author: DAUKSCH, Chief Judge.

text:
    Darlene S. OTEY, Jack T. Keltner and Debra B. Keltner, his wife, Appellants/Cross-Appellees, v. FLORIDA POWER & LIGHT COMPANY and Canaveral Port Authority, Appellees/Cross-Appellants.
    No. 80-537.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.
    Rehearing Denied July 24, 1981.

      Charles T. Wells of Wells, Gattis & Hal-lowes, P. A., Orlando, for appellant/cross-appellee Otey.
    Richard W. Bates, P. A., Orlando, for appellants/cross-appellees Keltner.
    Palmer W. Collins, Melbourne, for appel-lee/cross-appellant Florida Power & Light Co.
    James O. Driscoll of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee/cross-appellant Canaveral Port Authority.
   DAUKSCH, Chief Judge.

This is an appeal in a personal injury case.

Plaintiffs were out sailing at Port Canaveral and upon their return to the boat ramp they pulled the boat from the water through a parking lot, across a highway and into a parking area. They had left the mast of the boat up because the ramp was busy and they did not want to delay the other boaters. Upon reaching the parking area the mast came in contact with unprotected electric wires owned by Florida Power and Light Company which spanned the parking area owned by Canaveral Port Authority (the Authority). A lawsuit charging both Florida Power and Light Company and the Authority with negligence was filed and damages were sought for the death of one person and the injury of two others. The trial court granted the Authority a directed verdict on all issues and Florida Power and Light Company a directed verdict on the issue of punitive damages.

The principal questions on appeal are whether there was sufficient evidence of negligence to permit a verdict against the Authority and whether there was sufficient evidence to support a verdict for punitive damages against Florida Power and Light. We shall discuss these two questions separately keeping in mind that the standard to be used in deciding a directed verdict requires the court to view the evidence in a light most favorable to the non-moving party, the plaintiffs in this case. National Car Rental Systems v. Bruce A. Ryals Enterprises, 380 So.2d 529 (Fla. 5th DCA 1980); Forshee v. Peninsular Life Ins. Co., 370 So.2d 842 (Fla. 3d DCA 1979); Mathis v. Lambert, 274 So.2d 601 (Fla. 3d DCA 1973).

CANAVERAL PORT AUTHORITY

This defendant owned and had under its control the real property over which the power line was stretched. The duty of a property owner is to “keep his property reasonably safe and protect the visitor from dangers of which he is, or should be aware.” Pittman v. Volusia County, 380 So.2d 1192, 1193 (Fla. 5th DCA 1980). See also Jackson v. Williams, 385 So.2d 190 (Fla. 5th DCA 1980). But the property owner is only responsible for those portions over which he has control. Quinnelly v. Southern Maid Syrup Company, 164 So.2d 240 (Fla. 2d DCA 1964). The evidence as to the power lines was essentially that Florida Power and Light constructed, owned and maintained them and that they stretched across the Authority’s land. Who had complete control over the lines was open to question, at least to some extent, because there was evidence the Authority and Florida Power and Light were in negotiations as to how to better place the lines. Florida Power and Light wanted to move them to a different location and the Authority wanted them buried. Evidently the Authority knew of a danger presented by the lines because it placed a sign (which had fallen down) to warn of the power line. In support of plaintiffs’ position, there was evidence the Authority was advised by its engineers to remove the safety hazard created by the power lines or at least to barricade the immediate area. It chose to erect the sign which later fell down.

In Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967 (Fla.1977), it was held that “In the presence of a known danger, the fact that a dangerous condition was created or partially caused by an independent contractor will not shield an employer/landowner from legal liability, if the employer/landowner was negligent in failing to take sufficient precautions to alleviate the dangerous situation.” Id. at 968. From the evidence, we must require a jury to be the proper decision-maker regarding whether the negligence of the Authority caused the injuries. See also Pittman v. Volusia County; Shealor v. Ruud, 221 So.2d 765 (Fla. 4th DCA 1969).

FLORIDA POWER AND LIGHT COMPANY

The jury found Florida Power and Light Company to have been negligent and awarded damages on that account. The trial judge directed a verdict for Florida Power and Light Company on punitive damages and it is for us to decide if there was sufficient evidence to have the jury, rather than the judge decide this question. Just as we discussed as to the Authority, we must view the evidence in a light most favorable to the plaintiffs. Punitive damages may be awarded only if the evidence shows the alleged wrongful act was committed with fraud, actual malice, deliberate violence or oppression, or where the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Winn & Lovett Grocery Company v. Archer, 126 Fla. 308, 171 So. 214 (1936); City of Hollywood v. Coley, 258 So. 828 (Fla. 4th DCA 1971). Whether the plaintiffs are entitled to punitive damages must be left to the jury to decide once there is any evidence to show an entitlement to such an award. Even if the court is of the opinion that the preponderance of the evidence is against the plaintiffs, it should be left to the jury to decide. Doral Country Club, Inc. v. Lindgren Plumbing Company, 175 So.2d 570 (Fla. 3d DCA 1965).

This defendant argues that since the jury assessed the negligence only ten percent the fault of Florida Power and Light that it certainly would not have awarded punitive damages. We have no way of knowing that; all we are saying is that it is for the jury to decide, not the judge. The evidence, briefly, was that there were approximately five prior boat-line contacts; the Authority engineer had told Florida Power and Light of the danger; four years passed from the first known contact until this one; Florida Power and Light was requested to barricade the area and to fix the sign. A jury might determine from this evidence that Florida Power and Light was guilty of gross negligence or acted with a wanton disregard of another’s rights in failing to protect from a known hazard over which it had control. Therefore, we deem it error to have directed a verdict in this regard.

There are numerous other errors alleged in this appeal and the cross-appeal which would require us almost to conduct a trial if we were to answer each one. Thus we shall decline to rule on all the evidentiary and jury instruction questions with the hope and confidence a new trial will be the answer. By the same token we do not now decide that the damages as to plaintiff Otey were “grossly inadequate” as alleged by the plaintiffs but do deem it proper to require a complete new trial so as to permit a fresh jury to try and decide all issues properly. None of the undecided issues raised on appeal are law of the case.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.


source: Caselaw Access Project

author: HURLEY, Judge. ANSTEAD, Judge,

license: Public Domain

text:
    Margaret REINER and Milton Reiner, Appellants, v. Alfred W. REINER and Dorothy Reiner, Appellees.
    No. 80-1736.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Rehearing Denied Aug. 7, 1981.
    Patrick O’Neal of O’Neal & Booth, P.A., Fort Lauderdale, for appellants.
    Richard L. Polin and Robert A. Brown, Fort Lauderdale, for appellees.
   HURLEY, Judge.

Appellants challenge a trial court’s finding that an inter-family transfer of monies constituted a gift rather than a loan. We believe that the court’s decision was based upon an erroneous interpretation of the law and, consequently, we reverse.

Appellant, Margaret Reiner, is the eighty-eight year old aunt of appellee, Alfred Reiner. Margaret resided with Alfred and Dorothy Reiner for several years, first in New Jersey and then in Florida. In February of 1972, Margaret and Alfred opened a joint savings account with a right of survivorship at a Broward County bank. All of the monies deposited into the account were Margaret’s. Moreover, Margaret retained the passbook, and Alfred made no deposits or withdrawals other than on one occasion when by accident a sum was withdrawn by the bank and credited against an overdraft by Alfred. As soon as the bank’s action was discovered, Alfred deposited money to cover the withdrawal.

In July of 1974, with Margaret’s permission, Alfred withdrew $17,500.00 from the savings account and paid off the mortgage on a home which was titled in Alfred’s and Dorothy’s names. Herein lies the controversy: Margaret claims the transfer was a loan while Alfred says it was a gift.

After a bench trial, the court ruled in favor of Alfred finding that:

The transaction whereby the sum of $17,-500.00 was withdrawn from a joint savings account, held in the names of MARGARET REINER and ALFRED W. REINER, with right of survivorship intended, was not a transaction which amounted to a loan by MARGARET REINER to ALFRED W. REINER but was, by the nature of the said savings account, a gift. The Court finds that no loan or mortgage was intended and no unjust enrichment occurred.

We begin by considering the trial court’s conclusion that the transfer was a gift because of “the nature of the ... savings account.” In Chase Federal Savings and Loan Association v. Suilivan, 127 So.2d 112, 114 (Fla.1960), our Supreme Court, referring to an earlier holding, noted that “ ‘where a joint bank account with right of survivorship is established with the funds of one person, a gift of the funds remaining in the account at the death of the creator of the joint account is presumed, but ... such presumption may be rebutted.’ ” Obviously, in the case at bar we are dealing with an allegation of an inter vivos gift, but the principle remains the same, i. e., the existence of a joint account, at most, gives rise to a rebuttable presumption of a gift. For there to be a present inter vivos gift, “there must exist an intention that each party shall have a present, equal right to withdraw the funds.” Id. at 114.

The testimony in the case at bar unequivocally shows that the joint account was established for survivorship purposes only and that Alfred did not have the present ability to withdraw funds from the account. Asked why it was a joint account, Margaret Reiner replied, “In case I died, he (Alfred) would have it. In case he died, I would have it.” She further testified that she always retained the passbook in her possession. Moreover, Alfred freely admitted that he knew he did not have the ability to withdraw funds without his aunt’s permission. In point of fact, and excluding the withdrawal in contention here, Alfred only caused funds to be withdrawn from the account on one other occasion and that was by mistake.

