author: PER CURIAM. ANSTEAD, Judge,

text:
    DREXEL BUILDING, a partnership, Harry Mangurian and Brian Deuschle, jointly and severally, Appellants, v. Angelo SPADARO d/b/a Spadaro Realty, Appellee.
    No. 80-588.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    Rehearing Denied Feb. 19, 1981.
    David C. Hardin of Spear, Deuschle & Curran, P. A., Fort Lauderdale, for appellants.
    Douglas M. Bates of Law Offices of Douglas M. Bates, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Affirmed.

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

ANSTEAD, J., concurs in part and dissents in part with opinion.

ANSTEAD, Judge,

concurring in part and dissenting in part:

I cannot agree with the holding of the majority that it was not error for the trial court to add an amount for interest to the jury’s verdict. In my view it was error for the trial court to add interest. My views are similar to those expressed in the case of Schulman v. Cort Aviation Corporation, 330 So.2d 114 (Fla.3d DCA 1976):

The arguments in the briefs dealt with the propriety of the inclusion of interest in the judgment as depending upon whether the indebtedness for which judgment was awarded was liquidated or un-liquidated.
We are relieved of the necessity to evaluate those opposing arguments of counsel and to chose [sic] between them, because the verdict rendered by the jury did not allow or provide for the allowance of interest, and therefore it was error for the court, in entering judgment on the verdict, to add to the sum assessed by the jury an additional sum for interest thereon. See Shoup v. Waits, 91 Fla. 378, 107 So. 769; Bailey v. Swartz, Fla.App.1957, 97 So.2d 310; Wabash Fire & Casualty Insurance Co. v. Holloway, Fla.App.1962, 139 So.2d 145; Grayson v. Fishlove, Fla.App.1972, 266 So.2d 38.

This is not a case where the jury failed to follow the instructions of the court as to an award of interest. See 72 A.L.R. 1150 (1931), “Power of Court to Add Interest to Verdict Returned by Jury.” Although interest was claimed in the complaint, no instructions were given as to interest and indeed the verdict form returned by the jury was agreed to in advance by appellee and that verdict form already contained, upon submission to the jury, the specific amount claimed by the appellee to be due. In short, the appellee, by failing to seek recovery of interest from the jury, waived that claim. Under such circumstances the trial court, in entering judgment on the verdict, was without authority to sua sponte add an amount for pre-judgment interest.

Having reached this conclusion, I must acknowledge the apparent holding of this court to the contrary in a decision in which this writer concurred. See Fort Pierce Toyota, Inc. v. Wolf, 345 So.2d 348 (Fla.4th DCA 1977). However, the complete factual and procedural context in which the issue was decided there is not set out in the opinion.


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    Tony Bernard ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. TT-378.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.
    Rehearing Denied Feb. 13, 1981.
    Jon D. Caminez, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Defendant Tony Bernard Robinson appeals his conviction of burglary of a dwelling. We affirm.

Defendant was charged by information with burglary of a dwelling while armed, with the intent to commit the offense of assault or battery in violation of Section 810.02, Fla.Stat. (1977), sexual battery in violation of Section 794.011(3), Fla.Stat. (1977), and use of a firearm in the commission of a felony in violation of Section 790.-07(2), Fla.Stat. (1977). He pled not guilty to all charges. Following trial on the above counts, the jury returned a verdict of guilty of burglary of a dwelling, a lesser included offense of burglary of a dwelling while armed with intent to commit an assault or battery, and was acquitted on the charges of sexual battery and use of a firearm in the commission of a felony.

Defendant raises three points on appeal. First, he contends that his conviction of burglary of a dwelling should be reversed because he was acquitted on the charges of sexual battery and use of a firearm in the commission of a felony. He argues that in order to be legally convicted of burglary of a dwelling, the jury was required to find him guilty of breaking and entering with the intent to commit a felony. Since the jury found him not guilty of sexual battery and use of a firearm in the commission of a felony, and all underlying offenses, he maintains there was no evidence to support a finding of intent to commit a felony.

Contrary to defendant’s argument, the fact that the defendant was acquitted on the charges of sexual battery and use of a firearm in the commission of a felony, does not indicate the jury could not have legally found the defendant unlawfully entered the victim’s apartment with the intent to commit a felony. Section 810.02(1), Fla.Stat. (1977), defines burglary as “entering or remaining in a structure or conveyance with the intent to commit an offense thereinThe testimony of the victim clearly supports the jury’s finding that the defendant either committed or intended to commit an offense after entering the victim’s apartment. She testified that the defendant broke down her locked apartment door and entered without her consent. At the time of the defendant’s entry, the victim was leaning against the door and was thrown back against the chair and onto the floor when the defendant kicked in the door. The defendant fell on top of the victim and they began wrestling on the floor. He then grabbed her around the neck, telling her that he would hurt her if she did not stay quiet. She testified that he was armed and that he subsequently forced her to have sexual intercourse.

Specifically, the evidence supports a finding by the jury that the defendant entered the apartment with the intent of committing sexual battery, aggravated battery, or aggravated assault, notwithstanding his acquittal on the charges of sexual battery and use of a firearm in the commission of a felony. Defendant’s acquittal only signified that the jury, for whatever reason, determined that the defendant was unsuccessful in carrying out his intent to commit an offense after entering the dwelling. Consummation of intent is unnecessary to support a conviction for entering a dwelling with the intent to commit an offense. See, Griffin v. State, 276 So.2d 842 (Fla. 4th DCA 1973).

Defendant’s second point on appeal challenges the introduction of evidence of the defendant’s prior felony conviction and a pending felony charge in an unrelated case brought out by the State’s cross-examination of a defense witness. Willie Thornton had been called by the defendant to testify to the defendant’s character and reputation for truth and veracity in the community. Thornton testified that the defendant had an excellent reputation for truth and veracity in the community. Following Thornton’s testimony, the State made a professional statement, outside the presence of the jury, regarding the State’s desire to cross-examine Thornton as to his knowledge of the defendant’s prior misconduct. Defendant objected to the intended scope of the State’s cross-examination, but the trial court denied the objection and permitted the State to cross-examine Thornton as to his knowledge of defendant’s prior conviction and the pending weapons charge.

The trial court did not err in permitting the State to cross-examine Thornton as to his knowledge of specific acts of the defendant. Greenfield v. State, 336 So.2d 1205 (Fla. 4th DCA 1976). Greenfield, supra, held that where the defendant places his reputation for truth and veracity in issue, cross-examination of a character witness is not limited to actual convictions but may include arrests and other alleged conduct or misconduct involving the defendant up to the time of trial. Consequently, the cross-examination of Thornton as to his knowledge of defendant’s prior conviction as well as the pending weapons charge against the defendant was proper in order to test the soundness and foundation of Thornton’s opinion as to defendant’s reputation for truth and veracity. Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA 1977).

Finally, defendant contends that the trial court denied his motion for new trial because of the court’s undue and unfair prejudice against the defendant and the defendant’s prior relationship with the victim. We disagree.

Defendant’s argument is based upon speculative allegations and is unsupported by the record. Reversible error cannot be predicated upon conjecture. Sullivan v. State, 303 So.2d 632 (Fla.1974). Moreover, in light of the evidence of defendant’s guilt, the trial court properly denied defendant’s motion for new trial which was based upon the same issues which defendant raises in this appeal. If a trial court’s order is sustainable under any theory revealed by the record on appeal, notwithstanding that it may have been entered for erroneous reasons, the order will be affirmed. Savage v. State, 156 So.2d 566 (Fla. 1st DCA 1963).

Accordingly, defendant’s judgment of conviction is AFFIRMED.

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


text:
    SCA SERVICES OF FLORIDA, INC., Appellant, v. CITY OF TALLAHASSEE, a Municipal Corporation, Appellee. TIMBERLANE SHOPS ON the SQUARE, INC., Appellant, v. CITY OF TALLAHASSEE, Appellee.
    Nos. VV-488, WW-293.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.
    Rehearing Denied Feb. 13, 1981.
    Walter B. Smith, of Green & Fonvielle, P.A., Tallahassee, for appellant SCA Services of Florida, Inc.
    R. Jeremy Solomon, of McConnaughhay & Roland, Tallahassee, for appellant Tim-berlane Shops on the Square, Inc.
    Bryan W. Henry, City Atty.; and James R. English, Asst. City Atty., of Henry, Buchanan, Mick & English, Tallahassee, for appellee.
   SHIVERS, Judge.

This is a consolidated appeal from two separate final orders dismissing appellants’ complaints seeking to have a City annexation held void because of the City’s failure to comply with the statutory requirements for effecting annexation. We affirm.

On January 22, 1980, the Tallahassee City Commission passed an ordinance proposing to annex the Thomasville Road/Interstate 10 area of Leon County. On March 11, 1980, the residents of the City and the area to be annexed approved the annexation ordinance by referendum.

On March 14, 1980, appellant SCA Services of Florida, Inc. filed a complaint against the City seeking a judgment declaring that the City had not met the statutory requirements for effecting the annexation and therefore the annexation was void ab initio. The City responded by filing a motion to dismiss, contending that SCA was required to challenge the annexation within thirty days following the passage of the annexation ordinance by the City Commission as required by Section 171.081, Fla. Stat. (1979). On May 18, 1980, the trial court agreed with the argument advanced by the City and granted the motion to dismiss on the basis that the complaint had not been filed within thirty days following the passage of the annexation ordinance by the City Commission.

