text:
    INA LIFE INSURANCE COMPANY OF NEW YORK, an insurance company authorized to do and doing business in the State of Florida, Appellant, v. Leona DAVIS, Appellee.
    No. 80-746.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Monroe E. McDonald, of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for appellant.
    C. Clyde Atkins, Jr., of Musleh, Bond, Arnett, Atkins & Krehl, and Seymour H. Rowland, Jr., Ocala, for appellee.
   SHARP, Judge.

INA Life Insurance Company of New York appeals from a final judgment entered by the lower court after a non-jury trial. The court held that the appellee, Davis, was entitled to recover benefits under INA’s group accident insurance policy because she was permanently and totally disabled continuously following her injury, and thereafter for a period of twelve months. We agree with the lower court’s findings under the circumstances of this case, and its judgment is affirmed.

The INA policy “Coverage B” for permanent and total disability for one year required that the disability result from a work-related injury and that it must “commence” within thirty days after the accident. It defined “permanent and total disability” as “the insured’s complete inability to engage in any occupation or employment for which the insured is fitted by reason of education, training, or experience. . . . ” The issue in this case is whether Davis’ six weeks effort to return to work following her injury broke the continuity of the required one year of disability under the policy or violated the requirement that the disability begin within thirty days after the accident. The facts in this case were not in substantial dispute.

Davis had been employed in banking as a clerk for twelve years, and at the time of her injury, she had worked as a credit clerk for three years at the Barnett Bank in Ocala. The job required her to handle books weighing up to twenty pounds, and to stoop, bend and lift files. Shortly before her accident she received a raise and a work evaluation which described her as being “good”, “dependable,” and “interested in her work.” On April 26, 1977, Davis was helping another employee move a heavy tray. While bending, Davis caught the tray as it was falling and she immediately felt a burning pain in her lower back. She reported the injury to her Bank supervisors.

Over the next four months Davis, in an effort to obtain relief from the persistent back pain she experienced, consulted at least four doctors, and- was referred to others. Her general practitioner, Dr. Parrish, diagnosed her problem as “severe back strain,” and he testified she was unable to perform any work of any kind when he saw her on April 28, 1977 and May 6, 1977. He referred Davis to an orthopedic surgeon, Dr. Marsh, and did not treat her thereafter. In response to a question by appellant, Dr. Parrish testified he did not think Davis was totally disabled from doing any type of work. He based that belief on his observation that she returned to a less demanding job at the bank for a period of approximately six weeks beginning in late May.

Dr. Marsh testified that Davis was totally disabled from her injury when he saw her on May 11, 1977. At that time he thought she might improve enough to go back to work “in a week or so,” but when he saw her a week later, he speculated she might have a herniated disc, which was gradually progressing, and which would not show up on her X-rays.

At the end of May Davis returned to work at the Bank. She had taken all of her sick leave and vacation time, and was told the Bank would not keep her job open much longer if she did not return. Davis was the primary wage earner in her family, she had always enjoyed working, and she was not feeling “too bad” at that point. She was put to work in the Collection Department. Her duties included answering the phone and looking up information in files. Other employees helped by bringing her the files to work on.

Although the physical demands of her new position in the Collection Department were minimized, Davis continued to suffer constant pain. She took pain medication, reclined in the employee lounge on her breaks, and commencing in mid-June, she saw an osteopathic physician, Dr. Wilson, every three days for treatments. Dr. Wilson testified her condition did not improve through mid-July. She was unable to climb stairs and drive a car because she was unable to use her right leg properly. In July Davis began missing days and half days at work because of her condition. In mid-July the Bank terminated her because her supervisors felt she was not able to do full-time productive work in the Collection Department.

■ On July 18, 1977, Davis consulted Dr. Faris, an orthopedic surgeon. He testified she was in “acute distress” and was experiencing muscle spasms. On July 20, 1977, tests revealed for the first time that Davis had a herniated lumbar disc. Surgery was performed in August. Following her surgery INA stipulated that Davis was totally and permanently disabled, within the meaning of the insurance policy. Dr. Faris testified that from July 18, 1977, Davis was continuously unable to work at any job because of the back injury.

In reviewing the lower court’s determination that Davis was “continuously,” and “permanently and totally disabled” after her injury, we must ascertain whether or not there was any competent and substantial evidence before the trial court to support that determination; and taking that view, construe the language of the policy in this case.

The kind of disability required for coverage under the INA policy had to prevent Davis from engaging in “any occupation or employment” for which she was “fitted by reason of her education, training, or experience.” All of the medical testimony concurred that Davis’ injury prevented her from returning to her job as a credit clerk, because she could not do the necessary lifting, stooping and bending. Some of her doctors thought she was only partially disabled because she was able to work in the Collection Department for six weeks. However, it is clear that none of the doctors who so testified had correctly diagnosed her medical condition. Dr. Faris, who made the correct diagnosis, testified she was unable to work at any job when he first saw her in July, and that this situation continued for a year and longer.

Further, although Davis tried to perform a different kind of job at the Bank, she was unable to do so. The acid test of her ability to work was her termination by the Bank because she could not work their required forty-hour week. Clearly, she could no longer function as a Bank employee in even the least physically taxing job; and banking was the area in which she was trained, educated and experienced. We do not find Nelson v. Combined Insurance Company of America, 455 Mont. 105, 467 P.2d 707 (1970), Yeager v. Pacific Mutual Life Ins. Co., 166 Ohio St. 71, 139 N.E.2d 48 (1956), or Grau v. Travelers Ins. Co. of Hartford Conn., 303 Ill.App. 212, 24 N.E.2d 882 (1940) persuasive because the policies involved in those cases contained a much stricter requirement for coverage. The insured had to be disabled from performing any and every kind of duty pertaining to his occupation. The policy in this case only required that the injured employee be disabled from working in any occupation or job for which she was trained.

We do not agree with INA that Davis’ unsuccessful attempt to return to work, before the full extent of her injuries were diagnosed and known, broke the necessary continuity required for coverage under the policy. The back injury disability persisted throughout her efforts to work, and despite her willingness to try, she was not successful. We agree that the continuity of Davis’ disability was not broken by her doomed effort to return to work.

The judgment is

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . Helman v. Seaboard Coast Line R.R. Co., 349 So.2d 1187 (Fla.1977).

      . Equitable Life Assur. Soc. of United States v. Wiggins, 115 Fla. 136, 155 So. 327 (1934).

      . New England Mutual Life Ins. Co. v. Huckins, 127 Fla. 540, 173 So. 696 (1937); cf. Felker v. Aetna Life Ins. Co., 234 So.2d 758 (La.App. 1970) (“occupational” policy); Lorber v. Aetna Life Ins. Co., 207 So.2d 305 (Fla.3d DCA 1968) (occupational policy).

