author: THOMPSON, Judge.

text:
    Leroy GREEN, Appellant, v. STATE of Florida, Appellee.
    No. AD-346.
    District Court of Appeal of Florida, First District.
    June 16, 1982.

      Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   THOMPSON, Judge.

The appellant was indicted, tried, convicted, and sentenced on all three counts of an information charging: (1) first degree burglary; (2) aggravated battery; and (3) sexual battery. The burglary count of the information charged that the appellant entered a structure with the intent to commit an offense therein, to wit: sexual battery, and in the course of committing the offense the defendant did make an assault upon the victim by striking her about the head a,nd face with a large glass decanter in violation of §§ 810.02(1), .02(2)(a), Fla.Stat. The burglary count therefore alleges a first degree burglary which required proof of the assault. It did not require proof of the offenses of aggravated battery or sexual battery, which were Counts II and III. These two offenses require elements of proof different from the assault.

Appellant contends he cannot be convicted and sentenced of the aggravated battery and sexual battery charges. We disagree. It was not necessary to prove the offense of aggravated battery or sexual battery in order to prove the offense of burglary. It was only necessary to prove the commission of the assault during the burglary to sustain the burglary conviction and therefore neither of the offenses charged in Counts II and III were lesser included felonies. The convictions and sentences on all three counts of the information are affirmed.

ERVIN and BOOTH, JJ., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    Napoleon DOWDELL, Appellant, v. STATE of Florida, Appellee.
    No. AG-225.
    District Court of Appeal of Florida, First District.
    June 16, 1982.

      David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

Napoleon Dowdell’s appeal from judgments of guilt of robbery while in possession of a firearm and kidnapping while in possession of a firearm and sentences for both offenses raises two issues:

I. Was the movement or confinement of the victim inconsequential or inherent in the nature of the robbery?
II. Did the kidnapping offense, by definition and as alleged in the information, require proof of the underlying felony of robbery so as to make it error for the trial court to impose consecutive sentences for each conviction?

Answering both questions in the negative, we affirm.

I

The facts relevant to the robbery and the kidnapping charges establish that a Taco Bell was robbed at about 12:30 a. m. The store had closed earlier and the manager had stayed around to clean up and to do some paperwork. At 12:15 a. m. the manager got a call from someone in an apartment building which overlooked the parking lot of the Taco Bell and was told that someone was doing something around the manager’s car which was in the parking lot behind the Taco Bell. The manager looked out a peephole through the rear door and could not see anything and did nothing further. He then got a second call with similar information. At that time he grabbed a knife and went out a side door to investigate. There were no other cars in the parking lot. As he got near his car, he then saw a man standing with a gun pointed at him. There was good lighting in the parking lot. The man told him to open the door before he killed him. They walked inside, going through the rear door. All of the interior lights were on in Taco Bell. The robber required the manager to get down below counter level and crawl toward the front of the store to the safe and to get money out and put it in a bank bag. The robber then ripped out the phone and left through the rear door.

We reject Dowdell’s contention that the confinement and movement of the victim in this ease was not significantly independent of the crime of robbery. The movement of the manager from the well-lighted parking lot through the rear door into the building and the requirement that he stay out-of-sight below counter level in moving to and from the safe supports a jury finding that the movement and confinement served to lessen the risk of detection, Ayendes v. State, 385 So.2d 698 (Fla. 1st DCA 1980), and to facilitate the commission of the crime of robbery. Section 787.01(l)(a), Florida Statutes (1979).

II

As for the alleged sentencing error, Dowdell contends that since the offense of kidnapping involves the confinement or movement of another person against his will with intent to commit or facilitate the commission of any felony and since he was charged with kidnapping “with the intent to commit or facilitate the commission of robbery,” the robbery was necessarily included within the kidnapping. Accordingly, he urges, under State v. Hegstrom, 401 So.2d 1343 (Fla.1981), it was error to sentence him for both offenses.

The flaw in this argument is that the offense of kidnapping does not require that the underlying felony be completed; it only requires that the perpetrator intend to commit or to facilitate the commission of the felony. See Green v. State, 415 So.2d 143, (Fla. 1st DCA 1982). Thus, it is distinguishable from the situation in the Hegstrom case involving a felony murder wherein the actual commission of a felony must be proved. Accordingly, we find the sentences to be authorized.

AFFIRMED.

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


author: SCHEB, Chief Judge.

text:
    Robert MAHAN, Appellant, v. Ida M. MAHAN, Appellee.
    No. 81-1457.
    District Court of Appeal of Florida, Second District.
    June 16, 1982.
    Stephen C. Watson of Hahn, Brethitt, Roberts & Watson, P. A., Lakeland, for appellant.
    C. Ray McDaniel and Marshall G. Slaughter, Bartow, for appellee.
   SCHEB, Chief Judge.

We reject the husband’s arguments that the trial court erred in awarding the wife permanent alimony, the husband’s interest in the marital home, and attorney’s fees. These awards are all supported by substantial, competent evidence and are within the trial court’s discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We agree, however, with the husband’s contention that the trial court erred in requiring him to maintain a policy of life insurance on his life with the wife as a named beneficiary. Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981); Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1978); Blass v. Blass, 316 So.2d 308 (Fla. 3d DCA 1975); Perkins v. Perkins, 310 So.2d 438 (Fla. 4th DCA 1975). See also, O'Malley v. Pan American Bank, 384 So.2d 1258 (Fla.1980), for the proposition that the obligation to pay alimony ceases upon the death of the obligated party.

Accordingly, we strike from the final judgment of dissolution paragraph 11, which requires the husband to maintain a policy of insurance on his life with his wife as beneficiary. Otherwise, we affirm the judgment.

We provisionally grant the wife’s motion for attorney’s fees for services of her counsel on appeal in accordance with the rationale of Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977). We remand to the trial court to make a determination of the amount of a reasonable fee for such services and the portion thereof that the husband should be required to pay based on the disparity in the parties’ needs and abilities to pay.

GRIMES and RYDER, JJ., concur.


author: PER CURIAM.

text:
    Louis Ray AULT, Appellant, v. STATE of Florida, Appellee.
    No. 81-1732.
    District Court of Appeal of Florida, Second District.
    June 16, 1982.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On this appeal, Louis Ray Ault seeks credit for the time he spent in jail prior to being placed on probation. He also seeks credit for the time he spent at North Florida Evaluation and Treatment Center, Department of Health and Rehabilitative Services. We agree that he is entitled thereto and remand for correction of his sentence.

Appellant was charged with sexual battery in violation of section 794.011(5), Florida Statutes (1979). He pled nolo conten-dere and on June 20, 1980 was sentenced to ten years on probation with the special condition that he be committed to the North Florida Evaluation and Treatment Center for an indefinite period for treatment as a sex offender. While still at the treatment center, he was charged with violating his probation. He was subsequently adjudicated guilty and sentenced to twelve years in prison, less credit of 108 days spent in the county jail since April 7, 1981.

Ault alleges that the trial court failed to give him credit for the time he spent in jail from the date of his initial arrest to the time of his commitment to the North Florida Evaluation and Treatment Center on June 20,1980. Appellant is entitled to credit for all the time he spent in jail prior to sentencing on his offense. Wright v. State, 355 So.2d 870 (Fla. 2d DCA 1978).

Additionally, appellant contends that the court should have given him credit for the period of time he was in custody in the sex offender treatment program at North Florida Evaluation and Treatment Center. We agree. Section 917.014(1), Florida Statutes (1981). See Hall v. State, 358 So.2d 891 (Fla. 2d DCA 1978); McGuirk v. State, 382 So.2d 1235 (Fla. 2d DCA 1980).

We find Ault’s other point to be without merit. Accordingly, the judgment is AFFIRMED, but the cause is REMANDED with directions to give Ault credit for the total amount of time to which he is entitled. Appellant need not be present at time of correction of sentence.

