text:
    Eddie CARTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-1815/T4-192.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.

      Richard L. Jorandby, Public Defender, and Jack Goldberger, 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.
   COBB, Judge.

This is a timely appeal from a judgment of guilty of sexual battery with use of force not likely to cáuse serious personal injury. Appellant had been charged by Information as follows:

[Appellant] did, in violation of Florida Statute 794.011(4)(b), commit a sexual battery upon [name deleted] a person over the age of eleven years, without the consent of the said [name deleted], and in the presence thereof threatened to use physical force or violence likely to cause serious personal injury to the said [name deleted] under such circumstances that the' said [name deleted] reasonably believed that the said EDDIE CARTER, JR. had the present ability to execute or carry out the threats.

The evidence at trial showed that appellant picked up the victim at a convenience store and took her to a secluded lake. The victim testified that there was a struggle resulting in a sexual assault. There was testimony that appellant and the victim had been “going together” for six weeks prior to the incident. In addition, appellant denied forcing the victim to have intercourse. However, a doctor who examined the victim at the hospital found splinters of wood in the palm of her hand and bruises on both her arms and right hip, plus evidence of sperm indicating she had recently had sexual intercourse.

Appellant argues that he was convicted of an offense for which he was not charged, and that the trial court erred in instructing the jury that the charge of violating Section 794.011(4)(b), Florida Statutes (1977), includes the lesser offense of sexual battery with slight force — i. e., physical force and violence not likely to cause serious personal injury per subsection (5). Appellant argues that sexual battery with slight force is not within one of the Brown v. State, 206 So.2d 377 (Fla.1968) four categories of lesser included offenses concerning which the jury may be instructed. Appellant relies upon the recent decision in Grange v. State, 371 So.2d 723 (Fla.1st DCA 1979), where the court held that the offense of sexual battery with the use of force not likely to cause serious personal injury is not a lesser included offense of committing sexual battery by threatening to use force or violence likely to cause serious personal injury.

The state argues that the lesser offenses of Section 794.011(4) and (5), Florida Statutes, have been held to be category four lesser included offenses of Section 794.-011(3), Florida Statutes, a determination which in any particular case depends upon the pleading and proof. Turner v. State, 363 So.2d 1 (Fla.4th DCA 1978); Wagner v. State, 356 So.2d 867 (Fla.4th DCA 1978); Smith v. State, 340 So.2d 1216 (Fla.4th DCA 1976). The state then concedes in its brief that the pleading did not allege the actual use of force, but contends that the proof at trial established that some force was used; therefore, since only one prong — the proof — of the category four offense was present, even if there were reversible error as held in Grange, the appellant’s failure to object at trial estops him from raising the point on appeal.

The analyses of Chapter 794 offenses by the various appellate courts in this state are not consistent. We adopt as the most cogent reasoning in this regard the opinion of the Third District Court of Appeal in Harris v. State, 338 So.2d 880 (Fla.3d DCA 1976), which cannot be reconciled with either Grange or Turner. State prosecutors may be persuaded by divergent district court opinions to employ more comprehensive charging in informations to avoid this pitfall.

It is our view that the crime proscribed by Section 794.011(5) is a necessarily lesser included offense of the crime of sexual battery accomplished by the actual use of physical force likely to cause serious personal injury proscribed by Section 794.011(3). The lesser force is an essential aspect of the greater force, just as petit larceny is included in grand larceny and larceny is included in robbery. See Brown v. State, supra, and Harris v. State, supra. But the actual use of slight force is not necessarily included as an essential aspect of the crime set forth in subsection (4)(b), wherein the gist of the offense is sexual battery accomplished by threat, not by force. Nor is the offense proscribed by Section 794.011(5) a Brown category four lesser offense in this case, because the particular allegations of the accusatory pleading against Carter do not charge any use of force to accomplish sexual battery, even though there was proof at trial that such force was used. Harris v. State, supra. Hence, it was error for the trial court in this case to instruct the jury on the lesser offense of sexual battery with slight force.

The state argues, however, that the appellant failed to raise this objection at trial and is estopped to do so now, relying primarily on Castor v. State, 365 So.2d 701 (Fla.App.1978). It is contended by the state that the error here is not fundamental, since the proof showed some force and there was no objection on this point by appellant at the charge conference, after the completion of instructions, or in any post-trial motion. Moreover, the appellant requested a penalty instruction in regard to this lesser offense and argued the refusal thereof as a ground for new trial.

There are numerous cases supporting conviction based on crimes not specifically charged because of waiver and estoppel. See, e. g., Odom v. State, 375 So.2d 1079 (Fla.1st DCA 1979); Smith v. State, 375 So.2d 864 (Fla.3d DCA 1979); Ray v. State, 374 So.2d 1002 (Fla.2d DCA 1979); Lumia v. State, 372 So.2d 525 (Fla.4th DCA 1979); and Jones v. State, 358 So.2d 37 (Fla.4th DCA 1978), cert. denied, 364 So.2d 887 (Fla.1978).

The appellant, therefore, must rely on the doctrine of fundamental error if he is to prevail on this appeal. In support of this position, the appellant relies on Falstreau v. State, 326 So.2d 194 (Fla.4th DCA 1976); Haley v. State, 315 So.2d 525 (Fla.2d DCA 1975); O’Neal v. State, 308 So.2d 569 (Fla.2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975); and Priester v. State, 294 So.2d 421 (Fla.4th DCA 1974). These cases, however, from the Second and Fourth District Courts have been superseded by 1978 and 1979 cases from those districts cited above.

We agree with the state on the estoppel argument, and the requirement of contemporaneous objection, in view of the more recent District Court cases, as well as the principles enunciated by the Florida Supreme Court in Castor, supra, and in Clark v. State, 363 So.2d 331 (Fla.1978).

Accordingly, the judgment of the trial court is AFFIRMED.

UPCHURCH, J., and MILLER, ROBERT P., Associate Judge, concur.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Harmon Eugene REGISTER, Appellee.
    No. 78-2154/T4-233.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Garrick N. Fox of Rothblatt & Barnett, Orlando, for appellee.
   COBB, Judge.

This is an appeal by the state of the granting of a discharge of the defendant by the trial court on the basis of the speedy trial rule. The defendant, Harmon Register, was arrested on February 2, 1978, and subsequently charged by information on May 11,1978, with obstructing a police officer in the execution of a legal duty and with battery upon said officer. The case originally was set for trial on July 13, 1978, but then advanced to a trial date of June 13,1978. On June 8,1978, there was an ore tenus motion by the defense for a continuance. A written order was entered by the trial court at that time stating simply that the motion for continuance . was granted. The order made no findings of fact and recited no stipulations of counsel. The hearing was not reported. The case was then reset for trial on August 10, 1978.

Because of confusion surrounding the court ruling on a defense motion pursuant to Rule 3.190(c)(4), Rules of Criminal Procedure, the trial was not held at the scheduled time. It was rescheduled for October 4, 1978. On October 2, 1978, the defendant filed a motion for discharge, and this motion was heard on October 4, 1978 — some 240 days after the arrest.

At that hearing, defense counsel represented to the trial court his recollection that the ore tenus motion for continuance on June 8 had been accompanied by “an agreement” that the speedy trial rule would not be waived by the continuance, but merely tolled for thirty days, thereby extending the time until the first of September, 1978. Defense counsel’s recollection was that the court orally approved this thirty-day extension agreement; he supported this recollection with an office memo which he said had been dictated at the time. He also emphasized that there had been no written waiver of the speedy trial rule. In support of his argument that a written waiver of speedy trial shown by the record was necessary, defense counsel relied upon the case of Smith v. State, 345 So.2d 1117 (Fla.2d DCA 1977).

The prosecutor’s recollection was different. He denied that there had been an agreement between counsel for an extension, and contended that the record showed only a motion for continuance by the defense, which constituted a waiver of the speedy trial rule. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971).

The trial judge, having heard the conflicting recollections of respective counsel, then stated:

Well, we’ve got a knotty little problem here. I certainly don’t have any recollection at this point. ... I generally try to be careful about putting in there that the defendant waives speedy trial. But I sure made a lot of mistakes, too, I’m sure. And apparently I did in this case. I don’t see how we can do anything but go upon what the written record is in this case . ... We’ve all got a different recollection of what happened. How can I say anything but that, the Court has blown it.
What strikes me is that the written paperwork shows that I’ve set this case at more than a hundred and eighty days.
I feel I’m the one that made the mistake. I’m going to grant the motion to dismiss.

It is obvious from the statements by the trial judge that he felt it was improper to set a case for trial later than one hundred and eighty days from arrest without a written waiver by the defendant of record, or an express finding by the court of such a waiver. This misconception led to the erroneous discharge.

The applicable provision of the speedy trial rule is found at subsection (d)(2) thereof:

(d)(2) When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of signing, or (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, for an appeal by the State from an order dismissing the ease, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.