      . Russell v. Prudential Ins. Co. of Am., 437 F.2d 602 (5th Cir. 1971); Payne v. Continental Cas. Co., 373 F.Supp. 244 (E.D.Pa.1974); Key Life Ins. Co. of South Carolina v. Burns, 390 So.2d 1064 (Ala.Civ.App.1980); Franklin Life Ins. Co. v. Burgess, 219 Ark. 834, 245 S.W.2d 210 (1952); John Hancock Mut. Life Ins. Co. v. Frazer, 66 Ga.App. 397, 17 S.E.2d 882 (Ct.App.1941), aff'd, 194 Ga. 201, 20 S.E.2d 915 (1942); New York Life Ins. Co. v. Hubbell, 111 Ind.App. 631, 40 N.E.2d 352 (1942); Johnson v. State Farm Mut. Auto. Ins. Co., 342 So.2d 664 (La.1977); Dupree v. Hartford Life Ins. Co., 291 So.2d 824 (La.App.1974); Cox v. Washington Nat’l Ins. Co., 520 S.W.2d 76 (Mo.App.1974); Serven v. Metropolitan Life Ins. Co., 132 Neb. 637, 272 N.W. 922 (1937).


source: Caselaw Access Project

author: PER CURIAM. DAUKSCH, Chief Judge,

license: Public Domain

text:
    Thelma M. BALLANCE, Appellant/Cross-Appellee, v. William K. BALLANCE, Appellee/Cross-Appellant.
    No. 80-1066.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    John DeM. Haines of Winderweedle, Haines, Ward & Woodman, P. A., Winter Park, for appellant/cross-appellee.
    Michael R. Walsh, Orlando, for appel-lee/ cross-appellant.
   PER CURIAM.

AFFIRMED.

ORFINGER and COWART, JJ., concur.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion the trial court erred in awarding a special equity in the marital residence to the wife. The court awarded “the husband’s interest in a jointly owned marital residence located . .., because the wife has established by clear and convincing evidence a special equity in and to the husband’s interest in said marital residence by reason of her contributions and services during their thirty-seven (37) year marriage.” To me this provision of the final judgment violates the rule laid out in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) and Duncan v. Duncan, 379 So.2d 949 (Fla.1980). Perhaps the award would have been properly made as lump-sum alimony but it was not denominated such and I cannot change the award from one to the other merely because the evidence might support it. But see Duncan.


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

text:
    In the Interest of C. G. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-1377.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from an order adjudicating her a delinquent and dependent child for failure to obey a court order requiring regular school attendance unless ill.

Appellant first contends that the trial court erred in failing to make a sufficient inquiry to determine whether she knowingly, intelligently, and voluntarily waived her right to counsel.

The court minutes indicate that appellant was advised of her constitutional rights and that she waived counsel. The record, however, contains no circumstances of that waiver. In addition, the transcripts of the adjudicatory and dispositional hearings of November 7,1980 and November 12, 1980, respectively, fail to show that the trial court renewed the offer of assistance of counsel at those stages of the proceedings. In R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981), this court held that a juvenile judge must make certain that any waiver of counsel is intelligently and validly made and that the circumstances of any waiver should be made a part of the record. This court also held that the failure to renew the offer of counsel clearly violated the mandate of Florida Rule of Juvenile Procedure 8.290(d)(5).

Appellant also contends that the trial court erred in questioning her without informing her of her Fifth Amendment privilege against self-incrimination. At the dispositional hearing on November 7, 1980, the judge stated that appellant was charged with contempt for violation of the supervision order. Without informing appellant of her right not to testify, the judge then asked whether she had been going to school. Appellant replied that she had not, thereby incriminating herself. As in R.V.P., the failure to inform appellant of her privilege against self-incrimination precluded an effective waiver of that right.

Appellant further contends that the trial court erred in conducting the disposition hearing without a disposition report.

The record here is unclear as to whether the trial court considered a predis-positional report prior to making a final decision. § 39.09(3)(a) and (b), Fla.Stat. (Supp.1980). At the disposition hearing, the judge did not make specific reference to a predisposition report although he did refer to a police report. The judge also discussed the case and considered the reports of several unidentified persons at the hearings, presumably HRS workers, and appears to have proceeded on his own independent and extrajudicial knowledge of appellant and her family. In addition, appellant’s mother does not appear to have been present at this hearing nor is there any evidence that a copy of the dispositional report, if any, was given to appellant or her parents. This court has held that when written reports are submitted to and considered by the court without an opportunity for their review as provided in Florida Rule of Juvenile Procedure 8.200(b), a denial of due process occurs. R.V.P. See also A.Z. v. State, 383 So.2d 934 (Fla. 5th DCA 1980).

We therefore REVERSE and REMAND for rehearing.

DAUKSCH, C. J., and COBB, J., concur.


author: ORFINGER, Judge.

text:
    Robert S. CAMPBELL and Joseph M. Leimeister, Appellants, v. Ronald C. SANDS and Shirley Sands, Appellees.
    No. 80-1485.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Marybeth L. Pullum of Pullum & Pullum, P. A., Leesburg, for appellants.
    C. John Coniglio, Wildwood, for appellees.
   ORFINGER, Judge.

This appeal is from a summary final judgment in favor of defendants below, entered in an action seeking rescission and cancellation of a lease and option to purchase on the grounds of fraudulent misrepresentation, and damages resulting from such alleged fraud. Appellants contend that genuine issues of fact exist for trial and that the entry of a summary final judgment was error. We agree and reverse.

The lease and option to purchase involved property on which appellees, as sellers, raised tomatoes. In the negotiations, appel-lees presented certain income and expense figures to appellants for the 1978-1979 growing season, which the record indicates to be from September, 1978, to May, 1979. When appellants took possession and cultivated the property during the 1979-1980 season, the return therefrom led them to the conclusion that the sellers had misrepresented the 1978-1979 income and expenses, and this action followed.

The affidavits and depositions relied on by appellees to support the summary judgment clearly indicate income and expenses either not shown on the list relied on by appellants, or include these items for portions of the calendar years 1978 and 1979 which are outside of the portions of those years which constitute the crop year. Thus it is not at all clear, for summary judgment purposes, that no genuine issue of fact exists as to the alleged misrepresentations. The party moving for a summary judgment has the initial burden of conclusively demonstrating the non-existence of a genuine issue of material fact and that he is entitled to a summary judgment as a matter of law. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977). Only when he has met this initial burden is it then incumbent on the non-moving party to come forward with opposing evidence. Landers v. Milton, 370 So.2d 368 (Fla. 1979). Here, not only was there a question of allocation of income and expense to the proper crop year, but the income and expenses shown on appellees’ tax return were not the same as reflected on the statement relied on by appellants. The effect of the differences, the inferences arising therefrom and their materiality, were matters which should have been submitted to the trier of fact. Appellant complained of fraudulent misrepresentations.

The issue of fraud is not ordinarily a proper subject for summary judgment because, being a subtle matter, fraud requires a .full explanation of the facts and circumstances of the alleged wrong to permit a determination whether they collectively constitute fraud ... and for that reason such a determination is seldom one that can be made in a legally sufficient manner without a trial.

Nessim v. DeLoache, 384 So.2d 1341, 1344 (Fla. 3d DCA 1980).

The summary final judgment is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.


text:
    Donald Dale ONNESTAD, Appellant, v. STATE of Florida, Appellee.
    No. 81-71.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.

      James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant was adjudicated guilty of committing a lewd act in the presence of a child under fourteen years of age. He appeals from the judgment and sentence.