On March 27, 1980, appellant Timberlane Shops on the Square filed a petition pursuant to Section 171.081, requesting the lower court to declare the annexation null and void. The City moved to dismiss Timber-lane Shops’ complaint on the ground that it was untimely under Section 171.081. On June 24, 1980, the trial court granted the City’s motion to dismiss.

On October 16,1980, this court consolidated these two cases for appeal.

Appellants contend that the lower courts erred in dismissing the complaints for untimeliness under Section 171.081. Section 171.081 provides:

No later than 30 days following the passage of an annexation or contraction ordinance, any party affected who believes that he will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction or to meet the requirements established for annexation or contraction as they apply to his property may file a petition in the circuit court for the county in which the municipality or municipalities are located seeking review by certiorari. In any action instituted pursuant to this section, the complainant, should he prevail, shall be entitled to reasonable costs and attorney’s fees.

Appellants argue that the thirty day time limitation for seeking review of the City’s compliance with the procedural annexation requirements of Chapter 171 begins to run from the date of the referendum approving the annexation rather than from the date of the passage of the annexation ordinance by the City Commission.

The lower courts are correct in holding that Section 171.081 allows thirty days from the date on which the municipal governing body passes the annexation ordinance for an affected party to challenge compliance with annexation procedures. The purpose of Chapter 171 is to provide a uniform method of effecting annexation by municipality. Section 171.021, Fla.Stat. (1979); Section 171.0413(4), Fla.Stat. (1979). Section 171.081 is designed to afford “any party affected who believes that he will suffer material injury” by failure of the municipal governing body to comply with the annexation requirements of Chapter 171 to seek review in the Circuit Court. Section 171.-031(5), Fla.Stat. (1979), defines “parties affected” as “any persons or firms owning property in, or residing in, either a municipality proposing annexation or contraction or owning property that is proposed for annexation to a municipality . . . . ”

The thirty day time limitation of Section 171.081 is designed for the purpose of allowing any complaint challenging the procedures leading to passage of an annexation ordinance to be brought to the attention of a municipality prior to the expense of a referendum. This is evident from the prospective language used in Section 171.081 and Section 171.031(5), i. e., “believes he will suffer,” “proposing annexation,” “proposed for annexation.” Under Section 171.-081, judicial review is limited to whether the municipality complied with the procedure for annexation and whether it met the requirements established for annexation as they apply to the complainant. The limited judicial review envisioned by Section 171.-081 neatly interacts with Section 171.-0413(2)(a), Fla.Stat. (1979), which prohibits a municipality from scheduling a referendum to approve an annexation ordinance until thirty days following passage of the ordinance by the municipality.

The use of the term “passage” to qualify the thirty day time period for review in Section 171.081 further supports the construction that the time period runs following passage of the annexation ordinance by the municipal governing body and prior to the referendum. In Section 166.041(4), Fla. Stat. (1979), which sets out the uniform procedure for adoption of ordinances and resolutions by a municipality, the term “passage” is used to signify final action on an ordinance by a municipal governing body. Also see, Jordan v. Gessner, 153 Fla. 498, 15 So.2d 189 (1943) where a special act provided that a referendum election in a drainage district should not be held until ninety days after “passage of the act” and the court held that the ninety day time period was to be computed from the date the legislative functions connected with the act were completed.

Consequently, since appellants’ complaints were filed more than thirty days after the passage of the annexation ordinance by the Tallahassee City Commission, the lower courts were correct in dismissing the untimely complaints.

Additionally, SCA argued that the thirty day time limitation in Section 171.081 should have no effect on its right to seek declaratory relief because, by its terms, the statute applies only to the remedy of certio-rari. We disagree. In substance, SCA sought judicial review under Section 171.-081. Although SCA’s complaint was styled as a declaratory judgment action rather than an action under Section 171.081, the complaint sought to invalidate the annexation because of the failure of the City Commission to comply with the procedures for annexation as set out in Chapter 171. This is the same issue addressed in Section 171.-081 which provides a thirty day time limitation for judicial review. Moreover, the complaint further sought attorney’s fees, should SCA prevail, under “Chapter 171.” The only provision for attorney’s fees in Chapter 171 is found in Section 171.081. Therefore, Section 171.081 was applicable to SCA’s complaint, which was required to have been filed within thirty days after passage of the annexation ordinance by the City Commission.

Accordingly, the dismissal of appellants’ complaints because they were filed beyond the thirty day time period following passage of the ordinance by the City Commission is AFFIRMED.

McCORD and THOMPSON, JJ., concur.


author: BASKIN, Judge.

text:
    Beatrice WIMBERLY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1304.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 20, 1981.

      Bennett H. Brummer, Public Defender and Joseph C. Segor and Rory Stein, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Defendant Beatrice Wimberly appeals an adjudication of guilt and sentence of life imprisonment without parole for twenty-five years resulting from the first-degree murder of her five-year old adopted daughter. Adjudication and sentence were entered by the trial court following a jury trial. Defendant Wimberly contends that a statement she made to Dade County Public Safety Department officers should have been suppressed because it was the product of an earlier statement she gave to the Opa Locka Police Department without having been fully advised of her Miranda rights. The Opa Locka statement was suppressed by the trial court. Additionally, defendant argues that the second statement should have been suppressed because without her first statement the police lacked probable cause to believe she had committed a crime. We find no error in the trial court’s refusal to suppress the second statement. We therefore affirm the trial court’s decision.

On the day the incident occurred, defendant Wimberly reported her adopted daughter, April, missing from the car in which she claimed to have left her with her other daughter. The police were notified and the next day April’s body was discovered in a nearby lake. She had drowned. When defendant Wimberly called the Opa Locka police to inquire whether her daughter had been located, she was asked to come to the police station for information. Upon arrival she was informed of April’s death. As defendant Wimberly was leaving, she was told homicide detectives would want to talk to her and was led back to the station. She was interviewed by Sergeant Jackson and, when her description of the events was found to be inconsistent with descriptions given by other witnesses, was advised of her Miranda rights. Defendant then gave two exculpatory statements followed by another statement admitting she caused April’s death. She was then arrested. At the Public Safety Department Office to which she was taken, defendant Wimberly executed a Miranda rights waiverform and repeated the statement admitting she caused the child’s death. Defendant was again advised of her rights as the stenographer prepared to take her formal statement. Defendant then indicated she wanted to talk to an attorney. The interview was terminated without a written statement. Defendant’s oral statement to Sergeant Jackson at the Public Safety Department headquarters was presented to the jury at trial, the statement to Opa Locka officers having been suppressed for failure to advise her fully of her Miranda rights.

In this appeal, defendant challenges only the admissibility of her statement to the Public Safety Department. Defendant argues that the trial court had correctly ruled the Opa Locka statement inadmissible for failure to advise her fully of her Miranda rights and was required, therefore, to hold that her statement to the Public Safety Department was tainted under the authority of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Nash, 563 F.2d 1166 (5th Cir.1977); Gilpin v. United States, 415 F.2d 638 (5th Cir.1969); Harney v. United States, 407 F.2d 586 (5th Cir.1969); Kiraly v. State, 212 So.2d 311 (Fla.3d DCA 1968). Defendant Wimberly contends the confession was the product of the earlier statement, the fruit of the poisonous tree, French v. State, 198 So.2d 668 (Fla.3d DCA 1967), and should have been suppressed.

Examining the totality of circumstances, Brown v. Illinois, supra, 422 U.S. at 603, 95 S.Ct. at 2261; Brewer v. State, 386 So.2d 232 (Fla.1980), to determine whether a causal relationship existed between the statements, Gilpin v. United States, supra, we find that questioning began at Opa Locka around 11:30 p. m., lasting until approximately 1:30 a. m. Defendant signed the Miranda rights waiver form at the Public Safety Department headquarters at 2:15 a. m., approximately forty-five minutes later. If the improper influence that produced the first statement was removed, the second statement was admissible. State v. Oyarzo, 274 So.2d 519 (Fla.1973); State v. Outten, 206 So.2d 392 (Fla.1968); State v. Holt, 354 So.2d 888 (Fla.4th DCA 1978); Rhome v. State, 222 So.2d 431 (Fla.3d DCA 1969).

The burden of showing that defendant’s statement was voluntarily made rested with the state. Lawton v. State, 152 Fla. 821, 13 So.2d 211 (Fla.1943). Voluntar-iness was required to have been established by a preponderance of the evidence. Wilson v. State, 304 So.2d 119 (Fla.1974).

In the case under consideration, coercion is not at issue; the issue concerns only the failure by Opa Locka police to advise defendant of her rights to the extent required by law. We observe that when complete Miranda rights were later accorded the defendant, she understood them sufficiently and asked for an attorney. Her action, in so doing, clearly indicates that any taint from the original omission was dissipated by the time her second statement was taken. We therefore conclude that the state met its burden of proving that the inculpatory statement was freely and voluntarily made and not in violation of defendant Wimberly’s constitutional rights.