It is clear there was no stipulation for a thirty-day extension of time signed by counsel for the state in this case. Nor was the court order of continuance based on a motion by either party for any of the exceptional circumstances set forth in subsection (f) of the Rule — at least, insofar as we can discern from the appellate record. The other circumstances which may serve as the basis for an extension of time under subsection (d)(2) are not shown to have been the basis for the trial court’s order of continuance granted to the defendant on June 8, 1978.

The general rule is that a motion for continuance by the defense waives the speedy trial rule, and brings into operation the constitutional, as opposed do procedural, guideline. State ex rel. Butler v. Cullen, supra. The rule is succinctly stated in State v. Kurtz, 354 So.2d 890, 891 (Fla.4th DCA 1978), cert. denied, 360 So.2d 1249 (Fla.1978):

When the accused filed his motion for a continuance and the court granted it the provisions of the Speedy Trial Rule were no longer applicable as far as the 180 days provision is concerned. It’s a whole new ball game. Other rights now apply, not the limiting rule of criminal procedure. The Appellee voluntarily took himself out of Rule 3.191 and his vague attempt to unilaterally impose another . restriction effects nothing.

The defendant’s reliance on Smith v. State, supra, is misplaced. In that case, Smith’s trial date was set ten days beyond the one hundred and eighty day limit without his express agreement of record — but there had been no continuance granted to anyone. Indeed, since Smith stands for the necessity of an express agreement reflected by the record per subsection (d)(2) of Rule 3.191 in order to sustain an extension of the one hundred and eighty days against the adverse party, it directly supports the state’s argument in the instant case.

The case most directly in point factually is State ex rel. Elliot v. Reasbeck, 369 So.2d 102 (Fla.4th DCA 1979). The defendant there moved for a continuance but later asserted that his speedy trial waiver contained certain limitations. The appellate court observed:

This case like many others boils down to a hindsight argument about what two attorneys meant when they stood before a trial judge discussing the rescheduling of a trial. Defendant now seeks to say that this discussion constitutes an exact and very limited stipulation. We held in Kurtz that the granting of a continuance effects a waiver of the strict dictates of the speedy trial rule and we believe this case to be governed by the Kurtz ruling.

There is no showing in the record before us that the setting of this case for trial on October 4, 1978, infringed the defendant’s constitutional right to a speedy trial. Accordingly, the order of discharge entered by the trial court on October 4, 1978, is reversed and this cause is remanded for trial of the defendant.

REVERSED and REMANDED.

UPCHURCH and SHARP, JJ., concur.

      . Rule 3.191, Rules of Criminal Procedure.


author: PER CURIAM.

text:
    Joseph Earl DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1035.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation, but we remand the case for correction of the written revocation order. The affidavit of violation of probation charged that appellant violated conditions (1), (2), (5), and (8). At the hearing on the affidavit, the state elected to drop those violations concerning condition (2). Since at the hearing the court did not find that appellant had violated condition (2), it should now remove any reference to that condition from its order. Brouillett v. State, 373 So.2d 449 (Fla.2d DCA 1979).

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


author: RYDER, Judge.

text:
    Ralph FIELD and International Insurance Company, Petitioners, v. Nettie NELSON, Respondent.
    No. 79-1460.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 1980.
    James E. Deakyne, Jr., of Law Office of Robert F. Nunez, St. Petersburg, for petitioners.
    T. Michael McKnight of Matusek, Ogden, McKnight, Thompson & Hudson, St. Peters-burg, for respondent.
   RYDER, Judge.

Ralph Field and International Insurance Company, defendants below, petition for the issuance of a writ of common law cer-tiorari asking this court to quash an order of the trial court denying a motion for a stay of the proceedings in the lower court. The petitioners submit that the trial court departed from the essential requirements of .law by failing to follow the dictates of Fla.R.Civ.P. 1.420(d). We agree with the petitioners and grant certiorari in part.

Nettie Nelson initially filed suit against the petitioners in November 1977 for injuries allegedly received as a result of the contended negligent operation of a motor vehicle by Ralph Field. Nelson, however, voluntarily dismissed the suit without prejudice and, later, in June 1979, filed a second complaint based upon the same claim against the petitioners. Thereafter, the petitioners filed a motion under Rule 1.420(d) for payment of costs from the 1977 suit as well as a motion to stay the 1979 suit until the order was satisfied. On July 18, 1979, the trial judge issued an order for payment of costs as requested, but deferred collection of the costs until the conclusion of the 1979 suit, which he did not stay. We find that the trial court had no authority to defer the collection of the costs or to refuse to stay the 1979 suit:

Rule 1.420(d) provides that:
Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.

At first glance, the phrase “as it may deem proper” might appear to give the trial court discretion to defer collection of costs and refuse to stay the second action. A review of the history of Rule 1.420(d) leads us to refuse to accept this interpretation, however. This provision was taken almost verbatim from Fed.R.Civ.P. 41(d). The only-change made in the federal rule when it was adopted in Florida was that the federal rule provides the trial judge may stay the subsequent action while, as indicated above, Rule 1.420(d) provides that the trial judge shall stay the subsequent proceedings. This single change in the otherwise virtually verbatim adoption of the federal rule indicates that the trial judge was not intended to have any discretion in staying the subsequent proceedings under the Florida Rules of Civil Procedure.

This interpretation of Rule 1.420(d) is in accord with existing case law under that rule. See, e. g., Paley v. Cocoa Masonry; Inc., 354 So.2d 945 (Fla.2d DCA 1978); Bubani v. Rogers, 363 So.2d 181 (Fla.4th DCA 1978).

The intent of the rule is clear enough. If a party voluntarily dismisses a claim, he cannot proceed in a second suit against the adverse party on that claim without first paying those costs assessed against him by the court in the original action. The operation of the rule, therefore, requires that the costs be assessed in the original litigation and that there by an identity of parties and claims in both actions.

354 So.2d at 946. By deferring collection of the cost judgment and denying the motion for a stay, the trial judge in the present case frustrated the purpose behind the rule and deviated from the mandatory language of the rule.

Since the petitioner has suffered an injury for which there is an inadequate remedy by other means, certiorari is granted and the trial court’s order deferring collection of the cost judgment and denying the motion for a stay is quashed.

In its order of July 18, 1979, the trial court gave the plaintiff until the conclusion of the 1979 action to appeal the cost order. The portion of the petition for certiorari asking for review of this portion of the trial court’s order is denied. The error, if any, is remediable by other means.

Certiorari GRANTED in part and DENIED in part.

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


text:
    Michael CORDERO, Appellant, v. STATE of Florida, Appellee.
    No. 79-1754.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 1980.
    Jack 0. Johnson, Public Defender, and Judith L. James, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and order of the trial court. However, we agree with appellant that the phrase “at hard labor” in his sentence is improper. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Accordingly, we remand this case in order for the trial judge to correct the sentence, and appellant need not be present at that time.

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Charles E. HOLDEN and T. C. Green, Appellants, v. STATE of Florida, Appellee.
    No. 79-1869.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 1980.

      Jack 0. Johnson, Public Defender, and Charles L. Stutts, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

The trial judge found Green and Holden guilty of direct criminal contempt for refusal to testify and sentenced each to. six months in jail. The refusal to testify occurred when Green and Holden were called as State’s witnesses in a four-count prosecution against a third person for receiving and concealing stolen property. Since the defense counsel had no prior opportunity to question Green or Holden, the court allowed counsel to interview them out of the jury’s hearing “in the nature of discovery.” The court assured both witnesses not to be concerned with possible retribution by the defendant.

Pursuant to questioning by defense counsel and the court, Green and Holden each stated he could not recall selling any property to the defendant. Holden stated that he remembered making a statement two years before. After reading a copy of the statement, he stated that he did not remember saying that he sold property to defendant. Green, at first, stated that he did not recall making a statement nor did he’recall selling property to the defendant. After listening to a tape of the prior statement, Green said that he may have made the statement to get out of trouble, but he did not remember to whom he had sold any stolen property.

Immediately after appellants testified the judge found each guilty of contempt and sentenced each to six months in jail.

Appellants contend that the judgments and sentences should be reversed because the judge did not follow the procedures required by Florida Rule of Criminal Procedure 3.830:

A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.

The law in Florida is clear; compliance with the procedural safeguards contained in Florida Rule of Criminal Procedure 3.830 is mandatory. Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978); Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977); Duncan v. State, 349 So.2d 723 (Fla. 4th DCA 1977); Ledlow v. State, 346 So.2d 609 (Fla. 1st DCA 1977).

Based on the court’s failure to comply with these procedures, we reverse the judgments and sentences and remand to allow Green and Holden a hearing so as to conform with Rule 3.830.

BOARDMAN and DANAHY, JJ., concur.


text:
    Lawrence Carl WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 76-1009.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1980.
    William F. Casler, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Talahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   ON REMAND

PER CURIAM.