Pursuant to negotiations, appellant entered a plea of guilty. During the hearing, he acknowledged that his plea was being made freely and voluntarily and that he fully understood the terms of the plea agreement. The court then asked questions and appellant responded as follows:

Q. Are you now taking or under the influence of any drugs, narcotics, medication or alcohol?
A. Yes sir.
Q. What medication?
A. Since January, since I was arrested I have been in the hospital three times on a possible cardiac arrest. I had suffered three cardiac arrests before in prison at Wisconsin State Penitentiary Prison during the years of seventy-seven, seventy-eight and seventy-nine and up to last Friday I had another possible one, but I can’t get no reaction out of the Sheriff’s Department to take me over to the hospital.
Q. And are you taking a drug.. .
A. ... I am taking drugs now, yes.
Q. Allright. Is it to thin your blood?
A. Well, I am taking breathing pills, a heart pill and I don’t know what the other one is.
Q. Do you feel. . .
A. ... I was taking eleven at one time.
Q. Do you feel it impares [sic] your thinking in any way?
A. It does, yes sir.
Q. Do you understand what you are doing today?
A. Yes.
Q. Do. you understand where you are today?
A. In a courtroom, yes sir.
Q. And where, in what state are you?
A. Florida.
Q. And in what county are you?
A. Citrus.
Q. And do you know what Judge is, you are appearing before?
A. Yes sir.
Q. And what is my name?
A. Judge Edwards.
Q. And do you under stand that you are offering to plead guilty to the charge of leud [sic] and lascivious act?
A. Yes sir.

The day before sentencing, appellant moved to withdraw his guilty plea on the ground that the plea was not knowingly and intelligently entered. In the motion, appellant requested an evidentiary hearing. Appellant’s motion for a continuance of sentencing to enable him to present evidence in support of the motion to withdraw the plea was denied because the court held that an evidentiary hearing is not required by any rule. Appellant’s motion to withdraw the plea was then denied on the ground that the trial court had determined at the time of the plea acceptance that the plea was knowingly and intelligently entered.

On appeal, appellant argues that impairment of thought processes due to the use of drugs may vitiate the knowing and intelligent aspect of a plea and render the plea involuntary. See Dixon v. State, 252 So.2d 594 (Fla. 3d DCA 1971). In addition, appellant submits that a motion to withdraw a guilty plea prior to imposition of sentence should be liberally construed in his favor. Adler v. State, 382 So.2d 1298 (Fla. 3d DCA 1980).

As an initial proposition, withdrawal of a guilty plea is not a matter of right but of discretion and the trial court’s decision will not be set aside absent a showing of abuse. Adler v. State. The defendant must establish good cause for withdrawal prior to imposition of sentence. Id. See Fla.R.Crim.P. 3.170(f). In State v. Braverman, 348 So.2d 1183 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 128 (1978), the court noted that the defendant has the burden of demonstrating that his previously tendered guilty plea was infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.

Appellant’s motion to withdraw merely alleged that “defendant did not knowingly and intelligently enter said plea of guilty.” No specifics were provided. Such an allegation, unsupported by any proof, can never constitute a basis for the withdrawal of a guilty plea. State v. Braverman. Cf. Nuzzo v. State, 269 So.2d 379 (Fla. 2d DCA 1972) (since appellant proffered testimony to corroborate allegations in his motion to withdraw guilty plea, trial court’s denial of proffer and summary denial of motion constituted reversible error).

Appellant cites Kadar v. State, 370 So.2d 1231 (Fla. 4th DCA 1979) and Alleluio v. State, 338 So.2d 1137 (Fla. 1st DCA 1976), as indicating an evidentiary hearing was necessary. In Kadar, however, the motion alleged on its face serious questions as to whether the defendant, who spoke Hungarian, understood English and the significance of his plea. The appellate court held that the trial court erred in not holding an evi-dentiary hearing to determine whether the plea was fully understood.

In Alleluio, specific allegations that defendant was insane at the time he entered his plea were presented to the trial court. In addition, the question of the defendant’s sanity was not raised at the plea hearing and only arose thereafter. The case before us can be distinguished because the court was aware of the defendant’s use of medication at the plea hearing and questioned defendant to determine its effect, if any, upon him.

Here, the summary denial without an evidentiary hearing does not appear to be an abuse of discretion. The plea colloquy indicates that when the court was alerted to the possible effects of the medication on appellant, additional questions were posed to satisfy the court that the plea was given freely and voluntarily. The motion contained no specific allegations and no testimony was proffered to reflect how appellant’s competency would have been more fully explored thorough an evidentiary hearing. See generally Facion v. State, 258 So.2d 28 (Fla. 2d DCA 1972).

AFFIRMED.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    INDEPENDENT FIRE INSURANCE COMPANY, an insurance company authorized to do and doing business in the State of Florida, Appellant, v. Barbara SHEFFIELD, Appellee.
    No. 81-397.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    S. Edward Groot of Druck & Groot, Oca-la, for appellant.
    Victor J. Musleh of Musleh, Bond, Atkins & Krehl and Seymour H. Rowland, Jr., Oca-la, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Independent Fire, appeals from a summary final judgment holding it liable for the policy limits on a policy covering the contents of appellee’s mobile home. The only issue presented by this appeal is whether section 627.702, Florida Statutes (Supp.1980), applies to an insurance policy covering the contents of a mobile home.

The policy issued by appellant insured the contents of appellee’s mobile home for up to $6,000. The mobile home and its contents were totally destroyed by fire. Appellee successfully contended in the trial court that section 627.702, the Valued Policy Law, applies. This law provides in effect that where there is a total loss by fire or lightning of any building or mobile home, the insurer’s liability under the policy for such total loss shall be in the amount for which such property was insured, as specified in the policy. Appellee argued that it was not necessary to prove the value of the contents when there was a total loss. Appellee did not offer any proof as to the nature of the mobile home’s contents or their value in support of her motion for summary judgment. We REVERSE.

The Valued Policy Law specifically exempts personal property from its operation. Under the pre-1979 statute, mobile homes were considered personal property and were therefore exempt from the statute. Foremost Insurance Co. v. Medders, 399 So.2d 128 (Fla. 5th DCA 1981). In 1979 and 1980, the statüte was amended to specifically include mobile homes within its purview.

Appellee argues that the amendments to the statute, especially subsection (5), reflect a legislative intent to include a mobile home and its contents within the ambit of the Valued Policy Law. Appellee’s argument is that the contents of mobile homes should be treated differently than the contents of other buildings or structures. She contends that a mobile home and its contents logically should be treated as a unit because in most cases, mobile homes are built, furnished and sold as a unit. However, subsection (5) speaks of both mobile homes and factory-built housing. Appellee has not suggested any rationale for including within the Valued Policy Law the contents of factory-built housing but not that of other types of housing.

The language of the policy is consistent with an interpretation that the contents of a mobile home do not come within the Valued Policy Law. The policy provided:

[T]his Company Does Insure... to the extent of the actual cash value of the property at the time of the loss. . . .In no event shall the payment for any one loss exceed the maximum amount stated in said Declarations .. .

The language of the policy clearly provides that the company insured only to the extent of the cash value of the property at the time of the loss. The insurance company has no practical way of assuring that the contents of the mobile home at the time of the loss are the same as when initially insured because an owner could have removed all or part of the contents, or exchanged or replaced the contents initially insured for other furnishings.

We are unable to interpret the language of the statute to treat the contents of a mobile home differently from the contents of any other structure. We conclude that the purpose of the Legislature in amending the statute was to treat mobile homes and factory-built housing in the same manner as other buildings and structures. The burden of establishing the amount of one’s loss is no greater in the case of the contents of a mobile home than of any other building. We therefore REVERSE.

SHARP and COWART, JJ., concur.

