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

text:
    Jimmie Lee LEVEL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. PP-151.
    District Court of Appeal of Florida, First District.
    July 24, 1980.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

On Level’s appeal from convictions for theft of an automobile and related offenses, the circumstantial evidence, including Level’s shared possession of the recently stolen automobile, may reasonably have been regarded by the jury as proving beyond a reasonable doubt that Level and his companion were the thieves. See Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975), cert. den., 336 So.2d 108 (Fla.1976). No other reversible error appears.

AFFIRMED.

BOOTH, J., and WOODIE A. LILES, (Retired) Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arthur BATTIS, Jr., Reginald Payne and Earl Bernard Sutton, Petitioners, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    Nos. UU-459, UU-395 and UU-457.
    District Court of Appeal of Florida, First District.
    July 24, 1980.

      Arthur Battis, Jr., pro se.
    Reginald Payne, pro se.
    Earl Bernard Sutton, pro se.
    Michael H. Davidson, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for respondent.
   PER CURIAM.

The petitioners seek relief from the commission’s failure to act in setting their presumptive parole release dates. Like petitions have been presented to the court with increasing frequency, and counsel for the respondent admits that without direction from this court the commission is unable to chart a course out of what is perceived as an insoluble dilemma.

Section 947.16, Florida Statutes, provides that every person who has been convicted of a felony or who has been convicted of one or more misdemeanors and whose sentence or cumulative sentences total 12 months or more, who is confined in execution of the judgment of the court, and whose record during confinement is good, shall, unless otherwise provided by law, be eligible for consideration for parole. An inmate who has been sentenced for an indeterminate term or a term of 5 years or less shall have an initial interview conducted within 6 months after the initial date of confinement and an inmate who has been sentenced for a minimum term in excess of 5 years shall have an initial interview conducted within a year' after the initial date of confinement. An inmate convicted of a capital crime shall be interviewed at the discretion of the commission. The statute further provides that an initial hearing may be postponed for a period not to exceed 60 days for good cause noted in writing and included in the official record, but in no case shall such postponement result in a hearing being conducted any time later than one year after the initial date the inmate is confined, except in specifically enumerated instances. Within 45 days after any interview for parole the inmate shall be advised of the presumptive parole release date which date shall not be changed, except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.

Chapter 947 of Florida Statutes directs the Florida Parole and Probation Commission to develop and implement objective parole criteria upon which a presumptive parole release date for each inmate is established. The commission asserts that in order to apply the objective parole criteria promulgated pursuant to the legislative command, the commission must be in possession of sufficient information upon which to evaluate the inmate. Our attention is directed to § 947.002(2), Florida Statutes, wherein the legislature advises that “objective parole criteria will be designed to give primary weight to the seriousness of the offender’s present criminal offense and his past criminal record.” The salient factors score system developed by the commission in an effort to facilitate objective standards is derived by converting certain offender characteristics into numerical values. The highest salient factor score obtainable in the present system is 11 points, based upon seven categories of offender characteristics. These categories encompass (1) the number of all prior convictions, (2) the number of prior incarcerations, (3) the total time an inmate has already served in years, (4) the age of an inmate at first commitment, (5) the number of prior parole revocations or MCR revocations, (6) the number of prior escapes, and (7) whether burglary is the present offense of conviction. A salient score of zero is the most favorable category, indicating in actuarial terms that the risk of an inmate violating the terms of any subsequent parole is slight.

Section 947.18, Florida Statutes (1979), states in pertinent part “that no person shall be placed on parole until and unless the commission shall find that there is reasonable probability that, if he is placed on parole, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society.” The respondent argues that this section of the Florida Statutes is equally mandatory and entitled to the same dignity as those portions of the statutes requiring the assignment of a presumptive parole release date. Counsel for the respondent asserts that the pre- and post-sentence investigation report is the only document in the Florida criminal justice system that can supply the needed information, and only the Department of Corrections has the authority and resources to prepare such a report. Counsel argues that the department has no legal obligation to supply the commission with the report except as required by the sentencing court. In our judgment such a report, while undoubtedly helpful, is not indispensable to the establishment of a presumptive parole release date. In absence of the document the commission is nevertheless obligated to evaluate each inmate by considering whatever information is available such as FBI or FDCLE rap sheets, imposed judgments and sentences, reports concerning the inmate’s conduct while incarcerated, and recommendations of the trial judge. While it is true that there is no absolute right to parole, the Florida Legislature has mandated the setting of a presumptive parole release date by the Florida Parole and Probation Commission. §§ 947.-16; 947.172, Florida Statutes. When the commission without adequate reason fails to so act, it is answerable in mandamus. Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974).

To embrace the commission’s argument would mean that the lack of a post-sentence or pre-sentence report, which admittedly might never be supplied to the commission, would indefinitely postpone further consideration of a presumptive parole release date. The practical application of this reasoning is vividly demonstrated in the case of Battis. Despite what we perceive as a clear legislative mandate, the commission’s position is such that without the information it deems necessary an inmate may never be given a presumptive parole release date. This position simply fails to take into consideration the realities of the Florida penal system. The indefinite postponement of parole consideration based on the lack of a particular report, not mandated by the statute, would appear to be both unreasonable and in direct violation of Chapter 947, Florida Statutes.

The requirement of Chapter 947, Florida Statutes, that there be objective parole criteria, and the Commission’s rules adopted in response to that requirement, lead us to the following conclusions:

1. Salient Factor Score: Where the Commission has no information as to the inmate’s criminal history prior to the offense for which he is presently incarcerated, he must be assigned a salient factor score of zero.

2. Offense Characteristic: Where there is also a complete lack of information which can appropriately be considered as bearing on the offense characteristic, the

Commission must assign a presumptive parole release date at the lowest end of the matrix range for the offense.

3. Aggravating Circumstances: If after computing a proper matrix time range, using available information, aggravating circumstances are to be applied, the Commission is obligated both by statute and rule to explain the aggravating factors in writing, for the benefit of the inmate and to facilitate appropriate review. Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

The Commission is directed to afford the instant petitioners new hearings and establish for each a presumptive parole release date within sixty (60) days from the date of this order.

BOOTH, SHAW and WENTWORTH, JJ., concur.

      . The salient factor score converts into numerical values 7 categories of offender characteristics, based on prior criminal history. Rule 23-19.04, Objective Parole Criteria Guidelines, Fla. Admin.Code. The salient factor is an “actuarial parole prognosis aide” that can only be calculated where some objective information on prior history is available.

      . Except where burglary is the present offense of conviction, in which case a salient factor score of “one” is computed. Rule 23-19.04(7), Fla. Admin. Code.

      . The offense characteristic or offense severity rating reflects the present offense of conviction. Rule 23-19.01, Fla.Admin.Code.

      . Counsel asserts that “. . . the Commission is almost exclusively dependent upon the work product of another agency, over which it has no control or command. Further, that other agency has no legal obligation to this Commission to supply it with copies of pre- or post-sentence investigations except as the same are required by the sentencing court. Therefore, requests made by this Commission to that Department for production of those informational items may or may not be honored as fits the needs and policies of the Florida Department of Corrections.” Id. Though the issue has never been properly brought before this Court, we believe the contention that the Commission is powerless in its dealings with the Department to be without merit. § 20.-315(20), Fla.Stat. (1978), in directing that “there shall be only one offender based information and records system maintained by the Department of Corrections and the Parole and Probation Commission,” goes on to require that in developing this system, the Department of Corrections shall consult the Parole and Probation Commission in order that such offender based information system be designed “to serve the needs of both agencies.” § 945.10(3), Fla.Stat. (1979), states: “The Department of Corrections and the Commission shall mutually cooperate for the proper performance of the respective functions of each agency." Furthermore, § 947.174(3), Fla.Stat. (1978), states: “The Department shall, within a reasonable amount of time, make available and bring to the attention of the Commission such information as is deemed important to the review of the presumptive parole release date, including, but not limited to, current progress reports, psychological reports, and disciplinary reports.” Under the terms of foregoing statutes, should the Commission determine that a particular piece of information is necessary for the Commission’s required determinations and only the Department of Corrections had the resources to obtain .that information for an inmate’s file, the Commission may have not only the power but perhaps even the duty to initiate legal action to direct the Department to acquire the information for the Commission’s use.