Appellant was convicted of robbery and felony murder in the second degree. On appeal this court reversed the judgment of guilt for second degree murder on the basis that the victim of the murder was one of the coperpetrators of the underlying felony. Wright v. State, 344 So.2d 1334 (Fla.2d DCA 1977). Upon petition for certiorari, the supreme court concluded that the second degree felony murder statute does not preclude prosecution where the victim was a coperpetrator of the underlying felony. The supreme court therefore quashed that portion of our decision which reversed the. judgment of guilt for second degree murder and remanded with instructions to affirm that judgment and sentence and reconsider the judgment and sentence for robbery. State v. Wright, 379 So.2d 96 (Fla.1979), rehearing denied, Feb. 14, 1980.

Accordingly, the judgment and sentence for second degree murder is hereby affirmed. However, since the robbery was the underlying felony for the second degree murder conviction, we hereby vacate the judgment and sentence for robbery pursuant to the authority of State v. Pinder, 375 So.2d 836 (Fla.1979).

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


author: GRIMES, Chief Judge.

text:
    In re the GUARDIANSHIP OF Helen F. BOHAC, Incompetent.
    No. 79-1022.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1980.

      William H. Grace of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P. A., Fort Myers, for appellant Heil.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Bohac.
   GRIMES, Chief Judge.

This is an appeal from an order denying a guardian’s petition to make certain inter vivos gifts of her ward’s property for estate and income tax planning purposes.

On September 29,1976, the court appointed Doris Heil guardian of the person and property of Helen F. Bohac on grounds of mental incompetency. On December 20, 1978, Mrs. Heil filed a petition seeking authority to make inter vivos gifts of $400,000 out of an estate of $950,000. According to the petition, Mrs. Bohac, who was 78 years old, was a permanent resident of a nursing home where she was receiving good care. A doctor’s report attached to the petition reflected the opinion that Mrs. Bohac was totally incompetent and would remain so. The proposed gifts would result in an income tax saving to • the estate of about $15,000, and if Mrs. Bohac survived for three more years, the total estate tax savings would amount to approximately $26,-000. Even after the gifts, Mrs. Bohac’s after tax income would be more than twice her estimated annual cost of living.

The recipients of the gifts were to be two daughters of a sister of Mrs. Bohac’s deceased husband, a daughter of the brother of Mrs. Bohac’s stepmother and a nephew. The nephew was the only living blood relative of Mrs. Bohac. Mrs. Bohac had executed her last known will on March 12, 1975, and in that will she left her entire estate to her husband (now deceased) but provided that if he did not outlive her it would pass in equal shares to those of six named persons who survived her. The four persons designated to receive the inter vivos gifts were among the six persons who would inherit should she die.

The court appointed a guardian ad litem for Mrs. Bohac, and then, after hearing, it denied the petition. In the order of denial the court found that the individuals to whom the guardian wished to make gifts were not members of Mrs. Bohac’s family and that the guardian had not shown a donative intent on the part of her ward.

There are no reported appellate decisions in Florida on the authority of a guardian to make gifts of her ward’s property. However, many other jurisdictions have acknowledged the existence of such authority. Even without specific statutory authorization, a number of states have recognized the inherent power of the court to permit a guardian to make applications of funds of an incompetent for the benefit of the latter’s relatives. Where the ward had a legal obligation of support, the question was easy. In those cases in which there was no legal obligation of support, the courts generally have based their power or that of the guardian upon findings with respect to what provision the incompetent herself would have made if she were sane. This principle has been called the “doctrine of substituted judgment.” Under this principle, proposed inter vivos gifts for tax planning purposes have been both approved and disapproved.

In its new probate code, Florida has adopted a specific statute to deal with gifts for tax purposes. Section 744.441(17), Florida Statutes (1979), reads:

744.441 Powers of guardian upon court approval. — After obtaining approval of the court in accordance with s. 744.-447, a guardian of the property may:'
(17) Make gifts of the ward’s property to members of the ward’s family in estate and income tax planning procedures.

The guardian ad litem seeks to uphold the order of denial primarily on the basis that the proposed recipients of the gifts are not members of Mrs. Bohac’s family as the statute requires. While the guardian ad litem cannot point to a statutory definition of the word family, he argues that it should be limited to a spouse or blood relative. Since the legislature did not choose to define family, we are not inclined to impose an arbitrary definition. Rather, we believe that one’s family may vary under the circumstances. In this connection, we find the case of In re Freeman’s Estate, 171 Miss. 147, 157 So. 253 (1934), to be instructive. There, in upholding an order authorizing a guardian to pay a monthly allowance for the support of the ward’s stepmother, the Supreme Court of Mississippi construed the word family as it appeared in the statute as follows:

The word “family,” as defined by the lexicographers, is one of broad meaning and may include persons whom the ward, under normal conditions, would be under no legal duty to support. The measure of a guardian’s authority to apply any part of the ward’s estate to the maintenance and support of the ward’s family is found in the mentioned statute, but the statute nowhere defines the word “family” in this connection. Consequently, the question of who is and who is not a member of the ward’s family within the meaning of this statute must be determined from the particular facts involved, and by a process of inclusion and exclusion. The word will always be construed to include those whom the ward, under normal conditions, would be under legal duty to support, such as his wife and dependent children, and under some circumstances may include others.

157 So. at 253-54.

On the other hand, we cannot accept the guardian’s argument that the court erred in considering donative intent solely because the statute says nothing about this subject. Donative intent is one of several factors which are pertinent to the application of the doctrine of substituted judgment. While the statute also makes no reference to substituted judgment, we cannot believe that the legislature intended to preclude the court from considering what the ward would have done if she were sane. Otherwise, the court would have to approve a gift to an only son whom the ward had specifically disinherited in her will simply because it would save taxes. While the statute authorizes the court to approve gifts for the purpose of income and estate tax planning, such approval is necessarily predicated upon the court’s determination that this is what the ward would want to do if she were competent.

Tested by the foregoing principles, we cannot say the court erred in refusing to approve the gifts. The proposed recipients of the gifts were not close relatives, and only one of them had ever lived with Mrs. Bohac. Also, while Mrs. Bohac had remembered them in her will, she had made no gifts to them when she was competent. In the final analysis, the court must have great latitude in determining whether or not to approve a gift for the purpose of tax planning, and we find no abuse of discretion in this case.

AFFIRMED.

SCHEB and OTT, JJ., concur.

      . The record does not state whether the other two beneficiaries are alive and does not describe their relationship to Mrs. Bohac.

      . Annot., 24 A.L.R.3d 863 (1969).

      . Brackett v. Glaze, 72 Ga.App. 314, 33 S.E.2d 733 (1945); Martin v. Martin, 55 Ohio L.Abs. 31, 88 N.E.2d 59 (1949).

      . In re Buckley’s Estate, 330 Mich. 102, 47 N.W.2d 33 (1951).

      . In re duPont, 41 Del.Ch. 300, 194 A.2d 309 (1963).

      . Compare In re Carson, 39 Misc.2d 544, 241 N.Y.S.2d 288 (1962), with In re Turner, 61 Misc.2d 153, 305 N.Y.S.2d 387 (1969).

      . Other factors of primary importance include the permanency of the ward’s condition, the size and nature of the ward’s estate, the needs of the ward and the proposed recipients, the extent to which the recipients of the gifts may vary from those who would inherit in the natural course of events, the affinity or intimacy between the ward and the recipients, and whether they are dependent upon the ward for support. In re Guardianship of Christiansen, 248 Cal.App.2d 398, 56 Cal.Rptr. 505 (1967); In re Fleming’s Estate, 173 Misc. 851, 19 N.Y.S.2d 234 (1940).


text:
    Kevin WORTH, Appellant, v. STATE of Florida, Appellee.
    No. 79-1688.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1980.
    Jack 0. Johnson, Public Defender, and Judith L. James, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Kevin Worth was convicted of burglary and grand theft and placed on probation. The court revoked Worth’s probation because of a violation and imposed a five year sentence with credit for time served. Worth appeals from the revocation.

We affirm the revocation but vacate the sentence imposed because a general sentence is impermissible. Dorfman v. State, 351 So.2d 954 (Fla.1977); Kowalsky v. State, 361 So.2d 442 (Fla.2d DCA 1978). We remand and direct the trial court to impose a separate sentence for each offense.

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    Timothy Romell WILSON, Appellant, v. STATE of Florida, Appellee.
    No. PP-111.
    District Court of Appeal of Florida, First District.
    March 3, 1980.
    Michael J. Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The defendant appeals a judgment and sentence which we affirm except as to the sentence of imprisonment “at hard labor.” Florida law contains no provision for a sentence “at hard labor,” and such language is hereby stricken as technical surplusage. Ussery v. State, 350 So.2d 839 (Fla. 1st DCA 1977).

Accordingly, the judgment and sentence appealed is affirmed as amended.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    JOSEPH’S FINE MEATS and Allstate Insurance Company, Appellants, v. Bernard RECANATI, Appellee.
    No. QQ-225.
    District Court of Appeal of Florida, First District.
    March 3, 1980.
    John G. Tomlinson, Jr. of Williams & Tomlinson, Coral Gables, for appellants.
    Stuart F. Suskin of Israel Abrams, P. A., North Miami Beach, for appellee.
   PER CURIAM.