      . Section 627.702, Florida Statutes (Supp. 1980), provides in relevant part:
      (1) In event of total loss by fire or lightning of any building or structure or mobile home as defined in s. 320.01(21 or factorv-built housing as defined in s. 553.36(4') located in this state and insured by any insurer as to such perils, in the absence of any change increasing the risk without the insurer’s consent and in the absence of fraudulent or criminal fault on the part of the insured or one acting in his behalf, the insurer’s liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specified in the policy and for which premium has been charged and paid.
      ******
      (5) This section shall not apply as to personal property or any interest therein, except with respect to mobile homes as defined in s. 320.01(21 or factory built housing as defined in s. 553.36(41. (Changes underlined.)


author: COWART, Judge.

text:
    Arthur Lee FERBY, Appellant, v. STATE of Florida, Appellee.
    No. 81-455.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.

      Arthur Lee Ferby, pro se.
    No appearance for appellee.
   COWART, Judge.

This is an appeal under Florida Rule of Appellate Procedure 9.140(g) from the summary denial of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Most of the motion relates to matters which were either reviewed or were reviewable by the direct appeal taken from the judgment following the trial of this case, Ferby v. State, 381 So.3d 785 (Fla. 5th DCA 1980), and are not matters which are proper grounds for ancillary post-conviction relief. See Powell v. State, 244 So.2d 746 (Fla. 1st DCA 1971); Brown v. State, 227 So.2d 527 (Fla. 1st DCA 1969), appeal dismissed, 237 So.2d 175 (Fla. 1970). Included in this category is appellant’s complaint about rulings of the trial judge relating to the admissibility of certain evidence, see, e.g., Nelson v. State, 281 So.2d 49 (Fla. 3d DCA 1973); Whitlow v. State, 256 So.2d 48 (Fla. 2d DCA 1971); and the sufficiency of the evidence. See, e.g., Robinson v. State, 194 So.2d 29 (Fla. 2d DCA 1967); Brooks v. State, 188 So.2d 883 (Fla. 4th DCA), cert. denied, 192 So.2d 496 (Fla. 1966).

The defendant claims he was inadequately and ineffectually represented by his trial counsel of record because his counsel: did not call his codefendant and other witnesses to testify; failed to take depositions; failed to properly cross-examine witnesses; and failed to object to the admissibility of certain evidence. These matters are within the judgment and strategy of trial counsel and are not a proper ground for complaint or relief. See, e.g., Fuller v. Wainwright, 238 So.2d 65 (Fla. 1970) (failure to call witnesses on behalf of defense is within discretion of trial counsel); Brown v. State, 404 So.2d 157 (Fla. 5th DCA 1981); Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981) (failure to talk to or subpoena alleged witnesses was facially insufficient where motion did not allege what prospective testimony would have been); Mauldin v. State, 382 So.2d 844 (Fla. 1st DCA 1980) (failure to have appellant see a psychiatrist and to call the doctor as a witness was discretionary act of trial counsel); Powell v. State, 244 So.2d 746 (Fla. 1st DCA 1971) (number of witnesses called on behalf of defense and extent of examination and cross-examination are matters within the discretion of the attorney); Meinsen v. State, 240 So.2d 188 (Fla. 2d DCA 1970), cert. denied, 245 So.2d 86 (Fla. 1971); Biggs v. State, 239 So.2d 281 (Fla. 2d DCA 1970); Solloa v. State, 227 So.2d 217 (Fla. 3d DCA 1969). Since the points raised in this case are resolvable as a matter of law without the necessity of taking evidence as to facts, the record conclusively shows that appellant is entitled to no relief and therefore the order denying relief is

AFFIRMED.

COBB, J., concurs.

SHARP, J., concurs, in result only.


author: PER CURIAM.

text:
    Gloria PARKER, as mother and next friend of Neco Gary, a minor, also known as Neco Vashay Gary, a minor and Gloria Parker, individually, Appellant, v. Keith KNORR, M. D., Appellee.
    No. 80-1321.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.

      Lee Weissenborn of Weissenborn & Burr, Miami, for appellant.
    Jean A. Bice and Andrew G. Pattillo, Jr., of Pattillo, Mackay & McKeever, P.A., Oca-la, for appellee.
   PER CURIAM.

AFFIRMED.

See Nardone v. Reynolds, 333 So.2d 25 (Fla.1976).

DAUKSCH, C. J., and SHARP and CO-WART, JJ., concur.


author: COBB, Judge.

text:
    Orrin Devon MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. 81-529.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Michael B. Jones, Legal Asst., Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant Maddox was adjudicated guilty of armed robbery and unauthorized use of a motor vehicle. For the armed robbery, the trial court sentenced Maddox to forty years imprisonment with credit for time served. For the unauthorized use of a motor vehicle, the trial court sentenced him to an unspecified term of imprisonment that was to “merge with and be served concurrently with” the armed robbery sentence.

In this appeal, Maddox seeks review of the trial court’s denial of his motion for a directed verdict of acquittal and the general sentence that was imposed.

The trial court was correct in denying the motion for a directed verdict of acquittal and we affirm the convictions. However, the trial court should have specified the term of the sentence imposed with regard to the unauthorized use of a motor vehicle conviction and we therefore remand this case for resentencing in conformity with Dorfman v. State, 351 So.2d 954 (Fla.1977).

AFFIRMED in part; REVERSED in part; and REMANDED.

DAUKSCH, C. J., and FRANK D. ÜP-CHURCH, Jr., J., concur.


author: DOWNEY, Judge.

text:
    Maurice A. ROY, Lillian A. Roy, Gerald E. Bryan and Topping A. Bryan, Appellants, v. EURO-HOLLAND VASTGOED, B. V., Viscaya, S. A., Martin A. Tabor and Joyce M. Hyotlane, Appellees.
    No. 80-659.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 1981.
    J. Stockton Bryan, Stuart, for appellants.
    Jeffrey E. Lehrman of Law Offices of Jeffrey E. Lehrman, Coconut Grove, for appellees.
   DOWNEY, Judge.

Appellants Maurice A. Roy and Lillian A. Roy seek reversal of a final judgment denying them a way of necessity over appellees’ property so that appellants will have ingress and egress to their landlocked property. Initially, Gerald E. Bryan and Topping A. Bryan were also appellants, but they have been dismissed.

The Roys own the north 200 feet of the south 500 feet of Tract 1, Block 33, St. Lucie Inlet Farms, according to the plat thereof recorded in Plat Book 1, page 98, public records of Martin County, Florida. The Appellee, Euro-Holland Vastgoed, B. V., is the owner of Tracts 2, 6, and 7 and a portion of Tracts 1 and 8, all in Block 33 of St. Lucie Inlet Farms subdivision. The other appellees, Vizcaya, S. A., Martin A. Tabor, and Joyce M. Hyotlane, are the owner-holders of mortgages on the Euro-Holland property.

In 1910 Henry H. Buckman was the owner of all of the above described land. The property was subdivided and in March, 1913, Buckman conveyed the north 200 feet of the south 500 feet of Tract 1 of Block 33 to Frank and John Coventry. At the time of said conveyance there was no access to the above described parcel except over the remainder of Buckman’s property, which remainder abutted a public right of way. The parcel was conveyed five times thereafter, the fifth conveyance being to the Roys. Having no means of ingress and egress to their property, the Roys instituted this suit requesting the court to declare the existence of a right of way of necessity over appellee’s property pursuant to the authority of Section 704.01(1), Florida Statutes (1979).