Thus, the trial court erred when it concluded that the $17,500 transfer was a gift simply because of the nature of the account from which the monies were withdrawn. The question remains, however, whether other testimony in the record would establish the transaction as a gift. In this regard, it is generally recognized that three elements must be shown to support a finding of gift: donative intent, delivery of possession and surrender of dominion and control. Eulette v. Lynch, 101 So.2d 603 (Fla. 3d DCA 1958). It is the first of these elements, donative intent, which is the determinative issue in this case.

The transaction in question here took place in a close, family atmosphere, apparently after minimal discussion and with no written or signed record. Thus donative intent must be divined from the recollections of the parties coupled with their contemporaneous actions. Margaret consistently testified that she loaned the $17,500 to Alfred and agreed to an interest rate of 5% per annum on the unpaid balance. To corroborate her position, she produced a record of her payments to Alfred and Dorothy for board and room which indicated that in August of 1974, and thereafter, she reduced her monthly payment from $150 to $75. According to her testimony, the loan was being repaid at $75 per month, most of which consisted of interest. Equally significant is the fact that Alfred did not directly contradict his aunt. Nowhere in his testimony does he state that she explicitly referred to the transaction as a gift. Alfred inferred that to be his aunt’s intent, but at a pretrial deposition he candidly admitted that he had little recollection of the conversation and events preceding the transfer. Moreover, when pressed at trial for his recollection of his aunt’s exact words, he stated, “that she would, because of the interest and taxes and things like that, she would reduce the amount of the money that she was giving the family, my wife or whoever — I don’t remember getting it myself — but she would reduce it by that, yes.” In other words, though the terms of the transaction were vague, according to Alfred’s own testimony, his aunt gave him money on the condition that there be a payback arrangement through the reduction of monthly board and room payments. This negates the notion of a free and clear gift.

Accordingly, we reverse and remand the cause to the trial court with instructions to conduct a supplemental hearing to determine the amount already repaid and to implement a remedy which permits appellee to repay the remainder of the debt at 5% interest per annum with minimum monthly payments of $75.00.

HERSEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Although I may not have reached the same conclusion, I cannot say that there was not sufficient competent evidence in the record to support the trial court’s conclusion that the transaction in issue constituted a gift instead of a loan. A review of the testimony presented at trial clearly indicates that the decision of the trial court was predicated on a judgment as to the credibility of the witnesses. The main witnesses, Margaret and Alfred, testified in complete contradiction of the other’s testimony on the gift issue. I would affirm the trial court’s decision.


author: PER CURIAM.

text:
    Kenneth E. DIX, Appellant, v. Ann E. DIX, Appellee.
    No. 80-719.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Rehearing Denied Aug. 10, 1981.
    Sidney M. Dubbin of the Law Offices of Sidney M. Dubbin, West Palm Beach, for appellant.

      Paula S. Gold of Baskin & Sears, Boca Raton, for appellee.
   PER CURIAM.

AFFIRMED. We think the evidence, although in conflict, was sufficient to sustain the trial court’s finding that the wife was entitled to a special equity in the marital homeplace. Cf. Landay v. Landay, 400 So.2d 43 (Fla. 2d DCA 1981) and Weiss v. Weiss, 390 So.2d 1236 (Fla. 4th DCA 1980). In so doing, we reject the appellant’s contention that such special equity must be proven to exist “beyond a reasonable doubt” and we recede from any statements to that effect contained in our opinion in Hanzelik v. Hanzelik, 294 So.2d 116 (Fla. 4th DCA 1974). See Abbott v. Abbott, 297 So.2d 608 (Fla. 2d DCA 1974); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); and Duncan v. Duncan, 356 So.2d 28 (Fla. 1st DCA 1978).

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


text:
    CLAY HYDER TRUCK LINES (Self-Insured), Appellant, v. Dorothy A. ATHERTON, Appellee.
    No. VV-360.
    District Court of Appeal of Florida, First District.
    July 1, 1981.
    Rehearing Denied Aug. 4, 1981.
    Robert J. Felice of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Richard R. Roach, Jr. of Woods & Roach, P. A., Lakeland, for appéllee.
   PER CURIAM.

The employer in this workers’ compensation case asserts that the deputy commissioner erred in finding that the claimant’s attorney was entitled to a fee based upon “all benefits to which the claimant has or may become entitled” because the claim was not timely accepted within 21 days pursuant to § 440.34, Florida Statutes (1975). Appellant also contends that the deputy erred in failing to credit it with the overpayment of temporary disability benefits. We reverse.

The deputy calculated that the claimant received her temporary disability benefit checks, including penalties and interest, 22 days after the employer received notice of the claim. Accepting the deputy’s finding that notification of the claim occurred October 14, 1976, appellants had 21 days from this date within which to accept the claim. The evidence shows that checks were received by claimant’s attorney on November 4, 1976, the 21st day. The date of mailing, considered in law to be the payment date, obviously occurred before this time. Commercial Carrier Corp. v. Gillum, IRC Order 2-3534 (Sept. 12, 1978). In short, payment was properly made within the statutory 21-day period. This being the case, claimant’s counsel would be entitled to a fee based only upon the obtaining of the resisted medical reimbursement.

The argument proposed in Point 2 is somewhat unclear. In the original order, the deputy found that the claimant received $7,531.38 in temporary or total disability benefits, while she was owed only $7,056.85, but the deputy did not say whether credit was due to the employer. When the IRC remanded for clarification of the status of temporary disability payments and allowance of appropriate credit, the deputy noted that “the finding of underpayment is erroneous.” This statement did not clarify the credit issue, and appellant requests this court to remand the cause again.

The original order indicated an overpayment rather than an underpayment. We remand for the deputy to answer whether there was an overpayment as indicated in his original order, and to indicate the exact amount of overpayment. Since this court recently explained that an overpayment is not a gratuity if the deputy finds a reasonable basis for such overpayment, Belam Florida Corp. v. Dardy, 397 So.2d 756 (Fla.App. 1st DCA 1981), the deputy is directed to find .whether there was a reasonable basis in this case. Finally, if an overpayment was reasonably made, we direct the deputy to award credit to the employer in that amount.

The cause is reversed and remanded to the deputy with directions that he enter an order consistent with this opinion.

SHIVERS, SHAW and THOMPSON, JJ., concur.


text:
    Robert Henry HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. TT-319.
    District Court of Appeal of Florida, First District.
    July 7, 1981.
    Rehearing Denied Aug. 4, 1981.

      Michael J. Minerva, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Harris appeals his conviction and sentence for felony petit theft. Subsection 812.014(2)(c), Fla.Stat. (1979). We affirm the conviction, but reverse the sentence and remand for resentencing.

As provided in Subsection 812.014(2)(c), Florida Statutes (1979), petit theft is normally a misdemeanor. The statute, however, specifically provides that “[ujpon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and s. 775.-084.” Therefore, in order to be sentenced under the felony provisions of Subsection 812.014(2)(c), the offender must have been convicted twice previously of a petit theft. At sentencing, however, the trial court indicated it considered two previous convictions, one for petit larceny and one for attempted petit larceny, as the basis for the appellant’s enhanced sentence. Since the statute does not permit consideration of the attempted petit larceny conviction, the trial court erred in sentencing Harris.

The appellant also asserts that Subsection 812.014(2)(c) does not permit consideration of convictions for petit larceny under former Section 812.021, Florida Statutes. There is no distinction between these two statutes for the purpose of sentencing under Subsection 812.014(2)(c). We, therefore, reverse the sentence and remand the cause for resentencing.

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


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

text:
    Marcia C. QUICK, Appellant, v. Donald T. QUICK, Appellee.
    No. UU-347.
    District Court of Appeal of Florida, First District.
    July 7, 1981.
    Rehearing Denied Aug. 7, 1981.

      Charles G. Felder, of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant. •
    William N. Avera, of Avera & Stripling, P. A., Gainesville, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Marcia Quick, age 38, appeals the money issues of a dissolution judgment which awarded her, at the end of a 16-year marriage, rehabilitative alimony of $1,500 per month for 33 months, $1,000 per month for 60 months longer (altogether, 8 years of rehabilitative alimony), $500 per month each for the support of two minor children, age 9 and 15, and possession of the parties’ large home property, held now as tenants in common. Appellant urges that the chancellor should have awarded her (in descending order of preference) permanent alimony, more rehabilitative alimony, or rehabilitative alimony at a constant $1,500 per month.

Given the purpose of rehabilitative alimony and the chancellor’s evident view of appellant’s prospects for economic rehabilitation, no error can be found in the amount and prospective reduction of rehabilitative alimony. The chancellor’s decision not to award permanent alimony — the judgment did not deny permanent alimony in so many words, but did not award it — is somewhat more problematic, but still, we think, within the range of discretionary alternatives open under the circumstances.

Appellant’s claim for permanent alimony rests on her not inconsiderable showing that her former husband is a medical doctor, practicing as a neurologist, who earns more than $100,000 per year and is evidently well able to pay permanent periodic alimony; that appellant herself has a bachelor’s degree in education and was certified and briefly employed, early in the marriage, as an elementary school teacher, but has since devoted her skill and efforts to homemaking and childrearing; and that, despite her admitted opportunity and desire now to reinstate her teaching certificate and gain fulltime employment as a teacher, she cannot now or ever expect to support herself by that means in a way approaching the more than comfortable living standard which she and her husband established during the 16-year marriage.

The main elements of the wife’s reasoning may be conceded: Dr. Quick’s earnings and ability to pay are not unlimited but are quite substantial, more so than the judgment exploits; Ms. Quick’s earning capacity, present and foreseeable, is significant but hardly comparable; he is able to contribute periodically and permanently to sustain her more nearly at the living standard to which the marriage accustomed her, and she cannot maintain that standard herself.