The appellee concedes error in the award of travel expenses in the amount of $180.00. The award of the same is hereby stricken and the order is otherwise affirmed.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    FLORIDA DEPARTMENT OF TRANSPORTATION and National Loss Control Service Corp., Appellants, v. Willie L. LONDON, Appellee.
    No. QQ-458.
    District Court of Appeal of Florida, First District.
    March 3, 1980.

      C. Anthony Schoder, Jr., of Smith, Scho-der & Wallace, Daytona Beach, for appellants.
    Robert W. Elton, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellee.
   PER CURIAM.

The employer/carrier appeals a worker’s compensation order which we affirm except insofar as the claimant’s average weekly wage computation included state retirement benefits pursuant to Chapter 121, Fla. Stat.

Such benefits do not vest before extended years of employment and the record contains no evidence that they were of any present-day real economic value. The record also fails to show that this claimant’s Chapter 121 benefits had vested, and they are not under the circumstances properly included in the average weekly wage determination. Sunland Training Center v. Thomas, IRC Order 2-3917 (Sept. 19, 1979), petition for cert. filed (Fla. Nov. 7, 1979), Case No. 57,909. Without the Chapter 121 retirement contribution, the claimant’s average weekly wage in the present case is $103, yielding compensation due in the amount of $35.31; the order is hereby amended to so reflect.

Accordingly, the order appealed is affirmed as amended.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    CITY OF MIAMI, Appellant, v. Edward WRIGHT, Appellee.
    No. QQ-499.
    District Court of Appeal of Florida, First District.
    March 3, 1980.
    George F. Knox, Jr., City Atty., Joseph Hackney, Jr., Asst. City Atty., for appellant.

      William du Fresne of du Fresne & du Fresne, Miami, for appellee.
   PER CURIAM.

The appellant, City of Miami, brings this appeal from a final workers’ compensation order entered June 22, 1979. The order awarded appellee, Edward Wright, compensation benefits for a 40% permanent partial disability of the body as a whole based on loss of wage earning capacity. The appellant was specifically ordered to provide ap-pellee with further treatment “as the course of his injury requires, including, but not limited to psychiatric treatment.” Appellant asserts that the award is erroneous, because: the order is unsupported by sufficient factual findings (Point I); there is insufficient showing that the appellee tested his employability in the open labor market (Point II); and the deputy failed to find a causal connection between the industrial accident and any psychiatric impairment (Point III).

Appellee, age 32, has a bachelor’s degree in education. He worked as a City of Miami policeman for ten years before resigning November 1, 1978. Having previously suffered various work-related injuries, he suffered an industrial accident causing a knee injury on June 14, 1977.

In October, 1978, the treating orthopedic surgeon could not assign a permanent disability rating regarding appellee’s injury, since the knee was still actively symptomatic. However, the doctor estimated a light to moderate disability, and predicted the knee would either get better with an exercise program, or get worse, possibly requiring surgery. Based on an April, 1979 examination, a second orthopedic surgeon testified appellee had no ratable permanent physical impairment at present; however,' he opined that appellee could suffer further knee problems in the future. . The examining psychiatrist testified that the knee injury was probably the last precipitating factor that put appellee in a state of mind where psychologically he could no longer function as a policeman. He opined that appellee needed further psychiatric treatment, but could not say whether he had reached maximum medical improvement from a psychological viewpoint.

In the opinion of this court a causal connection between the knee injury and the need for psychiatric treatment was sufficiently established. Point 3 is accordingly affirmed.

Although the treating psychiatrist was reluctant to say whether or not the claimant had reached maximum medical improvement, the need for further psychiatric treatment is uncontroverted. So long as that need exists, with a reasonable expectation of improvement, the claimant has not reached maximum medical improvement and any award of permanent benefits is error. Miami Aviation Corp. v. McAllister, IRC Order 2-2963 (May 7, 1976), cert. denied, 345 So.2d 424 (Fla.1977); Sanz v. Eden Roc Hotel, 140 So.2d 104 (Fla.1962). Points 1 and 2 are reversed and the cause is remanded for a determination of temporary benefits due the claimant.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Hurshel Ross DODD, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION et al., Respondents.
    No. SS-236.
    District Court of Appeal of Florida, First District.
    March 3, 1980.

      Hurshel Ross Dodd, petitioner, pro se.
   PER CURIAM.

This cause is before us upon an amended petition for a writ of mandamus. Petitioner alleges that the method by which his presumptive parole release date was determined treats his concurrent sentences as if they were consecutive sentences.

Section 947.173, Fla.Stat., provides for administrative review, upon request, of presumptive parole release date determinations. However, it is not alleged that such review was ever requested as to the issue now presented. Petitioner’s apparent failure to avail himself of this administrative remedy precludes mandamus relief. See State ex rel. Boulevard Mortgage Co. v. Thompson, 113 Fla. 419, 151 So. 704 (1933).

Accordingly, the petition is denied.

MILLS, C. J., and LARRY G. SMITH, and WENTWORTH, JJ., concur.


text:
    James W. PRIDGEN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. TT-288.
    District Court of Appeal of Florida, First District.
    March 3, 1980.
    James W. Pridgen, petitioner, pro se.
   PER CURIAM.

This cause is before us upon petition for a writ of mandamus. Petitioner seeks reconsideration of his presumptive parole release date.

Section 947.173, Fla.Stat., provides for administrative review, upon request within 60 days, of presumptive parole release date determinations. However, it does not appear that petitioner timely requested such review. Petitioner’s apparent failure to avail himself of this administrative remedy precludes mandamus relief. See State ex rel. Boulevard Mortgage Co. v. Thompson, 113 Fla. 419, 151 So. 704 (Fla.1933).

Accordingly, the petition is denied.

MILLS, C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    The GREAT ATLANTIC & PACIFIC TEA CO., Crawford & Co., Appellants, v. George R. WOOD, Appellee.
    No. QQ-142.
    District Court of Appeal of Florida, First District.
    March 4, 1980.
    D. C. Anderson, of Anderson & Spangler and Stephen J. Wein, St. Petersburg, for appellants.
    Kurt Preston Hampp, of Jacobs, Robbins & Gaynor, St. Petersburg, for appellee.
   WENTWORTH, Judge.

The appellant/employer appeals a workers’ compensation order entered March 19, 1979, construing § 440.15(10)(a), Fla.Stat., to require exclusion of cost of living increases from federal social security benefits in computing the 80% wage limitation for purpose of offset against compensation payments under Florida law. We affirm. Accord: A. C. Scott Construction v. Miller, IRC Order 2-3906 (Sept. 11, 1979); Beulah Baptist Church v. Brantley, IRC Order 2-3907 (Sept. 11, 1979).

The controlling law as amended in 1975 and 1976 provides:

Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. paragraph 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee, had such employee not been entitled to benefits under this Chapter, under 42 U.S.C. paragraph 423, and paragraph 402, does not exceed 80% of the employee’s average weekly wage. However, this provision shall not operate to reduce an injured worker’s benefits under this chapter to a greater extent than they would have otherwise been reduced under 42 U.S.C. paragraph 424(a).

Section 440.15(10)(a), Fla.Stat. (1975).

Appellant contends that this provision is (1) void for vagueness, and alternatively that (2) the order in question construes the law contrary to its expressed 80% wage limitation policy, and (3) results in unconstitutional delegation of legislative authority to a federal agency.

Neither the face of the law nor the record before us supports appellant’s position on the constitutional issues, on which we are referred by appellant’s brief to Freimuth v. State, 272 So.2d 473 (Fla.1972), and Brazil v. Division of Administration, State Department of Transportation, 347 So.2d 755 (Fla. 1st DCA 1977); 10 Fla.Jur.2d Constitutional Law, § 176. The statute is not in terms ambulatory, and the order appealed makes no reference to any change in the federal law after enactment of the Florida amendment. The testimony received in this case as to federal administrative interpretation would appear to represent a reasonable view of the intendment of the U.S. Code provision cited by the Florida law. As noted in Miller, supra,

[T]here apparently is no provision in the federal law for including federal social security disability cost of living increases in computing what the federal social security disability offset otherwise would have been. . . . The amount of the federal disability offset is not altered under the federal law by any amount of subsequent federal social security cost of living increases. It follows that the state carrier’s compensation offset on or after June 26, 1975 cannot exceed the precise amount that the federal offset otherwise would have been.

This construction accords a logical effect to the language of the amendment, supra, when it is read in context to reach a rational result, by which the term “they” refers to benefits generally. The appellant’s vagueness argument therefore has no merit.