As to defendant Wimberly’s contention that her statement to the Public Safety Department was the product of a detention which was unlawful because without her first statement the officers lacked probable cause to believe she had committed a crime, and any subsequent confession was presumed involuntary, Dunaway v. New York, supra; Brown v. Illinois, supra; Wong Sun v. United States, supra; Taylor v. State, 355 So.2d 180 (Fla.3d DCA 1978), we disagree. Not all evidence or testimony must be suppressed because it would not have existed but for a violation of the Fourth Amendment.

We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection has been made has been come at by exploration of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).

Wong Sun v. United States, supra, 371 U.S. at 488, 83 S.Ct. at 417. Intervening events, including the giving of renewed Miranda warnings, broke any causal connection between the detention and defendant Wimberly’s confession. See State v. Maier, 378 So.2d 1288 (Fla.3d DCA 1979); Miller v. State, 300 So.2d 53 (Fla.3d DCA 1974); Jetmore v. State, 275 So.2d 61 (Fla.4th DCA 1973), cert. denied, 279 So.2d 312 (Fla.1973).

For these reasons, we affirm the decision of the trial court.


author: NESBITT, Judge.

text:
    Manuel E. ABELLA-FERNANDEZ, M.D., Appellant, v. Alicia E. ABELLA, Appellee.
    No. 80-266.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 20, 1981.
    Harold M. Braxton, Miami, for appellant.
    Alan M. Medof, Miami, for appellee.
    Before HUBBART, C. J., and NESBITT, J., and MELVIN, WOODROW, M. (Ret.), Associate Judge.
   NESBITT, Judge.

The husband appeals from certain provisions of a final judgment of dissolution of marriage. The only points which we consider deserving of our attention are: (a) the features of the judgment which awarded the wife the use and occupancy of the former marital residence until the parties’ child attains the age of eighteen years; and (b) that aspect which required the husband, under the guise of child support, to pay the mortgage payments, taxes, insurance, utilities, and to make minor repairs to the premises without credit for expenditures upon joint sale or ultimate partition of the premises. The wife was not awarded temporary or permanent periodic alimony.

Once again, we reiterate that, upon dissolution of a marriage, the parties become tenants in common in the marital home under Section 689.15, Florida Statutes (1979). As joint tenants, the obligations in the property are joint and the tenant meeting those obligations is entitled to credit, upon the sale or partition of the residence. Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976); Lyons v. Lyons, 208 So.2d 137 (Fla.3d DCA 1968); see also, Rutkin v. Rutkin, 345 So.2d 400 (Fla.3d DCA 1977); Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976). Consequently, the husband should be given credit for these expenditures upon the joint sale or ultimate partition of the premises.

The husband further challenges the provisions of the final judgment which granted the wife the use and occupancy of the home even if she remarried. This would leave the former husband the obligation to provide shelter and habitation for ex-wife’s new spouse. Such a ruling has no basis in law and is indeed a frustrating and pernicious rule to visit upon the former husband. Strollo v. Strollo, 365 So.2d 189 (Fla. 1st DCA 1978); Jones v. Jones, supra; Hendricks v. Hendricks, 312 So.2d 792 (Fla.3d DCA 1975). Consequently, this aspect of the judgment should be deleted.

Except as modified by this decision, the judgment is affirmed with directions to enter an appropriate judgment in accordance with this opinion.


author: PER CURIAM.

text:
    Julia W. BRYANT, Appellant, v. Roger W. SCHMOOR and Debra Schmoor, individually and as husband and wife, Appellees.
    No. 80-1146.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 18, 1981.
    Richard E. Doherty, Miami, for appellant.
    No appearance for appellees.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

The order denying the appellant’s motion to set aside the final judgment [see Fla.R. Civ.P. 1.540(b)] entered below is affirmed as no excusable neglect or mistake is shown on this record sufficient to reverse the above trial court ruling, Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978); see Rinieri v. News Syndicate Co., 385 F.2d 818, 823 (2d Cir.1967); Usery v. Weiner Bros., 70 F.R.D. 615 (D.C.Conn.1976). The appellant’s second contention upon this appeal is rejected on the ground that the appellant failed to raise such contention below in her motion to set aside the final judgment. Mariani v. Schleman, 94 So.2d 829, 831 (Fla.1957).

Affirmed.


author: SCHWARTZ, Judge.

text:
    FIDELITY & CASUALTY CO. OF NEW YORK, Appellant, v. Frances BRITT, and Miami Auto Liability Ins. Agency, Inc., d/b/a Auto Liability Insurance Agency, Appellees.
    No. 80-1632.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1981.
    Rehearing Denied Feb. 20, 1981.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Alfred D. Bieley, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and PEARSON, JJ.
   SCHWARTZ, Judge.

After we reversed the dismissal of her complaint in Britt v. Fidelity & Casualty Co. of New York, 360 So.2d 116 (Fla. 3d DCA 1978), the trial judge entered summary judgment on liability for the plaintiff, holding that an authorized agent’s issuance of a temporary insurance binder on behalf of Fidelity & Casualty was, as a matter of law, binding upon that carrier, even though (a) the policy was issued under the assigned risk plan and (b) the rules of the Florida Joint Underwriting Association with respect to the amount of premium deposit required had arguably not been complied with. We agree with the determination below. Our decision is controlled by “[t]he rule that the acts of an agent performed within the scope of his real or apparent authority are binding upon his principal, regardless of whether the principal had knowledge of the agent’s act.” 18 Fla. Jur. Insurance, § 318 at 292-93 (1971); e. g., Eagle Fire Co. v. Lewallen, 56 Fla. 246, 47 So. 947 (1908). There is no reason for concluding that this well-recognized general principle does not apply to policies issued through the FJUA. See, American Casualty Co. of Reading, Pa. v. Castellanos, 203 So.2d 26 (Fla. 3d DCA 1967); § 627.311(1), Fla.Stat. (1979). On this point we distinguish Rios v. Florida Farm Bureau Mut. Ins. Co., 371 So.2d 700 (Fla. 3d DCA 1979), upon which the appellant heavily relies. That decision merely held that the agent there did not possess either the actual or apparent authority to reinstate a policy notwithstanding the insurer’s previous valid cancellation for nonpayment of premiums. Compare, 18 Fla.Jur. Insurance, §§ 318-19, supra, with 538, 645-51, and cases collected.

Affirmed.

      . The carrier responded affirmatively to a request for admission propounded by the plaintiff-insured that the document in question “is a true and correct copy of an automobile insurance binder issued by the Defendant or its authorized agent.”


author: THOMPSON, Judge.

text:
    Bennie King THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. SS-181.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Michael J. Minerva, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   THOMPSON, Judge.

Upon initial review of this appeal, in which counsel for Thomas had filed an Anders brief, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), it was apparent that the case contained a close, arguable issue of law. We therefore ordered the parties to submit briefs arguing the merits of the case. See State v. Davis, 290 So.2d 30 (Fla.1974).

We have carefully considered the law in this jurisdiction and from other states and conclude that reversible error did not occur in appellant’s trial.

Accordingly, judgment of the trial court is affirmed.

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


text:
    LAKELAND FORD CO., INC. and Lynn Underwriting Co., Appellants, v. Wayne HARRELSON, Appellee.
    No. TT-240.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Arthur C. Fulmer of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellants.
    Stephen M. Slepin, Tallahassee, for appel-lee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending that upon an earlier remand from the Industrial Relations Commission (“the IRC”), the Deputy Commissioner (“the Deputy”) has entered a new Order which fails to comply with the IRC’s instructions. We agree and reverse.

In 1977, the claimant sustained a compen-sable back injury. At that time, he also suffered from a pre-existing back condition, in addition to a partial paralysis to his right side which had resulted from an earlier episode of typhoid fever. One orthopedic surgeon testified that the claimant experienced a 10% permanent partial disability (“PPD”) due to his work-related injury. Another orthopedic surgeon reported that the claimant experienced a -20% PPD, with one-half of this rating attributable to his pre-existing back condition.

In 1978, the Deputy entered an Order, finding in part that the claimant’s industrial accident resulted in a 30% PPD. The Deputy also found a merger between the claimant’s typhoid paralysis and his back injury, resulting in a 45% PPD. The Deputy assigned a 75% PPD in toto.

On appeal, the IRC, in Lakeland Ford Co., Inc. v. Harrelson, IRC Order 2-3885 (Aug. 10, 1979), ruled that the Deputy’s finding of a 30% PPD based on the claimant’s back problems was not supported by the evidence, and the cause was “reversed and remanded ... for clarification or reconsideration.” The IRC also ruled that there was no showing of merger and as such, a finding of “merger [was] improper. The order [was] accordingly reversed as to this point.” On remand, the Deputy entered another Order, finding a condition of merger and assigning a 75% PPD rating.

The Deputy has completely failed to follow the IRC’s mandate. Nowhere in his Order does he address the issue of total anatomical impairment resulting from the claimant’s back problems, nor did he explain his previous finding in this regard. Moreover, the Deputy improperly assigned another 75% PPD rating based on another finding of merger.