We of course recognize that permanent periodic alimony is awardable “to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties,” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980), but we do not understand that the chancellor must in all events regard living habits as equivalent to need. On the contrary, the habituated living standard is but an element. Need is determined by reference to

the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.

Canakaris, supra, 382 So.2d at 1201-02.

In the particular circumstances of this case, the chancellor’s judgment seems appropriately aimed at encouraging an educated and relatively young woman, with no evident disability, to reestablish and enhance her earning capacity; supporting her financially as she does so over a projected 8-year period; withholding from her permanent periodic support based on what is known and anticipated at this time; and reserving until later a final determination of whether, or to what extent, she needs, after all, permanent periodic support. On other occasions, under somewhat different circumstances, the chancellor’s considered judgment on the alimony question may be different. Only our duty remains constant, which is to conceive of the alternatives as the chancellor did, if possible, and to affirm if the prescribed course of action is within the range of lawful choices under all the circumstances. See, e. g., Sommese v. Sommese, 324 So.2d 647, 648 (Fla. 1st DCA 1976):

We recognize ... that the chancellor might have well awarded rehabilitative alimony and retained jurisdiction to award permanent alimony, so to determine whether Ms. Sommese’s economic dependence can and should be mitigated by training. In a proper case such as a procedure would doubtless serve the long term interests of both spouses. [Citations omitted.] But here we must and do affirm the chancellor’s order [awarding permanent periodic alimony], recognizing that the manner in which he exercises discretion in resolving these delicate matters must be accorded the utmost respect on appeal.

The chancellor having reserved jurisdiction to enter “such additional orders as may be necessary and proper,” we need not revisit the question of whether, without such language in the judgment, Section 61.08, Florida Statutes (1979), enables the chancellor to reconsider the question of permanent periodic alimony during or at the end of the appellant’s period of economic rehabilitation. Compare Stickney v. Stickney, 377 So.2d 187 (Fla. 1st DCA 1979), cert. den., 386 So.2d 642 (Fla.1980), Hayes v. Hayes, 325 So.2d 455 (Fla. 1st DCA 1976), and Hyatt v. Hyatt, 315 So.2d 11 (Fla. 3d DCA 1975), with Kelly v. Kelly, 361 So.2d 428 (Fla. 4th DCA 1978), and Cantor v. Cantor, 306 So.2d 596 (Fla. 2d DCA 1975). The chancellor has retained that power and, if and when the question is presented, will reconsider the matter in the light of the different circumstances, then, giving the present determination such effect, and only such effect, as it naturally commands.

We find no merit in appellee’s cross-appeal. The judgment is AFFIRMED.

MILLS, J., concurs.

WENTWORTH, J., concurs and dissents, with opinion.

WENTWORTH, Judge,

concurring and dissenting.

I agree with the majority as to the cross appeal, and with the conclusion that the amount of alimony awarded is not necessarily reversible on this record. However, I would conclude that the judge erred in limiting the award to alimony characterized as rehabilitative, and in ordering an automatic reduction in amount.

The classification of alimony as rehabilitative rather than permanent presents a question of law, and “application of the correct legal rule is not a matter of discretion.” Wagner v. Wagner, 383 So.2d 987 (Fla. 4th DCA 1980). Our review on that issue, therefore, is not governed by the reasonableness test of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), referenced by the majority.

The Florida decisions establish that the standard of need for the award of alimony after a marriage of some duration is “the standard of living enjoyed during its course,” Kanakaris, p. 1202 (e. s.), or the “standard ... established during the marriage,”. § 61.08(2)(a), Florida Statutes. See also Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980). When one spouse lacks ability or predictable availability of support in a style commensurate with that enjoyed during the marriage, and the other partner has the ability to pay, permanent periodic alimony is required. Messer v. Messer, 342 So.2d 1076 (Fla. 2d DCA 1977), Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975), Lutgert v. Lutgert, 362 So.2d 58 (Fla. 2d DCA 1978), Stiff v. Stiff, 395 So.2d 573 (Fla. 2d DCA 1981).

The majority appears to recognize that in this case ability to pay presents no problem, and that Ms. Quick will be unable to support herself in a way that even approximates the accustomed life style, but justifies the chancellor’s ruling by denigrating this accepted measurement as merely one of the elements to be considered. While I agree that all of the listed elements are pertinent, each should be considered in relation to the other. If, after a marriage of substantial duration, one spouse, because of age, health, education and size of estate, has no reasonable prospect of rehabilitation to permit maintenance of a standard of living reasonably commensurate with that acquired during the marriage, permanent alimony should be awarded if not foreclosed by other pertinent factors. Obviously, depending on the circumstances, permanent alimony may supplement other income to reach the appropriate standard.

Although Ms. Quick does have a bachelor’s degree in education and is not advanced in age, her future income at this time is plainly speculative, with no evidence of any possibility of her ever earning an income which would support the “standard of living which she enjoyed during the marriage.” Nicolay, supra, and Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980). Assuming her ability to reenter the teaching profession, nothing in this record would indicate that her most valiant effort could achieve the marital standard which appellee’s annual $100,000 income (per tax returns) had established and would clearly maintain following divorce, when custody and care of the children remains with appellant. The majority notes the chancellor may revisit the question of permanent alimony when properly presented. The error, however, is not harmless. As the decree now stands, Ms. Quick will have the burden of showing a substantial change in circumstances in order to obtain modification. The chancellor should have awarded her permanent alimony of $1,500 per month and placed the burden of modification on Dr. Quick. Garrison v. Garrison, Stiff v. Stiff, Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).

As noted by the court in the Canakaris opinion, page 1203, similar cases should reach similar results to avoid abuse of discretion. See Colucci v. Colucci, Barker v. Barker, 384 So.2d 925 (Fla. 1st DCA 1980), Judge Shivers dissenting. The circumstances of this case are not in my opinion distinguishable from Lash v. Lash, Messer v. Messer, Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1978), Garrison v. Garrison, Bender v. Bender, 363 So.2d 844 (Fla. 1st DCA 1978), and Wagner v. Wagner, so as to permit the results reached here.


text:
    Alfred WILLIAMS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 79-720.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Aug. 7, 1981.
    Bennett H. Brummer, Public Defender and Joel V. Lumer, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971).


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

text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. McCAIN SALES OF FLORIDA, INC., and Annat, Inc., a Florida Corporation, d/b/a Municipal Supply and Sign Company, Appellees.
    No. LL-231.
    District Court of Appeal of Florida, First District.
    July 9, 1981.

      Raymond W. Gearey, Tallahassee, for appellant.
    L. Ralph Smith, Jr., of Peeples, Earl, Smith, Moore & Blank, P. A., Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

The Department of Corrections appeals from a DO AH hearing officer’s order invalidating as an illicit rule, because it was not subjected to formal rulemaking processes under Section 120.54, the Department’s program for the manufacture of metal signs by inmates of the correctional system. Section 945.06, Florida Statutes (1976 Supp.). The hearing officer found:

Here the Department has, apparently, not set forth its decision to engage in a metal sign manufacturing program in a formal written statement. Certainly no such written statement was offered into evidence. However, it is patently clear from the evidence that the Department has expressed in a non-verbal way its decision to engage in the subject program. The actions of the Department culminating in the invitation for bids clearly express the adoption by -the Department of a metal sign manufacturing program. It is therefore concluded that the agency statement proved by the Petitioners is the decision by the Department to adopt a metal sign manufacturing program, as one of its correctional work programs under Section 945.06, Florida Statutes.

The hearing officer went on to conclude that the “statement” so described as one of general applicability, implementing, interpreting or prescribing law or policy, thus constituting an illicit rule.

In this, and in comparing the case to P.A.M. News Corp. v. Hardin, 440 F.2d 255 (D.C. Cir. 1971), applying the federal APA, we think the hearing officer erred. Small definitional differences between the Florida and federal acts, see Hardin at 258, fn. 4, prevent too great a reliance on federal decisions. An agency program reflects its policy, to be sure, but a program as such is not a statement of policy, and no statute requires all agency programs to be described in Florida Administrative Code. See also Hill v. Leon County School Board of Public Instruction, 351 So.2d 732 (Fla. 1st DCA 1977), cert. den., 359 So.2d 1215 (Fla. 1978). Moreover, as has been shown by Florida decisions since the hearing officer ruled in this matter — this case and related cases decided this day have been here a lamentably long time, at fault of no one but the writer — an agency that permissibly withholds its policy from rulemaking assumes considerable burdens of proof and exposition in Section 120.57 proceedings. Florida Cities Water Co. v. Florida Public Service Comm’n, 384 So.2d 1280 (Fla. 1980); Rice v. Dept. of Health and Rehab. Services, 386 So.2d 844 (Fla. 1st DCA 1980); Anheuser-Busch, Inc. v. Dept. of Business Req., 393 So.2d 1177 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Dept. of Business Req., 397 So.2d 696 (Fla. 1st DCA 1981); Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981). Now more than ever it is appropriate to allow these incentives for rulemaking to work in other proceedings rather than to subject marginal cases to the difficult semantic debate that our early decisions encouraged in rule-challenge proceedings against nonrule policy.

REVERSED.

MILLS and ERVIN, JJ., concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. FLORIDA POLICE BENEVOLENT ASSOCIATION and Marcus A. McGowan, Appellees.
    No. MM-180.
    District Court of Appeal of Florida, First District.
    July 9, 1981.

      Edwin E. Strickland, Gen. Counsel, and Michael J. Alderman, Asst. Gen. Counsel, Tallahassee, for appellant.
    Edward S. Jaffry, of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for appellees.
    Jim Smith, Atty. Gen., and John J. Rimes, Asst. Atty. Gen., amicus curiae.
   ROBERT P. SMITH, Jr., Chief Judge.