The remaining point asserts conflict with the policy of our law as to an 80% wage limitation on benefits. The order appealed in this case properly finds in this respect:

2. The eighty percent ceiling on compensation benefits has been held to be constitutional in Florida in Thomas v. City of Vero Beach, DLS 4-3555 (1978).
3. It has further been held that the five percent annual increment or supplement under F.S. 440.15(1)(e) may not exceed the eighty percent limitation contained in F.S. 440.15(10), Department of Commerce v. Loggins, IRC Order 2-3137 (April 13, 1977).
8. Although at first glance it might seem inequitable or harsh that a claimant may receive more than eighty percent of his average weekly wage because of cost of living increases, the cost of living increases actually reflect the diminution of the value of the dollar and the fact that the claimant’s average weekly wage may not at present adequately or accurately reflect a basis upon which to determine and pay workmen’s compensation or Social Security benefits. The fact that the five percent supplemental benefit has been declared and held to be limited by the eighty percent maximum is not dis-positive of the Social Security cost of living increase because one is a State benefit specifically described and limited by the Workmen’s Compensation Law while the other is a Federal benefit which the Workmen’s Compensation Law specifically states, shall be governed and controlled by Federal, as opposed to State, law.
9. There is a further and additional problem in computing the Social Security offset. That is, the Social Security Administration bases its payments on a monthly schedule whereas the State payments are on a weekly schedule. The Social Security Administration talks of average current earnings whereas the Workmen’s Compensation Administration language is average weekly wage. . Even though it seems that a yearly basis would be more appropriate, the Court is compelled to arrive at deductions on a weekly basis because the entire Workmen’s Compensation Law is framed in that fashion. .
10. [T]he weekly Social Security figure shall be hereinafter derived by dividing each month into 4.3 weeks. .

The order is affirmed.

ROBERT P. SMITH, Jr., and LARRY G. SMITH, JJ., concur.


text:
    Ronald BENITOA, Appellant, v. MARITIME MACHINE PRODUCTS, INC. and Old Republic Insurance Co., Appellees.
    No. QQ-408.
    District Court of Appeal of Florida, First District.
    March 4, 1980.
    Abraham B. Rosenberg, of Friedman & Rosenberg, Hollywood, for appellant.
    John F. McMath, Miami, for appellees.
   PER CURIAM.

The claimant suffered a compen-sable leg injury on August 27, 1976. In May of 1977 he began to experience back pain which he associated with the 1976 injury. The deputy commissioner made no specific finding relative to the back pain but limited claimant to the schedule. We conclude that he erred in light of the overwhelming evidence that the leg injury caused a limp which in turn caused the back pain. On this point the medical experts were in fundamental agreement. Dr. Neal initially expressed some doubt but finally agreed that if there was no intervening cause between the injury and the back pain, the pain was probably due to the limp. Whenever a scheduled injury results also in loss of efficiency or pain in some other part of the body not included in the specific schedule, claimant is not restricted to benefits related only to the schedule. Trieste v. Anchell, 143 So.2d 673 (Fla.1962). As to Point 1, the order is reversed.

Dr. Neal, in December of 1977,' indicated a need for surgery, if the effects of the injury did not respond to treatment. In March of 1978, claimant’! attorney requested that the carrier authorize the services of Dr. Turke. The carrier refused to authorize Dr. Turke and requested that claimant return to Dr. Neal who refused to see him without specific authorization. In April, claimant’s counsel again requested immediate treatment which was again denied. Claimant then went to Dr. Turke who treated him for two weeks while the carrier and Dr. Neal reestablished communication relative to authorization and treatment. The denial of Dr. Turke’s bill under these circumstances was error. Travis v. Air Control Products, 6 FCR 214 (1967). Communication difficulties which arise between a carrier and a physician should not be visited upon the claimant in such a fashion as to deny needed medical attention. Thomas v. Lindsley Lumber, 8 FCR 52 (1973), cert. denied, 281 So.2d 193 (Fla.1973).

The order is reversed and the cause remanded for an order consistent with this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Doretha BARNES and Industrial Fire and Casualty Insurance Company, etc., Appellants, v. Zeke BRADY and Rosa Brady, etc., Appellees.
    No. 79-326.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Broad & Cassel and Patricia Lebow, Bay Harbor, Goodhart & Rosner, Corlett, Merritt, Killian & Sikes, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, George P. Telepas, Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

This is an appeal by defendants below from (1) a final judgment entered pursuant to a jury verdict in a personal injury action arising out of a collision of motor vehicles, and (2) an order of the trial court denying the post trial motion of defendant, Industrial Fire and Casualty Insurance Company, to limit its judgment liability to Ten Thousand Dollars ($10,000.00), the policy limit of its coverage of defendant, Barnes.

There was no disagreement between the parties during trial or after judgment as to the limited amount of insurance coverage that was provided under the Barnes policy. Plaintiffs, however, objected to the motion to limit the judgment as to Ten Thousand Dollars ($10,000.00) on the ground that the motion was not timely made.

Following argument before this court of all points presented in this appeal, we granted appellant Industrial Fire and Casualty Insurance Company’s motion to relinquish jurisdiction of this cause to the trial court in order to permit the insurance company to file a motion pursuant to Florida Rule of Civil Procedure 1.540, limiting the judgment to the amount of its policy limits of Ten Thousand Dollars ($10,000.00). The trial court thereupon entered such an order limiting the amount of the judgment as to the insurance company to the said sum in accordance with the policy limits.

Upon the trial court’s entry of that order appellant insurance company withdrew its point on appeal relative to its limited liability on the ground that the matter is moot.

The. remaining points on appeal have been considered in the light of the record on appeal, briefs and arguments of counsel and we have found that no reversible error has been demonstrated. Therefore the judgment as limited by the trial court’s order is affirmed.

Affirmed.


author: HAVERFIELD, Chief Judge.

text:
    HIALEAH, INC., and Southeast First National Bank of Miami, Appellants, v. DEPARTMENT OF REVENUE, State of Florida, Appellee.
    No. 79-655.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Friedman & Britton, Adams & Ward and Robert C. Ward, Miami, for appellants.
    Jim Smith, Atty. Gen. and William D. Townsend, Asst. Atty. Gen., Tallahassee, for appellee.
    Before HAVERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW (Ret.), Associate Judge.
   HAVERFIELD, Chief Judge.

Hialeah, Inc. (Hialeah) and Southeast First National Bank (Southeast), the petitioners, appeal from a final agency decision by the Governor and the Cabinet of the State of Florida, acting as head of the Department of Revenue, in affirming the recommendations of a Department hearing officer that Hialeah owed additional documentary stamp tax in connection with its purchase of Hialeah Race Track and assumption of an existing mortgage.

John Brunetti entered into a modification and assumption agreement dated March 4, 1977 on behalf of himself and his nominee, Hialeah, to purchase the assets of Hialeah Race Track from Hialeah Park, Inc. The contract provided that Brunetti or his nominee, Hialeah, assume existing mortgage obligations held by Southeast on behalf of itself and as agent for Marine Midland Bank. In addition, Hialeah Park, Inc. was requesting that Southeast release it from liability under the subject notes and mortgages at the time of the closing. On March 4, 1977 the assets sale was consummated and simultaneously Hialeah and Brunetti executed an assumption and modification agreement with regard to the subject mortgages. Under the provisions of the agreement, Hialeah paid Southeast $3,300,000.00 to reduce the unpaid principal balance due on the mortgages. Thereupon, Southeast executed a release of liability of Hialeah Park, Inc. under these mortgages. Also at the time of closing Brunetti purchased 90% of the stock of Hialeah Park, Inc. from its stockholders for a purchase price equivalent to their percentage interest in the $200,-000.00 note that was given by Hialeah to Hialeah Park, Inc. as additional consideration in the asset purchase. Thereafter, the Department of Revenue, by reason of the assumption and modification of mortgage agreement by Hialeah and the release of Hialeah Park, Inc. from liability, determined that such a transaction created an excise tax under Section 201.08(1), Florida Statutes (1977) relating to such tax on all written obligations to pay money, and assessed a $13,000.00 tax plus penalties and interest. Hialeah initiated proceedings to review the assessment made by the Department of Revenue. The matter was presented before a hearing officer who entered an order recommending that the assessment be upheld. Hialeah filed exceptions to the recommendation order and sought review before the Governor and Cabinet of the State of Florida, sitting as head of the Department of Revenue. Following a hearing, the Governor and Cabinet approved the recommended order. From this final agency action upholding the excise tax levy, Hialeah and Southeast perfected this appeal. We reverse.

The excise taxes imposed by Section 201.08, Florida Statutes (1977) on written obligations to pay money are excise taxes on the documents themselves and not upon the transactions contemplated by the documents. Maas Brothers, Inc. v. Dickinson, 195 So.2d 193, 195 (Fla.1967). The liability to pay the documentary stamp tax, as well as the amount of the tax, is to be solely determined by the form and the face of the instrument and not by the proof of extrinsic facts. State, Dept. of Revenue v. McCoy Motel, Inc., 302 So.2d 440 (Fla. 1st DCA 1974).

In the case at bar, the liability to pay the documentary stamp tax is to be determined solely from the March 4, 1977 assumption agreement, the only written obligation to pay, and not, as the Department of Revenue argues, from the assumption agreement coupled with the subsequent release of Hialeah Park by Southeast Bank, an extrinsic fact. With regard to the March 4, 1977 agreement, the Department of Revenue entered into the following written stipulation:

“1. That the Department of Revenue admitted and conceded before the Hearing Officer that the modification and assumption agreement dated March 4,1977, entered by and between Hialeah, Inc., and Southeast First National Bank of Miami and Marine Midland Bank of New York did not create any documentary stamp tax consequence in and of itself. It was the giving of the release by the Southeast First National Bank of Miami and the Marine Midland Bank of New York to the prior mortgagor, Hialeah Park, Inc., which brought about the claim of the Department of Revenue that there were documentary stamp tax due.”

