author: ERVIN, Judge.

text:
    Jack Richard BARFIELD, Appellant, v. STATE of Florida, Appellee.
    No. UU-419.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    As Corrected on Denial of Rehearing May 4, 1981.
    Philip J. Padovano and William W. Corry, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Judge.

Barfield appeals his conviction for possession of cocaine, entered following his conditional nolo plea which reserved the right to appeal the denial of his motion to suppress. He relies primarily upon St. John v. State, 356 So.2d 32 (Fla. 1st DCA 1978), as requiring reversal because it commands the trial court to make factual findings that the informant was credible or his information otherwise reliable, and, he argues that since no such findings were made in the instant case, the lower court erroneously denied the motion to suppress. The holding in St John has since been eroded by Baxter v. State, 390 So.2d 475 (Fla. 1st DCA 1980), by permitting a probable cause determination to be upheld if the record is found adequate to support an implicit finding of veracity. The task of the reviewing court is to determine, as in generally all other cases then, whether, in the absence of findings by the trial court, there is a record foundation supporting the ultimate determination made. After reviewing the record in the case before us, we are convinced that the court’s probable cause holding was sustained by competent and substantial evidence.

The facts culminating in appellant’s arrest and the subsequent search of his vehicle which uncovered a quantity of cocaine are, as revealed at the suppression hearing, the following: Officer Donaldson of the Tallahassee Police Department was informed by another officer in the vice department that the Drug Enforcement Administration had information that a “source” was in town to contact a “subject” about purchasing a large quantity of marijuana. Donaldson was informed by Officer Runo, who did not testify, that the source had been an informant in other drug transactions, and that the source would place a telephone call to the subject, named Jack. Donaldson met the source at a motel room where the latter made the call. A male answered, advising that Jack was not there but would return later. Donaldson instructed the source to call him when he made contact with Jack. Subsequently, the source called Donaldson with information he would meet Jack at room 207 in Howard Johnson’s Motel to discuss a marijuana purchase. Donaldson joined Officer Newman and two other police officers who were surveying the room. Newman told Donaldson he had seen a white male enter the room with the source. While they were continuing their surveillance, a woman came from the room and advised the officers that the suspect had discussed a marijuana and cocaine deal with them. Later, appellant left the room, entered a car in the parking lot, and drove away. The officers obtained the tag number of the car and ascertained it was registered to appellant, Jack Barfield. The source told the officers that he and appellant had discussed his buying 1,000 pounds of marijuana and that appellant would return in a few hours with Vi ounce of cocaine which the source would purchase for $400.

The officers waited for appellant in room 207. Approximately three hours later appellant returned to the room, and was arrested, read his rights and searched. The officers found no cocaine or other narcotics on him. Appellant was then asked the location of his car. He replied that his car had broken down, forcing him to hitchhike. Meanwhile, Officer Newman, who had remained outside the motel, radioed that he had stopped appellant’s car, driven by Bar-field’s female companion. Donaldson entered the car, searched it without a warrant and opened the console between the seats and there found a bag of cocaine. The trial judge ruled that while the officers did not have probable cause to obtain a search warrant prior to appellant’s return to the motel during the stakeout, once he returned, based upon their personal observations and the information received from their sources, there was probable cause to believe, as required by Section 933.02(4)(c), Florida Statutes (1979), that an illegal substance was “being held or possessed.”

Although this case does not involve — as did Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) — an application for a search warrant, it is now clear that the same tools of analysis may be applied to a judicial proceeding, such as a pretrial suppression hearing, involving the propriety of an officer’s warrantless search of an automobile. The rule of Aguilar and the heart of what Spinelli later dubbed “Aguilar's two-pronged test,” 393 U.S. at 413, 89 S.Ct. at 489, was contained in the following single paragraph:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was “credible” or his information “reliable.”

378 U.S. at 114-15, 84 S.Ct. at 1514 (citations omitted). It becomes immediately apparent that the two prongs of the Aguilar test are in the conjunctive, thus requiring the state to present evidence showing (1) the basis of the informant’s knowledge that the narcotics were where the informant claimed they were, and (2) the veracity of the information provided. On the other hand, the two spurs of the veracity prong are in the disjunctive and so may be proven alternatively. One commentator has offered the following outline to illustrate the two requirements which must be independently established:

The Trustworthiness of Hearsay
I. The Basis of Knowledge Prong
II. The Veracity Prong
A. The Credibility Spur
B. The Reliability Spur

Both prongs may be satisfied by two methods; intrinsically or extrinsically. The magistrate is required to refer to extrinsic evidence only if the intrinsic proofs are deemed deficient under Aguilar’s standards. Spinelli, 393 U.S. at 415, 89 S.Ct. at 588-89.

As to the first prong, Aguilar-Spinelli requires that the intrinsic recitations in the affidavit inform the magistrate how the source came about his information — whether directly, through personal observations by the informant of the defendant’s alleged criminal activity, or indirectly, through information received by the secondary source from tertiary sources, if the secondary source explains why his sources were credible and their information otherwise reliable. 393 U.S. 416, 89 S.Ct. 589. We consider that the evidence presented by the state at the hearing below was more than adequate to satisfy the test’s first requirement since the officers unequivocally stated that their source’s knowledge of criminal activity was based upon a conversation between the source and the defendant relating to an intended drug transaction.

Whether the proof furnished as to the second was sufficient is, however, a far more troublesome issue to resolve. The only attempt made to establish the source’s credibility was the simple affirmative answer to a question whether the source had “been an informant in any other drug transactions .... ” While we may accept this assertion as properly established, we don’t know from this record whether the informant had given information leading to an arrest and/or convictions; we don’t know the general type of the information which was previously furnished; nor do we know whether, as a result of an arrest, if any, incriminating evidence was seized which the informant had indicated would be turned up. Finally, we know nothing from the testimony whether the information given by the source had ever proved to be correct or incorrect. The meager information supplied at the motion to suppress hearing is hardly different in kind from the conclusory statement made by the affiant in Spinelli that his informant was reliable, but offered the magistrate no reasons in support of his conclusion. As in Spinelli, a magistrate “could not credit it without abdicating his constitutional function ...” that warrants not issue but upon probable cause. Id. To the same effect, see Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977); Weisberg v. State,' 348 So.2d 385 (Fla.2d DCA 1977); Davis v. State, 376 So.2d 479 (Fla. 1st DCA 1979).

Clearly, the intrinsic evidence relating to the first disjunctive spur under the veracity prong did not establish the informant’s credibility. It remains to be seen, however, whether the information supplied by the informant was properly accepted as otherwise reliable. Intrinsically, such proof may be offered by several distinct but generally recognized means: by a declaration against penal interest, by the affiant’s knowledge of the defendant’s reputation for illegal activity, or by information conveyed by a citizen-informer. While United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), recognizes that both reputation and a declaration against penal interest may, when considered in connection with the other circumstances supplied in an affidavit, furnish probable cause to search, both factors were non-existent here. The testifying officers stated nothing about the defendant’s prior reputation as a dealer in narcotics. Additionally, the source’s information to the officers relating to the arrangements for a controlled buy of narcotics hardly comes within the category of a declaration against penal interest, recognized in Harris as carrying its own indicia of credibility. The informer who supplied information to the officers in Harris admitted that he had on more than one occasion in the recent past purchased illegally distilled whiskey from the defendant. No similar admissions were present here.

There remains yet another means intrinsic to the facts recited by which it may be determined that the information provided was reliable. The source’s information that defendant had agreed to sell the narcotics to him was corroborated by his companion, an unidentified woman who was present in the room when the transaction took place. While the state offered no evidence as to her credibility, there is a well recognized exception to the requirement that her credibility need be established if her status is in fact that of a citizen-informer. The distinction between the citizen-informer and the police informant “from the criminal milieu” has been judicially recognized in a number of jurisdictions, e. g., Walker v. State, 196 So.2d 8 (Fla. 3d DCA 1967); Schmidt v. State, 17 Md.App. 492, 302 A.2d 714 (1973); People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466 (1968); State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971); People v. Schulle, 51 Cal.App.3d 809, 124 Cal.Rptr. 585 (1975). If the state can present evidence showing that the informer is in fact a one-time informer, motivated not by the desire for pecuniary gain, but by the desire to further the ends of justice, no prior “track record” of the informer’s good past performance need be submitted to have his information credited.

Since the burden of establishing probable cause to conduct a warrantless search is upon the state, it was necessary for it to prove that the unidentified woman was a citizen-informer, as distinguished from a police informant. A California decision clearly delineates the distinction between the police informer and the citizen informer. In People v. Herdan, 42 Cal.App.3d 300, 116 Cal.Rptr. 641 (1974), the court rejected the state’s argument that an informant was a citizen-informer after the court had reviewed the record showing that the informant had cooperated with police officers by participating in a controlled buy of narcotics with the defendant. The court commented that the informer’s conduct “in setting up the appellant ... went far beyond the type of conduct usually . . . performed by the citizen-informer who, unexpectedly witnessing or suffering a crime, informs law enforcement officers regarding his observations but does nothing more.” 116 Cal.Rptr. at 644.