The IRC clearly held that there was no showing of merger, and the Deputy’s earlier Order was reversed as to this point. This holding became the law of the case and governed its subsequent disposition. Wurwarg v. Lighthouse Restaurant, 131 So.2d 469, 471 (Fla.1961). Also, the IRC did not remand on this point — it simply reversed. Thus, the Deputy had no authority to reconsider this point and enter an Order beyond the scope of the IRC’s limited remand. See Rayfield v. Wometco Enterprises, Inc., 386 So.2d 885 (Fla. 1st DCA 1980).

Additionally, after carefully reviewing the record herein, we conclude, as did the IRC, that the Deputy’s finding of merger must be reversed. There is no competent substantial evidence to justify either a finding of merger or a PPD rating greater than 10%. Accordingly, the Deputy’s Order is reversed and this cause is remanded with instructions that the Deputy shall enter a new Order, finding that the claimant has a 10% anatomical PPD as a result of his com-pensable injury.

R. SMITH, J„ and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    JENKINS ELECTRIC et al., Appellants, v. Delbert MAYES, Appellee.
    No. VV-398.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Eugene E. Williams and Mark L. Zientz of Williams & Zientz, Coral Gables, for appellants.
    John R. Sutton, Coral Gables, for appel-lee.
   PER CURIAM.

We affirm the point raised by appellants, finding that claimant’s letter, filed with the Division of Worker’s Compensation, was a sufficient claim to toll the statute of limitations until an amended claim was filed. Because of the concern raised in appellants’ argument, we add that we certainly do not sanction the manner in which appellants were initially notified of the original claim, i. e., by a notice of hearing “on the merits.” However, whatever the procedural deficiencies in this case, they did not operate to make appellee’s original claim invalid.

AFFIRMED.

SHIVERS, SHAW and THOMPSON, JJ., concur.


text:
    Judith HERSKOWITZ and Robert Herskowitz, Appellants, v. Marvin J. HERSKOWITZ, Appellee.
    No. 79-1185.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Rehearing Denied Feb. 20, 1981.
    Judith Herskowitz, in pro. per.
    Bartel & Shuford and Stanley Jay Bartel, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. § 744.312(1), Fla.Stat. (1979); Fla.R.P. & G.P. 5.120(a); 3 Fla.Jur.2d “Appellate Review” §§ 313, 359 (1978); see McDermott v. Thompson, 29 Fla. 299, 10 So. 584 (1892); In re Estate of Verdier, 281 So.2d 543, 546 (Fla. 2d DCA); cert. denied, 287 So.2d 97 (Fla.1973).


text:
    AGRICULTURAL ALUMNI SEED IMPROVEMENT ASSOCIATION, INC., Appellant, v. Johnny M. JACKSON, Appellee.
    No. 80-1027.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Tew, Spittler & Berger and William J. Berger, Miami, for appellant.
    Mandina & Lipsky and Philip J. Mandina, Miami, for appellee.
    Before SCHWARTZ, BASKIN and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed on the authority of Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936). See also, Wm. G. Roe & Co. v. Armour & Co., 414 F.2d 862, 871-72 (5th Cir. 1969); Mulford Hickerson Corp. v. Asgrow-Kilgore Co., 282 So.2d 19 (Fla. 4th DCA 1973), quashed on other grounds, 301 So.2d 441 (Fla.1974).


text:
    Marian CAHILL, Appellant, v. R. Earl WELBAUM, as Personal Representative of the Estate of Jennie B. Lyons, deceased, Appellee.
    No. 80-1455.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Alan H. Rauzin, Miami, for appellant.
    Welbaum, Zook, Jones & Williams and W. Frank Greenleaf and John A. Shughart, Jr., Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Tipper v. Great Lakes Chemical Co., 281 So.2d 10 (Fla.1973).


text:
    SIGNATURE MARINE CO., and Thomas Adams, Appellants, v. ELEGANT MOTORS, INC., Appellee.
    No. 80-1603.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Greenfield & Duval, North Miami, and J. Robert Miertschin, Jr., Fort Lauderdale, for appellants.
    Salley, Barns, Pajón, Guttman & Del Valle and William E. Davis, Miami, and Deborah S. Chames, Miami Beach, for ap-pellee.
    Before HUBBART, C. J., and SCHWARTZ and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561, 563 (Fla. 3d DCA 1976).


text:
    Jerry L. LUBLINER and Budget Rent-A-Car of Miami, Inc., Appellants, v. Marcia GABRILOWITZ, Appellee.
    No. 80-1874.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Greene & Cooper and Joan M. Bolotin, Pyszka & Kessler, P.A., Miami, for appellants.
    No appearance for appellee.
    Before HUBBART, C. J., and SCHWARTZ and PEARSON, DANIEL S., JJ.
   PER CURIAM.

Based on the plaintiff’s confession of error filed in this cause, as well as our own independent review of the record herein, we conclude that the summary judgment on liability entered in favor of the plaintiff below must be reversed. The defendant’s affidavit filed in opposition to the plaintiff’s motion for summary judgment raises, in our view, a genuine issue of material fact as to whether the plaintiff stopped his vehicle so suddenly and without notice that the defendant as the operator of the following vehicle was not reasonably able to avoid the ensuing rear end collision. See Revellino v. Avis Rent-A-Car System, Inc., 229 So.2d 896 (Fla. 3d DCA 1970); Pagan v. Holman, 195 So.2d 606 (Fla. 4th DCA 1967). The summary judgment under review, accordingly, is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    ST. AUGUSTINE TRAINS, INC., a Florida Corporation, Appellant, v. The CITY OF ST. AUGUSTINE, a Florida Municipal Corporation, and Authentic Old Jail, Inc., a Florida Corporation, Appellees.
    No. 79-253.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    William A. Van Nortwick, Jr. of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellant.
    Geoffrey B. Dobson, St. Augustine, for appellee, City of St. Augustine.
   PER CURIAM.

St. Augustine Trains, Inc. appeals a trial court order entered January 29, 1979, denying its motion to intervene after final judgment. The City of St. Augustine had brought suit for injunction against Authentic Old Jail, Inc. to restrain it from operating a sight-seeing motor vehicle business without first obtaining a franchise pursuant to the public policy provisions of Ordinance No. 77 -18. Appellant St. Augustine Trains, Inc. has been operating a public sight-seeing business under a nonexclusive franchise granted it by that ordinance. The final judgment declaring the ordinance unconstitutional adversely affected what may be substantial, immediate and pecuniary interests of appellant under that ordinance. Dickinson v. Segal, 219 So.2d 435 (Fla.1969); Kearney v. Saline, 208 So.2d 650 (Fla. 1st DCA 1968). Both parties to this appeal concede that St. Augustine Trains, Inc. should have the right to intervene in the lower court proceeding on the basis of our ruling in our opinion in City of St. Augustine v. Authentic Old Jail, Inc., 388 So.2d 1044 (Fla. 5th DCA 1980).

Accordingly, the order of the trial court entered January 29, 1979, denying the motion of St. Augustine Trains, Inc. for leave to intervene after judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., and CLARK, HAROLD R., Associate Judge, concur.


text:
    Gary Richard ALESHIRE, Appellant, v. STATE of Florida, Appellee.
    No. 79-395.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence for uttering a forgery. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On June 17, 1980, the Fifth District Court of Appeal gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. Any question of the voluntariness of the plea should be presented in the lower court by a motion pursuant to Rule 3.850, Florida Rules of Criminal Procedure. The motion of the Public Defender to withdraw is hereby granted. The appeal is hereby dismissed.

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

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


text:
    In the Interest of C. F. T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 80-298.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    James B. Gibson, Public Defender, and Brent A. Woolbright, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from an order of the Circuit Court for Orange County, Florida, placing the juvenile appellant on probation and withholding adjudication of delinquency. The Public Defender has filed an Anders 1 motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On May 22, 1980, this court gave appellant thirty (30) days within which to file a brief in her own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby

AFFIRMED.

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


text:
    Jay MARCUS, Appellant, v. STATE of Florida, Appellee.
    No. 80-550.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.

      Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

See Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981).

ORFINGER, SHARP and COWART, JJ., concur.


text:
    Nancy Ann FRIDAY, Appellant, v. Millard ROBERTS, Harold D. Dounhoo, and Frank Bergin, Appellees.
    No. 80-698.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    Rehearing Denied Feb. 26, 1981.
    Thomas R. Ray of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellant.
    William A. Parsons, Daytona Beach, and Calvin E. Hayden of Cowles, Coker & Myers, Jacksonville, for appellees.
   PER CURIAM.

Affirmed on the authority of Dessert v. Electric Mutual Liability Insurance Co., 392 So.2d 340 (Fla. 5th 1981).

AFFIRMED.

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


author: HURLEY, Judge. BERANEK, Judge,

text:
    Michael Lee FAVER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1833.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Richard L. Jorandby, Public Defender, Bruce Zeidel, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Convicted and sentenced for grand theft, fleeing and eluding a police officer, and two counts of battery, Michael Lee Faver now seeks a reversal because of the trial court’s ruling that precluded the defense from calling a witness who had previously indicated a firm decision to invoke his Fifth Amendment privilege against self-incrimination. We have reviewed the procedure utilized by the trial court, together with the court’s ultimate decision, and find that both were eminently correct. Thus, we affirm.