The March 4 agreement being the only document from which the liability to pay the stamp tax is to be determined and the Department of Revenue having stipulated away any claim it may have had with regard to the levy of a tax on this document, we conclude that the levy of the subject tax, assessment, penalty and interest was erroneous. Compare Leadership Housing, Inc. v. Department of Revenue, 336 So.2d 1239 (Fla. 4th DCA 1976). Accordingly, the final agency action of the Department of Revenue is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

      . 201.08 Tax on promissory notes, written obligations to pay money, assignment of wages, etc.; exception.
      (1) On promissory notes, nonnegotiable notes, written obligations to pay money, or assignments of salaries, wages, or other compensation, made, executed, delivered, sold, transferred, or assigned in the state, and for each renewal of the same, on each $100 of the indebtedness or obligation evidenced thereby, the tax shall be 15 cents on each $100 or fraction thereof. On mortgages, trust deeds, security agreements, or other evidences of indebtedness filed or recorded in the state, and for each renewal of the same, on each $100 of the indebtedness or obligation evidenced thereby the tax shall be 15 cents on each $100 or fraction thereof. Mortgages, including, but not limited to, mortgages executed without the state and recorded in the state, which incorporate the certificate of indebtedness, not otherwise shown in separate instruments, are subject to the same tax at the same rate. When there is both a mortgage, trust deed, or security agreement and a note, certificate of indebtedness, or obligation, the tax shall be paid on the mortgage, trust deed, or security agreement at the time of recordation. Á notation shall be made on the note, certificate of indebtedness, or obligation that the tax has been paid and the proper stamps affixed to the mortgage, trust deed, or [security agreement]. (Emphasis supplied)


author: SCHWARTZ, Judge.

text:
    Joel ZIEGLER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-950.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Gary B. Sack, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven L. Bo-lotin, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The defendant has appealed an order denying his motion, filed pursuant to Section 948.05, Fla.Stat. (1977), for early termination of a ten-year period of probation which had been previously and lawfully imposed. Since the authority conferred upon the court by Section 948.05 is entirely a matter of grace, we hold that an order denying that relief is non-appealable. Just as the defendant could not have complained to an appellate court if he had been initially denied probation altogether, see Bernhardt v. State, 288 So.2d 490, 494 (Fla.1974); Arnold v. State, 356 So.2d 862, 863 (Fla. 1st DCA 1978), so, a fortiori, he may not secure review of a refusal to reduce an already existing probationary term. This conclusion is required by the principle that the advisability, as opposed to the legality, of a particular sentence is not subject to appellate review, e. g., Banks v. State, 342 So.2d 469 (Fla.1976); Infante v. State, 197 So.2d 542 (Fla. 3d DCA 1967), and, even more plainly, by those cases which hold that no appeal may be taken from the denial of a motion for a reduction of sentence filed under Fla.R.Crim.P. 3.800. Hallman v. State, 371 So.2d 482 (Fla.1979), affirming, 343 So.2d 912 (Fla. 2d DCA 1977); Suggs v. State, 358 So.2d 897 (Fla. 2d DCA 1978); Parker v. State, 214 So.2d 632 (Fla. 2d DCA 1968).

Appeal dismissed.

      . We reject the appellant’s contention that jurisdiction is conferred by Fla.R.App.P. 9.140(b)(1)(C), which provides that a defendant may appeal from “orders entered after final judgment or finding of guilt, including orders revoking or modifying probation.” The order below clearly falls into neither of the latter, expressly-named, categories, and we do not read the provision as a whole to apply to orders such as the one before us, or those denying relief under Fla.R.Crim.P. 3.800. Surely, if the supreme court, in adopting the “new” appellate rules, meant to overrule the many cases cited in the text which hold that such orders are not appealable, it would have said so much more clearly. See also the provisions of Section 924.06, Fla.Stat. (1977), which do not provide for an appeal from such an order.


text:
    Stanton W. MEAD et al., Appellants, v. John MURRELL et al., Appellees.
    No. 79-975.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Cassel, Frumkes, Brickman, Chotiner & Shore and Melvyn B. Frumkes, Miami, for appellants.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appel-lees.
    Before HUBBART and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Surf Club v. Long, 376 So.2d 88 (Fla.3d DCA 1979); Surf Club v. Long, 325 So.2d 66 (Fla.3d DCA 1976).


text:
    The STATE of Florida, Appellant, v. M. A. F., a juvenile, Appellee.
    No. 79-1007.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellee.
    Before HAVERFIELD, C. J., and NES-BITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. § 39.09(2)(a), Fla.Stat. (Supp. 1978); § 39.05(7), Fla.Stat. (Supp.1978); and Fla.R.Juv.P. 8.180.


text:
    Arsenio GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1035.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Rehearing Denied April 18, 1980.
    Carhart & McGuirk and James McGuirk, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Loftin v. State, 273 So.2d 70 (Fla.1973); State v. Rucker, 330 So.2d 470 (Fla.1976); Chester v. State, 276 So.2d 76 (Fla. 2d DCA 1973); Lail v. State, 314 So.2d 234 (Fla. 4th DCA 1975); Piantadosi v. State, 311 So.2d 742 (Fla. 3d DCA 1975) and Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976).


text:
    SIMS CRANE SERVICE, INC., Sims Crane Service of Fort Lauderdale & Miami, Inc. and Thomas H. Sims, Jr., Appellants, v. FLAGLER CENTER BUILDING LOAN CORP., a/k/a Flagler Center Building Corp., Appellee.
    No. 79-1125.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Gatlin & George and C. Elmon Gatlin, Tampa, for appellants.
    Shalle Stephen Fine, Miami, for appellee.
    Before HUBBART and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Guynn v. Brentmoore Farms, Inc., 253 So.2d 136 (Fla.1st DCA 1971); Campbell v. Werner, 232 So.2d 252 (Fla.3d DCA 1970), and cases cited. See Clark v. Clark, 79 So.2d 426 (Fla.1955); Rylander v. Sears Roebuck & Co., 302 So.2d 478 (Fla.3d DCA 1974).


text:
    Shane Robert SIMS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1510.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Affirmed without prejudice to file motion pursuant to Fla.R.Crim.P. 3.850.


text:
    CITY OF MIAMI, Appellant, v. Lawrence DOLCE, Appellee.
    No. 79-1670.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.

      George F. Knox, Jr., City Atty., and Joseph Hackney, Jr., Asst. City Atty., for appellant.
    Nachwalter, Christie & Falk and Jay M. Levy, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. See Grant-Sholk Construction Co., Inc. v. Moore, 282 So.2d 634 (Fla.1973); Booth v. Basic Asphalt & Construction Co., 369 So.2d 356 (Fla. 4th DCA 1979); McCormick v. Messink, 208 So.2d 113 (Fla. 2d DCA 1968).


text:
    SUN BANK OF MIAMI, Petitioner, v. Edward P. JOHNSON, Respondent.
    No. 79-2274.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Rodger Traynor, Jr., Miami, for petitioner.
    Turner, Hodson, Watkins & Lynn and Michael E. Watkins, Homestead, for respondent.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

The petitioner, Sun Bank of Miami, was the plaintiff below in an action for both compensatory and punitive damages based upon the claim that the defendant-respondent had made false and fraudulent misrepresentations in an application for a corporate loan. In this proceeding, it seeks cer-tiorari review of an order which effectively denied it pre-trial discovery of information concerning the defendant’s personal financial condition, which was pertinent to the punitive damages issue. On the authority of the supreme court’s recent opinion in Tennant v. Charlton, 377 So. 1169 (Fla.1979), which was decided after the trial judge ruled below, we quash the order under review and remand the cause for reconsideration of the issue in the light of that opinion.

Certiorari granted.


text:
    Ralph LOPEZ, a/k/a Angel Ocasio, a/k/a Angel Garcia, a/k/a Ralph Angel Lopez, Appellant, v. The STATE of Florida, Appellee.
    No. 80-310.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Ralph Angel Lopez, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, Ralph Lopez, a/k/a Angel Ocasio, a/k/a Angel Garcia, a/k/a Ralph Angel Lopez, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the 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. State v. Jones, 327 So.2d 18, 24-25 (Fla.1976).


text:
    David HERRING a/k/a David Lee Herring, Appellant, v. STATE of Florida, Appellee.
    No. 78-734.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Richard L. Jorandby, Public Defender, and Jack A. Goldberger, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Newman, 367 So.2d 251 (Fla. 4th DCA 1979).

ANSTEAD, LETTS and HERSEY, JJ., concur.


text:
    Harold K. BEASLEY, Appellant, v. The JOINT LEGISLATIVE MANAGEMENT COMMITTEE, Louie L. Wainwright, et al., Appellees.
    No. 79-1295.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Harold K. Beasley, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellees.
   PER CURIAM.