After a non-jury trial the court entered final judgment in favor of the defendant-appellees. This judgment, which effectively denied the Roys’ claim to a common law easement of necessity, was based on appel-lees’ contention, and the trial court’s conclusion, that the Roys had not proven the following necessary elements for relief: 1) unity of title in a common source, and 2) reasonable necessity for such an easement for the beneficial use and enjoyment of the Roys’ property. We disagree with the trial court’s conclusion and reverse.

By means of Section 704.01(1), Florida Statutes, the Legislature codified the common law rule of an implied grant of a way of necessity and also provided for a statutory way of necessity for landlocked property that could not qualify under the common law rule. We are here dealing with the common law way of necessity, which Section 704.01 described as follows:

IMPLIED GRANT OF WAY OF NECESSITY. — The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which he conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United States; provided, however, that where there is a common source of title subsequent to the original grant from the state or United States, the right of the dominant tenement shall not be terminated if title of either the dominant or servient tenement has been or should be transferred for nonpayment of taxes either by foreclosure, reversion, or otherwise.

The general rule and the rule applicable in Florida with reference to easements for ways of necessity is found in 25 Am.Jur.2d, Easements and Licenses, § 34, pp. 447-448:

A way of necessity is an easement founded on an implied grant or implied reservation. It arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers. In such a situation there is an implied grant of a way across the grant- or’s remaining land to the part conveyed, or conversely, an implied reservation of a way to the grantor’s remaining land across the portion of the land conveyed. The order in which two parcels of land are conveyed makes no difference in determining whether there is a right of way by necessity appurtenant to either.
A way of necessity results from the application of the presumption that whenever a party conveys property he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. Such a way is of common-law origin, and is presumed to have been intended by the parties. A way of necessity is also said to be supported by the rule of public policy that lands should not be rendered unfit for occupancy or successful cultivation. (Footnotes omitted.)

Thus, in order for the owner of a dominant tenement to be entitled to a way of necessity over the servient tenement both properties must at one time have been owned by the same party (that is another way of saying that one seeking the grant of a way of necessity must show unity of ownership or common source of title). Guess v. Azar, 57 So.2d 443 (Fla. 1952); Kirma v. Norton, 102 So.2d 653 (Fla. 2d DCA 1958); Hunt v. Smith, 137 So.2d 232 (Fla. 2d DCA 1962); Joyner v. Andrews, 137 So.2d 870 (Fla. 2d DCA 1962); Hanna v. Means, 319 So.2d 61 (Fla. 2d DCA 1975); Procacci v. Zacco, 324 So.2d 180 (Fla. 4th DCA 1975); Thompson on Real Property, §§ 363-364. In addition, the common source of title must have created the situation causing the dominant tenement to become landlocked. Hanna v. Means, supra. A further requirement is that at the time the common source of title created the problem the servient tenement must have had access to a public road. Hanna v. Means, supra. The rationale of the rule demonstrates the necessity of the foregoing requirements. The easement is founded upon an implied grant or implied reservation which arises from the supposed intention of the parties that the party conveying or reserving the landlocked parcel intends to convey or retain whatever is necessary for the beneficial use of property conveyed or reserved.

In the case at bar Buckman owned all of the above described property presently owned by both the Roys and Euro-Holland. Thus, Buckman is the common source of title. Buckman also created the situation landlocking the Roys’ property and necessitating the easement for ingress and egress. Finally, at the time of the conveyance from Buckman to the Coventrys the remainder of Buckman’s property had access to a public road. Accordingly, the law implies the grant of a way of necessity over Buckman’s remaining property so that Buckman’s grantees and their successors in title would have access to said road from the landlocked property. As this court noted in Reyes v. Perez, 284 So.2d 493 (Fla. 4th DCA 1973), such an easement is created at the time of the original conveyance.

As we mentioned earlier, appellees and the trial court seemed to be of the view that the common source of title could not be a remote grantor in the chain of title, but must be the immediate grantor of the present owners. This is not our understanding of the law, since we believe the relevant rules are the following:

[I]f at one time there has been unity of title, the right to a way of necessity may lie dormant through several transfers of title and yet pass with each transfer as appurtenant to the dominant estate and be exercised at any time by the holder of title. 25 Am.Jur.2d, Easements "and Licenses, § 35, p. 449 (footnote omitted).
* * * * * *
A way of necessity over remaining lands of the grantor, created by implied grant upon the severance of land, being appurtenant to the granted land, passes by each conveyance to subsequent grantees thereof. Hence, a subsequent grantee of land which is not used by the common owner at the time of the severance of the larger tract may, when the use of such way becomes necessary to the enjoyment of the land, claim it under the remote deed of severance. Id., § 95, p. 501 (footnote omitted).

Many of the cases and the writers on this question talk in terms of “tracing back” in the chain of title to the common source. Thus, “tracing back” would seem to indicate going back beyond the immediate grantor. Therefore, we hold that the common source of title need not be the immediate grantor but is any common source in the chain of title to the two estates which meets the other criteria for creation of a way of necessity over the property of another.

Finally, appellees contend there was no adequate showing of necessity. Appellees seem to feel that proof was required to show a present use of the property which makes access immediately necessary where in the past there has been no pressing need therefor. If this is a correct characterization of appellees’ position then they have misconceived the impact of the term “necessity” as it is used in this context.

An easement for a way of necessity is not implied or granted if there is other reasonable access to the property which will enable the owner to achieve the beneficial use and enjoyment of the property. As Thompson states in his work on real property:

The doctrine of ways of necessity is applicable only when conditions existing at the time of division or severance call for its enforcement. The term “necessity” is to be understood as meaning that there exists no other reasonable mode of enjoying the dominant tenement without the easement. 2 Thompson on Real Property, § 364, p. 405, (footnotes omitted).

The claimant is not entitled to an option or an election as between several adequate means of access. The fact that one means of access may be more convenient than another does not suffice. Id. at p. 409.

Accordingly, we hold that an easement for a way of necessity was created in favor of the Roys’ above described property. Therefore, we reverse the judgment appealed from and remand the cause for further proceedings wherein the trial court should declare, locate, and define the easement based upon evidence adduced by the parties for that purpose.

REVERSED AND REMANDED with directions.

MOORE and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    Jane Irby CRAIG, Appellant/Cross-Appellee, v. James B. CRAIG, Jr., Appellee/Cross-Appellant.
    No. 80-1415.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 1981.

      Edna L. Caruso, West Palm Beach and Frederick H. Hope, Palm Beach, for appellant/cross-appellee.
    James P. O’Flarity, Law Offices of James P. O’Flarity, P.A., Palm Beach, for appel-lee/cross-appellant.
   BERANEK, Judge.

The former husband and wife both appeal a final judgment of dissolution of marriage. The marriage was an unfortunate and stormy one. At the time of the final hearing, the major controversy centered on division of the proceeds of a settlement of a prior lawsuit brought by both the husband and wife as plaintiffs. The prior suit was for the husband’s personal injuries and the wife’s loss of consortium. The case was settled for a certain lump sum and the undivided proceeds placed in joint names and held in escrow pending a division by the judge considering the dissolution.

After a final hearing, the court entered a judgment dissolving the marriage and denying all claims for special equities, alimony, costs, and attorneys’ fees. The court refused to rule on division of the settlement proceeds.

On appeal, both parties complain of this lack of a ruling. The wife asserts there was no competent evidence offered on which to base a division, and urges the only possible result was to leave the parties where they stood as joint owners of the fund, each with a 50% interest. She also contends the trial court erred in denying her claims against the husband’s 50% interest by way of lump sum alimony or special equity. The husband asserts that he deserves the entire settlement because he was the injured party and because the wife’s consortium claim was worthless. The husband also contends he was erroneously denied costs and attorney’s fees.