Defendant was charged with stealing the U-Haul truck in which he was apprehended. His defense was coercion. He testified that an individual named Frederick Van Drake threatened his safety and that of his family; therefore, he felt compelled to steal the truck. To corroborate this defense, Van Drake was called as a defense witness. In a hearing outside the jury’s presence, the court was told that Van Drake was presently incarcerated in the Palm Beach county jail as a result of an arrest for first degree murder. Faver’s attorney had spoken on the telephone with Van Drake’s attorney and had been advised that Van Drake would invoke his Fifth Amendment privilege against self-incrimination. Since Van Drake’s attorney was not present in the courtroom, the trial court informed Van Drake of his Fifth Amendment rights. Defense counsel then examined Van Drake, who after giving his name and address, refused to answer all further questions. At the conclusion of the proffer, the court denied the defense request to call Van Drake to the witness stand and force him to invoke his Fifth Amendment privilege before the jury.

The applicable rule was succinctly put in United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973):

If it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him. . . . Obviously, before excluding a witness, the court must first establish reliably that the witness will claim the privilege and the extent and validity of the claim. (Citations omitted).

The rationale for this rule was further explained by Judge Leventhal in Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536, 541-2 (D.C.Cir.1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971):

The rule is grounded not only in the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege but also in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations. The jury may think it high courtroom drama of probative significance when a witness “takes the Fifth.” In reality the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination.

Accord, United States v. Licavoli, 604 F.2d 613 (9th Cir. 1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980); United States v. Bolts, 558 F.2d 316 (5th Cir. 1977), cert. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1978); United States v. Harris, 542 F.2d 1283 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); United States v. Martin, 526 F.2d 485 (10th Cir. 1975); United States v. Lacouture, 495 F.2d 1237, rehearing denied, 503 F.2d 568 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974); People v. Cvetich, 73 Ill.App.3d 580, 29 Ill.Dec. 418, 391 N.E.2d 1101 (1979); State v. Berry, 324 So.2d 822 (La.1975), cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976); People v. Thomas, 68 A.D.2d 450, 417 N.Y.S.2d 278 (2d Dep’t 1979); Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865 (1971).

We note parenthetically that if counsel had requested a jury instruction stating that Van Drake was not available to either side as a witness and that the jury should draw no inference from his absence, such an instruction would have been proper. However, the record reflects that appellant did not request, such an instruction. Accordingly, defendant’s judgment and conviction are AFFIRMED.

DOWNEY, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. Here, the defendant attempted to present the testimony of another individual who he claimed coerced him into commission of the crime in question. The State did not object. Instead, the witness simply refused to answer questions on the grounds of self incrimination. Here, the existence of Frederick Van Drake was an important evidentiary element. There were numerous facts which would not have incriminated Mr. Van Drake which, I feel, he should have been required to answer in front of the jury. I adopt the view expressed by Judges Bazelon and Wright as stated in their dissenting opinions in Bowles v. United States, supra, 543-546, 546-547.


author: SCHEB, Chief Judge.

text:
    Lewis E. BLACKBURN, Appellant, v. J. Frank BLACKBURN, Appellee.
    No. 80-231.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1981.
    John T. Graham, Sarasota, for appellant.
    Geoffrey Morris of Hazen & Morris, Venice, for appellee.
   SCHEB, Chief Judge.

J. Frank Blackburn filed an action for replevin against appellant Lewis E. Blackburn. Appellant filed his answer and counterclaim incorporating a demand for jury trial. He renewed the demand at pretrial conference. The court, nevertheless, denied the demand, conducted a nonjury trial and entered final judgment for Frank Blackburn. In this appeal the appellant challenges the trial court’s denial of his demand for jury trial.

A litigant has a right to a jury trial when the issue presented in a case would have been heard at common, law. Carney v. Stringfellow, 73 Fla. 700, 74 So. 866 (1917); see Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820 (1937); In re U. S. Financial Services Litigation, 609 F.2d 411 (9th Cir.1979). Replevin was a common-law action. Three States Lumber Co. v. Blanks, 133 F. 479 (6th Cir. 1904); Road Material and Equipment Co. v. McGowan, 229 Miss. 611, 91 So.2d 554 (1956). Consequently, a party in a replevin action is entitled to a jury trial as long as he timely demands it and does not waive the right. Fla.R.Civ.P. 1.430.

Here, appellant filed a timely demand under rule 1.430(b) for a jury trial in his answer and counterclaim. Further, the record does not indicate that he ever waived that right. Accordingly, we reverse and remand for a jury trial on all issues triable by jury.

GRIMES and CAMPBELL, JJ., concur.


author: RYDER, Judge.

text:
    W. R. DANIEL, Jr., as Property Appraiser of Hillsborough County, Florida, Appellant, v. Andrew A. LYNN, Appellee.
    No. 80-1075.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1981.
    Ted R. Manry, III and David C. G. Kerr of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Carl O. Dunbar of Dunbar, Dunbar, Roman & Anderson, P. A., Dunedin, for appel-lee.
   RYDER, Judge.

W. R. Daniel, Jr., property appraiser of Hillsborough County, appeals a summary judgment reversing the denial of agricultural classification for land owned by appel-lee Andrew A. Lynn for the tax year 1977. We reverse, reinstating the denial of agricultural classification.

Appellee filed his original complaint challenging the denial of agricultural classification for 1976, alleging compliance with statutory prerequisites and exhaustion of administrative remedies. Appellee amended the complaint with leave of court to challenge the 1977 assessment, alleging only that there was no change in status of the property since the original complaint. Appellant affirmatively defended by alleging that appellee failed to apply for agricultural assessment for 1977, and appellee admitted that he did not file an agricultural exemption application with the property appraiser for the tax year 1977. On motion, the trial court entered a summary judgment granting appellee agricultural status for the tax year 1977, finding that failure to apply for the exemption was not a waiver of the right to seek agricultural status.

We hold that compliance with section 193.461(8)(a), Florida Statutes (1976 Supp.) (now section 193.052(2), Florida Statutes (1979)), is a prerequisite to obtaining agricultural assessment for the year in question. Doyle v. Askew, 341 So.2d 845 (Fla. 1st DCA 1977); Blake v. R.M.S. Holding Corp., 341 So.2d 795 (Fla. 3d DCA 1977); Jar Corporation v. Culbertson, 246 So.2d 144 (Fla. 4th DCA 1971). Thus, appellee’s failure to timely apply for agricultural classification for the tax year 1977 by filing a return by March 1 of that year waived agricultural classification for 1977.

We find nothing inconsistent with this holding in Fisher v. Schooley, 371 So.2d 496 (Fla. 2d DCA 1979). While the parties in Fisher stipulated that the resolution of entitlement to agricultural assessment for 1974 would be binding for the tax years 1975 and 1976, there was no suggestion that timely returns claiming agricultural classification were not filed by the appellants therein for all the tax years in question. The issue presented below of timely application was not at all present in the Fisher case.

The judgment below is REVERSED and the case REMANDED for proceedings consistent with this opinion.

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


author: DANAHY, Judge.

text:
    James William SILLETT, Appellant, v. STATE of Florida, Appellee.
    No. 80-1449.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1981.

      Jack 0. Johnson, Public Defender, and Richard N. Staten, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant’s probation was revoked because he changed his address without the consent of his probation supervisor, and also because he failed to pay his fine and failed to submit monthly reports. There was no evidence adduced that appellant had the ability to pay the fine; therefore, the finding of this violation must be stricken from the order. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). The only evidence offered concerning appellant’s failure to obtain consent prior to changing his address was hearsay. Accordingly, this violation must also be stricken from the order. Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976). However, there was competent evidence to support the finding of the trial court that appellant failed to submit monthly reports. The record makes clear that the lower court was prepared to revoke appellant’s probation for this violation alone. See Martin v. State, 378 So.2d 875 (Fla. 2d DCA 1979). Therefore, we affirm the order revoking appellant’s probation.

SCHEB, C. J., and RYDER, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    Mary WATTS, Appellant, v. Merilyn B. HAUN, Errol H. Bryan, Jr., and Bryan Apartments, Inc., a Florida Corporation, Appellees.
    No. 80-1685.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1981.

      Robert A. Lee of Wood, Whitesell & Karp, P. A., Sarasota, for appellant.
    Philip W. Dann of Baird, Dietrich & Dann, St. Petersburg, for appellees Merilyn B. Haun and Errol H. Bryan, Jr.
   GRIMES, Acting Chief Judge.

This is an appeal from a nonfinal order denying a motion to dismiss for lack of jurisdiction over the person of one of the defendants.

Merilyn B. Haun and Errol H. Bryan, Jr., are the natural children of Errol H. Bryan, Sr., deceased, by virtue of his first marriage. Mary Watts is his natural daughter through his second marriage. Bryan Apartments, Inc. is a Florida corporation which operates an apartment building in Florida. Haun and Bryan, Jr., brought suit against Mrs. Watts and the corporation seeking imposition of a constructive trust on certain stock of the corporation originally owned by Bryan, Sr.