Affirmed upon the authority of Harris v. Wainwright, 376 So.2d 855 (Fla.1979).

ANSTEAD, LETTS and HERSEY, JJ., concur.


text:
    Dominick AURICCHIO a/k/a Dominick Ralph Auricchio, Appellant, v. STATE of Florida, Appellee.
    No. 79-704.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Sheldon M. Schapiro of Stone & Schapiro, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Alford v. State, 307 So.2d 433 (Fla.1975).

ANSTEAD, LETTS and HERSEY, JJ., concur.


author: MOORE, Judge.

text:
    Bob M. ECKERT, Appellant, v. SOVEREL MARINE, INC., Appellee.
    No. 78-2325.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Earl L. Maxwell, Jr., West Palm Beach, for appellant.
    James H. Ryan of Gary, Dytrych & Ryan, P. A., North Palm Beach, for appellee.
   MOORE, Judge.

The appellant in this case was the plaintiff in the trial court and commenced suit to recover a portion of the deposit he advanced to the appellee, a yacht broker, for the purchase of a yacht then in the possession of the appellee. Suit was instituted to recover the balance remaining on his deposit after the purchase transaction failed to close. The trial court found for the appel-lee on its counterclaim for a brokerage commission. We reverse.

Appellant executed an offer to purchase a yacht and placed a deposit with the appellee who was the broker handling the sale of a foreign seller. Although the record does not present clear reasons for the failure to complete the transaction, it does reflect that the foreign seller was unable to provide adequate title documentation. It further reflects that the appellant and ap-pellee agreed to a rescission of the purchase offer and a return of the deposit. Because appellant had requested certain repairs to the yacht prior to closing the transaction, the appellee agreed to return the deposit, less $1,000 representing the cost of the repairs and less $75.00 representing the cost of painting a new name on the transom of the yacht. If the broker was successful in seeking reimbursement for the repairs from the seller, he agreed to return the $1,000 to the appellant. Although the record unequivocally shows that the seller reimbursed the appellee for the repairs, the ap-pellee refused to return the full deposit to appellant. We find this refusal to have been unjustified and hold that the trial court erred by failing to enter judgment in favor of the appellant.

We also find that the judgment entered in favor of the appellee on its counterclaim for a commission is not supported by the record. The offer to purchase specified that the seller, not the appellant, was obligated for the commission. Since there is an absence of any contractual obligation of the appellant in this regard, the award to the appellee was clearly erroneous.

This cause is reversed with directions to enter a final judgment in the amount of $1,000 in favor of the appellant.

REVERSED AND REMANDED.

BERANEK and HURLEY, JJ., concur..


author: GLICKSTEIN, Judge.

text:
    Jimmy BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-466.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Ronald E. Jones, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn and Mark Horn, Asst. Attys. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged with possession of cocaine with intent to sell. Upon the denial of his motion to suppress, he pleaded no contest to the lesser included offense of possession, reserving the right to appeal the adverse ruling on the motion to suppress. We affirm.

The issue on appeal is whether there was compliance with Section 933.09, Florida Statutes (1977) by law enforcement officers in the execution of a search warrant. Section 933.09 specifically provides:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein.

At approximately 4:30 a. m., nine or ten law enforcement officers went to appellant’s apartment building with a warrant to search appellant’s residence for cocaine. Mark Wetherington, a narcotics agent with the sheriff’s department, testified that upon the officers’ arrival, Detective Corderman of the police department announced over the PA system of a patrol car that police officers were present; that they had a search warrant for appellant’s residence; and that the front door of the residence should be opened. The aforesaid identification of police officers was repeated several-times over a span of one or two minutes. Movement was observed in the bedroom, but no one opened the door. At that point, the officers drilled a hole in the door and inserted a pipe through the hole which was connected to a cable. The cable was attached to a wrecker which tore the door off, hinges and all. Simultaneously, the officers in the back of the apartment knocked out the opaque windows in the bathroom. The resulting search of the premises produced twenty-eight packets of cocaine.

The testimony of Charles and Michael Anderson, who lived in the apartment above appellant, contradicted that of the narcotics agent. Charles testified that he heard the breaking and shattering of glass before hearing the officer’s “bullhorn” announce about five times, “Jimmy Brown and Nancy Johnson, please come to your front door and have a seat. This is the police.” His brother, Michael, testified that he heard the door being drilled, the windows broken and the cable cranked before hearing the officer use the bullhorn to tell Jimmy and Nancy to come to the front and sit down.

The trial court accepted agent Wether-ington’s account of the sequence of events in the execution of the warrant and concluded that there had been compliance with Section 933.09, Florida Statutes (1977).

In reviewing the trial court’s decision, our responsibility is recited in McNamara v. State, 357 So.2d 410, 412 (Fla.1978):

The ruling of the trial court on a motion to suppress, when it comes to the reviewing court, is clothed with the presumption of correctness, and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court’s ruling.

We find that there was sufficient evidence in the record to support the trial court’s finding of compliance with Section 933.09, Florida Statutes (1977); therefore, the order denying the motion to suppress is affirmed. However, in doing so we express concern that appellee produced no evidence at the hearing on the motion to suppress which would explain the officers’ unusual entry. While not dispositive in this instance, testimony as to the reasonableness of the method used to gain entry would have been helpful.

This opinion should not be construed as condoning the mode of entry used here, but we are unable to conclude that the trial court erred in denying the motion to suppress.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

      . In State v. Collier, 270 So.2d 451, 453 (Fla. 4th DCA 1972), we held:
      This statute by its express language and by the reasonable implication thereof requires a police officer engaged in the execution of a search warrant before entering one’s residence to attempt to call to the attention of those within the residence the presence of the officer outside the dwelling by knocking or any other reasonable means and thereafter to announce his authority (i. e., officer of the Winter Park Police Department) and the purpose of his presence at the residence (i. e., to execute a search warrant). . (Emphasis in the original)


author: BERANEK, Judge.

text:
    DUNES DEVELOPMENT CORP. OF PALM BEACH, Jack P. Jemisom, Norma B. Jemison, Bruce Pollock and Virginia M. Pollock, Appellants, v. DUNES TOWERS ASSOCIATION, INC., a Florida Non-Profit Corporation, Appellee.
    No. 79-1301.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Larry Klein, West Palm Beach, and Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, Palm Beach, for appellants.
    John B. Bush and Claude H. Tison, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   BERANEK, Judge.

This is an interlocutory appeal involving an order by the trial court allowing plaintiff/appellee to deposit rents relating to a condominium recreation lease into the court registry pending the outcome of litigation between the parties. We consider this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

Appellant, the defendant and developer of the condominium, contends the deposit order was entered pursuant to Section 718.-401(4), Florida Statutes (1977). Appellant’s argument is based on the particular order entered May 4, 1979, which specifically recites reliance upon the statute.

Appellee contends the order was not entered pursuant to the statute but was instead based upon Rule of Civil Procedure 1.600, which provides for court-authorized deposits as a discretionary matter. Appel-lee asserts the motion for permission to deposit was amended to delete reference to the statute and that the trial court did not base the order on the statute.

In Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1980), the Supreme Court held the statute in question, Section 718.401(4), Florida Statutes (1977), to be an unconstitutional impairment of contract insofar as it deprived the landlord of the current use of court-retained rent monies. The Supreme Court noted the statute prohibited disbursements to the landlord for personal needs. The court contrasted deposits under Section 718.401(4), Florida Statutes (1977), with deposits under Rule of Civil Procedure 1.600. In a footnote the court commented that deposits under the Rule did not impair contract rights in that withdrawals were authorized in the sound discretion of the trial judge after consideration of the circumstances of the case, the relative merits of the claim asserted, and “the legitimate needs of the parties.” Such “legitimate needs” are necessarily broader than the limited purposes for which disbursements may be ordered under the statute. In Century Village v. Wellington, 361 So.2d 128 (Fla.1978), the court approved rent deposits pursuant to Rule of Civil Procedure 1.600.

Turning to the order in question, we are compelled to reverse. This order authorizes the deposit of rent monies specifically pursuant to the statute. It must be assumed that withdrawal of these deposits, if requested, would be allowed pursuant to the same statute rather than in accordance with Rule 1.600. For this reason we cannot employ the argument that the trial judge reached the right result for the wrong reason and affirm by merely holding the trial court could have authorized the deposit under the Rule rather than the statute.

The order recites reliance on the statute and since it will have a prospective effect on withdrawals, we vacate the order and remand. We direct that the funds now held in the court registry be paid by the clerk to appellants after notice and hearing and under supervision and order of the trial court unless, within twenty days from this decision, plaintiff shall file an appropriate motion to deposit past and future rents pursuant to Rule of Civil Procedure 1.600. In that event, the trial court shall consider and rule upon the motion.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and LETTS, JJ., concur.


author: BOOTH, Judge.

text:
    Alice P. SCHILPP, Appellant, v. Peter M. SCHILPP, Appellee.
    No. HH-499.
    District Court of Appeal of Florida, First District.
    March 5, 1980.