Citing State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977), a DOAH hearing officer in this Section 120.56 rule challenge proceeding held that the Highway Patrol’s general order 40, prescribing standards of physical fitness for patrolmen, and general order 43, prescribing guidelines for supervisors in assessing discipline for deficiencies in patrolmen’s conduct, are illicit rules and hence invalid, because they were not subjected to formal rulemaking under Section 120.54. 1 Fla. Admin.L.Repts. A-12 (1979). In holding that these general orders were not exempt as “internal management memoranda” from the rulemaking requirement, Section 120.52(14)(a), the hearing officer lamented the apparent application of Stevens to this case, saying:

The instant case demonstrates how Rule challenges present serious problems to the agencies in establishing and carrying out policies applicable only to agency employees which are not formally promulgated as rules. Once the agency attempts to enforce such a policy on employees who fail or refuse to comply, the policy begins to affect private interests.

We think the general orders in the present case qualify for the “internal management memoranda” exemption from rule-making and that this case, considered in the light of judicial decisions rendered after the hearing officer ruled in this case, can and should be distinguished from Stevens. The “bumping” guidelines that Stevens characterized as rules were virtually self-executing, intended “by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.” McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977). General orders 40 and 43 on the other hand, were effective in themselves only as guidelines, subject in application to the discretion of the enforcing officer. In this case, for example, the contestant’s severe overweight condition brought on a series of disciplinary responses, of increasing severity, and the operable rule which by Stevens standards impinged the contestant’s arguably private interests was not the unpromulgated weight standards, but rather the published rule against insubordination, Fla.Admin.Code R. 22A-7.-10(7)(a), (b).

In marginal rule challenges such as this, see also Hill v. Leon County Board of Public Instruction, 351 So.2d 732 (Fla. 1st DCA 1977), cert. den., 359 So.2d 1215 (Fla.1978), the public interest is now better served by permitting other incentives for rulemaking to operate in Section 120.57 proceedings. Florida Cities Water Co. v. Florida Public Service Comm’n, 384 So.2d 1280 (Fla.1980); Rice v. Dept. of Health and Rehab. Services, 386 So.2d 844 (Fla. 1st DCA 1980); Anheuser-Busch, Inc. v. Dept. of Business Reg., 393 So.2d 1177 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Dept. of Business Reg., 397 So.2d 696 (Fla. 1st DCA 1981); Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981).

REVERSED.

MILLS and SHIVERS, JJ., concur.


author: ROBERT P. SMITH, Chief Judge.

text:
    The FLORIDA STATE UNIVERSITY, Appellant, v. Elias DANN, David Wingate, Janet Worth, David Wilson, E. Talley Schmidt, Harry Schmidt, and Robert Glotzbach, Appellees.
    No. OO-230.
    District Court of Appeal of Florida, First District.
    July 9, 1981.

      Charles S. Ruberg, Associate University Atty., Tallahassee, for appellant.
    Jerry G. Traynham of Patterson & Traynham, Tallahassee, for appellees.
   ROBERT P. SMITH, Chief Judge.

The university appeals an order of a DOAH hearing officer determining that a document setting forth university procedures for award of merit salaries and other pay increases was an invalid rule because it was not subjected to the rulemaking process required by Section 120.54. On the basis of State Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977), the hearing officer concluded that these procedures were agency statements of general applicability, not falling into any statutory exception under Section 120.52(14), and as such, must be adopted as rules. 1 Fla.Admin.L.Repts. A-518 (1979). We affirm.

Initially, we agree with the hearing officer that the faculty members challenging this document had standing to do so since these procedures were likely to have a continuing impact on determination of their annual salaries. We also agree that this document was not exempt from the rule-making process as an “internal management memorandum” under Section 120.-52(14)(a), which excludes such documents if they “do not affect ... the private interests of any person.” As the hearing officer concluded:

The procedures apply generally and equally to each segment of the University and to each faculty member.... Although the procedure is for use internally within the University, it affects the private interest of each faculty member in the compensation he or she receives for services performed for the University.

Moreover, these merit salary procedures were virtually self-executing, like the Stevens employee “bumping” guidelines, “intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.” McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977). The record here indicates that, as in Stevens, the salary document was “issued by the agency head for implementation by subordinates with little or no room for discretionary modification.” 344 So.2d at 296. Compare Dept. of Highway Safety and Motor Vehicles v. Florida Police Benevolent Ass’n, 400 So.2d 1302 (Fla. 1st DCA 1981).

Nor did this document qualify as a nonrule under Section 120.52(14) as “preparation or modification” of an “agency budget” or “contractual provisions reached as a result of collective bargaining.” As the hearing officer indicated, the university’s budget officials played no role in the development of the document. And although the document did refer to a collective bargaining agreement, it was not itself a contractual provision of this agreement.

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


text:
    Timothy DONOVAN, Appellant, v. STATE of Florida, Appellee.
    No. UU-63.
    District Court of Appeal of Florida, First District.
    July 9, 1981.
    Rehearing Denied Aug. 7, 1981.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Donovan, a juvenile, appeals his conviction of first degree murder. He argues the court erred in denying his motion to suppress certain statements, testimonial acts, and physical evidence because the detaining officers made no effort to contact his parents, contrary of Section 39.03 Florida Statutes (1979), after he was taken into custody. He also argues the court erred in denying his motion for mistrial after a prosecution witness improperly commented on his exercise of his right to remain silent. We affirm.

Donovan was taken into custody at his parents’ home on a Sunday evening. His step-father answered the door and was informed the officers wished to talk to Donovan regarding a homicide investigation and Donovan was then taken to police headquarters for questioning.

In Doerr v. State, 383 So.2d 905 (Fla. 1980), the Florida Supreme Court held that Section 39.03 Florida Statutes (1979) did not automatically require suppression of a juvenile’s confession because his parents were not notified he was being detained. The court found Section 39.03 was designed to notify the parents their children were being detained and was not intended to act as an exclusionary rule for juvenile confessions. In the present case we find that Donovan’s parents were notified of his detention since they were at home when he was taken into custody. K.L.C. v. State, 379 So.2d 455 (Fla. 1st DCA 1980). Therefore, his argument regarding his parents not being notified of his detention is without merit.

In his second point on appeal, Donovan challenges certain portions of Officer Smith’s testimony as being impermissible comments on his exercise of his right to remain silent. Any comment upon a defendant’s remaining silent or refusing to testify in the face of accusation is an error of constitutional dimension requiring a new trial without consideration of the harmless error doctrine. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975). However, the defendant must make a timely objection and move for a mistrial in order to preserve the point for appellate review. Clark v. State, 363 So.2d 331 (Fla.1978).

During trial, Officer Smith testified that Donovan was brought to the Escambia County Investigation Division at 8:30 p. m. He remained there approximately five minutes before being taken across the street to the Division of Youth Services. The portions of Officer Smith’s testimony on direct examination which are challenged are as follows:

Q. During that time, where was he taken and what was done?
A. ... I walked into the office, at which time we read Tim his rights. Timmy denied having any knowledge of knowing what we were talking about.

At this point, defense counsel objected and moved for a mistrial. The motion was denied. Continuing later on direct examination:

Q. Now at that time did the defendant sign this rights waiver?
A. Yes, he did. No, sir. No, sir. Tim did not sign a rights form the first time I read it.

Smith then stated that Donovan remained at the sheriff’s office approximately three to five minutes before being taken across the street to the Division of Youth Services. Continuing on direct examination:

Q. And after you got over to the Division of Youth Services, what did y’all do?
A. ... I read Timmy his rights again.
Q. Did you read them from the same form that you just read from?
A. Yes, sir, I did.
Q. And did he indicate that he understood what his rights were?
A. If I could back up—
Q. Please do.
A. At the time while I was reading his rights the first time, Tim just looked at me. He never did answer me.. And then Lt. Rose started talking to him in reference about school — had he played hookey that day, or something like that.
He asked Lt. Rose, and the only question I remember Timmy asking, was what he just read to me — back to his rights— what he just said to me or read to me, does that mean that I can have a lawyer and it won’t cost me any money?
Lt. Rose says, “That’s exactly what it means.” And then Tim got quiet and he wouldn’t—
Q. (Interposing) Now, wait a second. Did he indicate that he understood those rights?
A. No, sir. Tim didn’t say anything.

Defense counsel again made a motion for mistrial which was denied. Continuing on direct examination:

Q. Officer Smith, then you went to the Division of Youth Services; is that correct?
A. Yes, sir.
Q. Across the street from the sheriff’s office?
A. Yes, sir.
Q. After you got there, did you read him his rights again?
A. Yes, sir, I did.
Q. Alright. Now, after you read his rights over there, did he indicate that he understood what those rights were?
A. Yes, sir, he did.
Q. How did he do that? Did you ask him if he understood what his rights were?
A. I was the one that was reading him his rights. I asked him, I said, “Do you understand what the question was that you asked the Lieutenant?” “Oh, yes, I understand all that. I just want to go ahead and get it off my chest. I am ready to tell you all about it.”

At this time, the state introduced testimony concerning appellant’s confession and the fact that he took investigating officers to the murder scene and retrieved the murder weapon and certain items of the victim’s clothing.

Although the state may introduce testimony concerning the incriminating statements he made, Donovan argues it was reversible error for the state to mention, as it did in the colloquy above, that he remained silent initially in the face of questioning. The state argues that the above testimony was properly admitted in order to show that Donovan was apprised of his constitutional rights and that he understood those rights before waiving them, contending the thrust of Officer Smith’s testimony reveals Donovan did not exercise his right to remain silent, but, in fact, chose to make a statement.