According to the complaint, Bryan, Sr., who was then in New York, endorsed the stock certificates in blank and placed them in an envelope bearing Mrs. Haun’s name. In December 1977, he travelled to Florida where he took up residence in St. Peters-burg. At the time of his arrival, he had a fixed intention to make an inter vivos gift of the certificates to Mrs. Haun and Bryan, Jr. In order to carry out his intent, he contacted Mrs. Watts in New York several times requesting that she forward him the certificates, but she failed to do so. She came to St. Petersburg in June 1978 and caused Bryan, Sr., to be transported to a hospital in Greenwich, Connecticut. She thereafter secured his transfer to a rest home in New York where he remained until he died. His estate is being probated in New York pursuant to a last will and testament in which Mrs. Watts is designated the sole beneficiary.

The complaint further alleges that Mr. Watts occupied a confidential relationship with Bryan, Sr., from June 1978 until his death, providing him with companionship and supervising his financial and medical affairs. During this period of time, he was in a deteriorating physical and mental condition and was unable fully and adequately to understand the nature of his acts. On December 5, 1978, Mrs. Watts obtained his signature on a stock power, thereby “prima facie securing transfer of the interest represented by the certificates to her.”

The complaint concludes with allegations that Mrs. Watts intentionally embarked upon a scheme to isolate Bryan, Sr., from the majority of his heirs in order that she might defeat his desire to make the inter vivos gift of the stock to Mrs. Haun and Bryan, Jr. But for her action in removing him from Florida, he would have fulfilled and carried out his intent to make the gift of stock. Her success in defeating the gift was the result of undue influence and the intentional interference with the rights of Mrs. Haun and Bryan, Jr.

Mrs. Watts is a resident of New York. Therefore, the plaintiffs sought to obtain jurisdiction over her person by substituted service pursuant to section 48.193(l)(b), Florida Statutes (1979), which reads as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(b) Commits a tortious act within this state.

The constitutionality of this provision for the purpose of obtaining “long arm” jurisdiction has been upheld. Godfrey v. Neumann, 373 So.2d 920 (Fla.1979).

Mrs. Watts first contends that regardless of the extent of her contact with the State of Florida, the complaint fails to allege a tort under existing law. To the contrary, we find that the allegations sufficiently make a claim for the tort of wrongful interference with an expected gift. See Davison v. Feuerherd, 391 So.2d 799 (Fla. 2d DCA 1980); Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966).

The more difficult question is whether Mrs. Watts committed the alleged tort in Florida. At first blush, it might appear that the tort was actually consummated when she obtained Bryan, Sr.’s signature on the stock power back in New York on December 5, 1978. Yet, the gravamen of the complaint is for the wrongful interference with Bryan, Sr.’s fixed intention to give the stock to the plaintiffs which they alleged commenced in June of 1978. In fact, the execution of the stock power was not even essential to Mrs. Watts’ ultimate claim of ownership, since she is the sole beneficiary of Bryan, Sr.’s estate. The complaint is sufficiently broad to infer that Mrs. Watts’ trip from New York to St. Petersburg was part of the scheme to thwart Bryan, Sr.’s desire to give the stock to the plaintiffs. Taking Bryan, Sr., back to New York was essential to insulate him from them, and Mrs. Watts had to come to Florida in order to accomplish this.

In essence, the complaint alleges a continuing tort commencing in June 1978 and running until December 5, 1978, if not until Bryan, Sr.’s death. From a chronological standpoint, most of Mrs. Watts’ activities took place outside of Florida. However, under the allegations it was essential to the success of the tort that she come to Florida and take Bryan, Sr., back to New York. Therefore, we hold that the complaint sufficiently demonstrates that Mrs. Watts committed a substantial aspect of the alleged tort in Florida. This is enough to subject her to personal jurisdiction under section 48.193(l)(b).

AFFIRMED.

OTT and CAMPBELL, JJ„ concur.


text:
    Terry WOLFE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1227.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Bennett H. Brummer, Public Defender and Arthur J. Leibell, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The defendant had appealed from judgments and sentences entered after he was found guilty of kidnapping, sexual battery, sexual battery by threat, and robbery. He contends on appeal that his confessions were obtained in violation of his constitutional rights and that the denial of his motion to suppress them was harmful error.

We have considered these contentions in the light of the record and briefs and have concluded that no reversible error has been demonstrated. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); United States v. Perkins, 608 F.2d 1064 (5th Cir. 1979); Thompson v. State, 328 So.2d 1 (Fla.1976).

For the reason stated the judgments and sentences appealed are affirmed.

Affirmed.


text:
    Freddie WESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1497.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).


text:
    Alphonso WILBURN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1120.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Bennett H. Brummer, Public Defender and Michael R. Masinter, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Reversed and remanded for a new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).


author: PEARSON, TILLMAN, Associate Judge.

text:
    NORTH MIAMI GENERAL HOSPITAL and Travelers Indemnity Company, Appellants, v. Sonia KRAKOWER and Noah Krakower, Dr. Michael Gilbert and National Guaranty Insurance Company, Appellees.
    Nos. 79-1167, 79-1168.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.

      High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy and Charles R. Stack, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Cohen, Logan & Kandell, Miami, Bunnell, Graham & Denman and D. David Keller, Ft. Lauderdale, for appellees.
    Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN, Associate Judge.

These appeals are by the defendants North Miami General Hospital and Travelers Indemnity Company. The judgments appealed are: (1) for the plaintiffs, Sonia Krakower, as personal representative of the Estate of Noah Krakower, deceased, and Sonia Krakower, individually, against the hospital and its insurance carrier upon the claim for damages for negligence resulting in the death of the deceased; (2) for third-party defendants, Michael Gilbert, M.D. and his insurance carrier, upon the defendants’ third-party claim for indemnity or contribution based upon alleged negligence of the doctor. The judgment for the plaintiffs followed a jury trial and verdict for the plaintiffs. The judgment upon the third-party claim was pursuant to a directed verdict for the third-party defendants. We affirm both judgments.

The deceased, Noah Krakower, was a man of known suicidal tendencies. He had been under the care of Dr. Gilbert, a psychiatrist, for several years. Noah was admitted to North Miami General Hospital, under Dr. Gilbert’s care, for treatment. Upon a temporary release to get a haircut, Noah attempted suicide and was seriously injured. He was returned to the hospital and because of the nature of his injuries, he was transferred to the orthopedic floor of the hospital. There was evidence before the jury, which if believed by the jury, was a sufficient basis for the finding that the hospital was negligent in failing to adequately carry out the emergency room notation of “suicidal precautions”. Ordinary procedure called for and Dr. Gilbert wrote in the hospital record a provision for 24-hour attendants. An attendant was secured by the hospital from a registry, but she was not informed of the patient’s suicidal tendencies. She was requested by the patient to carry his dessert to the refrigerator. The patient jumped from the fire escape to his death.

The hospital’s first point urges that there was not sufficient evidence to support the verdict and that, therefore, it was error not to grant the hospital’s motions for a directed verdict. We find the evidence sufficient. It should be noted that we have not detailed all of the evidence in our outline above of the circumstances of the death. The duty of a hospital to adequately safeguard a patient of known suicidal tendencies is recognized by the law. See Horton v. Niagara Falls Memorial Medical Center, 380 N.Y.S.2d 116, 51 A.D.2d 152 (App.Div.1976).

Our review of the evidence convinces us that the trial judge correctly directed a verdict for the defendant Dr. Michael Gilbert upon the appellants’ third-party claim. The record is devoid of evidence that the doctor departed from the standard of reasonable medical care. See Dillman v. Hellman, 283 So.2d 388 (Fla. 4th DCA 1973).

Appellants’ points directed to claimed procedural errors and the failure to grant a mistrial do not present reversible error on this record. We have also examined the point directed to the refusal to give certain requested instructions and find that no error is shown.

Affirmed.


text:
    B. L. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1582.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

Based on the state’s confession of error filed in this cause, as well as our own independent review of the record herein, the adjudication of delinquency under review is reversed and the cause is remanded to the trial court with directions to discharge the appellant from the cause.

The state concedes, and we agree, that the appellant’s mere presence as a passenger in the stolen motor vehicle in this case, without more, represents insufficient evidence upon which to convict him of motor vehicle theft under Section 812.014(1), (2)(b)4, Fla.Stat. (1979), especially where the appellant (a) told the police upon his arrest that he had just been picked up before by the driver of the stolen motor vehicle, and (b) testified at trial that he did not know the motor vehicle was stolen. The trial court, accordingly, erred in denying the appellant’s motion for judgment of acquittal made at the close of all the evidence in this cause. Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899, 904 (Fla.1954); McWatters v. State, 375 So.2d 624 (Fla. 4th DCA 1979); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968).

Reversed and remanded with directions to discharge the appellant from the cause.


text:
    Bobby Lee COLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-491.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

This is an appeal from an order modifying the defendant’s probation. We reverse upon a finding that the evidence is insufficient to show that the defendant had knowledge of the presence of the sawed-off shotgun which was the basis for the order.