We find the same deficiency present in the case at bar. The female companion of the informant who volunteered the information relating to the intended sale of narcotics was also identified by the officer at the hearing as a source who had been present in the room at the time the deal was struck for the purchase of narcotics. As in Herdan, the informant’s active involvement in setting up the defendant for the arrest' tends to cast doubt upon her status as a citizen-informer. In our judgment, the state has failed to meet its burden of revealing her status as such, and the search cannot be sustained on that basis.

Spinelli, however, recognizes one final means of substantiating Aguilar’s veracity prong when the internal recitations within the affidavit do not reflect that the informer is credible or that his information is otherwise reliable. The magistrate may then examine the independent observations, extrinsic to the internal recitations, made by the affiant-officers as a means of shoring up the intrinsic deficiencies. When so doing, the magistrate must ask himself the following: “Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s test without independent corroboration?” Spinelli, 393 U.S. at 415, 89 S.Ct. at 588.

Here we have several facts directly observed by the officers which ostensibly corroborate the reliability of the source’s information that Barfield was a trafficker in narcotics: Barfield’s two appearances at the motel at the approximate times the source stated he would arrive, and the conduct by the driver of the automobile after Barfield had exited it. Barfield’s two appearances at the motel, standing by themselves, import no sinister, criminal implications. And it has been argued by some commentators, and held by some courts, United States v. McLeroy, 584 F.2d 746 (5th Cir. 1978); United States v. Rasor, 599 F.2d 1330 (5th Cir. 1979), that there should be some corroboration of the information furnished by the officers’ observation of incriminating circumstances. Such a requirement, however, is the subject of considerable controversy and may be correct within a given context, yet inapplicable within another. LaFave states that

[f]or corroboration to be incriminating rather than innocent, it is not necessary that the events observed by the police supply probable cause by themselves or that they point unequivocally in the direction of guilt. It is sufficient that they are “unusual in inviting explanation,” though “as consistent with innocent as with criminal activity.”

LaFave, Probable Cause From Informants: The Effects of Murphy’s Law on Fourth Amendment Adjudication, 1977 U. of Ill. L. Forum 1, 55 (footnotes omitted).

The nature of the circumstances observed by surveilling officers may support a reasonable inference that the information conveyed to them was reliable. For example, in People v. Jordain, 10 Ill.App.3d 46, 48, 294 N.E.2d 3, 4 (1st Dist. 1973), the reliability of a source’s information that he had seen narcotics sold within a certain record shop was corroborated by the surveilling officers’ personal observations “of known narcotic addicts entering the [shop’s] premises, speaking with the clerk, going to the rear of the store and then exiting with no apparent purchase.” Other cases recognize that the reliability of the information furnished may be corroborated in those situations where the informant has cooperated closely with the police in making a controlled buy of narcotics. In such instances the risk of falsehood is felt diminished because of the “physical proximity and actual participation of the informant’s intrigue” by the police, so that it is not “independent police work” which corroborates it, but rather, “the police corroboration is [said to be] a co-ordinant and intrinsic part of the informer’s operation.” State v. Gamage, 340 A.2d 1, 16 (Me.1975). See also State v. Barrett, 132 Vt. 369, 320 A.2d 621 (1974). These cases are to be distinguished from those in United States v. McLeroy, supra and United States v. Rasor, supra, in which the government not only failed to offer any facts revealing the credibility of their informants, but also failed to show how the informants came about their information, or, finally, to produce any evidence disclosing a combined cooperative effort by the informers and the officers.

How much corroboration of innocent details is needed to support a conclusion that a source’s information is otherwise reliable is of course a very difficult question to answer. Perhaps it can only be resolved by an analysis of all the circumstances in a given case. One commentator has suggested that the amount of “verification . .. needed .. . depends upon how far short of Aguilar’s threshold the initial recitation fails.... The more you have, the less you need; the less you have, the more you need.” Moylan, supra, n. 2 at 778.

Here the information given the police officers was corroborated by both their observations of Barfield’s appearances at the motel, and by the joint, cooperative efforts of the informant and the officers, working in close proximity with one another, so that the activity of the officers became, in effect, “a co-ordinate and intrinsic part of the informer’s operation.” A magistrate, or, in this case, the judge presiding at a suppression hearing, could reasonably consider from the totality of all the circumstances that there was probable cause to conduct the warrantless search of Barfield’s automobile.

AFFIRMED.

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

      . Indeed, Spinelli stated that the same “analysis required for an answer to [the] question [whether the police had probable cause to arrest without a warrant] is basically similar to that demanded of a magistrate when he considers whether a search warrant should issue.” 393 U.S. at 417, 89 S.Ct. at 589.

      . This outline is reproduced from Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 755 (1974).

      . See discussion in Moylan, supra n. 2 at 761-73.

      . See Comment, The Informer’s Tip as Probable Cause For Search or Arrest, 54 Cornell L.Rev. 958, 966-68 (1969), and Note, Probable Cause and the First-Time Informer, 43 Colo.L. Rev. 357, 362-63 (1972).


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Manuel RODRIGUEZ and Pastora Rodriguez, Appellants, v. The STATE of Florida, Appellee.
    No. 79-666.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied May 1, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

The defendants were each convicted of one count of second-degree grand theft and two counts of petty theft in the Monroe County circuit court. We reverse for a new trial because of the court’s denial of a requested jury instruction which embodied the legal basis of their defense.

The Rodriguezes are husband and wife who were employed as managers of a motel in Marathon. This case arises from their failure to remit to the owner the entire proceeds of three room rentals received in March, 1978. From the time their retention of these receipts was discovered, and consistently thereafter, the defendants have freely admitted that they kept the funds in dispute. They claimed, however, that they believed that the money was rightfully theirs under a compensation agreement with their employer, to the terms of which Mr. Rodriguez testified at trial. Accordingly, the defense submitted a requested charge which stated:

Where it clearly appears that the taking of property was consistent with honest conduct, as where the taker honestly believes that he or she has a right to property, the taker cannot be convicted of theft, even though the taker may have been mistaken.

The trial judge’s refusal to give this instruction was reversible error.

It is of course incumbent upon the court to charge the jury on every defense which is recognized by the law and sustained by a version of the testimony which the jury has a right to accept. Palmes v. State, 397 So.2d 648 (Fla.1981), and cases cited at 652. Both elements are satisfied here. Rodriguez’s testimony, if accepted, establishes the defendants’ honest belief in their right to the rentals. And there is no doubt that such a belief negates the specific intent which is an indispensable element of the crimes of larceny and, now, theft. State v. Allen, 362 So.2d 10 (Fla. 1978). The principle was first enunciated in Florida in Baker v. State, 17 Fla. 406, 409-410 (1879), where the court said:

As to that part of the charge that in an accusation of larceny, the belief of the accused that he has a right to property which really belongs to another, ‘is no excuse for taking it unless the testimony shows some reason therefor,’ the jury may have been led into error.
In Bishop’s Cr. Law, Vol. 2, Sec. 851, the rule as collated from the best authorities is thus given: ‘In all cases where one in good faith takes another's property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another believed to be the true owner. Still, if the claim is dishonest, a mere pretence, it will not protect the taker.’
The gist of the offence is the intent to deprive another of his property in a chattel, either for gain or out of wantonness or malice to deprive another of his right in the thing taken. This cannot be where the taker honestly believes the property is his own or that of another, and that he has a right to take possession of it for himself or for another for the protection of the latter, [e. s.]

The rule has been followed on numerous occasions ever since, most significantly in Charles v. State,, 36 Fla. 691, 18 So. 369 (1895), in which a larceny conviction was reversed because the court’s charge erroneously required that the good faith belief be one which would be entertained by a reasonable and prudent man. Accord, Kilbee v. State, 53 So.2d 533, 536 (Fla.1951); Maddox v. State, 38 So.2d 58 (Fla.1948); Sass-nett v. State, 156 Fla. 490, 23 So.2d 618 (1945); Cooper v. State, 82 Fla. 365, 90 So. 375 (1921); Tedder v. State, 73 Fla. 861, 75 So. 783 (1917); Uber v. State, 382 So.2d 1321, 1322 (Fla. 1st DCA 1980); Board of Regents v. Videon, 313 So.2d 433, 435 (Fla. 1st DCA 1975).

The state contends that the defendants may not raise the issue because counsel did not formally object to the court’s refusal to give the requested instruction. Fla.R. Crim.P. 3.390(d). We do not agree. In Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960), it was held that the failure to give a complete and accurate instruction on the defense of justifiable homicide was fundamental error, reviewable in the complete absence of a request or objection. See also, Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945). We need not go nearly so far to hold that the supertechnical requirements of Rule 3.390(d) do not bar our consideration of so vital an issue as the denial of a charge, specifically requested in writing, which went to the very heart, indeed to the existence of the defense.

For this reason, the judgments under review are reversed and the cause remanded for a new trial.

Reversed and remanded.

      . The defendants did not, however, inform the owner that they were doing so at the time they retained the proceeds.

      . The owner gave a different version of their arrangement, under which he was entitled to the rental payments.