      . Petitioner Battis, incarcerated prior to the 1978 enactment of the requirement that a presumptive parole release date must be set for all inmates, was interviewed pursuant to §§ 947.16 and 947.12, Fla.Stat., on June 7, 1979, for the purpose of establishing such a date. At the hearing, Battis was informed by the Commission examiner that no release date could be set for him because the Department of Corrections’ files contained no presentence investigation report on him. The establishment of a presumptive parole release date was postponed “indefinitely”. Subsequent hearings held during October and December, 1979, and February, 1980, concluded with the same result—no date set— postponed indefinitely pending receipt by the Commission of a PSI report. Complaints to prison officials produced no indication of when, if ever, such a report might be obtained. Petitioner Payne was treated in a similar manner with numerous scheduled parole hearings resulting in no presumptive parole release date. Petitioner Sutton, imprisoned in early 1966, was interviewed by a hearing examiner during August, 1979. A presumptive parole release date has yet to be established for him. The Commission has determined that in the absence of a PSI, it has insufficient records upon which to establish such a date.
      The issues presented by Petitioners Battis, Payne and Sutton have been before this Court more than once in recent months. According to counsel for respondent, over two percent of all inmates presently incarcerated in the Florida Penal system may be without PSI reports sufficient to allow the Commission to establish a presumptive parole release date. This Court’s response to previous petitions consisted of orders directing the Commission to show cause why such dates were not established. With the exception of Case No. TT-231, the Commission’s reply to the Court order contained a newly established presumptive parole release date, thus satisfying the inmate’s prayer and mooting the issue.


author: NESBITT, Judge.

text:
    XEROGRAPHIC SUPPLIES CORPORATION, Appellant, v. HERTZ COMMERCIAL LEASING CORPORATION, Appellee.
    No. 79-1099.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Highsmith & Strauss and Philip Glatzer, Miami, for appellant.
    No appearance, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal from a judgment entered on a cross-claim for indemnity in an action arising out of contracts to sell, finance, and lease a copy machine.

Appellant (Xerographic) entered into a contract for the sale of the copier with Mr. Kenworthy. The contract indicated that a service contract would be available to Mr. Kenworthy which the parties did, in fact enter into. Appellee (Hertz) and Mr. Ken-worthy entered into a lease application and agreement for the copier. The terms of this agreement indicated that Hertz would finance the purchase by paying for the copier and leasing it back to Mr. Kenworthy.

It is undisputed that the copier was defective. Xerographic notified Kenworthy that it would no longer service the copier for him. Kenworthy then filed a complaint for declaratory relief against Xerographic and Hertz seeking to be relieved of his contractual obligation to lease the copier. Hertz, in turn, filed a cross-claim against Xerographic for indemnity in the event the court granted the relief sought by Kenwor-thy. In its cross-claim, Hertz alleged it was entitled to indemnification for its resulting loss on the ground that the copier “carried with it a warranty of fitness for use” and that Hertz was “in no manner liable for the purported lack of merchantability, quality, and performance of the equipment.”

In its judgment, the trial court found that the Hertz lease agreement failed to contain the provision set forth in 16 Code of Federal Regulations, Section 433.2, which states:

NOTICE
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT THERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

This provision allows a consumer to set up, against one who finances a purchase, those defenses which could be asserted against the seller of goods and is required in an agreement to finance a purchase such as that entered into between Hertz and Ken-worthy. In relieving Kenworthy of his obligation to continue making payments on the lease of the copier, the trial court read into the contract this provision and allowed him to assert the defense that the copier was defective which the court felt could be asserted against Xerographic. The court determined Hertz to be responsible because “it is standing in the place and stead of the Defendant, Xerographic . . . .” In the cross-claim for indemnity, the court then allowed Hertz to recover from Xerographic damages Hertz sustained in losing the benefit of the rental contract.

The contract of sale between Xerographic and Kenworthy contained a disclaimer of all express or implied warranties other than those product warranties made by the manufacturer which was set forth in the agreement as follows:

PRODUCT WARRANTY: THE FOLLOWING WARRANTY IS THE ONLY WARRANTY EXTENDED BY XSC AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN USUAL FACTORY WARRANTIES MADE BY THE MANUFACTURER.

Xerographic contends that this disclaimer was in compliance with requirements of Section 672.316(2) and 671.201(10), Florida Statutes (1975), and therefore should have been given effect.

The trial court, however, held that the disclaimer of warranties in the Xerographic/Kenworthy contract was “ineffective as a matter of law under the circumstances involved in this case.” We find this to be error and reverse.

Having complied with the requirements of Section 672.316(2), Florida Statutes (1975), Xerographic had effectively disclaimed all warranties for the copier in its contract of sale with Kenworthy. 28 Fla. Jur. Sales § 149. Since Xerographic would not have been liable to Kenworthy, it was error for the trial court to grant a judgment on Hertz’ cross-claim based on a theory that Xerographic breached certain warranties.

The final judgment on the cross-claim must be and is reversed.

      . Mr. Kenworthy, not a party to this appeal, was the user of the copier and plaintiff in the main claim below.

      . Section 672.316(2) sets forth the language that must be included in any valid disclaimer as well as the requirement that the disclaimer be conspicuous. Section 671.201(10) defines the term “conspicuous.”


author: SCHWARTZ, Judge.

text:
    COMPANIA DE AVIACION FAUCETT S.A., Appellant, v. Michael K. MULFORD, Robert Mulford, and June Mulford, Appellees.
    79-2425.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.

      Ray Ellen Prystowsky, Miami Beach, for appellant.
    Diaz Silveria & Associates, P.A., for ap-pellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Employees of the defendant-airline specifically informed the plaintiffs that their luggage was on board their flight from Cuzco to Lima, Peru, when in fact it had been removed from the plane. As a result, the Mulfords took off without their bags and spent the remainder of their South American trip attempting to secure them and replacing their contents; they were not returned until the plaintiffs had gone home to Iowa after their thus-ruined vacation was long over. After a non-jury trial, the lower court found that the airline had been guilty of “wilful misconduct” under Article 25(1) so as to render inapplicable the provisions of Article 22(2) of the Warsaw Convention, 49 U.S.Stat. 3000 (1934), 49 U.S. C.A. § 1502 (1976), which otherwise severely limit an international air carrier’s liability for the mishandling of checked luggage. That conclusion is well-supported by the evidence concerning the misinformation which was deliberately or recklessly given to the plaintiffs concerning the whereabouts of their baggage. Cohen v. Varig Airlines, 62 A.D.2d 324, 405 N.Y.S.2d 44 (1978), and cases cited. Since we similarly find no error in the other issues presented, the judgment entered below for damages in excess of the liability limitation is therefore

Affirmed.


text:
    Charles Rhoades ALLEN, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 80-162.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.

      Rizzo & Koltun and Stewart G. Green-berg, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Ralph C. Rocheteau, III, Asst. County Atty., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

The summary judgment entered below for the defendant, Dade County, in a false imprisonment case is reversed because (a) the trial court improperly granted summary judgment for the non-moving party at a hearing noticed only for the plaintiff’s motion for summary judgment, Jockey Club, Inc. v. Blake, 297 So.2d 44 (Fla.3d DCA 1974); Greer v. Workman, 203 So.2d 665 (Fla.4th DCA 1967); John K. Brennan Co. v. Central Bank & Trust Co., 164 So.2d 525 (Fla.2d DCA 1964); and (b) on the merits, it does not conclusively appear beyond genuine issue that the defendant is entitled to judgment in its favor as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Green Valley School, Inc. v. Cowles Florida Broadcasting, Inc., 327 So.2d 810 (Fla.1st DCA 1976); Kanner v. First National Bank of South Miami, 287 So.2d 715, 717 (Fla.3d DCA 1974); see also, Harris v. Solvonic, 386 So.2d 19 (Fla.3d DCA 1980).