The shotgun was discovered, following a search, under the bed in his girlfriend’s apartment. The apartment, bedroom, and bed were under joint control of the defendant and his girlfriend. The defendant did not have exclusive possession nor may it be inferred, under the circumstances, that he had the ability to maintain control over the area in which the shotgun was found. Such possession and control must be established by proof and may not be inferred. Hall v. State, 382 So.2d 742 (Fla.2d DCA 1980); Clark v. State, 359 So.2d 458 (Fla.3d DCA 1978), cert. denied, 366 So.2d 880 (Fla.1979).

The defendant at all times denied having any knowledge of the shotgun. Additionally, the report of the domestic quarrel he had with his ex-wife, which formed the officer’s reason for searching the apartment, did not indicate that the defendant had employed a gun during the quarrel nor that he had possession of one. Constructive possession and control of a weapon by a defendant, where the weapon was discovered in joint possession, is insufficient to sustain a modification of probation. Powell v. State, 335 So.2d 304 (Fla.1st DCA 1976), cert. dismissed, 348 So.2d 953 (Fla.1977); (evidence that a pistol was found in a sports coat in a bedroom closet in an apartment jointly occupied by the defendant and another man held insufficient to sustain conviction for possession of a firearm by a convicted felon). Cf. Smith v. State, 279 So.2d 27 (Fla.1973) (illegal drugs found with wife’s costume jewelry located in a dresser drawer in a bedroom jointly occupied by the defendant and his wife did not give rise to the inference that the defendant knew of the presence of such contraband); Clark v. State, supra (evidence of cannabis found in handball container located in a dresser drawer in a bedroom jointly occupied by defendant and his wife was circumstantial and insufficient for conviction).

Consequently, the order modifying the defendant’s probation is reversed.


text:
    Raymond Scott MOORE, Appellant, v. Catherine Ann MOORE, Appellee.
    No. 80-575.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Franklin D. Kreutzer, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

From an order of dissolution, the husband appeals an award of rehabilitative alimony to the wife, and attorneys fees to the wife’s counsel. We affirm. Canakaris v. Canakaris, 282 So.2d 1197,1205 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Lillian C. TOSAR, individually and as Personal Representative of the Estate of Pedro P. Castillo, deceased, Appellant, v. Joseph L. SLADEK, Appellee.
    No. 80-738.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.

      Carlos Lidsky, Coral Gables, and Linda L. Furman, Miami, and Neil I. Maryanoff, Coral Gables, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

This appeal presents the question of whether nonreeord activity is sufficient to show good cause for the denial of a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). The trial court found that it is not and we must agree.

It is now settled that the purpose of amending Florida Rule of Civil Procedure 1.420(e) effective January 1, 1977 was to preclude nonrecord activity as a basis for the denial of a motion to dismiss for failure to prosecute. American Eastern Corporation v. Henry Blanton, Inc., 382 So.2d 863 (Fla. 2d DCA 1980); F. M. C. Corp. v. Chatman, 368 So.2d 1307 (Fla. 4th DCA), cert. denied, 379 So.2d 203 (Fla.1979).

Here the facts are simple. Plaintiff’s decedent met his death on December 24, 1977. A complaint for wrongful death was filed by his daughter on October 31, 1978. Plaintiff filed an amended complaint on January 15,1979. At that time, the personal representative had not been appointed so as to allow the decedent’s estate to maintain the action. § 768.20, Fla.Stat. (1977). For that reason, the defendant moved to dismiss the complaint. The motion was denied but did not require the defendant to answer the amended complaint until the plaintiff had demonstrated her authority as personal representative of the decedent’s estate. The plaintiff, who is the sole heir at law of the decedent received her appointment as personal representative from the Probate Division of the Circuit Court on October 3, 1979. Nonetheless, the plaintiff took no further action until met by the defendant’s motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). At that time, plaintiff’s counsel mailed a copy of the Letters of Administration to the defense counsel and then timely filed an affidavit of good faith demonstrating the nonrecord activity in procurement of the Letters of Administration. The affidavit further recited that the clerk of the Probate Division did not timely mail the Letters of Administration to plaintiff’s counsel.

We agree with both our sister courts’ interpretations of the amendment to Rule 1.420(e). In American Eastern Corporation v. Henry Blanton, Inc., supra, that court stated:

Nevertheless, the amendment to the Rule 1.420(e) must not be disregarded. Its purpose was to eliminate most nonrec-ord activity of the type recognized prior to the amendment as a basis to establish good cause to avoid a dismissal for lack of prosecution. Consequently, the standard in determining whether particular non-record activity constitutes good cause must be set high, and a party must now show a compelling reason to avoid dismissal where there has been no record activity. For example, the party might show estoppel, as in the present case, or a calamity preventing record activity, [footnotes omitted]

382 So.2d at 865.

In F. M. C. Corp. v. Chatman, supra, that court stated:

To us, good cause must include contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines. In the case before us there may have been extensive nonreeord conferences with a “. . . necessary and vital expert witness,” but such do not prevent, or hinder, compliance with the rules.

368 So.2d at 1308.

In the present case, there is nothing save nonrecord activity which led to the failure of the plaintiff to prosecute her cause. If we accept the allegations of the plaintiff’s complaint, she was the sole surviving heir of the decedent and could have qualified expeditiously with minimal effort. Had the plaintiff’s counsel lost contact with his client, he could have procured appointment of an administrator ad litem pursuant to Florida Rule of Probate and Guardianship Rule 5.120(a) until a personal representative could have qualified. While the results may seem harsh as compared to the decisions under the former rule, we have no alternative here but to uphold the ruling of the trial court.

We do not indicate by this decision that all forms of nonrecord activity are insufficient to prevent the granting of a motion to dismiss for failure to prosecute. We are only indicating that a compelling reason must be demonstrated to overcome such seeming lethargy. See Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980).

Finally, the plaintiff contends the trial court erred in denying her motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540. It appears without dispute that after the initial order of dismissal was entered, the plaintiff filed a notice of appeal with this court. She later perfected the motion to vacate, pursuant to the cited rule, while this appeal was still pending.

The trial court promptly dismissed the motion because it was without jurisdiction to entertain the motion to vacate while appeal of the identical matter was pending here. Consequently, had the trial court ruled upon the matter, it would have interfered with the subject matter jurisdiction of this court and possibly frustrated our appellate jurisdiction. Leo Goodwin Foundation, Inc. v. Riggs National Bank of Washington, D.C., 374 So.2d 1018 (Fla. 4th DCA 1979). Had the plaintiff desired to entertain further proceedings during the pendency of the appeal, she could have requested leave to proceed in the trial court pursuant to Florida Rule of Appellate Procedure 9.600(b).

For the foregoing reasons, the challenged orders are affirmed.

      . This motion presented substantially the same basis for vacating the order of dismissal as had been previously presented by way of the affidavit proffered in opposition to the motion to dismiss for lack of prosecution.


text:
    Morris KIRSH, as Trustee individually and on behalf of the claimants and judgment creditors, Appellant, v. Harriet V. MANNEN, Estate of Oscar J. Mannen, Harold Richman, Dorothy Hirschorn, Edwin Borgos, Marcus Fried, Robert H. Paquette, Richard M. Mannen, Appellees.
    No. 80-977.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied Feb. 20, 1981.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis, Charles J. Kane, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and George B. Foss, Jr., Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Kendall B. Coffey, Miami, Morgan, Lewis & Bockius and Harold G. Melville, Miami, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The trial judge entered summary judgment to the effect that certain interests in real property titled in the name of Oscar J. Mannen, as trustee, were, contrary to Section 689.07, Florida Statutes (1979) not owned by Mr. Mannen at the time of his death and were therefore not assets of his estate, subject to the claims of his creditors. This was so, the court held, because (a) Mannen held the title in trust for various investors who held beneficial ownership, rather than, as the appellant-creditor claimed, merely security interests in the realty; and (b) 62.35% of that beneficial interest had been owned by Mannen and his wife, by the entireties, rather than by Man-nen individually. We reverse the summary judgment below because the appellees did not, as to either ground, conclusively establish as a matter of law their entitlement to the relief granted. Holl v. Talcott, 191 So.2d 40 (Fla.1966). In so ruling, we apply the doctrine that when conflicting legal inferences, particularly concerning the intent of the parties, may be drawn from an ambiguous legal document, or as to the effect even of undisputed facts, the issue is not properly subject to summary adjudication, and may be resolved only after trial. Carroll v. Moxley, 241 So.2d 681 (Fla.1970); Macina v. Magurno, 100 So.2d 369 (Fla.1958); MacKenzie v. Avis Rent-A-Car Systems, Inc., 369 So.2d 647 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 202 (Fla.1979); Bankers Ins. Service Corp. v. Southeastern Home Mortgage Co., 363 So.2d 401 (Fla. 4th DCA 1978); Lauer v. Wilson, 355 So.2d 187 (Fla. 1st DCA 1978); B & J Van Beber Equipment Rental, Inc. v. Pedersen, 348 So.2d 1163 (Fla. 3d DCA 1977); Mathews Corp. v. Tutten Enterprises, Inc., 343 So.2d 902 (Fla. 4th DCA 1977); Sullivan v. Bloom, 342 So.2d 1036 (Fla. 4th DCA 1977); Stone v. Lingerfeldt, 330 So.2d 40 (Fla. 4th DCA 1976); Carter v. Dade County, 213 So.2d 594 (Fla. 3d DCA 1968), cert. denied, 219 So.2d 700 (Fla.1968); Mead v. Mead, 193 So.2d 476 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 552 (Fla.1967); Benson v. Atwood, 177 So.2d 380 (Fla. 1st DCA 1965); Owens v. MacKenzie, 103 So.2d 677 (Fla. 1st DCA 1958).