We affirm the trial court’s denial of alimony, costs, and attorney’s fees. However, we see no alternative other than to remand for a ruling on division of the fund, which is actually the only asset in controversy between the parties. In a dissolution action, when the question of property rights is raised, the court must determine the issue since its final judgment of dissolution settles all property rights of the parties and bars further action to determine such rights. Pitman v. Pitman, 338 So.2d 247 (Fla.3d DCA 1976); Henderson v. Henderson, 226 So.2d 699 (Fla. 4th DCA 1969). The judicial power is not delegable and cannot be abdicated. See Schoenrock v. Ballard, 185 So.2d 760 (Fla. 1st DCA 1966). This is not a situation where a trial court has reserved jurisdiction to determine property rights after entry of a judgment of dissolution. Here, the court specifically chose not to reach any conclusion as to the division of the fund based on either the evidence or the lack thereof.

We conclude that the court erred in failing to make a ruling regarding division of the fund and remand the matter for further proceedings in this regard.

REMANDED FOR FURTHER PROCEEDINGS.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    Robert S. PETTUS, Appellant, v. Marjorie K. DINGWALL f/k/a Marjorie K. Pettus, Appellee.
    No. 81-99.
    District Court of Appeal of Florida, Fourth District.
    Oct. 7, 1981.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant.
    Walter M. Dingwall of Dingwall & Morgan, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from an order on petition and coimterpetition for modification of child support. We affirm primarily due to the state of the record.

The issues before the trial court related to the needs and abilities of both parties regarding child support. Although extensive testimony was taken, a court reporter was not present for the crucial hearing. In addition, the parties failed to prepare a statement under Florida Rule of Appellate Procedure 9.200(b)(3), choosing, instead, to enter into a stipulation whereby this court should consider the entire trial court file, including unfiled correspondence and mem-oranda, as the record on appeal. The stipulation provides that the facts in these documents should be considered as a “statement of facts” except where conflicting, in which case the findings in the judgment are to be considered as the facts.

On the basis of this record, we are unable to conclude that the trial court committed reversible error and we, therefore affirm. See Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980); Baker v. Baker, 366 So.2d 873 (Fla. 4th DCA 1979).

AFFIRMED.

BERANEK and HERSEY, JJ., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    Ignazio BUFFA a/k/a Steve Roberts, Appellant, v. STATE of Florida, Appellee.
    No. 80-2057.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    W. Lowell Bray, Jr. and N. John Stewart, Jr., of Allgood, McPherson, Stewart & Bray, New Port Richey, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler and Peggy Quince, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980).

Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

HOBSON, A. C. J., and OTT and CAMPBELL, JJ., concur.


text:
    William P. COOKE, Appellant, v. STATE of Florida, Appellee.
    No. UU-383.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    Raymond E. Makowski of Makowski & Davis, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Qlivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Pittman v. State, 397 So.2d 1205 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., C. J., THOMPSON, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: SHIVERS, Judge.

text:
    Gerald NEFF, Employer and Maryland Casually Company, Insurer, Appellants, v. George F. BRITTO, R. L. Schmeckpeper, Inc. and State Farm Fire and Casualty, Appellees.
    No. YY-52.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    T. Rankin Terry, Jr., of Terry, Adams & Corbin, Fort Myers, for appellants.
    Samuel R. Neel, III, of Perkins & Collins, Tallahassee, for appellees.
   SHIVERS, Judge.

Appellant Employer/Carrier appeal from a workers’ compensation order finding that they should be solely responsible for providing further medical treatment for claimant’s psychiatric injuries. We affirm.

Claimant injured his head in a compensa-ble industrial accident while working for appellant employer on October 25, 1977, which caused his current psychiatric problems. On May 8, 1979, claimant suffered another compensable industrial accident while working for the appellee employer, injuring his back. On October 15, 1980, the appealed order was entered, finding that claimant’s psychiatric condition was not aggravated or accelerated as a result of the second accident and denying appellant employer/carrier’s claim for reimbursement against appellee employer/carrier.

We first conclude there is competent, substantial evidence in the record to support the deputy commissioner’s finding that the second accident did not accelerate or aggravate claimant’s psychiatric condition which was caused by the first accident.

We also reject appellants’ argument that it was unnecessary to show an increase or enhancement of claimant’s condition in order to hold appellee employer/carrier liable for payment of future medical benefits. Appellants contend the deputy commissioner erred in finding them solely liable for the further medical care of the claimant’s psychiatric condition since Section 440.02(18), Florida Statutes (1978) has done away with apportionment. Section 440.02(18) states that compensation for temporary disability and medical benefits shall not be subject to apportionment. Therefore, since the statute prohibits apportionment of medical benefits, appellants argue that appellee employer/carrier should be solely responsible for payment of all future medical benefits even in the absence of evidence that the second injury increased or enhanced claimant’s psychiatric condition caused by the first accident because a second employer/carrier takes the claimant as they find him.

Contrary to appellants’ arguments, Section 440.02(18) is not applicable to the present case. This statute governs disputes between a claimant and a single employer/carrier and does not apply to disputes between multiple employer/carriers. Seasons from Sarasota v. O’Day, 379 So.2d 1024 (Fla. 1st DCA 1980). Here, the dispute is between two employer/carriers as to each one’s responsibility for payment of claimant’s medical treatment of his psychiatric condition and Section 440.42(3), Florida Statutes (1977), is the relevant statute. Under Section 440.42(3), the deputy commissioner is empowered to apportion the medical benefits awarded between the employer/carriers according to each one’s responsibility. Rowe and Mitchell v. Rodgers, 378 So.2d 1281 (Fla. 1st DCA 1980).

Therefore, since the record indicates that further medical treatment of claimant’s psychiatric injury which was caused by the first accident is necessary and that the second accident did not accelerate or aggravate the psychiatric injury, the deputy commissioner was correct in requiring appellants to provide such treatment. The appealed order is AFFIRMED.

McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Willie BOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. YY-261.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.

      Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant was convicted of attempted first degree murder by use of a knife and complains that the lower court erred in adjudicating him guilty because it (1) incorrectly denied his motion in limine seeking exclusion of certain evidence pertaining to the victim’s pregnancy, and (2) imposed an illegal sentence. As to the former issue, we affirm. The evidence relating to the pregnancy had probative value and appellant has failed to show that any danger of prejudice substantially outweighed the evidentiary value of the facts submitted. See Section 90.403, Florida Statutes (1979), and Buchman v. Seaboard Coastline R. R. Co., 381 So.2d 229 (Fla.1980). Moreover, the remarks made by the prosecutor relating to such evidence were not so persuasively improper as to deny appellant a fair trial. Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979).

We agree, however, that the court’s imposition of a life sentence for attempted first degree murder is excessive since the maximum penalty for such offense is 30 years. See King v. State, 390 So.2d 315 (Fla.1980). Such a sentencing error is fundamental even in the absence of objection. Castor v. State, 365 So.2d 701, 703 (Fla.1978).

Accordingly, the life sentence with credit for time previously served awaiting disposition is vacated, and the cause is remanded with directions for the lower court to impose a sentence which is consistent with our opinion.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


author: JOANOS, Judge.

text:
    Kenneth Lee WOOD, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-1.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.

      Melanie Hines Alford, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   JOANOS, Judge.