The Fourth District Court of Appeal was faced with a similar argument in Roban v. State, 384 So.2d 683 (Fla. 4th DCA 1980). In Roban, a deputy answered “I asked him if he wanted to say anything, and he said no.’ ” 384 So.2d at 684. Subsequent to this comment, the state introduced testimony of an oral inculpatory statement of Roban. The state argued the deputy’s comment could not be construed a comment on Ro-ban’s right to remain silent because he did not remain silent. The court held: “While conceding the logic of the State’s argument, we are required by the strictures of stare decisis to reject it.” (Cites omitted) The court apparently felt that any comment on Roban’s silence during questioning mandated reversal even though during the same phase of questioning he gave an inculpatory statement.

Donovan relies on Thompson v. State, 386 So.2d 264, 266 (Fla. 3d DCA 1980) where a prosecutor, in his opening statement, stated, “At this point the defendant got belligerent, Detective Fleites will tell you, and would not talk any further.” (Emphasis in original) Prior to this comment, the prosecutor was outlining the testimony that the detective would give regarding statements made by the defendant. The court found the defendant had obviously invoked his right to remain silent at the point he became belligerent and refused to talk. Therefore, the court held that any comment made after the defendant invoked his right to remain silent constituted reversible error. In Thompson, the court did recognize that there are exceptions to the prohibition of commenting on a defendant’s right to remain silent, but determined the facts of that case did not fit the exceptions. See Ragland v. State, 358 So.2d 100 (Fla. 3d DCA 1978).

In Brown v. State, 367 So.2d 616, 625 (Fla.1979), the Florida Supreme Court, in distinguishing that case from Bennett v. State, supra noted:

Bennett, however, articulated a prophylactic rule designed to obviate the possibility that a conviction could ever be obtained by the improper inference that a defendant’s silence evidenced guilt.

The Court found that Brown was simply not a case in which the state attempted to gain a conviction on the basis of the defendant’s silence.

In the case before us, we are convinced that this is not a case in which the state attempted to gain a conviction on the basis of the defendant’s silence. From the facts it is clear the defendant did not exercise his right to remain silent, but instead chose to make inculpatory statements. The gist of Officer Smith’s testimony elicited by the state was that appellant was apprised of his constitutional rights, understood those rights, and voluntarily waived his right to remain silent. We feel this case more appropriately fits within the rule of Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1978) which held:

From the record, we find that the prosecutor was seeking to introduce a statement of the defendant into evidence, and it was necessary to first show that she had been properly warned of her constitutional rights, and that she knowingly and voluntarily waived those rights. The record fails to show that the defendant exercised her right to remain silent. Rather, the testimony shows that she did not seek to exercise the right to remain silent, and that her inculpatory statements were made freely, voluntarily and with full knowledge of her rights.

Similarly in United States v. Martinez, 577 F.2d 960 (5th Cir. 1978), the court looked at the totality of the officer’s testimony, rather than one isolated statement, in finding that there had been no impermissible comment on the defendant’s right to remain silent. In Martinez, the prosecution witness answered a question as to whether the defendants made any statement in his presence. He replied, “No, not at that time. We read them both their rights.” The prosecution then introduced the inculpatory statements made by the defendant. The court held:

Emphasizing the “not at that time” part of the testimony, defendants on appeal argue that it was improper and prejudicial for the Government [sic] witness thus to indicate that the defendants made statements after being warned of their Miranda rights. They argue that this comment raised an impermissible inference in the mind of the jury that some statement was made after the defendants had been warned according to Miranda. This remark cast a burden upon the defendants, they contend, to either produce the statement or permit the inference to remain with the jury that the statement was unfavorable. Of course, the government is not prohibited from introducing statements made by a defendant after receiving Miranda warnings. (Cites omitted). In this case, any dilemma the defendants may have felt to produce the statements or leave an inference with the jury that the statements were adverse was dissolved when the government itself offered the statements through the same witness. Therefore, no impropriety occurred, whether the testimony is viewed in part or as a whole.

We feel the rule enunciated in Williams v. State, supra and United States v. Martinez, supra, recognizing that the testimony should be taken as a whole, is more logical and consonant with reason than the strict prophylactic rule enunciated in Roban, supra.

We are aware of this court’s recent opinion in Marshall v. State, 393 So.2d 584 (Fla. 1st DCA 1981), in which we reversed a trial judge’s denial of a motion for mistrial regarding an officer’s comment that the defendant did not want to talk to anyone at that time. The trial court apparently denied the motion on the grounds that Marshall made a voluntary exculpatory statement some 20 hours later. The facts in Marshall are quite different from those of the instant case. In Marshall, it is clear the defendant did exercise his right to remain silent and the officer’s comment was an impermissible comment on that right. It was not until 20 hours later that Marshall decided to make a statement. In the instant case, appellant’s statement was given during his initial questioning. The statement was made approximately 10 minutes after he was taken to the sheriff’s office and advised of his rights. Under these facts, it is clear he did not exercise his right to remain silent. Therefore, Officer Smith’s testimony was not an impermissible comment on his right to remain silent. However, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(vi), we certify we are in direct conflict with Roban v. State, 384 So.2d 683 (Fla. 4th DCA 1980).

Donovan also relies upon the recently decided opinion of the United States Supreme Court in Edwards v. State of Arizona, - U.S. -, 101 S.Ct. 1880, 68 L.Ed.2d 378, which held that the trial court should have suppressed a confession once the accused requests counsel. The thrust of the opinion is that “it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” - U.S. at -, 101 S.Ct. at 1885 (e.s.). At this juncture we note that, unlike the situation in Edwards, appellant here does not argue that the motion to suppress should have been granted because his request for counsel was denied, and interrogation was resumed; rather his point on appeal is that the trial court erred in denying his motion for mistrial after the prosecution witness improperly commented on the exercise of his right to remain silent. Thus the point raised does not challenge the constitutional issue involved in Edwards, and is one which normally would be considered waived.

Nevertheless, even if the point on appeal could be said to involve the question of whether the confession should have been suppressed due to the refusal of appellant to waive his right to counsel, we do not believe that the present record reveals, in the words of Edwards, that appellant “clearly asserted his right to counsel.” The fair import of Officer Smith’s testimony shows that Donovan never invoked his right to have counsel present during the interrogation; that his inquiry was directed solely to the question of whether a lawyer would be provided without any cost to him, and that once the police responded affirmatively, Donovan failed to pursue his inquiry further. This is a far cry from the situation in Edwards where the defendant, during interrogation, stated that he “wished an attorney before making any deal.”

AFFIRMED.

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    In the Interest of D. D. W., J. R. W., G. G. W., et al., Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellee.
    No. UU-480.
    District Court of Appeal of Florida, First District.
    July 10, 1981.
    Earl & Judy Wiseman, pro. per.
    Eric J. Haughdahl, Gen. Counsel, Tallahassee, and Jon W. Searcy, District Counsel, Pensacola, for appellee.
   PER CURIAM.

Appellants, the parents of D.D.W., J.R.W. and G.G.W., appeal the trial court’s termination of their parental custody rights and permanent commitment of the children to the Department of Health and Rehabilitative Services. They argue the trial court erred in failing to grant their motion for appointment of counsel since they are indigent. We agree and reverse.

The Florida Supreme Court in In Interest of D.B., 385 So.2d 83 (Fla.1980), held indigent parents have a constitutional right to counsel in dependency hearings where the proceedings can result in permanent loss of parental custody. However, the United States Supreme Court recently held that the Constitution does not require the appointment of counsel for indigent parents in every parental status termination proceeding. Lassiter v. Department of Social Services of Durham County, N.C., - U.S. -, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

Although we acknowledge the Florida Constitution may provide greater guarantees than does the United States Constitution, a reading of In Interest of D.B., supra, does not reveal whether the Florida Constitution provides greater guarantees for the right to counsel in dependency cases. Nevertheless, on the authority of In Interest of D.B., supra, we reverse and remand.

However, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify the following question to the Florida Supreme Court to be of great public importance:

Does the Florida Constitution require the appointment of counsel to indigent parents in every parental status termination proceeding?

McCORD, BOOTH and SHIVERS, JJ., concur.


text:
    James W. HUMPHRIES, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. WW-80.
    District Court of Appeal of Florida, First District.
    July 10, 1981.

      William G. Osborne and John M. Robertson of Robertson, Williams, Duane, Lewis, Briggs & Ranson, Orlando, for appellant.
    Enoch J. Whitney, Gen. Counsel, and Judson M. Chapman, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Florida Department of Highway Safety and Motor Vehicles (Department) dismissed Humphries from his position as a Florida highway patrolman for a willful violation of the statutory law and departmental policies. Humphries appeals. We affirm.

Humphries, a Florida highway patrolman for 24 years, tentatively agreed with his supporters that he would run for sheriff of Orange County. He checked with Dixie Barber, the Orange County Supervisor of Elections regarding the applicability to him of Section 99.012(7), Florida Statutes (1979), which exempts “subordinate personnel, deputy sheriffs], or police officer[s]” from the general resign-to-run requirements of Section 99.012, Florida Statutes (1979). According to both Barber and Dorothy Glisson, the State Supervisor of Elections, Florida highway patrolmen were “officers” and would not be required to resign-to-run. Shortly, thereafter, Humphries submitted a letter to Colonel Beach, the Director of the Florida Highway Patrol, detailing his plans and Beach requested an opinion from the Department’s general counsel regarding the applicability of Section 99.012(7). The general counsel’s opinion was issued on November 1, 1979, and concluded that the operation of Section 99.-012(7) was restricted to the provisions of Section 99.012 generally and did not affect the requirements of Section 110.092(4)(a) [now 110.233(4)(a)] which requires that a Career Service employee get permission to run for office before becoming a candidate. On November 6,1979, this opinion was communicated to Humphries with a letter in which he was specifically told that he would have to resign before he began his political campaign and must avoid any suggestion that he was campaigning while still a member of the Highway Patrol. On November 14, 1979, Humphries contacted Representative Reynolds, the sponsor of the bill which culminated in Section 99.012(7), and asked if Reynolds intended that the exception include the Highway Patrol. After being told that Reynolds did intend to exempt Florida highway patrolmen, Humphries made a formal announcement of his candidacy for the office of sheriff.