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


author: PER CURIAM. GRIMES, Acting Chief Judge,

text:
    Carol Ann PRIOLO, Appellant, v. Thomas Edward PRIOLO, Appellee.
    No. 82-156.
    District Court of Appeal of Florida, Second District.
    June 16, 1982.
    Damon C. Glisson of the Law Offices of Charles F. Mixon, Jr., P. A., Ruskin, for appellant.
    James P. Knox of the Law Offices of Gatlin & George, P. A., Tampa, for appellee.
   PER CURIAM.

Affirmed.

RYDER and CAMPBELL, JJ., concur.

GRIMES, A. C. J., concurs specially with opinion.

GRIMES, Acting Chief Judge,

concurring specially.

I concur because the order appealed from involves temporary custody. At the final hearing, the appellee will have the customary burden of proving changed circumstances before the final judgment can be modified to award him permanent custody.


author: PER CURIAM. ANSTEAD, Judge,

text:
    James DONNELLY, Appellant, v. Michel VEZINA and Micheline Vezina, his wife, and Joan Donnelly, Appellees.
    No. 81-1301.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Eric H. Golden and Debra 0. Rubin of Atkinson, Golden, Bacen & Diner, P. A., Hollywood, for appellant.
    Karen Coolman Holmes of Holmes & Holmes, P. A., Fort Lauderdale, for appel-lees.
   PER CURIAM.

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Although I sympathize with the plight of the appellant, I must concur with the majority’s affirmance of the trial court order which in effect established appellant’s liability to appellees by default because of the failure of appellant and his counsel to appear for trial. See generally Bader Bros. Van Lines, Inc. v. Jay, 183 So.2d 867 (Fla. 2d DCA 1966).


text:
    John MARINO and Jerry Marino, d/b/a J. M. Investments, Appellants, v. Jeffrey WEINER and Disco 95, Inc., a Florida corporation, Appellees.
    No. 81-345.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Larry Klein and Jane Kreusler Walsh, West Palm Beach, and Pyszka & Kessler, Fort Lauderdale, for appellants.
    Michael C. Spring of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appel-lee Disco 95, Inc.
    Louis Kimler and Peter B. Weintraub of Shapiro, Leder, Kimler, Entin & Werksman, Deerfield Beach, for appellee Weiner.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

The sole issue here is whether the trial court erred in granting a directed verdict against appellants on their third party claim for indemnification. We conclude that it did err, and reverse.

Appellants owned a warehouse which they had leased to appellee Disco 95, Inc. to use as a discotheque. Appellee Weiner, an employee of the lessee, sustained injury when he slipped and fell on a puddle of water on the discotheque’s dance floor. Weiner sued the lessors, alleging in substance that his injuries were the proximate result of the lessors’ negligent failure to keep the roof in good repair. In turn, lessors brought a third party complaint against the lessee, seeking both common law and contractual indemnification, the latter being predicated upon the following provision in the lease:

17. INDEMNITY: (a) Lessee shall indemnify Lessor and save harmless from suits, actions, damages, liability and expense in connection with loss of life, bodily or personal injury or property damage arising from or out of any occurrence in, upon, at or from the Demised Premises or the occupancy or use by Lessee of said premises or any part thereof, or occasioned wholly or in part by any act or ommission [sic] of Lessee, its agents, contractors, employees, servants, invitees, licenses or concessionaries, including the sidewalks and common areas and facilities within the building development;
(f) Lessee shall also pay all costs, expenses and reasonable attorney’s fees that may be incurred or paid by Lessor in enforcing the terms of this lease, (e.s.)

The lease also contained two separate provisions relative to roof repair. Paragraph 12 obligated the lessors to keep the roof in good repair, provided the lessee gave the lessors seven days written notice of the needed repairs and provided the damage was not caused by lessee. Paragraph 8 included the following provision relative to roof repair:

Should Lessee install a cooling tower or other air conditioning equipment on the roof of the Demised Premises, Lessee shall assume primary responsibility for the maintenance and repair of the roof and such installation, operation and maintenance shall be made in such matter [sic] that the right of Lessor under any roofing bond then in force shall not be affected.

An air-conditioning unit, the cost of which was shared by lessors and lessee, was installed on the roof a week or two before Weiner slipped and fell. There was evidence from which the jury reasonably could have inferred that lessors and lessee were jointly responsible for roof repair necessitated by the installation of the air conditioning unit. There were also factual issues as to whether the roof had leaked prior to the installation of the air conditioning unit, of which lessors had actual (but not written) notice, and whether the water on which Weiner had slipped was from a roof leak caused by faulty installation of the air-conditioning unit, or from some other leak in the roof.

The court granted the lessee’s motion for directed verdict, concluding that lessors were not entitled to either common law or contractual indemnification from the lessee. The jury found Weiner 85% at fault and lessors 15% at fault, upon which verdict judgment was entered. On post trial motions, the judgment and verdict were vacated and a new trial granted on Weiner’s complaint against lessors, but the separate judgment in favor of lessee on the lessors’ third party claim was not disturbed.

The court did not err in granting the directed verdict as to the claim for common law indemnification. We have not been shown any legal relationship between lessors and lessee such that lessors, because of some vicarious, constructive, derivative or technical liability, could become obligated to Weiner due to some negligence or fault on the part of the lessee. Such a relationship is essential to the right to common law indemnification. Houdaille Ind., Inc. v. Ed wards, 374 So.2d 490 (Fla.1979). We understand Weiner’s cause of action against lessors to be based upon the latter’s own active negligence in failing to maintain the roof in good repair, not upon any theory of lessors’ vicarious liability for the lessee’s fault.

However, lessors were entitled to have their claim for contractual indemnification presented to the jury under appropriate instructions. True, the language of the indemnity provision fails to state expressly and with sufficient clarity the intent necessary to allow the contract to be construed as one by which the parties intended for the indemnitees to be indemnified against damages occasioned solely by their own negligence. See Charles Poe Masonry v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979); Leadership Housing Systems of Florida, Inc. v. T & S Electric, Inc., 384 So.2d 733 (Fla. 4th DCA 1980). But the contract language “... occasioned wholly or in part by an act or omission of Lessee ...” manifests the lessee’s unequivocal intent to indemnify the lessors in cases where the lessors and lessee are found to be jointly negligent. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., supra; Leonard L. Farber Co. v. Jaksch, 335 So.2d 847 (Fla. 4th DCA 1976). Thus, if the jury were to find that the water which caused Weiner to slip and fall was occasioned solely by the negligence of the lessors, they would not be entitled to contractual indemnification. On the other hand, if the jury were to find that the water which caused Weiner to slip and fall was occasioned wholly or in part by an act or omission of lessee, including the joint negligence of the lessors and the lessee, lessors would be entitled to the indemnity provided by the lease.

The judgment in favor of appellee Disco 95, Inc. on the third party claim by appellants is reversed and this cause remanded for further proceedings. The cost judgment for appellee Disco 95, Inc. is likewise reversed,

ANSTEAD and BERANEK, JJ., concur.

      . Because Weiner’s injuries arose out of and in the course of his employment, his exclusive remedy against his employer, the lessee, was under the Workers’ Compensation Law.

      . That this was the theory of Weiner’s cause of action is implied by the briefs. The limited record before us relates only to the issue of the third party claim for indemnification, and in deciding that issue we do not decide any issue relating to Weiner’s cause of action.

      . Had there been any basis upon which Weiner could have imposed vicarious liability on lessors for the lessee’s fault, lessors would have had full protection under the contractual indemnification provision; thus, denial of common law right of indemnification, had it been error, would have been harmless.