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

text:
    Jessie Reed JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. NN-137/T1-55.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., and Thomas Walsh, Legal Intern, Tallahassee, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Jessie Reed Johnson, entered a plea of nolo contendere to the charges of murder in the second degree and the killing of an unborn child reserving the right to appeal the trial court’s denial of his motion to suppress.

The Daytona Beach Police Department received an anonymous telephone call that a dead body was located in the bedroom closet of a specified apartment and that entrance would have to be through the bedroom window. An investigating officer, who immediately went to the apartment, knocked on the door and received no response. At the officer’s request, the manager of the apartment house opened the door. The officer, upon opening the door, could detect the odor of decomposition. The body of Thomasena Johnson, appellant’s pregnant wife, was found in the bedroom closet. Several items found in the apartment were seized at the time the body was discovered.

The question for determination is whether the trial court erred in denying appellant’s motion to suppress.

Warrantless searches are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. See Hornblower v. State, 351 So.2d 716 (Fla.1977) and cases cited therein. One such exception is that of an emergency situation, sometimes called the “exigency rule.” Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967). As was noted by the Fourth District Court of Appeal in Webster:

The right of police to enter and investigate in an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law. United States v. Barone [330 F.2d 543 (2d Cir. 1964)]. The preservation of human life is paramount to the right of privacy protected by search and seizure laws and constitutional guaranties; it is an overriding justification for what otherwise may be an illegal entry. It follows that a search warrant is not required to legalize an entry by police for the purpose of bringing emergency aid to an injured person. Frequently, the report of a death proves inaccurate and a spark of life remains sufficient to respond to emergency police aid. As a general rule, we think an emergency may be said to exist, within the meaning of the “exigency” rule, whenever the police have credible information that an unnatural death has, or may have, occurred. And the criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact.

Id. at 792. Other courts have recognized the right of the police to enter and investigate in an emergency. Long v. State, 310 So.2d 35 (Fla.2d DCA 1975); Gilbert v. State, 289 So.2d 475 (Fla. 1st DCA 1974). See also State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973).

A warrantless search can also be validated by consent. State v. Wise, 356 So.2d 920 (Fla.2d DCA 1978). When a defendant has not only consented to the search but has actually invited the search, the defendant cannot thereafter validly object to either the search or the seizure of items during the search. Id.; State v. Patterson, 252 So.2d 398 (Fla.2d DCA 1971).

Here, it was conceded by appellant that there was substantial, competent evidence to support the finding that appellant had placed the call to the police. This fact would not give rise to probable cause at the time of entry as it was discovered after the search; nonetheless, appellant is estopped from objecting to the search as he initiated the police action and impliedly consented to their entry upon his property.

In addition, there were sufficient in-dicia that an emergency situation existed, one which did not allow time for obtaining a search warrant. An anonymous tip can form the basis for a reasonable suspicion. See State v. Hetland, 366 So.2d 831 (Fla.2d DCA 1979). The existence of a particular apartment in a particular complex, as specified in the call, corroborated the tip; the lack of response supported the suspicion that persons inside were either dead or unable to open the door, thus corroborating the portion of the tip which had advised the police that the only entry was through the window. The entry was not only lawful but required of the police officers; it was necessary to determine whether there were persons inside in need of aid. After lawfully entering the apartment, the officer detected an odor associated with decomposing bodies. As there may have been others who were injured and unable to call for help, the emergency situation requiring immediate action continued to exist. The presence of probable cause to believe that a crime had been committed, as well as exigent circumstances, created an exception to the warrant requirement; thus, the search was not unreasonable.

AFFIRMED.

ORFINGER and COBB, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Karlton M. KING, d/b/a AAAA Bail Bonds of Brevard, Appellant, v. Dorothy K. MOODY et al., Appellees.
    No. 79-728/T4-477.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.

      Charles Holcomb of Holcomb & Theriac, Merritt Island, for appellant.
    Douglas L. Cheshire, Jr., State’s Atty., and Norman A. Tharp, Asst. State’s Atty., Titusville, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from an order estreat-ing an appearance bond. David Moody was in arrears in payment of support money to his wife and after a contempt citation was served upon him he was held in jail until he posted a $1,000.00 appearance bond. The bail bond was in accordance with a court order which permitted his release upon the posting of it. The bond was posted by a surety company, Accredited Surety & Casualty Co., Inc., through its agent, Karlton M. King.

The order permitting his release provided “Upon posting bond in the amount of $1,000.00, David Lamar Moody is to be released from confinement in the Brevard County Jail and present himself before the Circuit Court at a hearing to be designated later.” He was also required to provide his address so he could be notified. The same day the order was dated, the bonding company issued the bond and Moody was released. The bond also provided Moody was obligated to appear when the court notified him to do so.

Moody was notified later to appear at a hearing on November 4, 1977. Moody appeared, was adjudicated in contempt and sentenced. A provision for his being allowed to purge himself of the contempt by payments toward satisfying the arrearage was contained in the contempt order.

Moody was later ordered to appear again on an allegation he was not making the payments required of him in the order allowing him to purge himself of his contempt. He failed to appear at that January 9, 1979 hearing. That latest order to appear was issued on December 19, 1978 and alleged a violation of the November 4,1977 contempt order. When Moody failed to appear on January 9,1979, the bond subject of this appeal was estreated.

The question on appeal is whether the conditions of the appearance bond were met when Moody appeared on November 4,1977 or was the surety under an obligation for an indeterminate time after the contempt order of November 4, 1977, until at least the arrearages in support were satisfied and Moody had purged himself of his contempt. It is our opinion the order of August 5, 1977, required one appearance “at a hearing to be designated later” and the conditions of the bond were satisfied when Moody appeared at the next hearing when notified — November 4, 1977.

The order allowing Moody’s release only required one appearance and the bondsman was obligated under his bond to see that Moody appeared. When he appeared, the matter was essentially terminated even though the court permitted Moody to put off his ninety day jail sentence so long as he continued to make his support payments and the additional payments towards the arrearages. To require the surety to be obligated for an indeterminate period, years in the future in cases such as these, would be a burden upon the surety he certainly did not bargain for.

The order of estreature is reversed and this cause is remanded for an order releasing the surety from the obligation of its bond.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.

      . Moody was ordered to pay $20.00 per week to satisfy a $7,102.00 arrearage. That would take over six years, not to mention the provision in the order requiring a continuation of the support payments; the record does not reflect the ages of the children but the youngest was less than two years old when the 1973 dissolution judgment was rendered.


text:
    James A. KIKIS, Appellant, v. FORD MOTOR COMPANY, Appellee.
    No. 79-197.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.
    Walter R. Moon and Edward Casoria, Jr. of Rush, Marshall, Bergstrom & Robison, P.A., Orlando, for appellant.
    Monroe E. McDonald of Sanders, McE-wan, Mims & McDonald, Orlando, for appel-lee.
   PER CURIAM.

This is an appeal from a judgment for the appellee, defendant below, which was entered after a motion for judgment notwithstanding a jury verdict was granted. The effect of the order was to grant the defendant’s motion for judgment in accordance with motion for directed verdict. Tolliver v. Loftin, 155 Fla. 769, 21 So.2d 359 (1945); Sherman v. Lynch, 242 So.2d 799 (Fla.3d DCA), cert. denied, 246 So.2d 788 (1971). See also L.C. Morris, Inc. v. Allison, 353 So.2d 135 (Fla.3d DCA), cert. denied, 359 So.2d 1210 (1978).