      . Although secreting of the proceeds may be a factor in the jury’s consideration of whether the defendant’s belief is an honest or spurious one, Helton v. State, 135 Fla. 458, 185 So. 864 (1938); Long v. State, 11 Fla. 295 (1866), this principle does not require that, unlike this situation, see note 1 supra, the actual taking be openly accomplished. In Charles v. State, supra, for example, the defendant broke into someone else’s stable at night to retrieve what he considered to be his mule; nonetheless, the supreme court held the “honest belief” doctrine fully applicable. See also, Uber v. State, supra. When, however, there is an open taking, as in, e. g., Cooper, Maddox and Sassnett, supra, where farm animals were seized in broad daylight, a “strong presumption” arises of a lack of felonious intent. Maddox v. State, supra, at 38 So.2d 58.

      . See, Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981) (Wentworth, J., dissenting).

      . Compare the application of 3.390(d) in Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980) and Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1981), to a request for an instruction on penalties, which is mandated only by subsection (a) of the same rule, and which would otherwise not be an appropriate, let alone required, subject of a jury charge.

      . We reject the appellee’s claim that the issue was adequately covered by the other instructions.

      . Although, with characteristic forthrightness and candor, appellants’ counsel has, we think correctly, admitted that the motion for acquittal was properly denied below, see note 2, supra, we observe, like the court in Charles, supra, 36 Fla. 691, at 18 So. 373, that the evidence was “barely sufficient — if sufficient at all — to justify the verdict,” and, like the court in Cooper, supra, 82 Fla. 365, at 90 So. 376, that a controversy such as this seems more appropriately the subject of a civil action than a criminal prosecution.


author: PER CURIAM.

text:
    Moises DERECHINSKY and Maria Derechinsky, his wife, Appellants, v. A. B. MARTIN ROOFING CONTRACTORS, INC., Morros Kroop, Inc., and Judith E. Stahl, Appellees.
    No. 80-261.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied May 1, 1981.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellants.
    Kwitney, Kroop & Scheinberg and Richard I. Kroop, Miami Beach, Talburt Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Summary judgment entered in favor of appellee Morris Kroop, Incorporated, is reversed, and the cause is remanded for resolution of the factual issues presented. Judgments on the pleadings entered in favor of appellees Stahl and A. B. Martin Roofing Contractors, Incorporated, are reversed and remanded on the authority of Williams v. Howard, 329 So.2d 277, 280 (Fla. 1976).

Reversed and remanded.


author: NESBITT, Judge.

text:
    Mark LOVE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1059.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied May 1, 1981.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The defendant (a juvenile certified to be tried as an adult) appeals his adjudication and sentence for burglary entered on a plea of nolo contendere with the express reservation to challenge the underlying order of the trial court denying his motion for discharge pursuant to the speedy trial rule. We agree he was entitled to be discharged and reverse.

On October 10, 1979, the defendant was arrested for an unrelated burglary. While in custody, it came to the attention of a police officer that the defendant was wearing a ring which was connected with a second burglary for which the defendant was adjudicated and sentenced and from which he now appeals. When it came to the officer’s attention that the ring might be property from the second burglary, the defendant was given his Miranda warnings, subjected to custodial interrogation, and confessed. An affidavit of arrest for this second burglary was then filed.

It was not until November 21, 1979 that the State Attorney filed an information charging him with this second burglary. A capias was issued on that date but was not executed until February 4, 1980. During the ensuing period, the defendant was held in detention in a juvenile facility. On April 14, 1980, he filed a motion pursuant to Florida Rule of Criminal Procedure 3.191(a)(1), alleging that he was entitled to discharge since more than 180 days had elapsed since his arrest on October 10, 1979. Because he was in juvenile detention for some or all of the period, the trial court found that the one-year limitation for prisoners prescribed by Florida Rule of Criminal Procedure 3.191(b)(1) was applicable and consequently denied his request.

Florida Rule of Criminal Procedure 3.191 provides that the time period set forth by the rule beings to run when the person is taken into custody and arrested as a result of the conduct or criminal episode giving rise to the crime charged. A juvenile who has been certified to be tried as an adult is entitled to be brought to trial, pursuant to the speedy trial rule within 180 days from the date he is taken into custody. In this case, the defendant was taken into custody and charged with the second burglary on October 10,1979. The provisions of Florida Rule of Criminal Procedure 3.191(b)(1) [one-year rule for Florida prisoners] apply only to prisoners in penal and correctional institutions pursuant to criminal adjudication at the time they are arrested or charged with additional crimes. Lewis v. State, 357 So.2d 725 (Fla.1978). Under Section 39.10(4), Florida Statutes (1979), an adjudication that a juvenile has committed a delinquent act cannot be deemed a conviction and therefore such adjudication will not bring the defendant under the purview of Florida Rule of Criminal Procedure 3.191(b)(1) so as to toll the speedy trial rule.

For the foregoing reasons, the defendant’s judgment of conviction is reversed.

      . Fla.R.Crim.P. 3.191(a)(1) [180 days].

      . The 1980 amendment to the speedy trial rule [effective January 1, 1981, In Re Rules of Criminal Procedure, 389 So.2d 610 (Fla.1980)] changed the “one-year” rule. Prisoners in Florida institutions are now treated like any other defendant.


text:
    NEW YORK FINANCIAL, INC., a Florida Corporation, Appellant, v. J & W HOLDING COMPANY, INC., a Florida Corporation, and Richard S. Shaulis, Appellees.
    No. 80-1433.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied April 28, 1981.

      Eli Breger, North Miami Beach, for appellant.
    Kuperman & Mermell and Marc A. Ku-perman, Coral Gables, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

New York Financial, Inc. was the payee of a $3,030.03 promissory note executed by “J & W Holding Company, Inc. By: Richard S. Shaulis, President,” which was to be paid “[i]n the manner set forth on the reverse.” On the rear of the instrument, under the typed description of the manner of payment and a definition of the attorney’s fees provided for, Shaulis simply signed his name, without an identifying or limiting designation of any kind. The note was not paid, and New York Financial sued both J & W and Shaulis in the Dade County circuit court. Summary judgment was entered without objection against the corporate maker, J & W. As to Shaulis’ personal liability, both parties moved for summary judgment. Shaulis’ was supported by his affidavit stating that “[t]he promissory note ... as well as the Manner of Payment form signed by affiant was done so [sic] in a representative capacity, for and in behalf of J & W Holding Company, Inc., and not in an individual capacity.” The trial judge granted Shaulis’ motion and denied the plaintiff’s. Because he should have reversed those rulings, we reverse his. We do so because

(1) It is evident that Shaulis’ signature on the reverse of the instrument must be deemed an indorsement under Section 673.-402, Fla.Stat. (1979), which provides that “[ujnless the instrument clearly indicates that a signature is made in some other capacity it is an indorsement.” See, Security Pacific National Bank v. Chess, 58 Cal.App.3d 555, 129 Cal.Rptr. 852, 855 (1976); First New Haven National Bank v. Clarke, 33 Conn.Supp. 179, 368 A.2d 613 (1976); Community National Bank v. Dawes, 369 Mass. 550, 340 N.E.2d 877, 883 (1976); Section 673.202(4), Fla.Stat. (1979) (“Words of assignment, condition, waiver, guaranty, limitation or disclaimer of liability and the like accompanying an indorsement do not affect its character as an in-dorsement”); 11 Am.Jur.2d Bills and Notes § 358 (1963); and

(2) Shaulis’ unqualified and unambiguous signature imposes personal liability upon him as a matter of law, and renders extrinsic evidence, such as his affidavit, incompetent to vary that conclusion. Section 673.-403(2Xa), Fla.Stat. (1979), and especially comment 3(b) at 19B Fla.Stat.Ann. 673.3-403 (1966); Schwartz v. Disneyland Vista Records, 383 So.2d 1117 (Fla. 4th DCA 1980), review denied, 392 So.2d 1378 (Fla. 1980), and cases cited; Norfolk County Trust Co. v. Vichinsky, 5 Mass.App. 768,359 N.E.2d 59 (1977) (applying UCC § 3-402 to indorsement by officer of corporate maker); see also, Betz v. Bank of Miami Beach, 95 So.2d 891 (Fla.1957); Marinelli v. Weaver, 187 So.2d 690 (Fla.2d DCA 1966); compare, Havatampa Corp. v. Walton Drug Co., 354 So.2d 1235 (Fla.2d DCA 1978).

The summary judgment for Shaulis is therefore reversed with directions to enter one in the appellant’s favor instead.

Reversed.

      . We are informed that the very meaning of the word “indorsement” is “writing on the back.” 11 Am.Jur.2d Bills and Notes § 349 (1963).

