. As this court said in Haist v. Sharp, 351 So.2d 1120 (Fla. 4th DCA 1977), aff’d 366 So.2d 402 (Fla.1978), a party takes a gamble in going to trial without a court reporter. The gamble may backfire when the court is unable to recreate the record.

Under the circumstances, appellant has failed to demonstrate reversible error. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: HURLEY, Judge.

text:
    D. H., Petitioner, v. The Honorable Mark E. POLEN, as Circuit Judge of the Seventeenth Judicial Circuit, the Honorable Sam McCormack, as Superintendent of the Pompano Juvenile Detention Facility, Respondents.
    No. 80-1679.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.

      Alan H. Schreiber, Public Defender, and Pamela Burdick, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for respondents.
   HURLEY, Judge.

A petition for writ of habeas corpus was filed on October 2,1980, seeking petitioner’s release from the Pompano Juvenile Detention Facility. We ordered a response and reply thereto, notwithstanding that the question might become moot. On October 8,1980, petitioner was released to his mother and the case became moot. Nonetheless, we retained jurisdiction since the petition raised a recurring question of public importance which, if not resolved, would evade appellate review. See Plante v. Smathers, 372 So.2d 933, 935 (Fla.1979); Sadowski v. Shevin, 345 So.2d 330 (Fla.1977).

The question is whether a dependent child who is charged with indirect criminal contempt may be confined in a secure detention facility pending final hearing on the contempt charge. We answer in the affirmative.

On April 7, 1980, the trial court adjudicated D. H. to be a dependent child and added a special condition that he “attend school each and every day it is in session.” Subsequently, the court received a sworn petition which alleged that D. H., had failed to comply with the special condition. Thereupon, the court issued a rule to show cause why D. H. should not be held in contempt of court; a hearing date of May 16, 1980, was set. D. H. failed to appear and so, on May 21, 1980, the court entered an order to take D. H. into custody and detain him at the Pompano Juvenile Detention Center.

On September 30, 1980, after being a runaway for four months, D. H. returned home, and turned himself in to the juvenile authorities, whereupon he was placed in the Pompano Juvenile Detention Center. A detention hearing was conducted the next day, at which time the court sought alternative measures to assure that D. H. would attend a rescheduled show cause hearing. When no substitute measures — including parental custody — were found acceptable, the court confirmed its earlier order that the child be detained in a secure detention facility. It is the legality of the first order specifying detention at the Pompano Juvenile Detention Center, and its confirmation at the October 1st detention hearing, which are at issue here.

An analysis of this case must start with the court’s order of May 21, 1980. In our view, it was an “order of arrest” issued pursuant to Rule 8.280(a)(3), Fla.R.Juv.P. Furthermore, since indirect criminal contempt of court, if proved, would constitute a delinquent act, R. M. P. v. Jones, 392 So.2d 301 (Fla. 1st DCA 1981), we believe the trial court was well within its authority in ordering the child to be detained in a detention facility. See Section 39.032(2), Fla.Stat. (1980 Supp.) Accordingly, petitioner’s application for issuance of a writ of habeas corpus is denied and the order to show cause is discharged.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    LIVE SUPPLY, INC., Appellant, v. Valior E. GIERSDORF, Mary Virginia Giersdorf, his wife, and R. C. Lindsey Plumbing, Inc. et al., Appellees.
    No. 79-1606.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.

      Steven L. Sagrans, Jupiter, for appellant.
    James D. McFarland of Anderson & Dun-gey, P. A., Stuart, for appellees-Giersdorf.
   PER CURIAM.