      . Of course, absent any vicarious liability, lessors would simply be exonerated by the jury if it were to find that the water was occasioned wholly by the negligence of the lessee. See comment in footnote 3 in reference to vicarious liability, should it exist.


author: LETTS, Chief Judge.

text:
    Barbara Ann BEVILLE, Appellant/Cross-Appellee, v. Howard J. BEVILLE, Appellee/Cross-Appellant.
    No. 81-545.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      Erroll S. Willes, Fort Pierce, for appellant/cross-appellee.
    Charles A. Sullivan, Jr., of Sullivan, Cobb, Sullivan & Orr, Vero Beach, for appel-lee/cross-appellant.
   LETTS, Chief Judge.

The trial court here awarded a mere $200.00 per month, in permanent periodic alimony, to a wife of many years and mother of two children, working as a part-time bus driver and earning only $264.00 a month. We reverse and remand.

It appears from the record that this much respected trial judge may have made this pathetically small award of periodic alimony because the wife was shown to be a lifelong nag and intolerable companion, during thirty-five years of marriage. If our supposition is correct, we can voice no objection, but we must ask the trial judge, upon remand, to make such a finding. Otherwise, reversible error was committed. Marital misconduct by a wife who seeks alimony may well limit or forestall any award, but such misconduct should be articulated, so that a reviewing court can discern what is afoot. Williamson v. Williamson, 367 So.2d 1016 (Fla.1979). Absent marital misconduct, the award here would be ridiculous and even assuming misconduct, it is still erroneous in one respect. The trial court found that the wife had “some special equity” in $60,000.00 of joint funds invested in his cattle business. The amount of this equity should be determined upon remand and awarded to the wife in a lump sum, regardless of her misconduct, if any.

The husband avers that he gave his fruit hauling and harvesting business to his son, yet confesses no transfer of title has taken place nor does a bill of sale exist. All income and expense from the business continues to appear on the husband’s tax return and he continues to exercise control, write checks, and receive benefits therefrom. All this being so, he obviously remains the beneficial owner and is capable of making substantial alimony payments. Likewise, the wife’s need is obvious.

Accordingly, this cause is reversed and remanded for further proceedings. If gross marital misconduct is confirmed by the trial judge, we have no objection to the meager award nor indeed to no award if such is deemed appropriate upon fresh consideration, especially since the prior periodic award was apparently predicated on the special equity in the cattle business which we have here treated separately.

As to the special equity in the cattle business, this must be calculated and appropriately distributed as we have already noted.

We find no merit to the other points on appeal.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Lorenzo HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 81-781.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

That portion of the trial court’s order assessing recording costs is reversed on the authority of Cox v. State, 334 So.2d 568 (Fla.1976), and Section 939.15, Florida Statutes (1981). In all other respects, the trial court’s orders are affirmed.

HURLEY, DELL and WALDEN, JJ., concur.


text:
    POMPANO ATLANTIS CONDOMINIUM ASSOCIATION, INC., and Highlands Insurance Company, Appellants/Cross-Appellees, v. Rosemarie MERLINO and Joseph Merlino, her husband, Appellees/Cross-Appellants.
    Nos. 81-1064, 81-1065.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      Larry Klein and Jane Kreusler-Walsh, West Palm Beach, and Pyszka & Kessler, Fort Lauderdale, for appellants/cross-ap-pellees.
    Timothy P. Beavers of Ferrero, Middle-brooks & Strickland, P. A., Fort Lauder-dale, for appellees/cross-appellants.
   PER CURIAM.

Thirteen days after rendition of a trial court order granting a remittitur, or in the alternative a new trial, the Plaintiff moved for a clarification of the order. The motion was granted and a new order substituted. We reverse.

The Plaintiff concedes that his clarification motion was not filed in accordance with Florida Rule of Civil Procedure 1.540, but that nevertheless, the nunc pro tunc order which was substituted can be treated as if it had been entered upon the court’s own initiative. We cannot agree.

In the first place, it was not entered upon the court’s own initiative. Regardless of that, however, we also do not believe that the substitute order arose out of any clerical mistake or inadvertence in the original.

The original order stated that if the Plaintiff elected not to accept the remitti-tur “a new trial be and the same is hereby granted.” The substitute nunc pro tunc order recited “that the court did not [in the original order] in any way contemplate a new trial on the issue of liability” but only intended a retrial on the issue of damages. We do not view this substitute ruling as one correcting a mere clerical mistake or inadvertence. Rather do we believe that the error being corrected, if any, was a judicial one.

As this court stated in Fiber Crete Homes, Inc. v. Division of Administration, State of Florida, Department of Transportation, 315 So.2d 492, 493 (Fla. 4th DCA 1975):

Rule 1.540 was intended to provide relief from judgments, decrees or orders under a limited set of circumstances; it was neither intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error. Kuykendall v. Kuykendall, Fla.App.1974, 301 So.2d 466; Constant v. Tillitson, Fla.App. 1968, 214 So.2d 91; Volumes in Value, Inc. [v. Buy Mail International Inc., Fla.App.1965, 177 So.2d 511], supra. As was observed in [In re Estate of] Weymer, [Fla.App.1967, 199 So.2d 495] supra, “a decision is inadvertent if it is the result of oversight, neglect or accident as distinguished from judicial error.” (emphasis in original)

This rule only envisions “mistakes” made in the ordinary course of litigation and does not contemplate judicial error. Marx v. Redd, 368 So.2d 101 (Fla. 4th DCA 1979). In determining whether an order resulted from mere accident or judicial error, the test adopted by this court in In re Estate of Beeman, 391 So.2d 276, 281 (Fla. 4th DCA 1980), is:

whether or not the court reached a decision in the intentional or purposeful exercise of its judicial function. If the pronouncement reflects a deliberate choice on the part of the court, the act is judicial; errors of this nature are to be cured by appeal.

Motions for new trials, rehearings or amendments must be filed within ten days of rendition thereof even if initiated by the court. Florida Rules of Civil Procedure 1.530(d). The instant motion for clarification was not filed until thirteen days after rendition of the original order and the substitution order, even if we were to treat it as one initiated by the court, was not rendered until twenty-eight days after the entry of the original order. In either event, this was too late.

The cause is hereby remanded with instructions to reinstate the order granting the remittitur.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

LETTS, C. J., and GLICKSTEIN and WALDEN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    CO-TRAN, FLORIDA TRANSIT MANAGEMENT, INC., Appellant, v. Lorenzo GOODMAN and Florida Department of Labor and Unemployment Security, Unemployment Appeals Commission, Appellees.
    No. 81-1213.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Catherine M. Brunson, Asst. County Atty., West Palm Beach, for appellant.
    James R. Parks and Noreen S. Davis, Tallahassee, for appellee Unemployment Appeals Comn.
   GLICKSTEIN, Judge.

The employer bus company, Co-Tran, Florida Transit Management, Inc., appeals an order of the Florida Unemployment Appeals Commission entitling one of the employer’s employees to unemployment compensation benefits. We reverse.

Appellee-employee, a bus operator for the employer company, was required to maintain a valid chauffeur’s license as a condition of employment. On an occasion prior to the incident which led to his discharge, his license was suspended and he was suspended from employment for as long as his license was invalid.

The critical incident occurred in January of 1981 when the employee, who was stopped for speeding, could not produce his chauffeur’s license because, he said, he did not have it with him. In contradiction thereof the record of the State Department of Highway Safety and Motor Vehicles revealed a revocation of the employee’s license in August of 1980. The employee, who denied any knowledge of the revocation, said he had been fined in Georgia in August of 1980 for driving while intoxicated, although he said he had not been intoxicated at the time. The referee, finding in favor of the employer, made the following determination:

Consideration has been given to the contention that the claimant was unaware of the revocation and therefore was unable to notify the employer of same; however, this does not alter the fact that his license had indeed been revoked. While the mere fact of a suspension or revocation does not necessarily imply misconduct, the evidence in this case clearly shows that the claimant, during the course of his employment, did through an accumulation of traffic offenses cause the revocation of his license. Thus, it must be held that the claimant was discharged for misconduct connected with work.