      . Sec. 673.402 is titled “Signature in ambiguous capacity.” In this case, it is doubtful whether there is even any ambiguity or legitimate question concerning the fact that Shaulis’ individual signature is an indorsement. He argues that it was meant only as a sort of acknowledgment of the description of the manner of payment which preceded it, equivalent, it may be supposed, to initials placed in the margin of a document. This contention seeks to accord the signature a legal status which has been previously unknown to the law of negotiable instruments and ought to remain that way. (It may also be observed that since the face of the note itself specifically incorporated the manner of payment stated on the reverse, which the corporate maker thus acknowledged by executing the instrument, there would be no purpose for Shaulis’ additional signature on the rear unless it were indeed an indorsement.) In any event, the appellee’s assertion is conclusively laid to rest by Sec. 673.402. As is wisely said in 2 Anderson, Uniform Commercial Code § 3-402:3 (2d ed. 1971):
      Because of the importance of this Code section, care should be exercised in signing a negotiable instrument to identify the intended capacity of the signer by the position of his signature or by the use of appropriate descriptive phrases.


text:
    LA GORCE COUNTRY CLUB, INC., Appellant, v. Hilbron WALDRON, Appellee.
    No. 80-1440.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied May 1, 1981.
    Greene & Cooper and Joan M. Bolotin; Pyszka & Kessler, Miami, for appellant.
    Mandina & Lipsky and Daniel W. Levin and Michael Lipsky, Miami, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

This appeal is from a final judgment entered on a jury verdict finding appellant La Gorce Country Club seventy-five percent liable for damages suffered by appellee Waldron who was struck by an errant golf ball while working for the City of Miami Beach on appellant’s property.

As one of the points on appeal, La Gorce contends that the trial court improperly instructed the jury that Waldron was an invitee on appellant’s property. Though it is not normally the duty of the trial judge to determine whether a plaintiff is an invitee, licensee, or trespasser, based on the facts in this case such an instruction was not erroneous. Wood v. Camp, 284 So.2d 691 (Fla. 1973).

We have thoroughly considered appellant’s other points on appeal and find no reversible error.

Affirmed.


author: HURLEY, Judge.

text:
    Frances M. GINN and Z. B. Ginn, Appellants, v. BROWARD COUNTY TRANSIT, Milton Harris and Transit Casualty Company, Appellees.
    No. 80-675.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Rehearing Denied April 29, 1981.

      Charles A. Finkel of Long, Finkel & Cave, P.A., Hallandale, for appellants.
    Patrick W. Gent of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellees.
   HURLEY, Judge.

Appellants, plaintiffs in the trial court, appeal the entry of a directed verdict and final judgment in favor of defendants/ap-pellees. We reverse.

On July 14, 1976, Frances Ginn, age 66, boarded a Broward County Transit bus in the parking lot of the Hollywood Fashion Square. What happened next is recounted in her testimony before the jury.

I was the last passenger on. Everybody was seated. I had shown the bus driver my identification and reached in my purse, which was open, for the dime, and put it in the fare box.... I asked for a transfer. I got the transfer and the bus driver told me to hold onto the fare box while he made the bend... I was surprised to have him say that, because I was supposed to be seated. He repeated it again, so I held onto the box.
Before he gave me the transfer, he started the bus, started the motor, then told me to hold onto the fare box, which I did.... Then he pulled out, went one short ways, made a left hand turn, went another short — went another short distance, and made another left hand turn, and went a longer ways, then come to a stop sign.
I turned around, and he saw me leave. I proceeded to get seated. The first two-seater was occupied. The second one was vacant, and that’s the one I was going for, when suddenly the bus stopped, just jerked, and I lost my balance, and I kept falling backwards, and I could not hold onto anything or anybody never made a grab for me to keep me from falling. That’s all I remember. (Tr. 27-29).

As a result of her fall, Mrs. Ginn sustained serious injuries and thereafter instituted suit against the driver, the bus company and its insurer. At the conclusion of the plaintiff’s case the trial court granted a directed verdict in favor of the defendants, finding that Mrs. Ginn had failed “to make any showing other than there was a sudden stop of the bus, without showing that the stop was without reason or that it was any more than should have been expected from the operation of the bus.” The court expressly relied on Jacksonville Coach Co. v. Rivers, 144 So.2d 308 (Fla.1962); Nicholson v. City of St. Petersburg, 163 So.2d 775 (Fla. 2d DCA 1964); and Miami Transit Co. v. Ford, 159 So.2d 261 (Fla. 3d DCA), cert. denied, 166 So.2d 594 (Fla.1964).

We believe the learned trial judge erred by restricting his focus to the moment of the stop, thereby failing to give the plaintiff the benefit of those facts and circumstances immediately preceding, but nonetheless related to, the stop. The Supreme Court in Kantor v. City of Coral Gables, 154 Fla. 523, 18 So.2d 477, 478 (1944) — a case quoted with approval in Jacksonville Coach Co. v. Rivers, supra — suggested that it was proper to consider allegations of negligence on the part of the driver “at the time of the collision or at any time prior thereto.” This being so, the plaintiff was entitled to have a jury determine whether the driver breached his duty to provide the “highest degree of care consistent with the practical operation of the bus,” when he prevented her from taking a seat and instructed her to wait and hold onto the fare box as he drove into traffic. If the jury found a breach of duty, the plaintiff would be entitled to have a jury further determine whether the driver’s breach was a contributing cause of her injuries.

As a postscript, we would add that we concur with the court’s observation in Transit Casualty Co. v. Puchalski, 382 So.2d 359, 360 (Fla. 5th DCA 1980) that “[i]n circumstances such as these, it seems that it would be the better rule to hold that a presumption of negligence arises which shifts the burden to the defendant to explain how the accident happened in the absence of negligence of the driver.” Yet, taking the law as it is, we find the driver’s instructions and conduct immediately prior to the stop constitute sufficient additional circumstances to distinguish the case at bar from Jacksonville Coach Co. v. Rivers, supra, and its progeny, which, in turn, should have enabled the plaintiff to survive a directed verdict. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

DOWNEY and HERSEY, JJ., concur.

      . Transit Casualty Co. v. Puchalski, 382 So.2d 359, 360 (Fla. 5th DCA 1980).


text:
    Leonard H. SCHWARTZ, Appellant, v. Carol SCHWARTZ, Appellee.
    Nos. 79-2361, 80-250.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 1, 1981.
    Horton, Perse & Ginsberg and Mallory H. Horton, Eleanor Levingston Schockett, Miami, for appellant.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis and Ted H. Bartelstone, Miami, for appellee.

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

These appeals and cross-appeals are from a final judgment of dissolution of a marriage which, in pertinent provisions, grants the wife a thirty-per cent interest in the vacation home, (2) denies wife the husband’s interest in the marital home, (3) awards child support, (4) grants lump-sum alimony to be paid over a period of time, (5) awards wife one-half of her attorney’s fees and costs.

The consideration for the vacation home was supplied by the husband from sources unconnected with the marital relationship. The wife’s claim for a special equity is based on a showing of performance of normal household duties insufficient to support the award. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979). We find that the award is within the court’s-discretion, however, as lump-sum alimony based on the equities of the case. Canakar-is v. Canakaris, 382 So.2d 1197 (Fla.1980). In Canakaris, supra, the court held that lump-sum alimony is permissible, in the discretion of the trial court when the evidence reflects (1) a justification for such lump-sum payment and (2) financial ability of the other spouse to make such payment' without substantially endangering his or her economic status. Id. at 1201. Here there is no question of financial ability. The vacation home was purchased as a special home for the family, and the wife contributed substantial labor and services to making the vacation home suitable for family life. Under the total circumstances of this case, we cannot hold that the trial court abused its discretion in ordering a thirty-per cent interest in the vacation home be awarded to the wife. See, e. g., Canakaris, supra, Ro-sen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980). See also McCall v. McCall, 386 So.2d 275 (Fla. 2d DCA 1980) and Collinsworth v. Collinsworth, 386 So.2d 570 (Fla. 1st DCA 1980).

We reach the opposite conclusion with respect to the $300,000 cash payment. Rosen v. Rosen, supra. Like Rosen, supra, the husband’s assets were willed or given to him by his family and neither earned by him nor contributed to by the wife, there are small children precluding a definite end to the relationship, there is no indication that the lump sum is necessary to provide the wife with vested security against the ex-husband’s possible demise, nor is there any showing that the husband will be unable to make periodic payments. We are unable to justify the $300,000 lump-sum provision and remand the cause for an award of periodic alimony. Canakaris v. Canakaris, supra; Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Rosen v. Rosen, supra.

We find no error in the award of child support and in denying the wife the husband’s interest in the jointly owned marital home as partial lump-sum alimony.

Because we reverse the award of $300,000 lump-sum alimony, we set aside the award of attorney’s fees and remand for reconsideration of permanent periodic alimony and attorney’s fees.

Affirmed in part, reversed in part, and remanded.


text:
    ECKERD DRUGS OF FLORIDA, INC., a Florida Corporation, Appellant, v. Paul POPE; Lane Pope; Gay Products, Inc., a Florida Corporation; and Home Indemnity Company, a Foreign Corporation, Appellees.
    No. 80-1135.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 1, 1981.