AFFIRMED. See VanDiver v. Vincent, 139 So.2d 704 (Fla.2d DCA 1962); In re Estate of Kionka, 113 So.2d 603 (Fla.2d DCA 1959), affirmed, 121 So.2d 644 (Fla. 1960); also, Brodgon v. McBride, 75 So.2d 770 (Fla.1954); Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780 (1929), and Estate of Deem v. Shinn, 297 So.2d 611 (Fla. 4th DCA 1974).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Pearl Coleman HENLEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-25.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Pearl Coleman Henley, pro se, appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

Defendant appeals the denial, without an evidentiary hearing, of a motion for post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P. The trial court was partially correct in that all of the alleged grounds, save ground “C”, were legally insufficient. Paragraph “C”, however, alleges ineffective assistance of counsel on appeal. Since copies “of that portion of the files and records which conclusively [show] that the prisoner is entitled to no relief” were not attached to the court’s order of denial, the cause is reversed and remanded with instructions to conduct an evidentiary hearing on the allegation of ineffective assistance of counsel. See Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980).

MOORE, HERSEY and HURLEY, JJ., concur.


text:
    Melvin JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-134.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Atty., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Section .775.021(4), Florida Statutes (1979), and Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981).

AFFIRMED.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


text:
    John SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1847.
    District Court of Appeal of Florida, Second District.
    April 15, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s judgment and sentence of aggravated battery in violation of section 784.045, Florida Statutes (1979). In light of this court’s recent holding in Mc-Abee v. State, 391 So.2d 373 (Fla.2d DCA 1980), appellant’s judgment and sentence for “attempted” resisting arrest with violence in violation of section 843.01, Florida Statutes (1979), is hereby vacated.

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


author: RYDER, Judge.

text:
    Shirley J. SPIKES, Appellant, v. James L. SPIKES, Sr., Appellee.
    No. 80-1931.
    District Court of Appeal of Florida, Second District.
    April 15, 1981.
    Claudos G. Spears of Allison, Spears & Heistand, St. Petersburg, for appellant.
    Glenn D. Storch of Myron J. Mensh, P.A., St. Petersburg, for appellee.
   RYDER, Judge.

The wife appeals from a final judgment of dissolution of marriage, contending that the trial court erred by ruling that the wife was not entitled to alimony other than payment by the husband of the mortgage expenses on the marital home. Although not argued by appellant/wife, we think it was error to credit alimony to the husband for the $285.00 monthly mortgage payments.

The trial court’s order, in pertinent part, provides:

The Petitioner/Husband shall pay to the Respondent/Wife, as alimony, the sum of $285.00 per month, until the Wife remarries, or dies or until further order of the Court, such sum being the amount of the principal, interest and taxes and is on the home place, and the same may be paid by the Husband paying the mortgage directly-

The order further provided that the wife will have the sole possession of the marital premises.

By ordering the husband to make alimony payments by paying off the mortgage, the trial court is impermissibly requiring the wife to build her husband’s equity in the property. Smith v. Smith, 390 So.2d 1223 (Fla. 1st DCA 1980). As noted in Hendricks v. Hendricks, 312 So.2d 792 (Fla.3d DCA 1975), it is the obligation of each tenant in common to pay one-half of the property expenses consisting of mortgage payments, insurance, taxes and necessary repairs. By allowing the husband to use his alimony payments for the mortgage, he is building his equity in the marital home without having to pay for it as his alimony is deductible from his income taxes. 26 U.S.C.A. § 215 (1978).

Accordingly, the judgment is hereby amended to provide that while the marital residence is occupied by the wife, and until the ultimate sale of the property thereafter, the husband will pay one-half of the mortgage expenses (principal, interest and taxes) which will not be credited toward his monthly alimony payment of $285.00.

The judgment as herein amended is AFFIRMED.

OTT, Acting C. J., and CAMPBELL, J., concur.


author: PER. CURIAM. ANSTEAD, Judge,

text:
    Ethel June MESSINGER, etc., Appellant, v. A. B. CHANCE CO., etc., et al., Appellees.
    No. 80-61.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Maurice Fixel and Terry Ellen Fixel of Meyer, Leben, Fixel & Cantor, P. A., Hollywood, for appellant.
    George W. Wright, Jr. of Wright & Sil-verio, Miami, for appellees Florida Power & Light Co.
   PER. CURIAM.

AFFIRMED.