Both the order granting the directed verdict and the judgment for the defendant are in one document and are defective because they are not based upon sufficient grounds. It is not a technical deficiency in the order and judgment which causes us to reverse, although they are technically deficient. Rather, it is because there was evidence in the record to support the jury verdict and no reversible trial error occurred warranting either a judgment for the defendant or a new trial.

The evidence showed that plaintiff cut the tendons and muscles to his index middle fingers of his right hand on a hubcap defendant designed and manufactured. Plaintiff had discovered a flat tire on his car and set about to change it. He used a screwdriver to loosen the hubcap using care to prevent this decorative hubcap from falling and being damaged. He gave a “final yank” and the hubcap flew into the air. He immediately reached for and grabbed the hubcap while it was in mid-air, his fingers entered a port hole and were severely cut by the sharp edge of this hole.

These facts raise a question about whether the accident was a foreseeable consequence of defendant’s negligence in designing or manufacturing the hubcap. A foreseeable consequence is not what possibly might occur, or always occurs, but rather is a consequence which may be reasonably anticipated as a likely result of an act. See Firestone Tire & Rubber Co., Inc. v. Lippincott, 383 So.2d 1181 (Fla. 5th DCA 1980).

We conclude that an injury from the port hole of this particular hubcap could be found to be a likely result because of its sharp edges. With this issue of foreseeability resolved in favor of the plaintiff the evidence is sufficient to support the jury verdict. Although, along with the trial judge, we might have rendered a verdict for the defendant, it is not our function nor right to do so. The verdict having been supported by legally sufficient evidence must be reinstated and judgment on the verdict and for costs must be entered. Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla.3d DCA 1979).

REVERSED AND REMANDED.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Casset Avenue Mobile Homes, Inc. v. Bobenhausen, 363 So.2d 1065 (Fla. 1978); Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla. 1978); Cloud v. Fallis, 110 So.2d 669 (Fla. 1959); Hale Manufacturing Co. v. Baudo, 371 So.2d 1042, appeal after remand, 371 So.2d 1113 (Fla. 4th DCA 1979).

      . In its order, the trial court provided that “should the foregoing Final Judgment be reversed by the Appellate Court, the defendant’s Motion for New Trial ... is granted


author: GLICKSTEIN, Judge.

text:
    In re: The ESTATE of Karl WAKS, Deceased.
    No. 78-2723.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1980.

      Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach; and Larry Klein, West Palm Beach, for appellant, Anneliese Levine.
    Bernstein, Sharff & Monchick, West Palm Beach; and Edna L. Caruso, West Palm Beach, for appellee, Belle Waks.
   GLICKSTEIN, Judge.

This is a timely appeal from an order denying the personal representative’s petition for surrender of personal property. We reverse.

Karl Waks and Belle Waks were husband and wife. They contemporaneously executed an agreement and joint will on February 4,1975, in Palm Beach County, Florida. The agreement provided in part:

1. Their purpose in making this Agreement and a Joint Last Will and Testament is to enable each of them, following their respective deaths, to make successive bequests from their jointly owned property, to their respective brothers, sisters, nephews, nieces and others.
2. The bequests and legacies therefore being made in such Last Will and Testament are in fulfillment of this purpose and in consideration of each of them waiving the right to alter, amend or otherwise revoke the said Last Will and Testament in whole or in part, by codicil or otherwise, without the written consent of the other during their joint lives, or under any circumstances after the death of the first of them.

The will made separate provisions for the parties’ jointly owned condominium and furnishings contained therein, which are not at issue sub judice. The remaining personal property, consisting of jointly owned securities and savings and checking accounts, was to be divided into two equal parts in accordance with the will. One part was to pass to the survivor, while the other part was to be given to those persons specifically named as devisees by each testator should he or she die first.

Mr. Waks died on January 21, 1978, and the personal representative of his estate subsequently made written request of the widow that she surrender the jointly owned personal property. She refused and the personal representative then filed a petition for surrender of personal property. In her answer Mrs. Waks alleged the following affirmative defenses: undue influence, execution without reading the will or the advice of counsel, fraud, non-disclosure of assets and a lack of awareness of what property rights were being relinquished. After trial held on November 20, 1978, the court denied the petition because of the following findings:

A) The items requested were previously held in the joint names of the Deceased and his wife.
B) The Deceased lacked the ability to dispose of the requested items by will as he did not survive his wife and thereby acquire complete title. BELLE WAKS obtained complete title as a matter of law upon his death.
C) Only that portion of the joint will that is the will of the Deceased, KARL WAKS, is now effective.
D) The Court is unsure of the complete legal effect of the agreement which was executed simultaneously with the joint will; however it appears that the manner in which the WAKS’ held their property (as joint tenants with right of survivor-ship) was not changed.
E) The simultaneous agreement may have substantial importance in later proceedings between the persons now before the Court but the agreement has no bearing upon the pending Petition.

This appeal followed.

It is clear from the agreement and joint will that Mr. Waks intended one-half of the jointly-owned property to go to members of his family. If such intent can lawfully be given effect, it should be.

Appellee erroneously claims that Hall v. Roberts, 146 Fla. 444, 1 So.2d 579 (1941) is dispositive. In that case a husband and wife executed a joint will devising the land they owned as tenants by the entirety to a named beneficiary, presumably to pass on the death of the surviving spouse. Although the will was probated following the husband’s death, it was not probated following the subsequent death of the wife. The supreme court held:

[T]he probate of the will subsequent to the husband’s death and prior to the wife’s death was ineffective to pass title from Lucy unless probated after her death .
This is not a matter of ascertaining the testator’s intent or defeating same. Some one neglected to probate the will and the defendant [heir of the beneficiary under the joint will] is bound by that neglect.

146 Fla. at 446-447, 1 So.2d at 580.

Sub judice the testators did not intend the property to pass upon the death of the surviving spouse, but instead upon death of the first spouse to die. No issue was raised that the will was not properly probated. Consequently, the decision in Hall v. Roberts, supra, is not applicable.

Other jurisdictions have affirmatively answered the specific question of whether the agreement and joint will were sufficient to terminate the joint tenancy prior to Mr. Waks’ death. In Berry v. Berry’s Estate, 168 Kan. 253, 212 P.2d 283 (1949), a husband and wife, each having had children by former marriages, owned property as joint tenants with right of survivorship. They executed a joint and mutual will providing that after the death of one of them, the survivor would have a life estate in all of the property of the deceased, and after the survivor’s death, that property would descend and be divided among the respective children of each. After the death of the husband the lower court held that full title vested immediately in the surviving wife. A child of the deceased husband appealed. The intermediate appellate court reversed, holding that the property passed in accordance with the mutual will, and the Kansas Supreme Court affirmed. The supreme court held that the joint and mutual will acted as a severance of the joint tenancy and the property would pass, not by right of survivorship as the lower court held, but in accordance with the intent of the parties as expressed in their joint and mutual will.

Similarly, in Lancellotti v. Lancellotti, 377 A.2d 1315 (R.I.1977), a husband and wife executed a joint will and declared in writing therein that it was contractual. Prior to the execution of the will, the testators had held certain property in joint tenancy. Following the death of the husband, the wife purported to convey this property in fee contrary to the terms of the will. Some of their children brought suit to enjoin the conveyance. The court first reconciled an ambiguity in the will and determined that the testators intended that the survivor of them take a life estate in the subject property. The court then held:

The short answer to this argument is that a severance did take place by a valid and enforceable contract during the lifetime of the parties by the execution of the joint will. The parties themselves declared that the joint will was contractual, and there is nothing in this record indicating that it was modified in any way by a subsequent agreement. Thus, Angelina was bound by there terms of that contract and upon the death of her husband, she became vested in a life estate in the real estate with a remainder over to the children. (Footnote omitted.)

Id. at 1320.