      Walton, Lantaff, Schroeder & Carson and Ralph P. Richard, Miami, for appellant.
    Maguire & Friend and Michael P. Ma-guire, Horton, Perse & Ginsberg and Edward Perse, Hawkesworth & Schmick, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978); National Bank of Melbourne and Trust Co. v. Batche .2d 369 (Fla.1972); Lupoietti v. Miller, 269 So.2d 67 (Fla. 4th DCA 1972).


author: COWART, Judge.

text:
    Kenneth R. CILLEY, Incompetent, Tom Champion, Appellant, v. The FIRST NATIONAL BANK OF MOUNT DORA, Appellee.
    No. 80-481.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    George H. Russ of Davis, Russ & Nichols, P. A., Leesburg, for appellant.
    Del G. Potter, P. A., Mount Dora, for appellee.
   COWART, Judge.

This is an appeal from an order denying appellant, an attorney, a fee for services rendered to the guardian of an incompetent.

The record reveals the guardian of the incompetent employed appellant, as permitted by section 744.444(13), Florida Statutes (1979), that appellant petitioned for attorney’s fees (§ 744.424, Fla.Stat. (1979)) by verified petition listing the services performed and the time expended on the guardianship’s behalf. At the hearing on the petition another attorney, with expertise in estate work, testified that the work done by appellant was the bare minimum required to be done, that both the hours and the rate charged by appellant were minimum and reasonable and that the legal work performed by appellant was “very well done.” The record reveals a verified petition detailing the work performed, un-contradicted testimony as to the reasonableness of the work done and value of the services rendered, documentary evidence of the services performed and contains no evidence contrary to appellant’s petition. Therefore, the record is ample to establish appellant’s legal entitlement to a reasonable attorney’s fee of $1,700.00.

Appellee argues that because it has been discharged a reversal in this case would create and cause havoc. We suggest that any such result might be caused, not by our disposition of this appeal but by applying for a discharge within the time for appeal from the order denying any attorney’s fee in this case. Now, the need for further administration of the guardianship estate may necessitate revocation of the order of discharge. See Fla.R.P. & G.P. 5.460; E. Simon, Redfeam — Wills and Administration in Florida, § 21.33 n. 2 (5th Ed. 1977).

This cause is remanded for further proceedings consistent herewith. The order denying appellant a reasonable attorney’s fee is

REVERSED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Appellant’s verified petition specifies the services performed with more particularity than the affidavit approved in In re Guardianship of Berg, 348 So.2d 361 (Fla.2d DCA 1977).

      . Owen v. Owen, 376 So.2d 26 (Fla.2d DCA 1979).

      . Many of the documents listed in appellant’s exhibit A “schedule of services” can also be found throughout the record, for example, preparation of various oaths of guardians, designation of resident agents and acceptance, and the final letters of guardianship of person and property. Several other petitions in the record are not listed in appellant’s schedule of services but seem to have been prepared by him; for example, petition for order authorizing payment of guardian fees for Mrs. Cilley, petition for order authorizing payment of attorney’s fees, petition for order authorizing payment of guardian fees to First National Bank of Mt. Dora, petition for discharge of guardians, and the inventory.


author: SHARP, Judge.

text:
    Carlos HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 80-543.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, 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.
   SHARP, Judge.

Appellant appeals from a criminal judgment and sentence imposed after the revocation of his probation. We affirm the judgment but remand the case for correction of the sentence.

Hernandez argues that he was not given full credit for the time he previously served in jail. The written sentence committed him to a term of “13 months imprisonment with credit for 15 days previously served.” The trial judge commented during the sentencing proceeding that appellant was to be imprisoned for 13 months with credit for any time spent in jail related to appellant’s second of two probation violation hearings:

I’m not giving you credit on all of the other time that you spent in jail, because I’m not sentencing you to the full 5 years that you could get.

Section 921.161(1), Florida Statutes (1979) provides the following:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

After revocation of probation the court may impose any sentence which might have been originally imposed but must credit the defendant with all time previously served in jail, including that time served as a condition of probation. Hutchinson v. State, 360 So.2d 1160 (Fla. 1st DCA 1978).

The record does not indicate how many days appellant served related to the two probation violations, and it is not clear whether the trial judge gave appellant full credit. Therefore this case is remanded to the trial court for correction of sentencing in accordance with section 921.161(1), Florida Statutes (1979). Kreiser v. State, 380 So.2d 455 (Fla. 5th DCA 1980).

JUDGMENT AFFIRMED, SENTENCE REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.

      . Appellant was adjudicated guilty of a third degree felony, obtaining property by worthless check for $50 or more. The maximum prison sentence which might have been imposed in this case is five years. § 775.082(2)(d), Fla. Stat. (1975).


author: DAUKSCH, Chief Judge.

text:
    Patrick Wayne BALEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-694.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    Harry W. Carls, III, Public Defender, and Thomas E. Doss, III, Asst. Public Defender, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a denial of post-conviction relief which was sought under Florida Rule of Criminal Procedure 3.850 from an illegal sentence. The sentence is reversed and this cause is remanded to the trial court for resentencing. Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980) (rehearing pending).

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


text:
    Randy Lee SMELTZ a/k/a Tim Greer, Appellant, v. STATE of Florida, Appellee.
    No. 80-806.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief Appellate Division, 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.
   PER CURIAM.

This is an appeal from an order revoking appellant’s probation and sentencing him to two years imprisonment. The Public Defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On October 21, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed.

The court has reviewed counsel’s brief and the record herein and no reversible error appears. The order of the trial court is modified by deleting any reference to appellant’s failure to pay the costs of supervision. Van Johnson v. State, 375 So.2d 54 (Fla. 3d DCA 1979). See Depson v. State, 363 So.2d 43 (Fla. 1st DCA 1978). The order is otherwise affirmed and the motion of the Public Defender to withdraw granted.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Jessie WILLIAMS, Jr., Appellant, v. CORBETT CRANES, INC., a Florida Corporation, Travelers Indemnity Company of America, Travelers Indemnity Company of Rhode Island and Bucyrus-Erie Company, Appellees.
    No. 80-930.
    District Court of Appeal of Florida, Fifth District.
    April 8, 1981.

      David M. Hammond, of Meyers, Mooney & Adler, P. A., Orlando, for appellant.
    W. Marvin Hardy, III, of Gurney, Gurney & Handley, P. A., Orlando, for appellees.
   SHARP, Judge.

Williams appeals from a summary final judgment denying him any recovery because he was barred from suing the appel-lees by sections 440.10 and 440.11 of the Workmen’s Compensation Law, Florida Statutes (1973).

Williams was injured in 1973 while employed by the Paul Smith Construction Company, a contractor, on a construction job in Volusia County. To assist with this construction job, Paul Smith subcontracted the crane work to Corbett Cranes, Inc. While this subcontractor’s employee was operating the subcontractor’s crane to move a large concrete slab from a truck to the building under construction, the crane tipped causing the slab to strike Williams. Williams collected workmen’s compensation benefits and then instituted the underlying suit for damages. We affirm the trial court’s summary judgment as being consistent with Florida case law, but we agree with the Fourth District Court of Appeal that the issue involved is one of great public importance. Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.2d 259 (Fla. 4th DCA 1980).

The Legislature, in enacting the provisions of Chapter 440, abrogated the common law and made workmen’s compensation the exclusive remedy for certain injured employees. § 440.11(1), Fla.Stat. (1973). Employers are required to secure compensation for employees, and where a contractor sublets part of his contract work, the employees of a subcontractor are deemed to be employed in one and the same business. § 440.10(1), Fla.Stat. (1973).

This causes both the employees of the general contractor and the employees of a subcontractor to be statutory “fellow servants,” with no employee having any greater rights than any other employee. See Younger v. Giller Contracting Co., 143 Fla. 335,196 So. 690 (1940). Where the contractor provides workmen’s compensation for these employees, he is immune from suit and this immunity inures to the subcontractors. Powell v. Independent Construction Company, 396 So.2d 725 (Fla.5th DCA 1981); Smith v. Poston Equipment Rentals, 105 So.2d 578 (Fla.3d DCA 1958). Accord, Rhines v. Ploof Transfer Co., Inc., 344 So.2d 1309 (Fla. 1st DCA 1977), cert, denied, 357 So.2d 187 (Fla.1978); Kolarik v. Rodgers Bros. Service, Inc., 268 So.2d 187 (Fla. 2d DCA 1972), cert, denied, 272 So.2d 526 (Fla.1973).

Because our interpretation of sections 440.10 and 440.11 immunizes this subcontractor from suit in derogation of Williams’ right to sue for his injuries, we believe this issue is a matter of great public importance. We therefore join our sister court and certify the following question to the Supreme Court:

CAN THE EMPLOYEE OF A ‘CONTRACTOR’ HAVING RECEIVED WORKMEN’S COMPENSATION BENEFITS FROM HIS EMPLOYER, SUE HIS EMPLOYER’S SUBCONTRACTOR FOR DAMAGES ARISING OUT OF THE NEGLIGENCE OF THE LATTER’S EMPLOYEE?

AFFIRMED and CERTIFIED.

FRANK D. UPCHURCH, JR., and CO-WART, JJ., concur.

      . Section 440.11(1) provides:
      The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if any employer fails to secure payment of compensation as required by this chapter, an injured employee or his legal representative, in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.

      .Section 440.10(1) provides:
      Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 440.13, 440.15 and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

      . 384 So.2d 259 at 261.