The Department then requested an opinion from the Attorney General who reached the same conclusion as the Department’s counsel. The Department instituted an investigation into Humphries’ activities which resulted in a finding that Humphries was openly and actively campaigning for sheriff while working as a Florida highway patrolman. He was given written notice that he was in violation of departmental policy and statutory law. In response, he requested a leave of absence whenever appropriate under Section 99.012(7). The request was denied and Humphries was notified of proposed disciplinary action. After an informal conference he was dismissed for continued willful violation of statutory authority, rules, regulations and departmental policy.

Humphries, meanwhile, had requested a formal opinion from Glisson which was issued on May 2,1980, and which opined that Humphries was an “officer” and “subordinate personnel” within the meaning of Section 99.012(7). However, the opinion specifically noted that it was limited to construction of Section 99.012(7) and did not purport to construe Section 110.233(4) and concluded: “Therefore, Florida highway patrol officers should not rely upon this ruling as a decision construing Section 110.233(4), F.S.”

Humphries first argues that any violation of law or policy on his part was not willful. We cannot agree. While Hum-phries may have been acting in good faith when he first considered becoming a candidate, by February, 1980, he was well aware of the Department’s position and that of the Attorney General regarding his candidacy. In spite of this, he ignored the requirements of Section 110.233(4) and continued to actively campaign. The record contains competent, substantial evidence supporting the Department’s finding that he willfully violated the applicable statutes as interpreted by the Department as well as the rules and regulations of the Department.

We must also conclude that the Department’s interpretation of the law is correct. Section 99.012(7) begins “For purposes of this section .... ” This language is not ambiguous and clearly restricts the application of subsection (7) to Section 99.-012. We reject appellant’s argument that Sections 99.012(7) and 110.233(4)(a) are so repugnant as to justify an implied repeal of one by the other. Reading the statutes in pari materia, we determine that they have separate spheres of operation: Section 99.-012 is generally known as the Resign-to-Run Act and is concerned with dual office holding and with candidates for public office who already hold elective or appointive office with the state, a county or a municipality, and requires these persons to resign from their present office before becoming a candidate for another public office; Section 99.012(7) exempts certain named groups from this requirement, allowing them to take a leave of absence rather than resign. Section 110.233 specifically regulates the political activities of Career Service employees and is merely one portion of a comprehensive legislative enactment governing all aspects of state employment. Section 110.-233 was originally enacted by Chapter 67— 437 § 9, Laws of Florida (1967), and has, since that time, contained language restricting the political activities of Career Service employees. Absent some indication that the legislature intended to make a major substantive change in the application of this prohibition or repeal it with respect to Florida highway patrolmen or any other specific group of Career Service employees, we decline to find an implied repeal in Section 99.012(7). Implied repeal of statutes is not favored, State ex rel. School Board of Martin County v. Dept. of Education, 317 So.2d 68 (Fla.1975), and we find nothing in Section 110.233 which would lead us to conclude that the legislature intended to exempt Florida highway patrolmen from its coverage.

All Career Service employees are subject to the requirements of Section 110.-233(4)(a); relatively few are elected or appointed officers. Those who are must comply with the requirements of both statutes. Assuming that Humphries was included within the purview of Section 99.012 and then exempted by Section 99.012(7), he would still be required to comply with Section 110.233(4)(a).

We must also reject appellant’s argument that the dismissal was premature in that Humphries had not yet become a candidate. Under the provisions of Section 99.012(7) upon which Humphries seeks to rely, a person exempted from actually resigning to run “shall take a leave of absence without pay from his employment during the period in which he is seeking election to public office.” Certainly at the time of his dismissal, Humphries was already seeking election to public office. A campaign manager had been hired; leaflets, cards and other election paraphernalia had been prepared and were being distributed to potential voters. These activities were officially sanctioned by Humphries and support the conclusion that he was a candidate within the meaning of Section 110.233(4)(a) and was seeking public office within the meaning of Section 99.012(7), even though he had not yet qualified. In view of the well known fact that campaign activities often pre-date qualifying by months, we conclude the legislature did not intend to limit these requirements to those persons who had actually qualified.

Accordingly, the final agency action appealed from is AFFIRMED.

SHIVERS and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.

      . “For the purposes of this section, no individual who is a subordinate personnel, deputy sheriff, or police officer need resign pursuant to subsection (2) or subsection (3) unless such individual is seeking to qualify for a public office which is currently held by an individual who has the authority to appoint, employ, promote, or otherwise supervise that subor-díñate personnel, deputy sheriff, or police officer and who has qualified as a candidate for reelection to that public office. However, any such personnel, deputy sheriff, police officer, or other such individual shall take a leave of absence without pay from his employment during the period in which he is seeking election to public office.”

      . “(4) As an individual, each employee retains all rights and obligations of citizenship provided in the constitution and laws of the state and the constitution and laws of the United States. However, no employee in the career service shall: (a) Hold, or be a candidate for, public or political office while in the employment of the state or take any active part in a political campaign while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the state. However, when authorized by his agency head and approved by the Department of Administration as involving no interest which conflicts or activity which interferes with his state employment, an employee in the career service may be a candidate for or hold local public office. The Department of Administration shall prepare and make available to all affected personnel who make such request a definite set of rules and procedures consistent with the provisions herein.”


author: ORFINGER, Judge.

text:
    Lendra Elaine RUSS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1350/T4-609.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant contends that section 409.-325(1), Florida Statutes (1979) under which she was charged with obtaining public assistance by fraud, is unconstitutionally vague and overbroad where it does not specify the time within which disclosure of a change in circumstances must be made so that the failure to do so will constitute a criminal act. Appellant pleaded nolo con-tendere to the charge, specifically reserving her right to appeal the denial of her motion to dismiss. We affirm.

The record reflects that appellant received aid for dependent children (AFDC) and food stamps during a period when she was gainfully employed and earning enough so as not to be entitled to such public assistance. She did not report her employment until several months later during an eligibility review.

“A statute will withstand constitutional scrutiny under a void-for-vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct. ... There should be sufficient clarity so that guesswork is not required to discern the prohibition, (citations omitted).

Sanicola v. State, 384 So.2d 152 (Fla.1980).

The statute is clear. The failure to disclose the change of circumstances becomes a criminal act if it is done with intent to obtain or continue to receive public assistance to which the recipient is not entitled. Thus, under subsection (b) of the statute, the crime is complete immediately upon receipt of the assistance to which the recipient is not entitled because of such changed circumstances. The Department of Health & Rehabilitative Services, by directive made known to appellant when she applied for assistance, requires that a change of circumstances be made known immediately, but not later than ten days after receipt of the benefits, and this directive is not challenged here. The statute passes constitutional muster against the void-for-vagueness challenge. Appellant knew that her employment was a circumstance which did not entitle her to continue to receive public assistance, and when she accepted the benefits without reporting the change in circumstances, she violated the statute.

Affirmed.

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

      . § 409.325(1), Fla.Stat. (1979):
      Any person who knowingly:
      (a) Fails, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose a material fact used in making a determination as to such person’s qualification to receive aid or benefits under any state or federally funded assistance program, or
      (b) Fails to disclose a change in circumstances in order to obtain or continue to receive under any such program aid or benefits to which he is not entitled or in an amount larger than that to which he is entitled, or who knowingly aids and abets another person in the commission of any such act is guilty of a crime and shall be punished as provided in subsection (5).


text:
    JERRICO, INC., a Kentucky corporation, Appellant, v. WASHINGTON NATIONAL INSURANCE COMPANY, an Illinois corporation, Appellee.
    Nos. 80-927 to 80-929, 80-1119.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.

      Richard H. Adams, Jr., and Scott D. Clark of Gray, Adams, Harris & Robinson, P.A., Orlando, for appellant.
    Timothy J. Manor and Alice Blackwell White, of Lowndes, Drosdick, Doster & Kantor, P.A., Orlando, for appellee.
   ORFINGER, Judge.

The principal issue on this appeal is the correctness of the trial court’s ruling that appellant was required to operate a restaurant on the premises leased by it during the term of the lease. Appellant also claims error in the award of damages to appellee, in the denial of its motion for new trial based on “newly discovered evidence,” and in the amount of attorney fees awarded to appellee. We affirm on all issues.

The case was tried essentially on stipulated facts and revolves around the interpretation of a written lease between appellant as tenant and appellee’s predecessor in title as landlord. The lease required the landlord to construct on its motel and racquet club complex, at a cost not to exceed $275,000, two restaurants and a cocktail lounge, all of which would be operated by the tenant.