Appellant, Kenneth Lee Wood, appeals from a sentence imposed upon him after he was released from custody of the Florida Department of Health and Rehabilitative Services (HRS). We affirm.

After pleading guilty in March, 1979, to a charge of lewd, lascivious or indecent assault or act upon or in the presence of a child, Wood was found to be a mentally disordered sex offender and was committed to HRS custody. Over a year later, HRS submitted a report stating that it had exhausted all appropriate treatment. Along with the report was a request by defendant to be removed from HRS custody. A hearing was held 61 days after receipt of the report on the question of Wood’s release from HRS in which testimony and psychiatric reports were considered. The only issue raised at the hearing by defendant was whether the trial court had jurisdiction to sentence him because the hearing was held 61 days after receipt of the HRS report rather than within 60 days, as required by Section 917.20(2), Florida Statutes (1977).

Section 917.20, Florida Statutes (1977), provides in pertinent part:

917.20 Periodic examination; discharge proceedings; recommencement of civil proceedings.—
(1) The department shall cause the offender to be examined a minimum of once annually to determine the progress of treatment, and it shall file a written report of these examinations in the committing court not less than once a year.
(2) At any time after commitment, the department may file a written report with the committing court stating the facts which show that the offender’s condition has improved to a degree that he no longer meets the definition of an offender or that the department has exhausted all appropriate treatment for the offender. The written report shall include information about the treatment received by such offender, a diagnosis of the offender’s current condition, and recommendations made by the treatment staff. Upon receipt of the written report, the court shall set a hearing date of within 60 days and shall order the offender returned to the jurisdiction of the court. The offender shall not be detained in a jail prior to said hearing and shall not be detained after said hearing if returned to the department.
* * * # * *
(emphasis added)

In Perritte v. State, 367 So.2d 1058, 1059 (Fla. 1st DCA 1979) this Court stated that “. .. commitment and treatment under Ch. 917 is a break in the criminal process” and that “criminal proceedings are recommended only upon the offender’s discharge from a mentally disordered sex offender treatment program.” Applying Perritte, as well as § 917.24’s declaration that proceedings under Ch. 917 are civil it is clear that an evidentiary hearing under § 917.20(2) to determine if all treatment has been exhausted is a civil proceeding. As such, failure to hold the hearing within the proper time period does not affect the court’s criminal jurisdiction to sentence the defendant after the hearing is held and the defendant is discharged from HRS custody. The remedy for failure to follow proper procedure is a civil remedy, not the suggested remedy of a discharge from further criminal proceedings. In addition, appellant could not show any prejudice from the one day delay since he ultimately received what he requested— release from HRS custody.

The order of judgment and sentence appealed from is AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


text:
    STATE of Florida, Appellant, v. M.G., a child, Appellee.
    No. ZZ—446.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellant.
    Michael Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellee.
   PER CURIAM.

The State seeks review of an order dismissing a Petition of Delinquency for failure to bring the child to an adjudicatory hearing within the time provided by Florida Rule of Juvenile Procedure 8.180. We affirm.

Appellee was arrested on August 8, 1980, and charged with leaving the scene of an accident. When he appeared in county court on that charge, the trial judge waived the case over to the juvenile division pursuant to Florida Statutes § 39.02(1). A petition of delinquency was filed and appellee subsequently pleaded not guilty to that petition. A motion to dismiss on speedy trial grounds was filed on January 7, 1981, alleging that the speedy trial period had expired. The State conceded that the time provided in Rule 8.180 had expired but argued that Florida Statutes § 39.05(7)(a) defines a narrow exception to the speedy trial rule which should be applied in this case. The trial court noted that the statute conflicted with the rule of procedure with regard to when the period for speedy trial should commence. Noting that the Constitution of Florida vests the sole authority regarding rules of procedure with the Supreme Court, the trial court held the rule of juvenile procedure controlled over the statute and dismissed the petition of delinquency. The trial court’s resolution of this matter was correct. Accordingly, the order is affirmed,

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    Robert J. LAWRENCE and Lona Lawrence, Petitioners, v. ORANGE COUNTY and The Honorable Joseph P. Baker, Circuit Judge, Ninth Judicial Circuit of Florida, Respondents.
    No. 81-1194.
    District Court of Appeal of Florida, Fifth District.
    Oct. 9, 1981.
    Melvin Pearlman, Winter Park, for petitioners.
    Gordon H. Harris of Gray, Harris & Robinson, P. A., Orlando, for respondents.
   FRANK D. UPCHURCH, Jr., Judge.

Robert and Lona Lawrence have petitioned this court to issue a writ of prohibition against Judge Baker seeking to prevent any further proceedings in the lower court. Petitioners claim that the action below should be dismissed based on the plaintiffs’ (Orange County) failure to prosecute. Fla.R.Civ.P. 1.420(e).

Prohibition is an extraordinary writ extremely narrow in scope and operation by which a superior court, having- appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding its jurisdiction or usurping jurisdiction over matters not within its jurisdiction. English v. McCrary, 348 So.2d 293 (Fla.1977). It will be invoked only in emergency cases to forestall an impending present injury where no other appropriate and adequate legal remedy exists, Joughin v. Parks, 107 Fla. 833, 147 So. 273 (1933), and only when damage is likely to follow the inferior body’s acting without authority of law or in excess of its jurisdiction. Curtis, et al. v. Albritton, 101 Fla. 853, 132 So. 677 (1931).

Prohibition, therefore, may generally be granted only when it is shown that the lower tribunal is without jurisdiction or is attempting to act in excess of jurisdiction. English at 296. It will not lie to prevent the mere erroneous exercise of jurisdiction by an inferior tribunal. Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872 (1941).

In the present case, petitioners contend that the trial court’s refusal to dismiss the action for failure to prosecute is error. This issue does not involve a lower tribunal acting without or in excess of jurisdiction but rather concerns an incorrect application of the law. Prohibition is therefore not a proper remedy. Since the order complained of is not one of the non-final orders which may be appealed under Florida Rule of Appellate Procedure 9.130, we could treat the petition as one requesting the issuance of a writ of common law cer-tiorari, Rule 9.040(c), but even this remedy would not be available here because: 1) this court has already held that it will not entertain the issuance of such writ in cases where the order complained of is one where a motion to dismiss for lack of prosecution has been denied, Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980), and 2) even if otherwise proper, a petition for writ of certiorari must be filed within thirty days of the rendition of the order to be reviewed, and the petition here was filed much beyond that time. Fla.R. App.P. 9.100(c).

Petition for Writ of Prohibition is DENIED.

ORFINGER and COWART, JJ., concur.


text:
    STATE of Florida, Appellant, v. Barry BARNES, et al., Appellees.
    No. WW-37.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellant.
    Clifford L. Davis, Tallahassee, for appel-lees.
   PER CURIAM.

The order of the Circuit Court granting appellees’ motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional is reversed, and the cause remanded for further proceedings not inconsistent with State v. Benitez, 395 So.2d 514 (Fla.1981).

SHIVERS, SHAW and WENTWORTH, JJ., concur.


text:
    Donald YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. XX-304.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    Michael E. Allen, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    No appearance for appellee.
   PER CURIAM.

Young appeals the judgment and prison sentence imposed following a determination that he violated the conditions of his probation. We affirm the judgment and sentence.