      . See Fla.R.App.P. 9.030(a)(2)(v).


author: DOWNEY, Judge.

text:
    Matthew FLEURY, By and Through his natural parents, Donald FLEURY and Joan Fleury, and individually, Appellants, v. CITY OF RIVIERA BEACH and Leonard Andrew Meyers, Appellees. Donald FLEURY and Matthew Fleury, Appellants, v. CITY OF RIVIERA BEACH and Leonard Andrew Meyers, Appellees.
    Nos. 79-878, 79-901.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.

      Marjorie D. Gadarian, of Jones & Foster, West Palm Beach, and Alexander Sandy Myers, of Christiansen, Jacknin & Myers, Palm Beach, for appellants.
    D. Culver Smith, III, of Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellee-City of Riviera Beach.
   DOWNEY, Judge.

Appellants, Donald and Matthew Fleury, seek review of two final judgments entered in these cases which arose out of a motorcycle accident.

The accident occurred in the City of Riviera Beach when a City police car collided with a motorcycle driven by Matthew Fleu-ry and on which Leonard Meyers was a passenger. Matthew Fleury and his father, Donald, sued the City of Riviera Beach for Matthew’s injuries. The jury returned a verdict in favor of the Fleurys for a total of $3,300, finding that Matthew was 60% negligent and the police officer was 40% negligent. The trial court entered a judgment for the Fleurys in the amount of $1,320, scaling down the damage figure to reflect Matthew’s proportionate share of negligence. Thereupon, the Fleurys filed a notice of appeal.

In the Meyers case, Leonard Meyers sued the City of Riviera Beach for injuries suffered in the collision and the City filed a third party complaint against Donald and Matthew Fleury. The jury returned a verdict in favor of Meyers assessing his damages at $48,800. While the jury was deliberating, counsel for the Fleurys and Meyers advised the trial judge and opposing counsel that Meyers had given the Fleurys a release in consideration for $5,000, thus settling their claim. Counsel suggested the court should take that release into consideration in its ultimate resolution of claims between the parties, and, if it was necessary, counsel for the Fleurys requested leave to amend their pleadings to reflect the release. No amendment was allowed and the trial court ultimately entered judgment for the City of Riviera Beach for $29,280 on its third party complaint.

In these consolidated appeals appellants-Fleurys contend the trial court committed several errors in instructing the jury and in entering final judgment for contribution against the Fleurys in favor of the City of Riviera Beach. We have studied the briefs and record and find no reversible error demonstrated in the judgment in favor of the Fleurys on their claim against the City. However, we do find error in the judgment in favor of the City of Riviera Beach on their claim of contribution against the Fleu-rys, which requires further consideration of the case.

Section 768.31(5)(b), Florida Statutes (1979), provides that a release, given in good faith to one of two persons liable in tort for the same injury, discharges the tortfeasor to whom the release is given from all liability for contribution to any other tortfeasor. Martinez v. Gonzalez, 368 So.2d 92 (Fla. 3rd DCA 1979); Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976). Thus, it seems clear to us that, if the release given by Meyers to the Fleurys was given in good faith, the Fleurys were not liable to the City of Riviera Beach for contribution on the Meyers judgment.

As earlier indicated, the settlement and release between Meyers and the Fleurys was reached during the jury’s deliberations. The parties discussed the release with the court but in view of the time factor the effect of the release was never properly considered. Therefore, we believe the release should be presented to the trial court by amended pleadings which will also allow the City of Riviera Beach to attack the good faith of the release by appropriate pleading. The trial court can then try any issue raised by those pleadings and with the arguments of both parties before it can then consider the effect of the release and enter such final judgment on the third party complaint as it finds appropriate.

Accordingly, the judgment in favor of the Fleurys in Case No. 79-878 is affirmed. The judgment in favor of the City of Riviera Beach in Case No. 79-901 is reversed and that cause is remanded for further proceedings consistent with this opinion.

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

      . Fleury was found 60% negligent, thus his contribution to the Meyers verdict was $29,280.


author: HERSEY, Judge.

text:
    Earl Peter KIMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1806.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Kimble appeals from an order revoking his probation and sentencing him to three years in prison.

Appellant was originally placed on probation on February 21, 1975 for a period of four years pursuant to a plea of guilty to the crime of burglary.

On February 14,1978 an affidavit of violation of probation was filed, charging appellant with failing to submit three monthly reports, failing to pay the monthly $10.00 supervision fee required by Section 945.30, Florida Statutes, committing petty larceny, and failing to comply with his supervisor’s instructions. A warrant based on the affidavit was issued on the same day the affidavit was filed. Subsequently, on June 12, 1979, an amended affidavit was filed, adding the charge of burglary of a dwelling, alleged to have occurred on February 24, 1979.

The petty larceny charge was subsequently dropped. Appellant’s probation was revoked for the remaining violations.

Probation may be revoked for conduct which occurs during the interval between the entry of the probation order and the beginning of the probationary period. Bracey v. State, 381 So.2d 370 (Fla. 4th DCA 1980); Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971). The State argues that therefore probation may be revoked for conduct occurring during the interval between the date originally set for expiration of the probation term and the probation revocation hearing, especially if probation could be extended for the violations committed during its term. However, this argument ignores the unique circumstances of Bracey and Martin. In both of those cases appellants’ sentences included incarceration and, upon release, probation. Both appellants committed offenses while incarcerated and thus their probation was revoked, because, as this Court stated in Martin v. State, supra at 191:

To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society.

There are no such policy considerations involved in a violation which occurs after the term of probation has expired. The rule has been rather firmly established that conduct giving rise to revocation of probation must occur during the period of probation. Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977); O’Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). Upon the expiration of a probationary period, the trial court is divested of all jurisdiction over the probationer and may not entertain a revocation proceeding for a violation which occurred during the term of probation unless, in the meantime, the processes of the court have been set in motion for revocation or modification of the probation. Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978); State ex rel. Ard. v. Shelby, 97 So.2d 631 (Fla. 1st DCA 1957).

In our view setting in motion the processes of the court preserves for consideration only those violations which have occurred or are alleged to have occurred during the actual term of probation. Jess v. State, 384 So.2d 328 (Fla. 3d DCA 1980). Accordingly, appellant’s probation was improperly revoked for the burglary charge.

Appellant was required by condition four of his probation to live and remain at liberty without violating any law. Section 945.30, Florida Statutes (1979) requires that every person on probation contribute at least $10.00 to the entity providing him with supervision. Thus, payment of a monthly supervision fee was a condition of appellant’s probation. Appellant was aware of this obligation. There must, however, be a sufficient demonstration of probationer’s ability to pay and a specific finding by the court regarding that ability to pay. Smith v. State, 380 So.2d 1175 (Fla. 4th DCA 1980). The trial court made no such specific finding. Where there is evidence in the record to support a finding of ability to pay, it is appropriate to remand for the purpose of permitting the trial court to enter such a finding. See Williams v. State, 365 So.2d 201 (Fla. 1st DCA 1978).

Finally, appellant takes the position that the remaining two violations were technical and insubstantial. However, the obligation to file monthly reports was specifically imposed by condition two of the probation order and failure to file them may be a basis for revocation. Porter v. State, 380 So.2d 523 (Fla. 4th DCA 1980) (failure to file four monthly reports was a basis for revocation when imposed as one of the conditions of probation).

As to the allegation that appellant failed to carry out his supervisor’s instructions by not appearing for an appointment, there was no evidence that appellant received the letter scheduling the appointment.

Appellant also urges as error the imposition of court costs. Such costs may not be imposed upon an indigent defendant. Cox v. State, 334 So.2d 568 (Fla.1976); Jones v. State, 388 So.2d 316 (Fla. 4th DCA 1980). Appellant was represented in the trial court by the Public Defender, as he is on appeal. This indicates that appellant is indigent; therefore, imposition of $2.00 court costs was error.

We therefore reverse the order revoking appellant’s probation, finding that the burglary charge and the allegation that appellant failed to carry out his supervisor’s instructions may not appropriately be considered by the trial court on remand. Further imposition of costs against this indigent appellant is improper. The trial court must therefore consider whether appellant’s probation should be revoked for failure to file monthly reports and, provided the ability to pay is demonstrated, failure to pay costs of supervision.

REVERSED AND REMANDED.

LETTS, C. J., and DOWNEY, J., concur.


text:
    Victor LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 79-2172.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Richard L. Jorandby, Public Defender, and Allen DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction and sentence for the crime of grand theft is affirmed and this cause is remanded to the trial court to strike from the order placing appellant on probation after a period of incarceration the special condition that he live honorably at all times. See, Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980).

LETTS, C. J., and ANSTEAD and MOORE, JJ., concur.


text:
    Teresa C. REID, Appellant, v. James D. REID, Appellee.
    No. 79-2294.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.

      James P. O’Flarity of Law Offices of James P. O’Flarity, Palm Beach, for appellant.
    Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for appellee.
   HERSEY, Judge.

We have for review two orders of the trial court disposing of a petition for modification of alimony and child support.