Of the two restaurants contemplated by the lease, one was a fast order coffee shop, known as “Jerry’s Restaurant,” and the second was a first class, high quality restaurant with an upgraded gourmet menu, known as the “Governor’s Table.” Although the menus were different, both restaurants operated out of the same kitchen. Rent to the landlord during the ten-year term was to be 5% of the gross receipts of Jerry’s Restaurant, 6% of the gross receipts of the Governor’s Table, and 7% of the sale of alcoholic beverages, against a minimum annual rent of $8,000, plus 11% annually of the cost to the landlord of constructing the facilities. Except for some minor exceptions, appellant had the exclusive right to sell food and beverages at the motel complex. Appellant has continuously operated Jerry’s Restaurant during the lease term, but it closed the Governor’s Table restaurant on July 1, 1975, because of poor business, reopened it for a few months in 1979, then closed it again and it has since remained closed and vacant despite appellee’s demand that it be reopened. Appellee says that closing the Governor’s Table is a breach of the lease because no percentage of receipts inures from a closed restaurant. Appellant says it is not obligated by the lease to operate the Governor’s Table and that so long as it pays at least the minimum rent, it has not breached the lease.

The general rule seems to be that in the absence of a specific provision therefor, the lessee is under no obligation to occupy or use the leased premises for the purpose for which they are adapted and that a covenant granting the privilege to use the premises for a particular purpose or prohibiting its use for other purposes does not necessarily involve an obligation on the part of the tenant to use it for that purpose. Floste Corp. v. Marlemes, 53 So.2d 538 (Fla. 1951). The Floste court distinguished that case from those where the obligation to continue the operation of a business was implied because the amount of the rental was materially dependent on such operation and where the continued operation was required to vitalize the full intent of the parties to the lease. Mayfair Operating Corporation v. Bessemer Properties, 150 Fla. 132, 7 So.2d 342 (1942); Lincoln Tower Corporation v. Richter’s Jewelry Company, 152 Fla. 542, 12 So.2d 452 (1943).

Appellant relies on Diltz v. J & M Corp., 381 So.2d 272 (Fla. 3d DCA 1980), and Stemmler v. Moon Jewelry Company, Inc., 139 So.2d 150 (Fla. 1st DCA 1962), for the proposition that a rental based on a percentage of receipts does not imply a covenant to operate the business where there is a substantial guaranteed rental. In Diltz, the court found nothing in the lease similar to the requirement in Mayfair that the lessee use its best efforts to maintain the highest volume of business on the premises, and therefore held that there was no requirement to operate the business during the four-month period remaining on that lease. In Stemmier, the court not only noticed the absence of a similar “best efforts” clause, and found no requirement to “remain open the year around,” but pointed to a provision in the lease which gave the lessee the right, at any time, to remove its fixtures, counters, shelves, showcases, etc., from the premises. This right, said the Stemmier court, was entirely inconsistent with the idea that there was a covenant to operate the tenant’s jewelry business, to which operation these items were essential.

The facts here are unlike Diltz and Stemmier. The subject lease contemplated the operation of both restaurants. The lease says in its preamble that each party will cooperate with the other to the fullest extent practicable in the promotion of a satisfactory and mutually profitable conduct of both ventures [the landlord’s motel and the tenant’s restaurants and cocktail lounge]. The lease requires the restaurants to be open for business every day of the year during the lease term from the hours of 7:00 A.M. to 11:00 P.M. and provide satisfactory food service. At the end of each lease year, the tenant is required to furnish to landlord a verified statement showing in detail the gross receipts for each month of the preceding year of Jerry’s Restaurant and a similar monthly breakdown of the gross receipts of the Governor’s Table restaurant. There are other provisions in the lease which, when read in conjunction with those mentioned here, give substance to the conclusion of the trial judge that a proper construction of the lease was that the parties thereto intended the continued operation of both restaurants. One such provision pointed out by the trial court was that the rent for Governor’s Table was 6% of receipts, whereas rent for Jerry’s was only 5% of receipts. We think Mayfair and Lincoln Tower control here. Appellant fails to overcome the presumption of correctness which follows the trial court’s interpretation of the lease terms.

Appellant’s contention that the damages awarded were based on speculation is without merit.

Although it is required that the damages claimed be certain and not left to speculation and conjecture, it is evident that the damages recoverable nearly always involve some uncertainty. Consequently, the rule is that the damages claimed must be capable of ascertainment with only a reasonable degree of certainty. It is sufficient that there be a reasonable basis of computation. Damages are not rendered uncertain so as to prevent their recovery because they cannot be calculated with absolute exactness. It is enough that the results be only approximate.
Mere difficulty in the assessment of damages is not a sufficient reason for denying their recovery where the right to them has been established. Moreover, a defendant whose wrongful act creates the difficulty is not entitled to complain that the amount of the damages cannot be accurately fixed.

17 Fla.Jur.2d, Damages, § 18 (1980). The trial court used the past history of the Governor’s Table restaurant, good months and bad, to determine the accrued damages, and we find no abuse of discretion.

After the final judgment had been entered, new counsel appeared for appellant and they filed on behalf of appellant various post-trial motions which were subsequently denied. Appellant contends that the trial court erred in holding that its “motion for relief from judgment” on newly discovered evidence would be denied because appellant failed to show that the evidence was not previously available to it by the exercise of due diligence. Based on conflicting evidence, the trial court found that the “newly discovered evidence” was available to appellant and was either known to it or could have been known to it by the exercise of due diligence. This “new evidence” involved a claim that appellee had itself breached the lease by openly selling alcoholic beverages at the racquet club for a long period of time, contrary to appellant’s exclusive right to do so. The trial court took testimony on this specific issue and concluded that this information was known or was readily available to appellant prior to trial. We cannot say that the court erred in so finding.

Appellant argues that “due diligence” is not required in this instance because the motion was filed under Florida Rule of Civil Procedure 1.530 as well as under Rule 1.540, and relies on Kash N’Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969), as authority for the proposition that while due diligence is required under the latter rule, it is not a requirement under the former. We do not read that case to support the proposition asserted. The Kash N’Karry court said that “almost any additional evidence, whether newly discovered or not, is sufficient for relief on a timely motion for rehearing of a summary judgment....” We do not read this case as supporting the proposition that after a trial on the merits, a new trial on the ground of newly discovered evidence can be obtained under either rule in the absence of a showing that the movant could not with due diligence have discovered such evidence and presented it at the trial, nor could we support such interpretation.

The general rule is that courts should look with disfavor upon applications for a new trial upon the ground of newly discovered evidence, because to look with favor upon such proceedings would bring about a looseness in practice and encourage counsel to neglect to gather all available evidence for a first trial by speculating upon the verdict, and then, being defeated, become for the first time duly diligent in securing other evidence to cure the defects or omissions in their showing upon the first trial.

Vining v. American Bakeries Co., 121 Fla. 116, 163 So. 396 (1935). See also Albrecht v. City of Hollywood, 157 So.2d 839 (Fla. 2d DCA 1963).

Appellant’s contention that attorney’s fees awarded to appellee by the trial court are excessive is without merit. There was adequate evidence presented by appel-lee to support the fee provided for in the lease, and appellant offered no evidence in opposition. Since the award is supported by the evidence, we find no abuse of discretion.

The final judgment and the post-trial orders appealed from are

AFFIRMED.

COBB and SHARP, JJ., concur.

      . The restaurants are thus described in the stipulated statement.

      . Appellant recognizes its continuing obligation to operate Jerry’s Restaurant, and extended the hours of its operation when it closed the Governor’s Table. It is difficult to follow its reasoning, however, because the same provisions of the lease apply to both restaurants.

      .Although not specifically mentioned in Floste, it appears that the fixed monthly rent was being paid even though the tenant was not operating the movie theatre, and that no percentage rent was involved.

      . Stipulation of Facts: “The lease contemplated the operation by Jerrico of a certain coffee shop (Jerry’s Restaurant), a Governor’s Table Restaurant and a cocktail lounge in the subject motel.”

      . The “Motion for Relief From Judgment” was filed within ten days after the entry of the judgment, cited both rules, but did not distinguish them. No affidavit was filed with the motion, but asserted that one would be filed later. The trial court commented that the affidavit was required to be filed with the motion [Rule 1.530(c)], but did not base his ruling on this omission. We therefore do not pass on this interpretation.

      . Counsel representing appellant on appeal were not counsel at trial.


author: SHARP, Judge.

text:
    Willie D. SKINNER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1137.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.

      James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Skinner was adjudged guilty of burglary and grand theft, and his sentence included a single five year term of imprisonment with credit for time previously served in jail. The sentence provided that eighteen (18) months were to be served in prison followed by three and one-half (3V2) years probation.

On appeal Skinner argues, and the State agrees, that his sentence is improper because it is a general sentence for two separate offenses. Dorfman v. State, 351 So.2d 954 (Fla.1977). Additionally, Skinner asserts that the terms of his split sentence are illegal in light of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). We agree with both of appellant’s arguments. Therefore we vacate the sentence and remand this case to the trial court for resentencing consistent with this opinion. Appellant shall be present at the resentencing proceeding.

REMANDED FOR RESENTENCING.

ORFINGER and COWART, JJ., concur.


text:
    Marsha Lynn TREXLER, Appellant, v. FIAT MOTOR COMPANY, etc., et al., Appellee.
    No. 80-1190.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.

      Gary Doane of Whitaker & Koepke, Orlando, for appellant.
    Franklyn A. Johnson, Jr., of Smoot, Johnston & Johnston, Fort Myers, for appellees.
   SHARP, Judge.

Trexler appeals that portion of an amended final judgment which denied her attorney’s fees and rejected her motion to amend her complaint. The judgment was entered after a jury trial in a suit against Fiat, the automobile manufacturer, for negligence and breach of warranty involving Trexler’s automobile. The jury awarded Trexler damages against Fiat, but the trial judge ruled attorney’s fees could not be granted because Trexler failed to allege her entitlement to them pursuant to section 501.201 et seq., Florida Statutes (1979), the Florida Deceptive and Unfair Trade Practices Act. Trexler argues she is entitled to attorney’s fees under either section 57.105 or 501.-2105, Florida Statutes (1979). We disagree and affirm.