This determination was supported by substantial, competent evidence and should have been upheld by the commission. §§ 120.57(lXb)(9) & 443.07(4)(c), Fla.Stat. (1979); CF Chemicals, Inc. v. Florida Department of Labor & Employment Security, 400 So.2d 846 (Fla. 2d DCA 1981); Board of County Commissioners v. Florida Department of Commerce, 370 So.2d 1209 (Fla. 2d DCA 1979).

Instead, the commission overlooked the paramount fact that the employee’s license had been revoked for driving violations and the common sense determination that a revocation of a bus driver’s chauffeur’s license for those violations was misconduct connected with work. In its order and brief the commission focused only upon the employee’s uncontradicted testimony that he did not know his license had been revoked. It concluded the referee erred by finding the employee’s failure to inform his employer of the revocation constituted misconduct.

The facts here indicate the employee’s traffic violations caused the loss of his chauffeur’s license and the commission’s order required the employer to pay the discharged employee unemployment benefits. Such a decision cannot be permitted to stand. If under these circumstances the employer has to pay, then when can an employer discharge, without being obligated to pay for benefits, an employee whose repeated rules violations vitiate the basic requirements of his employment and render him useless to his employer?

REVERSED.

ANSTEAD and HERSEY, JJ., concur.


author: DOWNEY, Judge. ANSTEAD, Judge,

text:
    John F. BLUNNIE, Appellant, v. Mildred J. BLUNNIE, Appellee.
    No. 81-1375.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      John R. Harrington of Harrington & Mattel, Fort Lauderdale, for appellant.
    Louis J. Weinstein of Reasbeck, Fegers, Hess & Weinstein, Hollywood, for appellee.
   DOWNEY, Judge.

This thirteen year childless marriage was dissolved by a final judgment in which the trial court divided the parties’ assets and gave the wife possession of the jointly owned marital home (a duplex). The final judgment also divided two lots and a joint bank account (less $2,000 awarded the wife for outstanding bills) between the parties. It denied the wife attorney’s fees, apparently because they were not properly proven at trial. Most importantly, the court found that the parties became “joint tenants” in the duplex but that the wife should have exclusive possession thereof “until such time as she remarries, dies or both parties mutually agree to the sale of said duplex, whichever event first occurs.” The husband’s sole complaint on appeal is the award of possession of the duplex to the wife. We affirm the trial court decision.

The evidence shows that during the marriage the wife’s parents, Albert and Eunice Price, agreed with the Blunnies to sell their Vero Beach home, to give the Blunnies ten thousand dollars for the downpayment on the duplex in question, and to reside in the duplex with the Blunnies for the rest of the parents’ lives. In accordance with that plan, in 1978 the Prices sold their Vero Beach property and moved into the Blun-nies’ duplex apartment where they have lived ever since.

At trial the wife contended that she should be awarded a special equity in the duplex because of the arrangement with her parents. The husband contended that the parents’ interests were not to be considered in this case in determining his rights vis-a-vis the wife’s rights. He argued further that his wife had not shown any entitlement to a special equity in the property. The transcript of the trial reflects that the trial judge felt he could not adjudicate the rights of the parents in the property. However, he ultimately granted the wife exclusive possession of the duplex which could not, from this record, be justified on any other grounds.

Ordinarily, upon dissolution of marriage, property owned by the spouses as tenants by the entireties becomes property owned as tenants in common with all of the rights thereunto appertaining when no determination of any special equities has been made regarding said property and it has not been awarded as lump sum alimony. However, if special circumstances exist or if there is a special interest of one spouse, which should be considered in the overall equitable distribution of the parties’ finances, the trial court has the power to make special provisions regarding the property held in common by the parties. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Bullard v. Bullard, 195 So.2d 876 (Fla. 2d DCA 1967). For example, in Duncan, supra, the Supreme Court authorized an award of exclusive possession of jointly owned Alabama property to the husband in order to allow his parents to live there. The rationale utilized by the Duncan court was that the husband had virtually built the home himself on the jointly owned property specifically for his parents. The wife had been given exclusive possession of the jointly owned marital home, and to uproot the husband’s parents and partition the property might well put a strain on the husband’s ability to support the wife and children. The court was concerned that all of these awards are interdependent and should be resolved in a fair and equitable fashion. Thus, the court reasoned that, although the parties owned the property jointly, the equities of the case justified giving the husband exclusive temporary possession so that his parents could continue living there until the children became adults.

Albeit our situation does not involve the same nuances of support as Duncan, we feel the obligation to the wife’s parents, which arises directly out of the ownership of the duplex property, justifies an award of exclusive possession to the wife so that she can honor the parties’ agreement to her parents. That right of possession, however, should be limited to the time necessary to meet the obligation of the parties and this would not exceed the lifetime of the parents. Accordingly, we approve the award of possession granted to the wife with the further limitation that it not exceed the lifetime of the parents, in addition to the other limitations placed thereon by the trial judge.

The final judgment also provided that, upon sale of the duplex property, the wife shall be entitled to credit from the proceeds for the sum of the contributions made to the upkeep, maintenance, and repair of the property (exclusive of mortgage payments) to be set off against the rent she receives from the rental of the other half of the duplex. From the remainder, the husband is to receive 50% of the value of the property as of August, 1980, the balance to go to the wife. The court pegged the husband’s one-half interest to the August, 1980, date because he ceased paying his one-half of the expenses to carry the property at that time. We believe the trial court should have adjudicated the husband’s obligation for one-half of those expenses and ordered the parties to divide the proceeds of the sale of the property when it is sold, less the deductions enumerated including the amount he owed for the share of the expenses from August, 1980, until final judgment.

Accordingly, we affirm the final judgment appealed from in all respects except that we direct the trial court on remand to amend the judgment to include the changes indicated in this opinion.

AFFIRMED AND REMANDED WITH DIRECTIONS TO AMEND.

GLICKSTEIN, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Although I generally concur in the views expressed in the majority opinion, I cannot agree with the result because I do not believe the trial court intended that result. At the close of the final hearing the trial court announced its ruling:

As to the question of the duplex, as the Court alluded to previously, whatever is decided to do in this particular case as between those two parties, may be subject to a claim in equity as to the petitioner’s parents, whose testimony was that they produced ten thousand dollars in return for a place to live for the rest of their lives.
This Court does not deem that as a matter of law to convey a special equity to the wife, as opposed to a potential equity by those parties, and in interest, regardless of who owns the property, and in interest to their remaining there for the balance of their lives.
However, that matter is not before the Court formally at this time, and the Court does not reach that matter.
The uncontroverted testimony is that the funds that went into that duplex, aside from the question of any equity that the petitioner’s parents have, came from the joint account, which was alluded to previously by the Court.
It is also uncontroverted that the petitioner, some time in August, based on what’s testified to here today, and based upon findings of the General Master, ratified by the Court, without exception taken by respondent.
The time is August of 1980 that the respondent ceases making any contributions in terms of the maintenance of that facility, so this is what we’re going to do.
The duplex will be held by the parties as joint tenants, and may be subject to whatever equitable interest that the parties have. The petitioner will have exclusive use and possession of the property, until such time the parties mutually agree to sell it, or until her demise, and at the time of the sale of the property the petitioner will be entitled to, firstly, to whatever contributions that she has made towards the maintenance and upkeep of the premises, as to which there will be set off any net profit made from the rent of the second unit.
Now, whatever net proceeds are left, and again, this Court does not reach the question of what interests the other individual who testified here may have, but those net proceeds will be split as follows: The respondent will get a—
MR. HARRINGTON: Excuse me, Judge. Net proceeds of what?
THE COURT: Whatever sale occurs on this after it’s been netted out as I previously indicated.
MR. HARRINGTON: Okay.
THE COURT: Respondent would get fifty percent of the value of the duplex as of August of 1980, which is the time he ceased making any contributions or payments into the maintenance and upkeep of that facility.