In Wilcoxen v. United States, 310 F.Supp. 1006 (D.Kan.1969), a husband and wife owned real property as joint tenants with right of survivorship. The husband executed a will giving his wife a life estate with the remainder over to their children, and the wife executed a consent to the will specifically approving its contents. The husband then died and the amount of estate taxes was at issue. Resolution thereof depended on whether the surviving wife inherited the property by right of survivor-ship or whether it passed in accordance with the decedent’s will. The court held that the estate was not entitled to a marital deduction because the surviving wife did not own the property by right of survivor-ship; it passed in accordance with the will. The court reasoned:

While one joint tenant may not unilaterally terminate the interest of the other, it appears to be unquestioned that under the general rule, a joint tenancy may be terminated by a contract, or mutual agreement among the tenants. See 20 Am.Jur.2d Cotenancy and Joint Ownership, § 19, p. 112; Anno. Joint Tenancy— Termination, 64 A.L.R.2d 918, 941-949. Such agreement may be made by express stipulation, or it may be implied from the circumstances which are inconsistent with the incidents of joint tenancy. (Footnote omitted.)

Id. at 1010.

Finally, in Mamalis v. Bornovas, 112 N.H. 423, 297 A.2d 660, 661 (1972), the court said:

In determining whether an act of a joint tenant is sufficient to terminate or “sever” a joint tenancy, the courts have historically resolved the question upon an analysis of whether the act destroyed one of the essential four unities of time, title, interest or possession. E. g., Wentworth v. Remick, 47 N.H. 226 (1866); see 2 Blackstone’s Commentaries ch. 12, at.363 (Chase ed. 1914); 4 Thompson, Real Property ss. 1780-81 (1961 rev. ed.); 2 Tiffany, Real Property s. 425, at 208 (3d ed. 1939). Beginning with several eighteenth and nineteenth century English decisions, however, the idea began to emerge that the termination of a joint tenancy should be controlled by the parties’ intention as manifested by some overt act or express agreement (Annot., 64 A.L.R.2d 918, 941-45 (1959)), and this view appears to be a prevailing trend in the decisions. McDonald v. Morely, 15 Cal.2d 409, 101 P.2d 690 (1940); Duncan v. Suhy, 378 Ill. 104, 37 N.E.2d 826 (1941); Nichols v. Nichols, 43 Wis.2d 346, 168 N.W.2d 876 (1969); see Swenson and Degnan, Severance of Joint Tenancies, 38 Minn.L.Rev. 466, 485-87 (1954). . . .

Based on the foregoing authority, we hold that the contemporaneous execution of an agreement and joint will, expressly providing for the disposition of the parties’ jointly owned personal property in a manner totally inconsistent with the continuation of a joint tenancy, operated as a severance of the tenancy. Sub judice the devise by Karl and Belle Waks of one-half their jointly-owned property to members of their respective families enabled the property to pass at the time of Mr. Waks’ death under the joint will in accordance with his express wishes.

The order of the trial court is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

REVERSED AND REMANDED.

MOORE, J., and UPCHURCH, JOHN J., IV, Associate Judge, concur.

      . The parties were childless.


author: DOWNEY, Judge.

text:
    Pauline COOK, Appellant, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 79-551.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1980.

      Charles T. Whitelock of Feinstein & Whi-telock, Fort Lauderdale, for appellant.
    Robert D. McIntosh of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant, Pauline Cook, seeks reversal of a judgment in favor of appellee, Life Insurance Company of North America, in a suit on a life insurance policy.

The evidence reflects that the appellant and her husband owned a home encumbered by a mortgage to First Federal Savings and Loan Association of Broward County. It was the practice of First Federal to make available to their mortgagors a plan of mortgage life disability insurance. Prior to July 1973 First Federal administered and provided premium facilities for such a policy underwritten by Continental Casualty Company. Appellant and her husband, Hendrik, enrolled in such plan; Hendrik, as named insured, appellant as a beneficiary of the policy.

In a letter dated June 21, 1973, First Federal informed all policy subscribers that, due to a rate increase by Continental, it could no longer sponsor that carrier’s program. However, arrangements had been made for the same policy coverage at the current premium rates with appellee. An independent insurance agent, the Davis-Gillingham Agency, which handled accounts for both Continental and appellee, was responsible for processing and verifying all applications for mortgage insurance submitted by First Federal customers.

After several notices from First Federal soliciting their continued participation in the insurance program, appellant completed an application, dated March 24, 1974, for coverage under appellee’s program. Appellant filled out the application for insurance on her husband’s life, and also signed his name in the appropriate places. She testified that her husband provided her with all of the relevant information such as his height, weight and date of birth.

Hendrik Cook died on January 29, 1976, and appellant submitted a certificate of death to appellee. The policy proceeds, which had been assigned to First Federal by the insured in order to satisfy monthly mortgage payments, were never paid by appellee. The appellant first became aware of this nonpayment when she was notified by the bank that her mortgage was overdue. In due course appellee advised Mrs. Cook that the application of Hendrik Cook contained a material misrepresentation regarding his age. As a result, appellee elected to rescind the policy and tender a refund of all premiums paid plus interest.

In completing the application for mortgage life disability insurance with appellee the appellant listed the insured’s date of birth as December 14, 1914. The appellant had inserted December 14, 1918, as the insured’s date of birth on the prior policy with Continental Casualty. The certified copy of the insured’s certificate of death as well as the insured’s certificate of birth both showed Hendrik Cook’s date of birth as December 14, 1912.

The case was tried without a jury and the trial judge ruled in favor of the appellee. Since the final judgment contains no findings of fact or conclusions of law, it is impossible to determine upon what theory the decision is based. Appellant suspects the trial court found that the misstatement of age in the application for insurance was a material misrepresentation, thereby invalidating the policy. Such a finding is erroneous, appellant contends, because Section 627.456, Florida Statutes (1977), provides:

Misstatement of age or sex.
There shall be a provision that if it is found that the age or sex of the insured (or the age or sex of any other individual considered in determining the premium or benefit) has been misstated, the amount payable or benefit accruing under the policy shall be such as the premium would have purchased according to the correct age or sex. Such calculations shall be in accordance with the insurer’s rate at date of issue and at the option of the insurer this may be so specified in the policy.

In addition, the policy provides:

Misstatement of Age. If the date of birth of the Insured has been misstated, any amount payable under the policy shall be such as the premiums paid would have purchased at the true age.

Appellee suggests that the foregoing statute and policy provision are not applicable in this case because the proof shows that, had the correct age been stated, appellee would not have written a policy for Hendrik Cook because he was 61 years of age at the time of application and the company would not write this policy on anyone over 60 years of age. Appellee construes the statute to mean that if a person misstates his age the amount payable or benefit accruing under the policy shall be such as the premium would have purchased according to his correct age if the company would have written such a policy for a person of the correct age of the applicant.

The evidence shows that this policy of life insurance issued by appellee is only issued to mortgagors between eighteen and sixty years of age. It was the custom for appel-lee to furnish insurance applicants with a brochure which clearly states the coverage is only available to the foregoing age group. The proof does not show that appellant received the brochure in question, and we mention it only to demonstrate that the age limitation is not something appellee conjured up in defense of this claim.

We feel the appellee’s construction of the pertinent statute and policy provision is reasonable. If, for example, the insured stated his age at fifty years when, in fact, he was fifty-five years of age, the statute and policy provision would allow the insurer to limit recovery on the policy to the amount of insurance which the premium paid would have purchased for that age group. However, if the company would not write a policy for a person of the true age of the applicant, the statute and policy provision are not applicable, or if applicable the amount of insurance the premium paid would purchase is zero.

The transcript of testimony at the trial shows that the trial judge was concerned by another aspect of the evidence. It was shown that the application for the policy in question was not signed by the insured, Hendrik Cook. Rather, appellant signed her husband’s name to the application. While appellant says she obtained the information from her husband, nowhere does the evidence reflect that the insured authorized her to sign his name or that he later ratified her action in doing so. The appellee’s witness testified the company would not have accepted an application for insurance unless the insured signed the application or the person signing had a power of attorney from the applicant. The absence of proof that Hendrik Cook authorized appellant to sign the insurance application or that he ratified her signing it would seem to negate the contract between appellee and the insured. See Pettaccio v. New York Life Ins. Co., 125 Pa.Super. 15, 189 A. 697, 700 (1937).