The first order granted the former husband’s motion to dismiss that aspect of the petition seeking an extension of rehabilitative alimony and denied with prejudice the former wife’s motion to amend the petition. While both parties on appeal have argued to some extent the merits of wife’s position with regard to a change in circumstances rwe note that disposition was in the form of dismissal so that the merits, never having been reached by the trial court, are not properly before us for consideration.

Our concern, then, is whether the dismissal without leave to amend is supported by the pleadings.

Before reaching that question we respond to appellee’s preliminary contention that appeal of the order of dismissal, filed more than thirty days after rendition of the order, is untimely. The petition for modification seeks two forms of relief. Both are predicated upon the same facts and circumstances and are set out in a single count. No final judgment was entered on the order of dismissal. Under these circumstances the rule to be applied is that an order dismissing with prejudice, to be an appeala-ble final order, must relate to a distinct and separate cause of action which is not interdependent with other counts. See Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975). Such was not the case here and we therefore conclude that the order was interlocutory, subject to review on plenary appeal from final disposition of the cause.

Rule 1.190 of the Florida Rules of Civil Procedure requires that leave to amend be freely given when justice so requires. It is clearly an abuse of discretion to refuse leave to amend except under very limited circumstances. See, e. g., Town of Micanopy v. Connell, 304 So.2d 478 (Fla. 1st DCA 1974). Appellant should have been permitted to amend her petition.

There has been a suggestion in the briefs that dismissal may have been based upon lack of jurisdiction. Several cases have established that the trial court has jurisdiction, with no necessity of a specific reservation of jurisdiction, to consider a petition to modify an award of rehabilitative alimony filed, as here, before the period for payment of rehabilitative alimony expires. Cantor v. Cantor, 306 So.2d 596 (Fla. 2d DCA 1975); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975); Hernandez v. Hernandez, 325 So.2d 483 (Fla. 3d DCA 1976).

While not directly in issue for our determination, we deem it expedient to treat a related argument espoused by appel-lee in order to forestall the possibility of a subsequent appeal based on that position. It is appellee’s contention that the petition must contain an allegation of increased need in order to support an application for an extension of alimony. We reject that contention on the basis of both logic and precedent. It stands to reason that termination of rehabilitative alimony payments at the expiration of the period originally established for them to be made, in and of itself constitutes some “change in circumstances.” Furthermore, the burden on the movant is to show that “notwithstanding reasonable and diligent efforts on petitioner’s part, substantial rehabilitation has not indeed occurred,” Lee v. Lee, supra 309 So.2d at 27, rather than a substantial change in circumstances.

The second order appealed from denies the former wife’s application for increased child support. After certain preliminary findings the order concludes:

In view of the fact that the Husband has paid more than he was required leads the Court to believe that if he is left alone, he will do more than would be required by the Court.
The Court finds no basis in fact for the Wife’s Petition for Modification.

This language, and the tenor of the entire order, suggests to this Court that a change of circumstances was found but that technically the children had no increased needs, because some of those needs were being met on a voluntary basis by appellee. That is to say, they were not “in need” thanks to the generosity of their father and, this Court might add, the industriousness of their mother. Conversely, voluntary payments, made by the father for the support of his children over a prolonged period of time, may be considered as some evidence of a substantial change in the needs of the children. Jelke v. Jelke, 233 So.2d 408 (Fla. 3d DCA 1970). The record in this case mandates the conclusion that the needs of the children have substantially increased since the dissolution of marriage.

The other side of the coin is the financial condition of appellee — former husband — father, then and now. The evidence shows that appellee’s annual net income has increased no less than $9,000.00 since the original judgment. In addition, one of the children has attained the age of majority, thus reducing the amount appellee is required to pay in child support. Additionally, the requirement to pay rehabilitative alimony to appellant had been effectively terminated by the trial court’s order, dealt with earlier in this opinion, making that amount also available for consideration when determining whether or not child support payments should have been increased. The trial court certainly would have been justified in finding the requisites here for an increase in child support. Our task, however, is not to second guess the judge who saw the parties and heard the evidence and exercised his discretion. We are permitted only to measure that exercise of discretion by the evidence contained in the record to determine whether the result is sustainable under any theory of the law.

Applying that principle, we conclude that the order is reversible. Our conclusion does not result from finding a clear abuse of discretion, however. We find that the question of reasonableness here is so close that it may depend upon whether or not appellee is required to continue the alimony payments. Because the issues dealt with in the two orders are interrelated, to the extent that they involve appellee’s ability to pay, we also reverse the second order so that the trial court may reconsider the question of child support after having revisited the matter of rehabilitative alimony.

We assume that the trial court’s refusal to award costs and attorney’s fees to appellant resulted from the fact that she was not the prevailing party. The record supports the conclusion that the appellee is able and appellant is unable to afford the assistance of competent counsel. As we said in Darcy v. Darcy, 285 So.2d 59 (Fla. 4th DCA 1973), it is not necessary to prevail in order to be entitled to an award of attorney’s fees in these cases. Such an award was required here. Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978).

In conclusion, we reverse the order dismissing with prejudice former wife’s petition for modification and remand with instructions that she be allowed to amend the petition upon its reinstatement. We further reverse the order denying former wife’s application for increased child support and remand for reconsideration. Lastly, we reverse the denial of former wife’s request for costs and attorney’s fees and remand for the trial court to award reasonable attorney’s fees.

REVERSED AND REMANDED.

LETTS, C. J., and DOWNEY, J., concur.


author: GLICKSTEIN, Judge.

text:
    Eloise PATTERSON, Appellant, v. D. E. PATTERSON, Appellee.
    No. 79-2321.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Robert L. Saylor of Saylor & Cohen, North Palm Beach, for appellant.
    Charles L. Brown of Oxner, Brown & Pickett, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The parties were formerly husband and wife. For about thirty years appellee has operated his practice as a naturopathic physician from an office building held by the parties during their marriage as tenants by the entirety, and since our decision in Patterson v. Patterson, 315 So.2d 104 (Fla. 4th DCA 1975), as tenants in common. Appellant brought the instant action, seeking one-half the rental value of the office building. The trial court denied her claim. We affirm.

During the contested dissolution proceedings between the parties, appellee had the locks on the office building changed. Appellant testified that at that time she was unable to enter the premises. Since the dissolution she has made no effort to come upon the property. Appellee testified that he has not questioned appellant’s interest in the property; that he has not communicated to appellant that he was contesting her interest in any manner; that he has taken no action to contest her interest; and that he has agreed that she has a one-half interest as a tenant in common.

The governing principles in this action were recited in Coggan v. Coggan, 239 So.2d 17 (Fla.1970), wherein the facts were remarkably similar to the present case. Upon their divorce, the parties in Coggan jointly owned an office building as tenants in common. The husband, prior and subsequent to the divorce, exclusively occupied the building as his medical office. Four years after the final decree of divorce, the former wife sued for an accounting of one-half of the rental value of the office building from the date of the decree. In reversing the trial court order granting an accounting, the supreme court stated:

The possession of a tenant in common is presumed to be the possession of all cotenants until the one in possession brings home to the other the knowledge that he claims the exclusive right or title. Chasteen v. Chasteen (Fla.App.1968) 213 So.2d 509. What is called “exclusive possession” may amount merely to sole possession without actual exclusion of a co-tenant or denial, or invasion of the rights of such cotenant.
There can be no holding adversely or ouster or its equivalent, by one cotenant unless such holding is manifested or communicated to the other. Where a tenant out of possession claims an accounting of a tenant in possession, he must show that the tenant in possession is holding the exclusive possession of the property adversely or holding the exclusive possession as a result of ouster or the equivalent thereof. This possession must be attended with such circumstances as to evince a claim of the exclusive right or title by the tenant in possession imparted to the tenant out of possession. Tatum v. Price-Williams (1910) 59 Fla. 634, 52 So. 3. Bird v. Bird, supra [15 Fla. 424].

Id. at 19. See also Seesholts v. Beers, 270 So.2d 434 (Fla. 4th DCA 1973).

Appellant first argues that she meets the tests recited in Coggan and Seesholts, supra, because the changing of the locks by appellee during the dissolution proceedings between the parties constituted an ouster. However, the posture of the parties during the dissolution proceedings is not the same as now. Prior to our decision in Patterson v. Patterson, supra, the parties did not hold title as tenants in common. Instead, the trial court order, which we reversed, awarded Ms. Patterson’s interest in the building to her former husband. Therefore, any acts committed by Dr. Patterson prior to our decision which might have constituted an ouster had there been a tenancy in common, are irrelevant since said tenancy did not exist. Moreover, while there is evidence in the record that the locks were changed, there is no evidence that the intent of appellee in changing the locks was to exclude appellant from possession.

Appellant’s second argument is that appellee’s exclusive use of the premises as his medical office constitutes ouster or “constructive eviction.” She concedes that the building is not compatible for anything other than appellee’s medical practice. Further, it is undisputed that appellant has never demanded possession of the premises. The following language from Coggan, supra at 19, is exactly on point with the facts of the present case:

In the case at Bar, although the defendant continued in sole possession of the property after the divorce decree, the record is devoid of any evidence that, prior to the filing of the partition suit, he advised the plaintiff he was claiming adversely to her, or that he had taken any action adverse to her interest or title, or that he had taken any steps to actually or constructively oust her from possession, or that she knew or should have known he was claiming any right of title adverse to her.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

LETTS, C. J., and DOWNEY, J., concur.


text:
    The EASTERN INSURANCE COMPANY, Appellant, v. Charles Edward AUSTIN, Appellee.
    No. 79-2413.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.