The balance will go to the petitioner. By its ruling I think the trial court simply intended that the wife retain possession until any of the parties, including the wife’s parents, sought a partition or determination of the respective interest of the parties in the property. This interpretation of the trial court’s ruling would also account for the wife’s response to appellant’s appeal set out in her brief:

The proper procedure is for the appellant/husband to initiate a separate lawsuit for partition which will be subject to all of the defenses of the appellee/wife and the equitable interest, if any, of the wife’s parents.
The final Decree of Dissolution of Marriage rendered by the trial court should be affirmed because although the Final Judgment operated to create a tenancy in common in the subject duplex, the lower court has no jurisdiction to partition the subject property in the absence of pleadings by the appellant/husband praying for partition and in the absence of the agreement of both parties.

The wife has not argued that the trial court’s award was based on its concern that the wife’s parents have a place to live. Further, if the trial judge had intended that the wife have exclusive possession during her parents’ lifetime he would not have provided that her possession continue until her own demise.


author: HERSEY, Judge.

text:
    PIPER AIRCRAFT CORPORATION, Appellant, v. Grethel T. ASHLING, as Personal Representative of the Estate of William H. Ashling, deceased, Appellee.
    No. 81-1504.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Edna L. Caruso, West Palm Beach, and McClure & Gay, P. A., Fort Lauderdale, for appellant.
    C. Robert Murray, Jr., of Lane, Mitchell & Harris, P. A., Miami, for appellee.
   HERSEY, Judge.

Appellee, Ashling, filed suit against Piper Aircraft Corporation in Dade County. The summons and complaint were served through a corporate agent Piper Aircraft had appointed as registered agent for service of process. A motion for transfer of venue to Indian River County on the basis that the movant, Piper Aircraft Corporation, had no office or agent in Dade County, was granted. A motion for rehearing was filed but never acted upon.

Approximately a year later appellee filed in the Indian River County proceedings a motion for change of venue to Dade County in reliance on Vellanti v. Piper Aircraft Corp., 394 So.2d 1063 (Fla.3d DCA 1981). That case held that venue was appropriately laid in the county where the foreign corporation had an agent designated to accept service of process on its behalf. The trial court in Indian River County transferred the cause back to Dade County for the limited purpose of allowing that court to rule on the pending motion for rehearing.

The order of temporary transfer is the subject of this appeal. We have determined that we are without jurisdiction to entertain the appeal. The order which ultimately will be entered in Dade County will be appealable as one concerning venue. If that order returns the cause to Indian River County and if a motion for change of venue is subsequently filed in that court, the resulting order will be one concerning venue. In either event we will have jurisdiction because of Rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure. As much cannot be said for the present order which is simply a temporary transfer to allow a motion to be reconsidered.

We are asked, in the alternative, to treat these proceedings as Certiorari. We may not do so. If the trial court in Dade County simply denies rehearing or, after rehearing, reaffirms its original action, not only does appellant/petitioner not suffer irreparable harm, it suffers no harm at all. Furthermore, if an order is entered which might prejudice appellant/petitioner, the remedy of appeal from a non-final order is immediately available, as we have previously indicated.

For these reasons we determine that we are without jurisdiction to proceed and this appeal is therefore dismissed.

APPEAL DISMISSED.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Richard B. WEBBER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1574.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Richard R. Webber, Homestead, pro se appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The Attorney General agrees that this matter should be remanded to the trial court with instructions to strike the mandatory three-year minimum sentence imposed for the second degree murder count. The cause is affirmed in all other respects.

REMANDED WITH DIRECTIONS.

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


author: BERANEK, Judge.

text:
    William J. JOHNSON and Ruth Johnson, his wife, Appellants, v. LANDMARK FIRST NATIONAL BANK and Joseph Gunther, Appellees.
    No. 81-1971.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      Richard W. Smith of Johnson & Smith, Fort Lauderdale, for appellants.
    Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee, Landmark.
    David T. Price of Price, Byrne & Trib-bett, Fort Lauderdale, for appellee, Gunther.
   BERANEK, Judge.

Appellants, William and Ruth Johnson, commenced action against appellees, Joseph Gunther and The Landmark First National Bank of Fort Lauderdale, in a complaint alleging fraud and violations of the Securities Act of 1933. Some three years later, the trial court dismissed their complaint without prejudice due to their attorney’s failure to appear at various hearings and to otherwise comply with the trial court’s orders. Appellants assert that the trial court abused its discretion in dismissing their action.

The severity of sanctions imposed by the trial court is a matter within its sound discretion and the exercise of this discretion will not be disturbed absent a clear showing of abuse. Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980); Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978). As previously noted in our decisions, the ultimate sanction of dismissal should be employed only in aggravated situations. Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970). The trial court here might well have sanctioned counsel directly by contempt and a fine. Although the members of this panel would have employed this less severe alternative, we confine ourselves to our review function. In this instance, a review of the record before us does not demonstrate an abuse of discretion. Appellate counsel suggests that the dismissal without prejudice will actually terminate the ease because the statute of limitations has run. This is regretful, but we note that this argument was never brought to the trial court’s attention and is raised for the first time on appeal. But for the actions of counsel, appellants would still have a cause of action. Appellants’ only recourse now is an action against their counsel.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


author: WALDEN, Judge.

text:
    Shirley PASSARO, individually, and as Mother and Next Friend of Erik Passaro, a minor, Appellant, v. The CITY OF SUNRISE, Florida, Appellee.
    No. 81-2056.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      Charles H. Sinclair of Krupnick & Campbell, P. A., Fort Lauderdale, for appellant.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, and Pyszka & Kessler, Fort Lauderdale, for appellee.
   WALDEN, Judge.

This was an action for personal injuries. Summary final judgment was entered in favor of Defendant, City of Sunrise. Plaintiff appeals. We reverse and remand.

The undisputed facts reveal that in February, 1980, the Plaintiff, Shirley Passaro, took her son, Erik, age 3, to an athletic event at Dawson Field which was owned and maintained by Defendant, City of Sunrise. At that time, one of the wooden seats from the bleachers had been removed, leaving a metal support in place. At that time, while within an arm’s length of the Plaintiff, Shirley Passaro, her son, Erik, stepping where the missing board should have been, fell through the bleachers, striking his head on one of the metal supports.

The Plaintiff had noticed on one prior occasion that the bleacher seat was missing several days before the accident, but the accident happened within seconds of the time she arrived with her son, Erik on this second occasion. Shirley Passaro testified that she was within an arm’s reach of her son the entire time, and in fact, when he fell, hitting his head on the brace, she grabbed him before he ever struck the ground.

Based on the foregoing, Plaintiff, Shirley Passaro, individually, and as mother and next friend of Erik Passaro, a minor, brought suit for damages against the Defendant, City of Sunrise, Florida. The City filed its answer and counter claim wherein it generally denied responsibility, plead that Plaintiff, Shirley Passaro, was guilty of negligence in the care and supervision of her son Erik, which negligence bars or comparatively limits the Plaintiff’s right to recover. In its counter claim the city asked for contribution per Section 768.31, Florida Statutes (1981).

After discovery which revealed the foregoing facts the trial court granted the City’s motion for summary judgment and entered summary final judgment in favor of the Defendant, City of Sunrise, and against the Plaintiff.