Appellant failed to establish any abuse of the trial court’s discretion in denying her motion to amend the complaint after trial was complete. Even if the amendment (to specifically allege entitlement to attorney’s fees) had been allowed, it would not alter the result in this case because we do not agree with the trial court that Trexler’s failure to request attorney’s fees in her pleadings is the controlling factor in this case. In Ocala Music and Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980), we stated that “although it is the better practice to plead attorney’s fees, a party is not required to plead them where they are allowed by statute.”

Neither statute cited by Trexler is an appropriate basis for an award of attorney’s fees under the circumstances of this case. Section 57.105 is not applicable because sufficient justiciable issues of law and fact were presented to avoid the “frivolous” standard established by this court in Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). Trexler argues that Fiat’s failure to honor an express warranty on an automobile is a “deceptive practice,” pursuant to Florida Administrative Code Rule 2-19.05(7), entitling her to fees. However, Rule 2-19.05 applies to “motor vehicle dealers” and Fiat was not shown by the evidence at trial to be a “dealer.” See Fla.Admin. Code R. 2-19.01.

Accordingly the judgment is

AFFIRMED.

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

      . Section 57.105, Florida Statutes (1979) provides:
      The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

      . Section 501.2105, Florida Statutes (1979) provides in part:
      (1) In any civil litigation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.

      . See Casas v. Rosell, 359 So.2d 491 (Fla. 3d DCA 1978); Pinsker v. Filmore Investors Corp., 243 So.2d 165 (Fla. 3d DCA 1971).

      . Rule 2-19.05 states in pertinent part:
      It shall be an unfair or deceptive act or practice for a motor vehicle dealer to:

      (7) Fail to honor his expressed warranty agreement or any warranties implied by law as represented in the written warranty requirements of subsection (6).

      . Rule 2-19.01(4) provides the following definition:
      ‘Motor vehicle dealer’ means every individual, corporation, partnership or other business enterprise primarily engaged in the trade or commerce of buying, selling, or exchanging new or used motor vehicles, and who hold a sales and service selling agreement from a manufacturer or distributor of motor vehicles, and who has an established place of business in the State of Florida, and who is licensed by the Department of Highway Safety and Motor Vehicles in the State of Florida.


author: COBB, Judge.

text:
    STATE of Florida, Appellant, v. Benny Lee GREEN, Appellee.
    No. 80-1427.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellee.
   COBB, Judge.

The appellee, Benny Lee Green, was charged with resisting arrest with violence. He moved to have the information against him dismissed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion, and the state appeals.

The factual background of this issue is as follows: three deputies came to Green’s home to arrest him on probable cause for the aggravated battery of his girlfriend. While it is disputed as to whether or not the deputies entered the home with the consent of Green, that point is not involved on this appeal. One of the deputies, unidentified in Green’s motion, held one of Green’s arms to handcuff him. With his other arm, Green held onto the doorknob of the front door or the door itself. When told to let go, Green began “wiggling and struggling” in an effort to free himself. Deputy Lockwood, who had been guarding the back door of the residence, put a choke hold on Green, causing Green and Deputies Lockwood and Phillips to fall. Green was then handcuffed.

Subsequently, Green was charged with resisting arrest with violence, in violation of section 843.01, Florida Statutes (1979). Specifically, the information charged that Green did

unlawfully, wilfully, and knowingly resist, obstruct or oppose [Deputy Volker-son] in the lawful execution of his duty, to-wit: the arrest of [Green] for the offense of aggravated battery by offering or doing violence to the person of the said officer.

The state basically demurred to Green’s motion, adding only that the victim of the aggravated battery lived with Green, and that based upon what she had told them, the deputies had probable cause to arrest Green for aggravated battery.

Essentially, the issue before this court is whether the facts presented by both sides, taken together, either (1) fail to establish a prima facie case of the charge of resisting arrest with violence, or (2) do establish a valid defense to that charge. Camp v. State, 293 So.2d 114 (Fla. 4th DCA), cert. denied, 302 So.2d 413 (Fla.1974); State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971). The facts set out in Green’s (c)(4) motion and the state’s response to it are susceptible of an interpretation that establishes such a prima facie case. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977); State v. DeJerinett, 283 So.2d 126 (Fla. 2d DCA), cert. denied, 287 So.2d 689 (Fla.1973). The trial court therefore erred by granting Green’s motion to dismiss.

Green’s motion states that he “wiggled and struggled” when the deputies attempted to handcuff him. The ambiguity of this description prevents a determination by the trial court that Green’s resistance was or was not, as a matter of law, with violence. If, based on the undisputed facts, a jury question exists, a (c)(4) motion to dismiss should not be granted. Ellis v. State; State v. DeJerinett; See also State v. Power, 369 So.2d 96 (Fla. 2d DCA 1979).

Moreover, where the relevant and undisputed facts are not clear, a (c)(4) motion should not be granted. The rule is that upon a motion to dismiss, the state is entitled to the construction most favorable to it, and all inferences are resolved against the defendant. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Fetherolf, 388 So.2d 38 (Fla. 5th DCA 1980); State v. DeJerinett. Construed in the light most favorable to the state, the facts establish a prima facie case of resisting arrest with violence, which was not negated by the movant.

Since this case must be reversed and remanded because the facts do not establish, as a matter of law, that Green’s actions did not constitute “violence,” it is unnecessary for this court to determine whether or not the arrest was legal. The order of the trial court is reversed, and this cause is remanded for further proceedings below.

REVERSED and REMANDED.

ORFINGER and. COWART, JJ., concur.

      . A valid defense can either establish an affirmative defense or negate a prima facie element.

      . One cannot use violence to resist even an unlawful arrest. Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978).


text:
    Michael Ray GASSAWAY, Appellant, v. STATE of Florida, Appellee.
    No. 80-2221.
    District Court of Appeal of Florida, Second District.
    July 22, 1981.
    Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s conviction is affirmed but his sentence for attempted first degree murder is vacated and remanded for resentencing as attempts to commit a capital felony are sentenced as first degree felonies, which always carry a maximum sentence of thirty years absent a statutory provision authorizing life. See King v. State, 390 So.2d 315 (Fla.1980). Appellant need not be present at resentencing.

GRIMES, A.C.J., and OTT and DAN-AHY, JJ., concur.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    Peter W. ATKINSON and Leonard D. Alex, Appellants, v. Nancy FUNDARO, et al., Appellees.
    No. 80-2196.
    District Court of Appeal of Florida, Fourth District.
    July 29, 1981.

      Neil F. Garfield of Garfield, Meisler & Blatt, P. A., Lauderhill, for appellants.
    Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellees.
   OWEN, WILLIAM C., Jr., Associate Judge.

Appellants suffered adverse judgment in an action for slander of title. We reverse for a new trial on the issue of damages.

Appellees were the developer of a condominium. Appellants, alleging that they held contracts to purchase from appellees units 101, 201, 202 and 203, sued appellees for specific performance and damages. Several months later appellants filed a notice of lis pendens on units 301 and 310 although such units were not involved in the litigation. Appellees filed a counterclaim which, after amendment, sought damages for slander of title as to units 301 and 310. Appellees also filed a motion to discharge the notice of lis pendens as to units 301 and 310, and a motion for summary judgment on appellants’ claim for specific performance. The court granted both of these motions, but left pending appellants’ claim for damages. At trial appellants took a voluntary dismissal of their damage claim. This left for trial only the issues made by the appellees’ amended counterclaim for slander of title.

Appellees’ evidence at trial relating to their damages was that (a) appellees sold units 301 and 310 without difficulty for a higher price than the original listing, (b) due to the notice of lis pendens appellees encountered difficulty in obtaining institutional financing on several units (other than 301 and 310) necessitating appellees financing the sale of those units by taking purchase money mortgages at an interest rate less than that which appellees could have obtained by investment had they received the total sales price in cash, and (c) appel-lees had incurred attorneys’ fees of approximately $9,500 for the entire litigation. On this evidence the court awarded appellees a judgment for $7,900.

Slander of title is the wrongful, intentional and malicious disparagement of vendibility of title to real property. Old Plantation Corp. v. Maule Industries, 68 So.2d 180 (Fla. 1953). The evidence adequately supports the trial court’s judgment finding appellants guilty of slander of title to units 301 and 310. Furthermore, the filing of the lis pendens was not privileged since it was neither a proper notice of lis pendens nor did it involve the property in litigation. Cf., Procacci v. Zacco, 402 So.2d 425 (Fla. 4th DCA 1981).

The evidence establishes that ap-pellees sustained no damages for the slander of title to units 301 and 310 except for attorneys’ fees reasonably and necessarily incurred by them as expense to remove the cloud cast upon the title to these units. Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973). The legal services required to have the notice of lis pendens discharged apparently consisted of a motion to discharge notice of lis pendens and a hearing on that motion, including obtaining the entry of an order granting the motion. These legal services appear to have been a relatively small portion of the total legal services for which appellees incurred expense of approximately $9,500. There was no evidence from which the court could reasonably evaluate the expense of the legal services necessary to remove the cloud from the title of units 301 and 310, and hence no basis for the award of $7,900.

The judgment is reversed and this cause remanded for a new trial on appellees’ damages limited to the attorneys’ fees reasonably and necessarily incurred by them in removing the cloud east upon their title to units. 301 and 310, with judgment to be entered for appellees in such amount.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ„ concur.