However, we note that the original probation order required Young to serve 45 days in county jail as a special condition of his probation. The sentence subsequently imposed does not credit Young with any jail time served as a condition of his probation. If Young has not been properly credited for jail time served, the sentencing error can be corrected by a motion under Florida Rules of Criminal Procedure 3.850. Wargo v. State, 393 So.2d 3 (Fla. 1st DCA 1980); State v. Jones, 327 So.2d 18 (Fla.1976).

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


text:
    Mamie Sue FAHEY, Appellant, v. Omer Dene FAHEY, Appellee.
    No. ZZ-493.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981..
    Ferrin C. Campbell, Sr., Crestview, for appellant.
    George E. Day, Fort Walton Beach, for appellee.
   PER CURIAM.

We affirm the order below, but note that the trial court retains jurisdiction to modify the award of alimony either by extending the period of rehabilitative alimony or by the award of permanent alimony, periodic or lump sum, as the future circumstances of the parties may warrant. Florida Statutes, Section 61.14.

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


text:
    COLONIAL & SEMORAN SHELL and American Home Group, Appellants, v. Vaughn GRISSOM, Appellee.
    No. AB-161.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.

      Bernard J. Zimmerman and William G. Berzak, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Ronald J. Langa and Herbert H. Hall, Jr., of Maher, Overchuck, Langa & Cate, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

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


author: MILLS, Judge.

text:
    Levis LAWSON, Appellant, v. H. G. TURNER, Jack Cox and Charles Willis, Appellees.
    No. TT-48.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Andrew J. Decker, III, of Airth, Sellers & Lewis, Live Oak, for appellant.
    No brief for appellees.
   MILLS, Judge.

Lawson appeals the trial court’s denial of his motion for a directed verdict. We affirm as to Turner and reverse as to Cox and Willis.

Lawson brought suit against Turner, Cox, and Willis seeking damages for breach of implied warranty of title resulting from his purchase of a used dump truck which was subsequently discovered to be a stolen vehicle.

In 1973, Cox purchased a 1970 GMC dump truck from a Mr. Tyson. Turner was guarantor on Cox’s note at the bank for the purchase price. Turner, in fact, handled most of the negotiations of the purchase for Cox. Cox drove the truck for several months but was unable to earn enough money driving the truck to pay the note at the bank. Cox returned the truck to Turner’s place of business and explained the situation to Willis, his stepfather, and Turner.

Willis then took over the truck and began driving it, hoping to earn enough money to pay the note. He understood he could do whatever he wanted with the truck as long as Cox’s debt on the truck was paid. After several months Willis decided to sell the truck to Lawson for $7,500.00.

In September 1973, Lawson, Willis, and Turner met at the bank to take care of the paper work for the transfer of the truck to Lawson. Lawson paid Willis for the equity in the truck and assumed payments. Turner remained guarantor on the bank note for Lawson also. Title to the truck was not transferred at that time, but Turner told Lawson that as soon as the title arrived from Tyson, he would guarantee delivery of it to Lawson.

Subsequently, the truck was discovered to be stolen and Lawson surrendered it to its rightful owner. Lawson brought suit for damages. At trial, the parties stipulated: (1) the truck was stolen; (2) none of the parties knew the truck was stolen; (3) Cox was a seller of the truck; and (4) the truck was surrendered to its rightful owner when it was discovered to be stolen. At trial, Willis also testified he was seller of the truck. Turner denied being a seller, arguing he was merely the guarantor of the bank note for Cox and Lawson.

Section 672.312, Florida Statutes (1973) states:

(1) Subject to subsection (2) there is in a contract for sale a warranty by the seller that:
(a) The title conveyed shall be good, and its transfer rightful; and
(b) The goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge.
(2) A warranty under subsection (1) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have.

Accordingly, under the statute there was an implied warranty of title by the sellers of the truck to Lawson.

In the absence of a'specific exclusion, a third party defendant who so¡d a semi-trailer to the defendant and the defendant who sold it to the plaintiff both impliedly warranted good title. American Container Corp. v. Hanley Trucking Corp., 111 N.J.Super. 322, 268 A.2d 313 (1970). Although a defendant had no knowledge that an automobile which he purchased from a third party and ultimately sold to the plaintiff was stolen, he was nevertheless liable to the plaintiff for breach of the warranty of title. Ricklefs v. Clemens, 216 Kan. 128, 531 P.2d 94 (1975). The damages for breach of the implied warranty of title are set forth in Section 672.714(2) and (3), Florida Statutes (1973). Bill Branch Chevrolet v. Redmond, 378 So.2d 319 (Fla.2d DCA 1980). Therefore, in the absence of an exclusion of the implied warranty, the sellers are liable to Lawson for breach of the implied warranty of title.

In order to exclude the implied warranty of title, the seller must do so in very precise and unambiguous language. Jones v. Linebaugh, 34 Mich.App. 305, 191 N.W.2d 142 (1971). In Sunseri v. RKO-Stanley Warner Theaters, Inc., 248 Pa.Super. 111, 374 A.2d 1342 (1977), the following language in a bill of sale for recreational equipment was held insufficiently specific to exclude the implied warranty of title:

It is expressly understood and agreed that seller shall in nowise be deemed or held to be obligated, liable, or accountable upon or under guaranties [sic.] or warranties, in any manner or form including, but not limited to, the implied warranties of title, merchantability, ...

The evidence in the case below in no way approached the attempted disclaimer in Sunseri. The only language which could be construed as an attempted disclaimer is Turner’s statement to Lawson that he did not have the title, but he would guarantee Lawson would get it as soon as he received it from Tyson. We hold, therefore, as a matter of law, this language is insufficient to exclude the implied warranty of title in the transaction below.

The evidence adduced at trial was insufficient to prove that Turner was a seller of the truck, but based upon the parties’ stipulations and Willis’ admissions, we find that Cox and Willis were sellers. They, therefore, breached the implied warranty of title when they sold the stolen truck to Lawson. The trial judge should have granted Lawson’s motion for directed verdict as to Cox and Willis.

Accordingly, the judgment is affirmed as to Turner and is reversed as to Cox and Willis. This cause is remanded with instructions that the trial court enter a directed verdict in favor of Lawson against Cox and Willis.

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


text:
    OCALA HOUSING AUTHORITY and Commercial Union Ins. Co., Appellants, v. Blie M. LAWSON, Appellee.
    No. ZZ-475.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    W. Douglas Childs of Bullock, Sharp, Childs, Mickler & Cohen, Jacksonville, for appellants.
    Eric E. Wagner, Ocala, for appellee.
   PER CURIAM.

For the deputy’s failure to require or excuse a work search, the order awarding, permanent total disability benefits on the basis of lost wage earning capacity is

REVERSED.

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


text:
    James A. TERRY, Appellant, v. STATE of Florida, Appellee.
    No. AB-178.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

This appeal is dismissed without prejudice to appellant to file a motion for post-conviction relief under Fla.R.Crim.P. 3.850. See Wilson v. State, 378 So.2d 1258, 1260 (Fla.1st DCA 1979), rev’d on other grounds, 395 So.2d 520 (Fla.1981); Counts v. State, 376 So.2d 59 (Fla. 2nd DCA 1979); Hall v. State, 397 So.2d 1041 (Fla. 5th DCA 1981).

APPEAL DISMISSED.

SHIVERS, SHAW and THOMPSON, JJ., concur.


text:
    Larry SAPP, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-2283, 81-78.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1981.
    Larry Sapp, pro se.
    Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. However, condition (7) is stricken from the order of revocation of probation as there was no determination of appellant’s financial condition such that payment could be made. See Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979).

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