In our opinion the case was not suitable for summary judgment disposition because there were existent genuine issues of material fact. Florida Rules of Civil Procedure 1.510(c). There was an issue as to the negligence of the Defendant, City of Sunrise, in maintaining defective bleachers which were open for public use and this is true even though Plaintiff had knowledge of the defect consisting of the missing seat. Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). There was an issue as to the negligence of Plaintiff, Shirley Passaro, in the supervision of her minor son even though she testified that he was within an arm’s length from her at all times. See Orlando Sports Stadium v. Gerzel, 397 So.2d 370, 371 (Fla. 5th DCA 1981). Even more importantly, there is an issue as to the comparative negligence of the respective parties and the contribution to be made under § 768.31 Florida Statutes (1981). Hoffman v. Jones, 280 So.2d 431 (Fla.1973) and Goldberg v. McCabe, 313 So.2d 47 (Fla. 3d DCA 1975).

In our view the foregoing issues are properly issues for the jury.

Reversed and remanded for further proceedings.

HURLEY and DELL, JJ., concur.


text:
    David H. BLUDWORTH and Larry Shack, Appellants, v. Gene LALLY, Appellee.
    No. 82-590.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Jim Smith, Atty. Gen., Joseph A. Linne-han, Asst. Atty. Gen., and Carolyn Gause-Thompson, Certified Legal Intern, Tallahassee, for appellants.
    Stuart L. Stein of Stuart L. Stein, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellants, Bludworth and Schack, are defendants in a defamation action instituted by appellee. Some 47 days after they were served with a summons and complaint, a default for failure to answer was entered against appellants. They filed a motion to vacate the default which the trial court denied. On appeal, they contend that they sufficiently demonstrated both excusable neglect and a meritorious defense and the trial court abused its discretion in failing to set aside the default. We are not called upon to express any opinion on the overall merits of the case and address only the specific issues raised on appeal.

The vacating of a default is a matter within the sound discretion of the trial court, and the decision of the trial court shall not be disturbed absent a gross abuse of discretion. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). As appellants point out, we have held in the past that the failure to vacate a default where a clerical error constituted excusable neglect was an abuse of discretion. See County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981). However, despite appellants’ protests to the contrary, we cannot disagree with the trial court’s conclusion that clerical error is not at issue here. In its order, the trial court set forth explicitly the findings of fact on which it based its determination. Such explicit factual findings are of great help in this court’s review function. The order states:

THIS CAUSE came on to be heard on the Motion to Set Aside Default Judgment filed by the Defendants, DAVID H. BLUDWORTH and LARRY SCHACK, and upon the Motion and Memorandum in Opposition to Defendants’ Motion to Set Aside the Default filed by Plaintiff, GENE LALLY, and upon Defendants BLUDWORTH and SCHACK’S Supplemental Memorandum of Law and the Plaintiff’s Response thereto.
The Defendants argue that misfiling or misplacing of a complaint is excusable neglect. This may or may not be so, but it is hardly the situation that has been presented here. First of all, both defendants are themselves lawyers and therefore knew the necessity of filing pleadings. Secondly, the Plaintiff did not race to the Courthouse to default them. Plaintiff’s attorney testified at the hearing that he had orally advised Defendant BLUDWORTH at a social gathering that the Defendants were in default and had not answered. The Defendants still neglected to take the trouble to walk downstairs and file a pleading in the case to preclude a default. They were given yet another opportunity to file pleadings when the Plaintiff’s attorney sent a letter to Defendant BLUDWORTH dated December 16,1981, again advising they were in default and to please plead. (Letter attached to Plaintiff’s Motion and Memorandum in Opposition to Defendant’s Motion to Set Aside the Default.) The Defendants still did nothing. The Affidavit of Barry Krischer, Esq., himself a lawyer, admits that he knew the default status on December 24, 1981, when Plaintiff’s attorney’s letter was brought to his attention. (Affidavit attached to Defendants’ Motion to Set Aside Default.) The Defendants still, on that date, failed to walk downstairs to file pleadings. The only action taken was four days later on December 28, 1981, when a letter was sent to the Attorney General’s Office with the Summons and Complaint merely advising them of the suit. (Letter attached to Defendants’ Motion to Set Aside Default.) Even the letter to the Attorney General’s Office failed to advise of the default status. Finally on January 6, 1982, the Default was entered.
This series of events cannot be deemed to be excusable neglect. Accordingly, the Defendants, BLUDWORTH and SCHACK’s Motion to Set Aside Default is hereby denied.
In accordance therewith, all other pleadings of said Defendants are hereby stricken.
DONE AND ORDERED, in Chambers, Palm Beach County Courthouse, West Palm Beach, Florida, this 25th day of February, 1982.

We note that appellants do not contest the court’s factual findings. The only appellate argument is that a secretary in Mr. Bludworth’s office failed to forward the suit papers as soon as she should have and her conduct constituted a “clerical error” or excusable neglect as a matter of law. Appellants simply do not deal with the trial court’s findings as to their inaction after notice from opposing counsel.

Based on the uncontested facts presented in the trial court’s order and the definition of “discretion” found in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we hold that the trial court did not abuse its discretion in this matter.

AFFIRMED.

BERANEK, GLICKSTEIN and WALDEN, JJ., concur.


text:
    Willie C. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 82-608.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      Willie C. Jones in pro. per.
    No appearance required for appellee.
   PER CURIAM.

It does not conclusively appear from the portions of the files and records of the case attached to the trial court’s order that appellant is entitled to no relief and, thus, it is incumbent upon the trial court to hold an evidentiary hearing to make that determination.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to hold an evidentiary hearing.

DOWNEY and WALDEN, JJ., concur.

ANSTEAD, J., dissents without opinion.


text:
    Mario GALLEGO, Petitioner, v. The Honorable H. Mark PURDY as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.
    No. 82-748.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.

      Stephen J. Golembe of Law Offices of Mishkin & Golembe, Miami, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

Mario Gallego was arrested on February 26,1981, and on April 22,1981, was charged by Information with trafficking in cocaine in an amount of 28 grams or more, but less than 200 grams. Subsequently, on one or more occasions, defense continuances were granted. On February 23, 1982, a motion by the state to amend the Information to charge trafficking in cocaine in an amount in excess of 400 grams was granted. It is undisputed that there were two separate amounts of cocaine and that they were involved in the same criminal episode.

Gallego’s motion for discharge directed to the amended information and based upon a violation of the speedy trial rule was denied. By petition for writ of prohibition Gallego seeks to have this court oust the trial court of its jurisdiction to proceed on the enhanced charge.

As we did in Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA 1981), we deny the petition primarily on its merits but also on the grounds of the unavailability of prohibition to redress an alleged violation of the speedy trial rule.

Addressing, first, the merits, we find no violation of the speedy trial rule. A defense continuance constitutes a specific waiver of the speedy trial rule (or, more properly, an estoppel precluding reliance on the rule) as to all charges which emanate from a single criminal episode. State v. DeSimone, 386 So.2d 283 (Fla. 4th DCA 1980); State v. Corlew, 382 So.2d 787 (Fla. 2d DCA 1980).

Second, we adhere to our position in Sherrod that prohibition, and its counterpart mandamus, do not lie to review an alleged violation of the speedy trial rule. We differ in this view from the Fifth District, Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981), but see Bouchacra v. Leffler, 413 So.2d 791, (Fla. 5th DCA, Case No. 82-151, opinion filed April 7,1982); and the Third District, V.C. v. Ferguson (Fla. 3d DCA Case No. 82-323, opinion filed April 20,1982).

The holding in Sherrod that prerogative writs are unavailable to remedy speedy trial rule violations is based upon (1) the fact that conceptually neither prohibition nor mandamus is appropriately invoked to redress the mere violation of a procedural rule and (2) precedents in the case law from the Florida Supreme Court which support the use of these extraordinary remedies involve a violation of the constitutional right to speedy trial even when couched in terms of the speedy trial statute which preceded the speedy trial rule.