MOORE and BERANEK, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This is an appeal from a summary final judgment entered in favor of Florida Power & Light Company in an action involving the death of appellant’s husband. The trial court found that there was no evidence that Florida Power & Light had breached any duty owed to the deceased. I cannot agree. Upon review of the record I believe that there is an issue of fact as to whether Florida Power & Light Company was completely free of legal responsibility for the accident. Specifically, there is evidence in the record which indicates that Florida Power had knowledge of the activities by the deceased on Florida Power’s easement which required the use of a crane and that subsequently resulted in the accident; and that, notwithstanding this knowledge, Florida Power issued no warnings as to the danger involved and took no other action to prevent the accident. See Florida Power & Light Company v. Barrs, 127 So.2d 896 (Fla.3d DCA 1961).


author: BOOTH, Judge.

text:
    PROFESSIONAL FIREFIGHTERS OF FLORIDA, INC., James B. Jackson, Dominick F. Barbera, and Gary Rainey, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, STATE OF FLORIDA, Appellee.
    No. 00-231.
    District Court of Appeal of Florida, First District.
    April 21, 1981.
    Edward S. Jaffry and Van P. Russell, Horne, Rhodes, Jaffry, Horne & Carrouth, Tallahassee, for appellants.
    George L. Waas and Charles T. Collette, Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a hearing officer’s order dismissing the petition filed by the appellant association and various individuals for lack of standing to challenge the validity of certain HRS rules and the rule-making procedures under which they were adopted. The subject rules regulate the licensing of paramedics in Florida. The appellant association claims to represent certain of its members who are paramedics practicing their profession without the benefit of the new licensing requirements. (Individual appellants Dominick Barbera and Gary Rainey, members of the association, perform paramedic functions in the course of their employment as lieutenants with the Dade County Fire Department. Both Barbera and Rainey have been “certified” by their department to perform emergency medical services, but neither has applied for state certification pursuant to the new rules.

Section 120.56, Florida Statutes (1979), provides that any person “substantially affected” by an agency rule may seek an administrative determination of whether the rule is a valid exercise of delegated legislative authority. On November 6, 1978, the appellee agency filed a prehearing motion to dismiss appellants’ petition on grounds appellants were collaterally es-topped from challenging the rule-making procedures because of their participation in an earlier hearing. The agency’s motion to dismiss also contended the allegations of the petition were insufficient to confer standing, but this standing challenge, based on the allegations in the petition, was abandoned. The denial of the agency’s motion to dismiss on the collateral estoppel ground was affirmed on appeal in HRS v. Professional Firefighters of Florida, Inc., 366 So.2d 1276 (Fla. 1st DCA 1979).

At the close of the evidence in the subsequent hearing on March 8,1979, the agency renewed its challenge to appellants’ standing. Appellants argued that the organization and its paramedic members, including the individual petitioners, were directly and substantially affected by the challenged rules because the rules regulated the field in which they were practicing and pervasively governed their livelihoods. Barbera testified that he would be compelled to submit to the certification exam under the new licensing rules to avoid being relieved of his present paramedic duties and that failure to comply with the rules would injure him monetarily and stop him “from doing the job I was trained to do.”

The hearing officer concluded, however, that neither Barbera, Rainey, nor the appellant association had established injury of “sufficient immediacy and reality” to meet statutory requirements, stating:

Petitioners Rainey and Barbera maintain that if they do not become certified under the contested rules, they will be unable to continue performing paramedic functions incident to their employment. Undoubtedly, denial of an application for certification as a paramedic pursuant to the challenged rules would constitute a sufficient injury to confer standing to challenge the propriety of such rules. However, Petitioners have neither applied for certification nor have they alleged or established that anything in the challenged rules would disqualify them from certification. .. Petitioners’ attacks on those rules which govern certified paramedics cannot be acknowledged because they are not presently in the class of licensees regulated by the rules.

The hearing officer accepted the agency’s contention that appellants could not claim injury which they brought “voluntarily” upon themselves by failing to apply for certification.