      David P. Karcher of Underwood, Gillis, Karcher, Reinert & Valle, P. A., Miami, for appellant.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A., West Palm Beach, and Edna L. Caruso, West Palm Beach, for appellee.
   HERSEY, Judge.

Eastern Insurance Company appeals from a final judgment determining that appellee is entitled to coverage for loss of an insured boat.

The Rock Beauty, a fifty-seven foot Chris-Craft vessel was jointly owned by ap-pellee, Austin, and a partner. The boat was used for charter. In about May of 1976 appellee bought out his partner and retired the vessel from commercial use. Accordingly, the status of a loan against it changed from “commercial loan” to “installment loan” and the insurance policy in issue here was acquired in response to a requirement of the bank which held the loan. Appellant, through an agent, provided a private pleasure yacht policy which contained the following “private pleasure and transfer of interest” clause:

The coverage under this policy shall terminate upon the sale, assignment, transfer, or pledge of the interest of the insured in the property insured hereby or upon the use of the yacht for other than private pleasure purposes or upon the chartering or rental of the yacht, unless a previous written consent of the company has been obtained.

The boat was in fact used for pleasure, but the evidence showed that on three or four occasions appellee would sell surplus fish caught by him and his guests to either commercial establishments or individuals on the dock and the proceeds would be used to help defray expenses. On one or more occasions the arrangement between appellee and his fishing guests required that a certain percentage of the entire catch be sold for this purpose. On no occasion were proceeds of a sale sufficient to defray total expenses.

In February of 1978 appellee and some friends planned a fishing trip to the Bahamas. Appellee encountered a delay and the others left on the Rock Beauty. Appellee was to fly over and join them in the Bahamas. The vessel struck an object in stormy weather and sank fifteen miles from the Bahama Islands in water of a depth precluding recovery.

Appellant insurance company denied coverage and this litigation ensued.

After a non-jury trial the court found that the incidental sale of surplus fish was not a violation of the pleasure craft warranty and that, even if it were, the result would be only a temporary suspension of coverage during a commercial operation rather than a termination of the policy.

Appellant’s position, on appeal, is that “using the vessel to catch fish for profit” constituted a violation of the private pleasure warranty provision of the policy of marine insurance and therefore voided coverage.

Relying on Section 627.409(2), Florida Statutes (1979), appellant points out that a violation voids coverage rather than operating to suspend coverage where the “violation increased the hazard . ... ” The hazard was increased, insists appellant, by virtue of the fact that its reinsurance treaties prohibited any commercial use. It is unclear whether appellant considers this a separate and distinct type of “increased hazard” or whether it only becomes so in conjunction with the fact that a vessel used commercially is ordinarily subject to greater hazards than one utilized solely for pleasure. We think that the reinsurance restriction, in and of itself may increase the exposure of appellant but not the hazard, which term we take to refer to danger to the insured vessel itself. We accept, arguendo, that the real hazard is substantially greater for a commercial use than if use of the craft is devoted exclusively to pleasure. We can not and do not accept the premise that the occasional sale of fish caught on a pleasure fishing trip has any relevancy whatsoever to hazard in this sense.

Another argument relied on by appellant is that use of the yacht in this manner called into play the exclusionary provision because, under Florida law, Section 371.021 Florida Statutes (1979), it became a commercial vessel. That section reads:

(10) “Commercial vessel” means:
(a) Any resident vessel engaged in the taking of saltwater fish or saltwater products, freshwater fish or freshwater products, for sale either to the consumer, retail dealer or wholesale dealer;
(b) Any vessel engaged in any activity wherein a fee is paid by the user, either directly or indirectly to the owner, operator, or custodian of the vessel.

From this appellant postulates that the Rock Beauty was a commercial vessel and therefore the private pleasure warranty was violated.

However, in its ordinary connotation, commercial or charter use involves a commercial venture with investment in gear and equipment, intent on making some form of profit. One who would ascribe an exotic meaning to a term in a contract which otherwise has perfectly ordinary connotations must take pains to define the term either expressly or by express reference. The insurance policy at issue here contains no reference to the above quoted statutory provision nor does it define the terms “charter” or “private pleasure purposes.”

Since the terms “charter” and “private pleasure purposes” are subject to more than one interpretation, that interpretation which sustains the claim for benefits controls. Aetna Insurance Co. v. Webb, 251 So.2d 321 (Fla. 1st DCA 1971). Ambiguity and uncertainty should be construed in favor of the insured. Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (Fla.1975).

The Rock Beauty was used basically for pleasure. At no time did an incidental sale of fish defray the entire expense of a trip. Thus, there was never a profit. While that does not absolutely determine the issue, for not every business makes a profit, it can be fairly said that most businesses intend either to make a profit or to reap some tax benefit which is advantageous even if, strictly speaking, it is not a “profit.”

The evidence supports the holding of the trial judge that incidental sales of fish on a few occasions for the purpose of defraying some of the expenses was not a violation of the private pleasure use warranty. Having concluded that the final judgment should be affirmed on that basis, we do not reach the issue of the effect of a temporary or occasional violation of such a warranty.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    JACOBSON MANUFACTURING COMPANY, Appellant, v. CROSS MANUFACTURING COMPANY, Appellee. JACOBSON MANUFACTURING COMPANY, Appellant, v. HYDRO HOSE, INC., Appellee.
    Nos. 79-2417, 79-2418.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.

      Fred R. Ober of Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, for appellant.
    Richard B. Culver of Hill, Culver & Nea-le, Fort Lauderdale, for appellee-Cross Mfg. Co.
    Larry Klein, West Palm Beach, and Pom-eroy, Betts, Pomeroy, Moses & Pomeroy, Fort Lauderdale, for appellee-Hydra Hose, Inc.
   HERSEY, Judge.

Cross Manufacturing Company is a manufacturer of hydraulic component parts which are sold to equipment manufacturers and distributors. Its products are sold F.O.B. the factory in Kansas. It manufactured the T-swivels involved here at a factory in Kansas. Those T-swivels were then sold to Hydra Hose, Inc., a distributor, also in Kansas.

The T-swivels were sold by Hydra Hose to appellant, Jacobson Manufacturing Company. The sale took place in Kansas. Jacobson then incorporated the T-swivels into lawn sweepers which it manufactured in Kansas.

One of these lawn sweepers found its way to Florida, allegedly malfunctioned, and injured an employee of its purchaser who then filed suit against the manufacturer, appellant Jacobson.

On theories of indemnity and contribution, appellant filed a third party complaint against Cross and Hydra Hose and effected service of process under Section 48.-193(l)(f)(2), Florida Statutes (1979), Florida’s “long-arm” statute.

Cross and Hydra Hose moved to dismiss the complaint and quash service of process on the grounds that the third party complaint failed to allege any facts which would subject them to jurisdiction pursuant to Section 48.193. The factual allegations of the complaint were not disputed. The trial court entered an order on these motions, dismissing the third party complaint and quashing service of process for lack of jurisdiction over appellee corporations. That order is the subject of this appeal.

Under Section 48.193(l)(f)(2), Florida Statutes (1979), Florida courts have jurisdiction over a non-resident who

(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.

In support of its assertion of long-arm jurisdiction, appellant alleged the manufacture and distribution of the component part (the swivel). Appellant further alleged that this part was used in the state of Florida “in the ordinary course of commerce.”

Recently, in Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla. 1981), the supreme court held that undisputed factual allegations such as those involved here are sufficient to invoke jurisdiction under the long-arm statute and that the statute was intended to apply in such situations.

Accordingly, we reverse the trial court’s order and remand with directions that the third party complaint be reinstated.

REVERSED AND REMANDED.

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


text:
    Wayne BROWN, Appellant, v. JACOBSON MANUFACTURING CO., a foreign corporation; DeBra Turf & Industrial Equipment Company; Cross Manufacturing Co., Inc., a foreign corporation; and Hydro Hose, Inc., a foreign corporation, Appellees.
    Nos. 80-1656, 80-1657.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Joan M. Bolotin of Greene & Cooper, P. A., and Rosenblatt, Greene & Arnowitz, P. A., Miami, for appellant.
    R. B. Culver of Hill, Culver & Neale, Fort Lauderdale, for appellee-Cross Mfg. Co.
    Larry Klein, West Palm Beach, and Pom-eroy, Betts, Pomeroy, Moses & Pomeroy, Fort Lauderdale, for appellee-Hydra Hose, Inc.
   PER CURIAM.

Reversed upon authority of Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981); and Jacobson Manufacturing Co. v. Cross Manufacturing Co., 396 So.2d 825, Fla. 4th DCA Case No. 79-2417, Opinion filed April 8, 1981.

REVERSED.

DOWNEY, BERANEK and HERSEY, JJ., concur.