Both prohibition and mandamus are extraordinary remedies. They have been utilized interchangeably in the area of violations of the constitutional right to speedy trial. Use of the writ of prohibition stops the proceedings and prevents the inferior court from continuing to exercise its jurisdiction or from acting in excess of its jurisdiction. Mandamus, while accomplishing primarily the same result, by its nature is affirmative in operation and its most frequent consequence is discharge of the defendant and dismissal of the criminal charges. Neither writ is available to address a mere error of law or an abuse of discretion by the trial court.

In English v. McCrary, 348 So.2d 293, 296-298 (Fla.1977), the supreme court said of the writ of prohibition:

Prohibition is an extraordinary writ, a prerogative writ, extremely narrow in scope and operation, by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction.
Prohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction.
Abuse of discretion by the inferior tribunal acting within its jurisdiction is not a matter to be determined by prohibition. State v. Hunt, 70 So.2d 301 (Fla.1954), State ex rel. Jacksonville Ice & Cold Storage Co. v. Gray et al., 130 Fla. 359, 177 So. 849 (1937). If the existence of jurisdiction depends on controverted facts which the inferior court has the jurisdiction to determine, and the court errs in the exercise thereof, prohibition is not available. State ex rel. Park v. H. T. Poindexter & Sons Merchandise Co., 149 Fla. 765, 7 So.2d 452 (1941), Burkhart v. Circuit Court of Eleventh Judicial Circuit [146 Fla. 457, 1 So.2d 872], supra, State ex rel. Schwarz v. Heffernan, 142 Fla. 137, 194 So. 313 (1940), State v. Drumright, 116 Fla. 496, 156 So. 721 (1934).
The suggestion for writ of prohibition must affirmatively show lack of jurisdiction in the lower court. Department of Public Safety v. Koonce, 147 Fla. 616, 3 So.2d 331 (1941), State v. Rowe, 104 So.2d 134 (Fla. 1st DCA 1958).

In Garrett v. Johnson, 112 Fla. 112, 113, 150 So. 239, 239 (1933), the court said of the writ of mandamus:

Mandamus is a remedy correlative to that of prohibition as a means of testing jurisdiction in pending cases.
If in this case prohibition would lie to restrain jurisdiction had the order been the reverse of what it was, that is to say, had the circuit court’s order been that the cause should not be dismissed because the court did have jurisdiction, then mandamus as a corresponding remedy for a contrary order will lie to test the correctness of the order that was made, holding that the circuit court did not have jurisdiction, since both mandamus and prohibition are remedies available in an appellate court of superior jurisdiction to control and supervise the exercise of jurisdiction by courts having final appellate jurisdiction to decide the jurisdictional questions involved.

In State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936), the parameters of the writ were carefully and fully explored. The court explained:

In one of our recent cases on this subject, State ex rel. Board of Commissioners v. Helseth et al., 104 Fla. 208, 140 So. 655, 660, Mr. Justice Davis, speaking for this court, said: “A writ of mandamus is issued only to require the performance of a plain official duty on the part of respondents. It is issued to require the person to whom it is directed to perform some act which the law enjoins as a duty, and it confers no power and creates no duty of itself.” And in State v. Richards, 50 Fla. 284, 39 So. 152, this court held that mandamus lies to compel the performance of a ministerial duty, where such duty does not involve the exercise of discretion or judgment by the officer, and the relator has a clear legal right to have such duty performed.. .. Where the duty is discretionary, mandamus does not lie.
Undoubtedly, as a general rule, mandamus is a remedy to command the performance of a ministerial act which the relator has the right to demand and which it is the plain official duty of the respondent to perform....
Rights and remedies are so closely interwoven in the law that it becomes necessary to clearness of thought and the efficiency of judicial procedure to preserve as distinctly as possible the lines of demarcation between the different forms of remedies. Rights are more important than remedies and substantive law is more important than adjective law. But both are important. Remedies are a means to an end. The end is the efficient ascertainment and administration of justice under the law. But this highly desirable end can be best reached when the proper means to arrive at it are adopted, (citations omitted).

Id. 167 So. at 23-24.

By supreme court fiat, then, violation of the constitutional speedy trial rights of an accused divests the trial court of jurisdiction to proceed with adjudication and renders appropriate the use of extraordinary writs. Neither logic nor precedent dictate that the same result should follow from a violation of the procedural speedy trial rule. It is indeed seldom that the legal issue of whether or not there has been a violation of the speedy trial rule comes to the appellate court unencumbered by issues of fact. Were it otherwise, the trial court would most likely have put the issue properly to rest in the first instance. An application for these extraordinary remedies, then, has its genesis in an error, either of fact or law or both, by the trial court. Further confusing the issue may be controversy concerning the date the speedy trial period began to run, what crimes arose out of the single criminal episode for which the accused was taken into custody, whether custody resulted from different criminal activity or occurred in a different jurisdiction, whether the accused was continuously available for trial, whether there was a defense continuance or whether a continuance was properly chargeable to the defense, whether there exist facts constituting a waiver and other such factors. Under these circumstances we are disinclined to view speedy trial rule cases as involving simply a ministerial function which the accused has the right to demand and which it is the plain (and simple?) official duty of the trial court to perform. We do not comprehend that the ends of justice require that the trial court be temporarily divested of jurisdiction mid-proceedings in order that an appellate court may consider whether the mere passage of time has permanently ousted the court of its jurisdiction in the matter.

It is also clear that the 180 day speedy trial rule period is not co-extensive with the constitutional period. The latter is measured by tests of reasonableness and prejudice. Once the speedy trial rule has been waived it is supplanted by the constitutional speedy trial period. This latter is not a fixed period of time but is, rather, a reasonable time which is necessarily longer than 180 days. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

Such a distinction did not exist between the constitutional right and the speedy trial requirement imposed by the legislature in the form of the statute which was the precursor of the speedy trial rule. The statute required that a demand for speedy trial (a positive, thoughtful action by the accused) be filed with the trial court. Violation then occurred only after three full terms of court had passed without bringing the defendant to trial. It was therefore appropriate to indicate, as did our supreme court, that:

While the statutory scheme was supplementary to the speedy trial right guaranteed by Article I, Section 16, Florida Constitution, it was nonetheless a “legislative determination of the maximum delay in the trial which may be imposed * * * where such delay is brought about without any fault or affirmative action on the part of the accused * * *” Feger v. Fish, 106 Fla. 564, 143 So. 605 (Fla.1932).

State ex rel. Atwood v. Baker, 250 So.2d 869, 871 (Fla.1971). We conclude that both the statute and the constitution implicate the very jurisdiction of the court to proceed. We are not persuaded that the speedy trial rule was intended to have the same implications. This is therefore not, in our view, a distinction without a (legal) difference.

Supreme court opinions treating prohibition and mandamus in the area of speedy trial impel us to the same conclusion. The cases which have been brought to our attention ultimately and inevitably refer to the constitutional right to speedy trial.

Thus the court said, in Feger v. Fish, 106 Fla. 564, 566, 143 So. 605, 606 (1932) “When a court by its affirmative action denies to the accused the rights guaranteed to him under section 11 of the Declaration of Rights, such action on the part of the court is in excess of its jurisdiction and, therefore, may be reached by prohibition.” Again, by way of dicta, in Woodward v. Petteway, 123 Fla. 892, 893, 168 So. 806, 806 (1935), the court advised:

To protect constitutional rights from invasion, or even partial impairment, appropriate judicial writs, prerogative and otherwise, may be availed of by an injured party. Thus the use of the writ of prohibition has been countenanced to enforce the provision of section 11 of the Declaration of Rights, aforesaid, where it was alleged and shown that a “speedy” trial was being denied petitioner.... (citation omitted).

The court, in Dickoff v. Dewell, 152 Fla. 240, 241, 9 So.2d 804, 805 (1942), stated: “Furthermore, when it comes to the matter of safeguarding the constitutional rights of the individual the courts look to the substance rather than the technical forms of procedure taken to invoke the protection of the law.”