We are persuaded that the record in this case adequately supports the decision of the trial judge. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    BUSINESS SECURITY AND INVESTIGATION CORPORATION, INC., a Florida Corporation, Appellant, v. BEN WOOD CONSTRUCTION, INC., a Florida Corporation, Appellee. PARLIAMENT INSURANCE COMPANY, Appellant, v. BEN WOOD CONSTRUCTION, INC., a Florida Corporation, and Business Security and Investigation Corporation, Inc., a Florida Corporation, Appellees.
    Nos. 79-1271, 79-1478 and 79-1867.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1980.
    James T. Walker of Brennan, McAliley, Hayskar & McAlilay, Fort Pierce, for appellant/appellee-Business Security and Investigation Corporation, Inc.
    Jesse W. Miller, North Miami, for appellant-Parliament Insurance Co.
    Edgar Brown of Lloyd & Brown, and Michael P. Lesniak of James & Lesniak, P.A., Fort Pierce, for appellee-Ben Wood Construction, Inc.
   PER CURIAM.

The appellant, Business Security and Investigation Corporation, Inc., in seeking reversal of a final judgment for appellee, Ben Wood Construction, Inc., poses five points for our consideration. The primary thrust of three of said points is that the evidence adduced at trial was insufficient to support the verdict for appellee, Ben Wood Construction, Inc. We concede that the questions of foreseeability and proximate cause are close; however, our study of the record and briefs leads us to believe there is sufficient competent evidence m the record to justify the verdict.

We also find no error in the trial court’s rulings admitting expert testimony and the evidence of damages for “Down Time.” Appellant’s argument against admissibility of the expert’s testimony was more properly directed at the weight to be afforded such testimony rather than its admissibility. Regarding the special damages for Down Time, it appears the allegations of the complaint were sufficient as a basis to prove the specific items involved. If appellant were in doubt as to the extent of this claim, it could have moved for more definite statement or made inquiry via discovery.

Appellant, Parliament Insurance Company, contends on this appeal that the liability coverage which its policy afforded Business Security and Investigation Corporation, Inc., is not applicable here because the policy contains an exclusion from liability for damage to property in the care, custody or control of the insured. The parties agree that the duty of the insurer to defend the insured is determined by the allegations of the complaint. National Union Fire Insurance Company v. Lenox Liquors Inc., 358 So.2d 533 (Fla.1977). Looking to the complaint filed by Ben Wood Construction, Inc., we hold the allegations are sufficient to require that the carrier defend the insured and the proof, though not by any means overwhelming, is adequate to support the finding in favor of coverage.

Accordingly, the judgments and orders appealed from are affirmed.

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.


text:
    Michael Lee FAVER, Appellant, v. STATE of Florida, Appellee.
    No. 79-2218.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1980.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by defendant from a judgment and sentence based on a plea of nolo contendere. Defendant makes no arguments whatsoever as to any error committed by the trial court. Instead, defendant asks this court to allow him to withdraw his plea before the trial court. This issue has never been presented to the trial court. The appeal is, therefore dismissed. This dismissal is without prejudice to the defendant’s filing of a motion to withdraw his plea before the trial court on whatever appropriate grounds he may establish.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    Frank Floyd CAVANAUGH, Appellant, v. STATE of Florida, Appellee.
    No. 79-1988.
    District Court of Appeal of Florida, Second District.
    July 30, 1980.
    Jack 0. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant seeks review of the circuit court’s denial of his motion to mitigate a legal sentence. No appeal lies from the denial of this motion. Suggs v. State, 358 So.2d 897 (Fla. 2d DCA 1978). Accordingly, the appeal is dismissed.

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Patricia SCOTT and Expeditions Unlimited, Inc., Appellee.
    No. TT-224.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Ronald D. Poltorack, Fort Lauderdale, for appellant.
    Ronald Payne, Fort Lauderdale, for ap-pellee.
   ON MOTION TO DISMISS APPEAL

PER CURIAM.

This is an appeal from a non-final order of the deputy commissioner finding that the insurance policy issued by appellant was in full force and effect on June 2, 1978, the date of the alleged accident affording workers’ compensation to the claimant, appellee Scott. No other outstanding issues were determined by the order, nor were any benefits awarded.

By motion to dismiss the appeal, appellee Scott argues that this court has no jurisdiction, under statute or appellate rule, to review the subject interlocutory order. For the reasons set forth below, we disagree.

While appellate procedure in workers’ compensation cases is ordinarily governed by the Workers’ Compensation Rules of Procedure, these rules provide little guidance regarding which interlocutory orders of the deputy commissioners, if any, are appealable to this court. However, Florida Rule of Appellate Procedure 9.030(b)(1)(B) provides that the several District Courts of Appeal have appeal jurisdiction to review “non-final orders of lower tribunals as prescribed by Rule 9.130(a)(3).” We believe that hearings before the deputy commissioners are “lower tribunals within the contemplation of Rule 9.030(b)(1)(B). Therefore, we hold that appeals from interlocutory orders in workers’ compensation are governed by the provisions of Florida Rule of Appellate Procedure 9.130(a)(3).

Turning to the case at hand, we find that the subject order, which determines the issue of insurance coverage in favor of appellee Scott (the party seeking affirmative relief) is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See, York Insurance Co. v. Becker, 364 So.2d 858 (Fla.2d DCA 1978); State Farm Automobile Insurance Co. v. Kraver, 364 So.2d 1259 (Fla.3d DCA 1978). But cf. Cosmopolitan Mutual Ins. Co. v. Lozano, IRC Order 2-3688 (Feb. 7, 1979), dismissing (as interlocutory and not appealable under the W.C.R.P.) an appeal from an order on com-pensability without award of benefits, cert. denied, 379 So.2d 204 (Fla.1979); and Famous Market Place v. Meier, IRC Order 2-3875 (Aug. 1, 1979). In so ruling, we express no opinion as to the merits of the appeal.

Accordingly, appellee Scott’s Motion to Dismiss Appeal is hereby denied.

ROBERT P. SMITH, Jr., ERVIN and WENTWORTH, JJ., concur.


author: BOOTH, Judge.

text:
    Ertha Lee HOLIDAY, Appellant, v. STATE of Florida, Appellee.
    No. PP-344.
    District Court of Appeal of Florida, First District.
    Aug. 4, 1980.
    Michael J. Minerva, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel Olivel-la, Asst. Atty. Gen., for' appellee.
   BOOTH, Judge.

This cause is before us on appeal from the trial judge’s order denying appellant’s motion for discharge from the Florida State Hospital. The trial judge, in his order, found that the criminal activity record of the appellant indicated “a high probability of a return to a violent type crime,” and that the appellant is “manifestly dangerous to the peace and safety of the public and his release from the hospital would endanger the peace and safety of whatever community he was released into.” The trial judge’s use of the term “manifestly dangerous” does not track the language of Florida Statutes § 394.467 (1979). However, his findings, quoted above, are substantially equivalent to the “likely to injure” language of the statute and this court’s opinion in Hill v. State, 358 So.2d 190 (Fla. 1st DCA 1978). The order of the trial court is affirmed.

ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Retired), Associate Judge, concur.


text:
    Irving I. SHAPIRO and Jeanette Shapiro, his wife, Appellants, v. ENVIRON CONDOMINIUM II ASSOCIATION, INC., Radice Realty & Construction Corp., et al., Appellees.
    No. 79-2038.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1980.
    Neil F. Garfield of Law Offices of Neil Franklin Garfield, P.A., Fort Lauderdale, for appellants.
    Alan S. Becker of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appel-lees.
   PER CURIAM.