Reversed.

      . 689.07: ‘Trustee’ or ‘as trustee’ added to name of grantee, transferee, assignee or mortgagee transfers interest or creates lien as if additional word or words not used.—
      (1) Every deed or conveyance of real estate heretofore or hereafter made or executed, in which the words ‘trustee’ or ‘as trustee’ are added to the name of the grantee, and in which no beneficiaries are named nor the nature and purposes of the trust, if any, are set forth, shall grant and is hereby declared to have granted a fee simple estate with full power and authority in and to the grantee in such deed to sell, convey and grant and encumber both the legal and beneficial interest in the real estate conveyed, unless a contrary intention shall appear in the deed or conveyance ...


text:
    Harry SWAGEL, Appellant, v. Solomon B. GOLDMAN, Appellee.
    No. 80-1087.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Galbut, Galbut & Menin and Howard N. Galbut, Miami Beach, for appellant.
    Lanza, Sevier & Womack and G. J. God-frey, Coral Gables, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The trial court granted summary judgment to the defendant physician, Dr. Goldman, on the ground that the medical malpractice two-year statute of limitations had expired. Sec. 95.11(4)(b), Fla.Stat. (1979). This ruling was based on the conclusion that, as a matter of law, the limitations period began to run when, after an operation performed by the defendant, the plaintiff discovered that he was incontinent. The plaintiff testified, however, that for over a year after that occurred, Dr. Goldman continued to treat him and to assure him that the condition was only a temporary one — presumably caused as a normal result of the operation — which would clear up in time. Under these circumstances, a genuine issue, precluding summary judgment, was presented as to whether the plaintiff discovered or should have discovered the incident which caused his injury— that is, the now-alleged surgical malpractice — prior to the later date, which was within the statutory period, that the defendant finally informed him that the incontinence was permanent. Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1189 (Fla.1980); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979); Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978), cert. denied, 361 So.2d 831 (Fla.1978); see generally, Wim-pey v. Sanchez, 386 So.2d 1241, 1244-45 (Fla. 3d DCA 1980); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980), and cases cited.

Reversed.

      . § 95.11(4)(b). An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.


text:
    The STATE of Florida, Petitioner, v. Raymond LOVE, Respondent.
    No. 80-2206.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for petitioner.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for respondent.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

By this common law certiorari, we are called upon to review the propriety of an interlocutory order in a criminal prosecution requiring the production of certain police reports.

This is an appropriate matter for a common law certiorari. State v. Gillespie, 227 So.2d 550 (Fla. 2d DCA 1969); State v. Latimore, 284 So.2d 423 (Fla. 3d DCA 1973). The order under review requires the State to produce the following:

“1. That those portions of the police reports contained condensed or summarized statements of witnesses which are listed on the State’s witness lists, whether or not said ‘statements’ are signed or otherwise adopted or approved by the witness, . . ."

After we issued the rule to show cause in this matter, counsel for the respondent confessed error in this portion of the order in light of this court’s opinion in State v. Dumas, 363 So.2d 568 (Fla. 3d DCA 1978).

Therefore, we issue the writ and quash so much of the order of October 22, 1980 as quoted above.


text:
    The STATE of Florida, Petitioner, v. Stanley STEINBRECHER, Respondent.
    No. 81-83.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Rehearing Denied Feb. 20, 1981.

      Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for petitioner.
    Jack Nageley, Miami Beach, for respondent.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Although we are unaware of any authority to support the trial judge’s ruling declining to limit polygraph testimony, and we do not approve his decision, we decline to entertain the state’s petition for certiora-ri because review by certiorari of pre-trial evidentiary rulings appears inappropriate. Fla.R.App.P. 9.140(c).


text:
    Clarence Lee GASKIN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-115.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1981.
    Clarence Lee Gaskin, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(b), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered that record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: ORFINGER, Judge.

text:
    Robert Jarrett HERRING, Appellant, v. STATE of Florida, Appellee.
    No. 79-685/T4-468.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.

      Robert W. Lee, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Joy B. Shearer, Asst. Atty. Gen., and Michael W. Strickland, Certified Legal Intern, West Palm Beach, for appellee.
   ORFINGER, Judge.

After the trial court denied a motion to suppress a handgun found on appellant’s person, appellant entered a plea of nolo contendere, specifically reserving his right to appeal the denial of his motion to suppress. We affirm.

On January 30, 1978, appellant was on duty as a security guard at an apartment complex in Orlando. Officer Scroggins of the Orlando Police Department was patrolling the complex when he spotted appellant and noticed an “extremely long, large, bulge, right side, right leg, under his coat.” The bulge in appellant’s coat was in the same location as a revolver which Officer Scroggins observed the appellant wearing approximately ten days earlier in a local restaurant. On the basis of these observations, Officer Scroggins suspected that appellant was carrying a concealed weapon. The officer stopped the appellant, asked him to lean against the police car and patted him down. He testified that he felt an object which he believed was a gun, and raising appellant’s coat he discovered a .357 magnum revolver. The officer removed the gun, continued the pat down and found another revolver, a switchblade, and two speed loaders. The officer arrested the appellant, and charged him with carrying a concealed weapon.

Appellant asserts that the warrantless search for the revolver was unreasonable, and the weapon should have been inadmissible as evidence because the officer had not first arrested appellant for carrying a concealed weapon or for any other crime. Therefore, appellant argues, the search was not incident to a lawful arrest. He relies on cases such as Martin v. State, 360 So.2d 396 (Fla.1978), which found that a search was illegal because it did not fit any of the recognized exceptions to warrantless searches.

Section 901.151, Florida Statutes (1979), gives an officer the authority to temporarily detain a person under circumstances which reasonably indicate that “such person has committed, is committing, or is about to commit a violation of the criminal laws of this state. .. . ” In this case the officer’s prior personal observation of a large revolver carried by appellant in a holster in plain view about ten days earlier, bolstered by information supplied by other officers that appellant carried guns, when coupled with his observations on the night in question of an “extremely long, large bulge, right side, right leg” under appellant’s coat, reasonably indicated to the officer that the appellant was committing an offense against the laws of the State of Florida.

The identical circumstances and the same stop and frisk law gave the officer the right to search appellant for the dangerous weapon which could offer a threat to the safety of the officer or any other person. The fact that the crime which the officer believed appellant was committing was the carrying of a concealed firearm did not immunize appellant from a frisk for a weapon, and it was not necessary to arrest him first in order to search for the weapon. Baker v. State, 316 So.2d 657 (Fla. 1st DCA 1975). Thus Martin is not on point, because in that case the search was for drugs, not for a weapon, and there was no statutory or other authority to conduct a warrantless search which admittedly was for the sole purpose of finding the drugs. The Martin court does, however, recognize “stop and frisk” as one of the exceptions to a warrant requirement.

The trial court correctly denied the motion to suppress, so the judgment of conviction is

AFFIRMED.

COBB and SHARP, JJ., concur.

      . At the time of the observation of the holstered weapon, the officer testified that he was unfamiliar with the laws pertaining to the right of a security guard to carry a weapon, so he took no action at that time. Appellant, in response to an inquiry, had advised the officer that he had no concealed weapon permit.

      . Section 790.01(2), Florida Statutes, states that the carrying of a concealed firearm is a third degree felony.

      . Sec. 901.151(5), Fla.Stat. (1979):
      Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) of this section has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense, it may be seized.


text:
    Elijah Clarence PRICE, Appellant, v. STATE of Florida, Appellee.
    No. 79-965/T4-530.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.
    Richard L. Jorandby, Public Defender, Anthony Calvello, Asst. Public Defender, Tatjana Ostapoff, Chief, Appellate Division, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty., Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was charged with one count of burglary of a conveyance and one count of grand theft second degree. A jury convicted him on both counts and we affirm the conviction.

Appellant contends that the trail court erred in placing him on a single term of probation for three years because he had been convicted of two crimes and the order did not specify for which crime he was being placed on probation. The Supreme Court has held that general sentences are no longer permitted, Dorfman v. State, 351 So.2d 954 (Fla.1977), and in Pearson v. State, 371 So.2d 569 (Fla. 4th DCA 1979), the court held that the same reasoning applied to probation orders. We agree.

The judgment of conviction is affirmed, but this cause is remanded to the trial court with directions to enter separate probation orders for each offense. See German v. State, 382 So.2d 146 (Fla. 4th DCA 1980).

AFFIRMED and REMANDED with directions.

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


text:
    Mark Erick WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 79-158.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    J/im Smith, Atty. Gen., Tallahassee and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from an order withholding adjudication of guilt and placing appellant on probation for a period of five years. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On June 10, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby

AFFIRMED.

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

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