Quoting this language from Dickoff v. Dewell, the court, in Wincor v. Turner, 215 So.2d 3, 6 (Fla.1968), explained the relationship, one to another, of the available remedies for violation of speedy trial rights:

Furthermore, when it comes to the matter of safeguarding the constitutional rights of the individual the courts look to the substance rather than the technical forms of procedure taken to invoke the protection of the law.” The emphasized statement is particularly appropriate here when we consider this technical objection of the State to this action of the accused to enforce his constitutional right to a speedy trial under the provisions of a long-standing statute of this State designed to insure the performance of that duty. Modern rules of procedure are intended to eliminate technicalities and to simplify the administration of justice. This Court has often referred to prohibition as being the counterpart of mandamus. In Curtis, etc. v. Albritton, 101 Fla. 853, 132 So. 677, this Court said: “The writ of prohibition is the counterpart of mandamus in the manner in which it operates, being negative while mandamus is positive in its commands. Spelling on Injunctions and other Extraordinary Legal Remedies (2d Ed.) sec. 1718.” Judge Cross, in the recent mandamus case of Gossett v. Hanlon, supra, where identical relief was granted petitioner, very appropriately observed that “In reading section 915.01, supra, in pari materia it is obvious that section 915.01(1) states clearly that relief provided the accused is to be granted by affirmative action of the court rather than by automatic operation of law.” (E.S.) While, if the accused elected, he would have the right to resort to prohibition as was done in Dickoff v. Dewell, supra, and other cases to prohibit further proceedings, he has the right, if he elects to do so, to proceed in mandamus to compel the dismissal of such action when the statute has not been complied with. We think from the standpoint of the accused and the orderly administration of justice the latter is a more satisfactory and appropriate method of proceeding because if the accused has complied with the statute, the suit then is dismissed, a final judgment is entered and the case is closed.

Pena v. Schultz, 245 So.2d 49 (Fla.1971), was clearly and expressly dealing with a constitutional violation. The court in that case stated, in approving use of the writ:

This discharge of Pena did not accrue under the provisions of F.S. Sections 915.-01 and 915.02, F.S.A., prescribing certain statutory requisites guaranteeing a speedy trial. Instead, it comes directly under the constitutional provision guaranteeing a speedy trial. Section 16, Declaration of Rights, State Constitution, F.S.A. Judge Schultz in his order of October 13, 1970, agreed with Pena that the State’s failure to proceed with the prosecution because of its failure to have its witnesses present was sufficient ground to dismiss the case and discharge the defendant.

Id. at 50.

In each of these cases, then, the language and the rationale implicate constitutional guarantees.

We recognize that this view does not have universal acceptance and that supreme court precedents have received a different interpretation by at least two of our sister courts. Thus the Third District Court of Appeal, in a well-reasoned and persuasive opinion, V. C. v. Ferguson, supra, has suggested that the case of State ex rel. Soodhalter v. Baker, 248 So.2d 468 (Fla.1971), is significant for “the holding that there is no ... jurisdictional impediment in the district court of appeal, and that in those courts prohibition is the proper remedy for asserted speedy trial rule violations.” Ferguson, - So.2d at -. The important term in the quoted sentence is “speedy trial rule.” Soodhalter dealt with a violation of Subsection 915.01, Florida Statutes (1969), the speedy trial statute. We reemphasize our view that the rationale explaining cases dealing with the former statutory requirement has little viability and should have little credibility in the area of the procedural speedy trial rule.

The third district also has suggested in V.C. that Sherrod totally overlooks the proposition gleaned from State ex rel. Atwood v. Baker, supra, that “in any event and in any court, mandamus lies to remedy a speedy trial violation.” V.C., supra, footnote 4. We respectfully suggest that Atwood, like Soodhalter, involved a violation of the speedy trial statute and thus lends little precedential value to our analysis, based, as it is, on the premise that statute violations and rule violations implicate somewhat different considerations and should be redressed by different remedies.

The thesis for the second or procedural basis for the holding in Sherrod was never judicial economy. (Notwithstanding V.C., supra, to the contrary.) The occasional meritorious application for redress of a speedy trial rule violation no doubt saves the defendant, the prosecution and the trial court the time and expense of a trial. On the other side of the scale must be placed (1) the cost in time and expense for a three judge panel of the appellate court to give due consideration to all such applications, however numerous and however frivolous and (2) the disruption of the orderly proceedings at the trial court level which occurs when the appellate panel issues an order to show cause automatically staying those proceedings. For a vivid, albeit somewhat unique and therefore perhaps not fairly representative, account of the adverse consequences of such an application, see Addison v. Brown, 413 So.2d 1240 (Fla. 5th DCA 1982). Such a debate, however, like the question of how many angels can dance on the head of a common pin, is better left to the statisticians and academicians.

It is our considered judgment that the course of justice is better served, and its administration less fragmented, by following the rule that extraordinary remedies are not available mid-proceedings to test whether a violation of the procedural speedy trial rule has occurred.

We do not mean to suggest, however, that violations of the speedy trial rule may be perpetrated with impunity. Such violations will inevitably result in discharge of the criminal defendant at the appropriate time after all factual questions have been put to rest. This, coupled with the fact that the period established by the rule may be extended for various reasons and may be waived pre-trial, during trial or post-trial, compel us to conclude that alleged violations of the procedural rule, as we have already indicated, must of necessity await orderly disposition of all of the issues by the trier of fact before being presented to the law court for review. The defendant who truly seeks a speedy trial rather than speedy release will ultimately be better served by adherence to such a procedure, eliminating, as it does, the disruptive and time consuming process of making application for extraordinary relief on the eve of trial, thus delaying trial, the very evil sought to be remedied.

We continue to adhere to the view graphically but succinctly stated for the Supreme Court of the United States by Mr. Justice Blackmun in United States v. Mac Donald, 435 U.S. 850, 863, 98 S.Ct. 1547, 1554, 56 L.Ed.2d 18, 29 (1978):

In sum, we decline to exacerbate pretrial delay by intruding upon accepted principles of finality to allow a defendant whose speedy trial motion has been denied before trial to obtain interlocutory appellate review.

Accordingly, the petition for writ of prohibition is denied on its merits and on the additional ground that prohibition does not lie.

PETITION DENIED.

DOWNEY and DELL, JJ., concur.


text:
    Terrell THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-848, 80-849.
    District Court of Appeal of Florida, Third District.
    June 23, 1982.
    Bennett H. Brummer, Public Defender and Geoffrey C. Fleck and Richard A. Sharpstein, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 9,1981 (397 So.2d 354) affirming in part and reversing in part the judgment of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 413 So.2d 757, by its opinion and judgment filed April 22, 1982 and mandate now lodged in this court, affirmed in part and reversed in part and remanded the cause with instructions.

NOW THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on April 27, 1981, is withdrawn, the judgment of this court filed in this cause on April 9, 1981 except as is affirmed by the judgment of the Supreme Court dated April 22, 1982, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court with instructions to reinstate the respondents attempted robbery conviction. Costs allowed shall be taxed in the trial court (Rule 9.400 a, Florida Rules of Appellate Procedure.)


text:
    Fabio Enrique ZULETA, Appellant, v. Abdul RASHID and Cruz Rashid, his wife, Appellees.
    No. 82-831.
    District Court of Appeal of Florida, Third District.
    June 29, 1982.
    Richard, Tharp & Pemsler and Barry A. Pemsler, Miami, for appellant.
    Michael Palahach, III, Miami, for appel-lees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Upon consideration of the confession of error filed by the appellees and our independent review of the record and brief, the order denying the appellant’s motion to dismiss for lack of jurisdiction over his person is reversed.