The judgment below is affirmed with the exception of that portion as to costs. Since there were no pleadings regarding costs, they must be borne by the appellee/condo-minium association.

AFFIRMED IN PART, REVERSED IN PART.

DOWNEY and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.


text:
    FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Georgia T. SHOOK, Appellee.
    No. 79-2601.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1980.
    Enoch J. Whitney, Tallahassee, Gen. Counsel, and Judson M. Chapman and Michael J. Alderman, Tallahassee, Asst. Gen. Counsel, Dept, of Highway Safety and Motor Vehicles, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

REVERSED on authority of Wheeler v. Department of Highway Safety and Motor Vehicles, 297 So.2d 128 (Fla.2d DCA 1974).

DOWNEY and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.


author: OTT, Judge.

text:
    Shirley Mae NEFF, Appellant, v. James Doyle NEFF, Appellee.
    No. 79-1926.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1980.
    William E. Vinson, Jr. of the Law Office of Denis L. Fontaine, Lakeland, for appellant.
    Michael D. Martin of Martin & Martin, Lakeland, for appellee.
   OTT, Judge.

The trial court dissolved the 24-year marriage of the parties, but denied wife’s claim to a special equity in a multimillion dollar family business (the chain of Foxfire/Sea-fox Inns) that she both directly and indirectly assisted in developing. Instead, the court awarded her the husband’s interest in the family home and another parcel of real property as lump sum alimony, and permanent periodic alimony of $800 per month.

We have had occasion to remark in several similar cases in recent months that the landmark decisions of our supreme court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) and Duncan v. Duncan, 379 So.2d 949 (Fla.1980) marked the dawn of a new era for a Florida wife who has labored beside her husband in achieving material goals. It is no longer necessary for a wife to prove, upon dissolution of the marriage, that her efforts directly and specifically produced a tangible, measurable profit or gain. Canakaris confirms the fact that marriage may indeed be a partnership in the economic area and that each partner is entitled to a fair share of the fruits of their combined industry, whether performed in the office, the factory, the fields or the home.

If, as often happens, the harvest resulting from mutual efforts winds up in the hands of one partner, the equitable share of the other can be allocated by an award of lump sum alimony.

In some instances, as here, wives labor on two fronts. While tending the home, raising the children, discharging the social and civic obligations of the family and generally performing the myriad tasks sometimes (depending on one’s priorities and viewpoint) termed “supportive of the breadwinner”, the wife may in addition take an active part in the family business. When she does so, Duncan requires that her direct contribution to the commercial enterprise be recognized as a special equity—a proprietary interest—in that business when marital assets are being allocated upon dissolution of the marital partnership.

In the case before us, the wife devoted long and exhausting hours, often 16 to 18 per day, seven days a week for many years to help her husband develop the original Foxfire Inn in Lakeland into the hub of several successful restaurants. She raised three children and often put in a full shift at the restaurant before facing her daily domestic chores when school recessed—only to return later to the restaurant for another four to six hour night shift. Husband, whose brief is long on platitude and short on gratitude, disparages his wife’s contribution to the success of the business by pointing to evidence that she was paid $125 per week, which he asserts was reasonable compensation for a bookkeeper. He fails to mention that (1) her “salary” was paid as a tax gimmick at the recommendation of their accountant, (2) it was used for “grocery money” in the family home, and (3) the lady acted in many capacities other than as bookkeeper for the business.

Husband argues that even if his wife should be deemed entitled to a special equity in the Lakeland Foxfire Inn, that would not warrant an award to her of an interest in any of the other restaurants. That argument ignores the fact that the Lakeland facility, the original and most successful endeavor, was the “golden goose” whose eggs are traceable into the later locations. Of course, such direct tracing is no longer essential to an equitable distribution of marital assets. The Canakaris -approved use of lump sum alimony to achieve that end is now possible.

Wife also attacks the award of permanent periodic alimony of $800 per month, and argues that it is grossly inadequate. She says that this award for 24 years of unstinting effort compares unfavorably with husband’s clothing bills, which he testified might total as much as $15,000 a year but was such a “small item” he couldn’t be more specific. We agree that the award is inadequate as matters now stand, but we cannot predict what amount of periodic alimony, if any, will be necessary after the trial court reconsiders the distribution of marital assets in the light of Canakaris and Duncan. We discern in those cases a philosophy that a partner who has helped build a substantial estate need not and should not be on the dole, no matter how generous it may be. When partnership assets of great value are given into the sole possession of one partner, who is then enjoined to provide life care to the former partner, there is a not-so-subtle implication that the latter is somehow incapable of handling her own affairs. This demeaning aspect of such an arrangement transcends even the more obviously objectionable features — impermanence, lack of independence and denial of ownership.

Many rules governing marital dissolution confirm the impression that an award of periodic alimony in lieu of an actual, outright grant of interest in assets accumulated during the marriage is a thinly-disguised denial that a proprietary right exists. For example, periodic alimony terminates on death. A wife may have struggled and toiled 40 years to help her husband make a fortune, but she has nothing to call her own or leave to her heirs. And if someone else will but obligate himself to support a divorced woman, her former husband is scot-free — with all the assets she helped him accumulate.

We believe that Canakaris and Duncan provide a more equitable and a more dignified solution to situations such as the one before us. The court below has had no opportunity to consider the true equities here in the light of those cases, or to allocate the marital properties in such manner as to recognize and protect those equities. This case must be remanded for that purpose.

The judgment of the trial court is reversed insofar as it pertains to the allocation and distribution of the marital assets, lump sum alimony and periodic alimony. In doing so, the court will be able to take into consideration (1) any recent change in the status or profitability of the various restaurants, and (2) the propriety of husband’s purported gifts of substantial marital assets to the children of the parties. This will permit both parties to explore husband’s claim that his fortunes have been on the wane ever since this action was filed, and particularly since the judgment was entered.

In all other respects the judgment is affirmed.

SCHEB, C. J., and DANAHY, J., concur.

      . In fairness to Mrs. Neff, it should be made clear that she has in no way begrudged any gift her husband has made of his property to the children. Her point, with which we cannot disagree, is simply that if her property is to be given to the children, she would like to do it herself, in her own way and in her own time.


author: OTT, Acting Chief Judge.

text:
    Robert E. WOOD and Diane Bass Wood, Appellants, v. MANATEE BAY CORPORATION, Appellee.
    No. 79-2072.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1980.

      R. Justin Marshall, Palmetto, for appellants.
    James M. Wallace, St. Petersburg, for appellee.
   OTT, Acting Chief Judge.

Following the remand of this case after an unsuccessful earlier appeal by Manatee, the trial court purported to enter a “Supplemental Final Judgment” in favor of Manatee. The action of the court was a nullity because it had no jurisdiction to make such an award. Consequently, we vacate the void supplemental judgment.

In 1977 the Woods filed suit to quiet title to their home. Specifically, they asked the court to declare that a $2,900 note, which they executed in favor of Manatee in 1961, together with the mortgage securing it, were invalid and unenforceable. Manatee counterclaimed, claiming default in the note on the ground that no payments had been made since 1962, and seeking foreclosure of the mortgage. In response to that counterclaim, the Woods raised the statute of limitations and other affirmative defenses.

On August 16, 1978 the trial court entered a final judgment purporting to adjudicate all matters in dispute. The action to quiet title was treated as a suit to cancel the debt and was granted. The mortgage was cancelled and Manatee’s counterclaim was dismissed with prejudice. Manatee appealed and this court affirmed the judgment in an opinion filed May 18, 1978, which stated in part:

The final judgment is ambiguous as to whether it purports to cancel the debt evidenced by a promissory note which underlies the mortgage. We construe the judgment to mean that the underlying debt between the parties is not affected. The judgment is affirmed as construed.

Manatee Bay Corporation v. Wood, 371 So.2d 197, 198 (Fla. 2d DCA 1979).