The order below would preclude a challenge by anyone who had not first complied with a rule and suffered injury, no matter how clear the rule’s applicability to, or substantial its effect on, the challenger. Such a result is not consistent with prior Florida decisions. The APA permits prospective challenges to agency rulemaking and does not require that an affected party comply with the rule at his peril in order to obtain standing to challenge the rule. 4225 Corporation, Mother’s Lounge, Inc. v. Division of Beverage, 348 So.2d 934, 936 (Fla. 1st DCA 1977). A party may demonstrate standing by showing that a rule has a real and immediate effect upon his case, as well as by proving injury in fact. State Department of Commerce v. Matthews, 358 So.2d 256, 257 n.1 (Fla. 1st DCA 1978); Jacksonville Maritime Association, Inc. v. Florida Board of Pilot Commissioners, 39 FDOAH 626 (August 10, 1977).

In the instant case, the rules governing licensing procedures promulgated by the agency substantially affected the individual appellants by rendering their continued employment as paramedics unlawful without compliance with the licensing requirements. This case is unlike the decisions cited by appellee wherein parties were denied standing on grounds application of the agency rule was purely speculative and conjectural. For example, in Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1215 (Fla.1978), this court held that an inmate in the state correctional institution had no standing to challenge a disciplinary confinement rule when, at the time of filing, he had already served his penalty, holding (353 So.2d 1236):

Jerry’s prospects of future injury rest on the likelihood that he will again be subjected to disciplinary confinement because of possible future infractions .. . Whether this will occur ... is a matter of speculation and conjecture and we will not presume that Jerry, having once committed an assault while in custody, will do so again.

Similarly, in Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979), this court found that a woman of child-bearing age who was no longer pregnant at the date of filing had no standing to challenge a proposed rule limiting medicaid funding for abortion.

In both Jerry and Alice P., supra, the challengers were not subject to the rule or immediately affected by it at the time suit was filed and were unlikely to be affected in the future. In contrast, in this case, the individual appellants are presently affected by the licensing rules because they currently work in the area to be regulated. When an agency sets up a new licensing or certification requirement for an occupation or profession not previously subject to state-wide regulation or licensing, persons engaged in that occupation or profession have standing to challenge the proposed regulation. This is true regardless of whether submission to certification or licensing is termed “voluntary” or not. There is a clear, direct effect on those concerned individuals being able to continue to earn their livelihood. The test of “substantially affected” as to the two individual appellants is met, and it is unnecessary to determine whether the appellant association alone would have sufficient standing under Florida Department of Education v. Florida Education Association/United, Inc., 378 So.2d 893 (Fla. 1st DCA 1979), wherein this court held that a teacher’s union was without standing to challenge a disciplinary rule when no individual teacher was a party.

The order dismissing the petition is REVERSED.

MILLS, C. J., and McCORD, J., concur.

      . Fla.Admin.Code, Rule 10D-66.36. The subject rules were promulgated pursuant to the 1977 amendments to the Florida Statutes. See Fla.Stat. § 401.47 (1979).


text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH; Chubb/Pacific Indemnity Group, Appellants, v. Ethel ANDREWS, Appellee.
    No. W-335.
    District Court of Appeal of Florida, First District.
    April 21, 1981.

      Guy M. Junger of John F. McMath, P. A., Miami, for appellants.
    Robert B. Scharf of Di Giulian, Spellacy & Di Chiara, Fort Lauderdale, for appellee.
   PER CURIAM.

The claimant injured her right hand and right shoulder in April of 1977 while operating a hand stapler. The deputy commissioner found that she suffered an injury to the body as a whole and awarded compensation for a 15% permanent partial disability. The record will support a body as a whole award, but it will not support a 15% anatomical disability.

The deputy commissioner expressly accepted and based his rating upon the testimony of Dr. Harry Jones. The doctor’s testimony is incompatible with a 15% permanent partial disability rating of the body as a whole. It was his opinion that the claimant sustained a 15% permanent disability to the upper extremity, but when he was asked to transpose this rating to the body as a whole, he opined that such a rating would be between two and three per cent.

There being no other competent evidence in the record to support a 15% permanent partial disability to the body as a whole, the order is reversed and the cause is remanded to the deputy with directions that he enter an order consistent with the testimony of Dr. Jones.

SHIVERS, SHAW and THOMPSON, JJ., concur.