The mandate of this court, dated June 7, 1979, returned the case to the trial court, but was withdrawn on August 1,1979 when the Woods petitioned for rehearing and clarification and established that they had not been served with the mandate. Their petition was denied September 17,1979 and we issued a new mandate on October 3, 1979.

In the meantime, on May 31,1979, Manatee filed in the trial court a motion for the entry of a “Supplemental Final Judgment.” The basis for the motion was an assertion that the opinion of this court was “a mandate” for judgment in Manatee’s favor on the promissory note. The trial court agreed and on June 4,1979 entered the supplemental final judgment, “nunc pro tunc August 14 [sic], 1978,” awarding Manatee a judgment against the Woods for some $10,000.

The Woods’ motion to set aside the supplemental final judgment, on the ground that the trial court had no jurisdiction to enter it, was denied and this present appeal followed.

There are two jurisdictional defects in the supplemental final judgment. The most glaring, of course, is revealed by simply reciting the chronology. On June 4, 1979 the first appeal was still pending in this court. The court below had no jurisdiction to proceed with the case. Rule 9.600 of Florida Appellate Procedure; State ex rel. Davis v. Clearwater, 108 Fla. 635, 146 So. 836 (1933).

Equally devastating to the validity of the supplemental judgment is the fact that this court affirmed the “Final Judgment” of the trial court, which purported to be a final adjudication of all the matters at issue in the case. The effect of that affirmance was that thereafter the trial court was powerless to amend or change the judgment. Budd v. Williams, 152 Fla. 189, 11 So.2d 341 (1943). The lower court had no power to amend its final judgment, now affirmed by this court, and grant some new, different or further relief. Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla. 1976); Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932). New matter affecting the judgment could not be presented without our permission. Rinker Materials Corp. v. Holloway Materials Corp., 175 So.2d 564 (Fla. 2d DCA 1965), cert. denied 180 So.2d 657 (Fla.1965). A supplemental judgment could be entered only if it were consistent with not only the former judgment of the trial court, but also with the opinion and mandate of this court. Test v. State, 87 So.2d 587 (Fla.1956). The trial court had no jurisdiction to cure deficiencies or omissions in the original judgment (Beach Resort Hotel Corp. v. Wieder, 83 So.2d 863 (Fla.1955)) or to do anything other than that which would implement the judgment which we had affirmed. Sullivan v. Chase Federal Savings & Loan Ass’n., 132 So.2d 341 (Fla. 3d DCA 1961).

Applied to the facts at bench, those rules nullify the supplemental judgment. The only possible predicate for the statement in our earlier opinion, that the judgment did not affect the debt underlying the cancelled mortgage, was our conclusion that Manatee’s counterclaim had sought only foreclosure of the mortgage, and not a money judgment on the note. Otherwise, the portion of the judgment dismissing the counterclaim with prejudice would operate as res judicata denying Manatee’s right to collect on the debt.

The result is that Manatee’s attempt to interject a new issue into this completed lawsuit was improper, and the trial court had no jurisdiction to consider it. Should Manatee wish to pursue its claim, it will have to do so in a new action, in which the Woods will have full opportunity to raise their several defenses.

The supplemental final judgment is vacated and set aside.

DANAHY and CAMPBELL, JJ., concur.

      . We need not, and therefore will not, address the question of the effect that the withdrawal of a mandate has upon proceedings taken during the interim between the trial court’s receipt of the mandate and the withdrawal thereof.

      . We are mystified by the assertion that this statement was “a mandate” for a money judgment in favor of Manatee. Instructions to a trial court from an appellate court frequently accompany a reversal, but its strains the imagination to construe an affirmance as an order that some deficiency in the trial court’s performance must be corrected after remand.


author: RYDER, Judge.

text:
    M. J. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-275.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1980.
    Jack 0. Johnson, Public Defender and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

The restaurant Count Phillippe Inn was burglarized on October 27, 1979 and again on the morning of October 28, 1979. Mr. Everling, the owner of the restaurant, while inside the premises on October 28, without lights and before the sun had risen, observed an individual run from the building. He described the person to the police as a “white male, thin build, approximately 5'10" to 5'11", weight unknown, approximately twenty to twenty-two years with shoulder length blond hair.” The police already suspected appellant’s brother as one involved in the burglary on the 27th.

Detective Poe of the Pinellas County Sheriff’s Department prepared a photopak consisting of three photographs. One of the photographs was of appellant’s brother who at the time the picture was taken had very short hair. The second photograph depicted another white male also with short hair. The third picture was of appellant and depicted him with shoulder length light-colored hair. Detective Poe testified that the photopak was prepared and presented to Mr. Everling in his investigation of the October 27th burglary. However, he also testified appellant’s picture was included because it more closely resembled the description given by Mr. Everling with respect to the incident on the 28th. Mr. Everling selected the photograph of appellant as the person he believed he saw on the morning of the 28th.

Detective Poe then prepared a second photopak of five photographs. One of those photographs was the same picture of appellant that Everling had earlier identified, however, in this instance, the police had cut out the head of the appellant, enlarged it, and pasted it onto a different background leaving a sort of corona effect around the likeness of appellant. The second photopak was displayed to Everling who again selected the photograph of appellant.

Appellant was charged by amended petition as a delinquent child. He moved to exclude the pretrial and any in-court identification by Mr. Everling on the ground that the photopaks were impermissibly suggestive and any in-court identification would be tainted thereby. The court, after a hearing, denied the motion.

At trial, the State’s sole witness was Mr. Everling who was allowed, over objection, to identify the appellant.

Appellant alleges the trial court’s denial of his motion to exclude the in-court identification was error. We agree and reverse for reasons herein given.

Identification procedures become impermissibly suggestive where the totality of the circumstances indicate that the identification resulting from the procedure is unreliable. State v. Sepulvado, 362 So.2d 324 (Fla.2d DCA 1978). Baxter v. State, 355 So.2d 1234 (Fla.2d DCA 1978). The first photopak presented to Mr. Everling consisted of three photographs, only one of which even vaguely resembled the description he had given the police. Such a procedure created a substantial risk of misidenti-fication and was therefore unreliable. The second presentation was, at best, no better, and perhaps worse.

Once a pretrial identification is found to be impermissibly suggestive, it is presumed that any in-court identification will be tainted and the burden shifts to the State to overcome the presumption by clear and convincing evidence. State v. Sepulvado, supra. The lower court erred in finding the pretrial identification procedure was not impermissibly suggestive. Accordingly, the appellant’s motion should have been granted and we must reverse and remand for new trial.

REVERSED and REMANDED for new trial.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    Dennis Lee STINSON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent.
    No. VV-495.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.
    Dennis Lee Stinson pro se.
    No appearance required of the State.
   PER CURIAM.

The petition for a belated appeal is granted. On the merits of appellant’s Rule 3.850 motion, it appears conclusively from the trial court’s order and attached record that appellant, assisted by his counsel and his father, knowingly pleaded guilty in the expectation of receiving the negotiated sentence.

AFFIRMED.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

It appears that appellant’s motion to vacate sentence was denied without a hearing. Appellant’s assertion that his plea of guilty was involuntarily obtained due to the promises of his appointed counsel that if he so pled he would receive a 15-year sentence, but in fact received a 20-year sentence, was refuted by the record. However, appellant also asserts that his guilty plea was involuntary because, his I.Q. being less than 60, he lacked the mental capacity to understand the consequences of his plea. As to that assertion, the order denying the motion states merely that the negotiated sentence was read and “explained to the defendant by his attorney prior to the entry of a plea of guilty and it was read and explained to the defendant in open court by the judge.” In my view, the court’s statement of explanation does not conclusively negate appellant’s assertion that his plea was not knowingly and understandingly made. I would reverse the denial of the motion and remand for an evidentiary hearing on that point. See Fla.R.App.P. 9.140(g).