      Michael C. Bergen of Bergen & Roberts, Lake City, for appellant. .
    Michael C. Murphy of McDavid & Murphy, Lake City, for appellee.
   BOOTH, Judge.

This cause is before us on appeal and cross-appeal from final judgment in a suit for partition and accounting between parties who were divorced in 1975. The judgment determines the interest of the parties in various assets, including, in pertinent part, the following:

“That Defendant, PETER M. SCHILPP, is the sole proprietor and owner of a business known as PETE’S REFRIGERATION, together with all assets, fixtures, furnishings, goodwill, and equipment of said business. That Plaintiff, ALICE P. SCHILPP, is the sole proprietor and owner of a business known as SCHILPP’S MOBILE HOME SALES, together with all assets, fixtures, furnishings and equipment of said business. The Court specifically finds that no partnership existed or exists in either business between the parties. Neither party is entitled to an accounting of the rents, issues and profits of the other’s business.”

The holding of the trial court that there was no partnership in the business known as Pete’s Refrigeration is clearly erroneous and contrary to the evidence. Appellee urges that this determination was harmless error since the court, in its division of the jointly owned property of the parties achieved equity. The record, however, does not substantiate appellee’s contention that the error was harmless.

The facts are that the parties were married in 1944 and, during their married life, operated an air conditioning business known as Pete’s Refrigeration. Marital difficulties arose which resulted in a separation agreement and a judgment of divorce incorporating that agreement on August 22, 1975. The agreement provided that the parties were joint owners of the partnership business known as Pete’s Refrigeration. For several months after the divorce, plaintiff and defendant continued to work together in the business until they had a final disagreement over finances in the Fall of 1975. In 1977, at the time of the institution of the present litigation, the parties stipulated that the separation agreement had, by virtue of non-performance, become null and void. The parties were unable to agree to a division of the jointly held property, and the present litigation was commenced.

The separation agreement was received into evidence as demonstrating the understanding of the parties as to their respective property rights on August 21, 1975. Paragraph six of that agreement states that:

“The air conditioning, maintenance and repair sales business is a partnership owned equally by the husband and wife.”

Further evidence adduced at trial included the testimony of the defendant, Peter Schilpp, as follows:

“Q. Prior to this separation agreement, Mr. Schilpp, who were the owners of the business known as Pete’s Refrigeration?
“A. Prior to the divorce?
“Q. Yes, sir?
“A. Me and my wife.
“Q. This would be Alice P. Schilpp?
“A. Right.”
# * * * * *
“Q. Did you ever tell her [Mrs. Schilpp] that you and her were partners?
“A. I considered at the time of being married that we were partners.
“Q. Did you consider yourself business partners?
“A. At the time we were married, yes.” * * * * * *
“Q. When, in your opinion, as far as you are concerned, Mr. Schilpp, when did the partnership cease, when did it cease?
“A. The partnership ceased at the time of the divorce, or I should restate that, at the time that the Time Certificate was completely missing.
“Q. When was that, sir?
“A. It seems like it may have been in September of 1975, September or October.
******
“Q. Mr. Schilpp, how is it that Pete’s Refrigeration, which was jointly owned by you and your wife at the time of the divorce, is now owned solely by you? Was there ever a Bill of Sale?
“A. No, sir, there was no Bill of Sale, but at the time that things got so unbearable, and my ex-wife walked off with the complete Time Certificate, I figured that she had bought her share of the business, or her half or whatever you call it of the business.”

Mrs. Schilpp testified that she considered herself a joint owner of the business, a partner, and that she and Mr. Schilpp started the business together and worked in it together.

The testimony of both parties is that Pete’s Refrigeration was jointly owned and was operated as a partnership. This testimony, while not conclusive on the trial court’s determination of the issue of partnership as defined by law, shows the intent of the parties and must be accorded due consideration. Indeed, the intention of the parties is a “primary consideration” and “the most important test as between the parties themselves” in determining whether there is a partnership.

The uncontradicted evidence further establishes that the wife worked full time in the refrigeration business from 1958 or 1959 until 1975, and that her duties included everything from answering the phone, keeping the books and ordering supplies, to unloading trucks and delivering refrigerators. The testimony in this regard is, in pertinent part, as follows:

[Testimony of Mr. Schilpp]
“Q. And about 1958 or 1959 she started working for you in effect full-time in the refrigeration work?
“A. Yes.
“Q. And this continued until your marital troubles?
“A. Yes.
“Q. Is that accurate?
“A. Yes.
“Q. During that time until 1975 she never received a salary as such until the middle of 1975 when she started getting $150.00 until the final blowup?
“A. Yes.”
******
[Testimony of Mrs. Schilpp]
“Q. What were your duties at Pete’s Refrigeration?
“A. After 1957?
“Q. Yes.
“A. Anything from answering the phone to typing out bills, and sup- . plies, and unloading trucks, and delivering refrigerators.
“Q. How often did you unload trucks?
“A. About as often as they came.
“Q. Every time that a truck came?
“A. Approximately every time a truck came.
“Q. How often did you make deliveries?
“A. This was various occasions. Maybe late in the evening.
“Q. Did you work full-time for Pete’s Refrigeration?
“A. Yes, full-time, day and night.”

The testimony of both parties shows a division of profits. Appellee does not contend in this court that profits were not shared. On the contrary, the contention is that appellant got more than her share. Under the Uniform Partnership Code, a partnership is “an association of two or more persons to carry on a business for profit as co-owners,” Florida Statutes, § 620.585, and the sharing of profits of a business is “prima facie evidence that he is a partner in the business.” Florida Statutes, § 620.59.

The only factor suggested by ap-pellee as supporting the trial court’s conclusion of no partnership is the failure of the parties to file a partnership tax return until 1975. The provisions of the Internal Revenue Code and regulations governing the filing of partnership returns are unique, and specific rules apply where a family business is involved.

“The tax law contains its own definition of partnership, suggesting that federal, not state, law determines what is a partnership in the tax context.”

Here, the evidence suggests a number of reasons for the filing of a partnership return in 1&75 based on the breakup of the marriage as well as the business relationship and the employment of an accountant, for the first time, by the business. Considering all the circumstances, the filing of a partnership return has little bearing on the existence of a partnership under State law.

The evidence shows that there was a partnership in Pete’s Refrigeration, and indicates that dissolution of the partnership occurred in 1975 with a final dissention between the parties. Florida Statutes, §§ 620.70, 620.705 and 620.71; Hilgendorf v. Denson, 341 So.2d 549 (Fla. 1st DCA 1977).

Where, as here, clear error is made to appear, injury is presumed to follow, unless the record affirmatively shows to the contrary. If, after careful consideration of an entire record, the appellate court has “no doubt” that the error was harmless, affirmance is proper. However, where the record fails to affirmatively establish that the error was harmless, the appellate court has a duty to reverse.

In the instant ease, the existence of a partnership in Pete’s Refrigeration was a primary issue before the court. The determination of that issue was basic to the remainder of the court’s decision regarding the division of the joint assets. There was substantial conflict as to the value of various assets, conflict which only the trial court could resolve, but no indication in the judgment as to the values determined by the court. Under these circumstances, the error as to the partnership cannot be viewed as harmless.

We find no merit in appellee’s issue on cross-appeal as to the propriety of the trial court’s Order on Rehearing.

Accordingly, the judgment below is REVERSED and the cause remanded to the trial court for further proceedings consistent herewith.

McCORD and ERVIN, JJ., concur.

      . 8 Fla.Jur.2d, Business Relationships, § 455, at 457.

      . 8 Fla.Jur.2d, Business Relationships, § 459:
      “In determining whether an actual partnership relation arises from or exists by virtue of a particular agreement, the most important test as between the parties themselves, irrespective of the rights of third persons, is whether it was the intention of the parties to be partners. As between the parties, partnership rests on mutual consent, which may be manifested by the terms of their agreement and the conduct of the parties under it.” (citations omitted)

      . Mr. Schilpp testified:
      “Q. Who had control of what was done with the profits?
      “A. Well, Pauline kept the books. She had pretty good control over it.”
      * * * * ⅜ *
      “Q. You considered it [Pete’s Refrigeration] a family business and lived out of it?
      “A. Yes.
      “Q. If you needed something, you went into the checking account?
      “A. Yes.
      “Q. The same for you and the same for Pauline?
      “A. Yes.” (emphasis supplied)

      . Crane & Bromberg, Law of Partnership, § 23A, Tax Recognition of Family Partnerships, at page 114.

      . Ibid.

      . Chimerakis v. Evans, 221 So.2d 735, 736 (Fla.1969); Griffith v. Shamrock Village, 94 So.2d 854, 857 (Fla.1957):
      “Where error is made to appear injury is presumed to follow.”

        Stafford v. Southern Bell Telephone, 179 So.2d 232, 235 (Fla. 2nd DCA, 1965), cert. discharged, 190 So.2d 339 (Fla.1966):
      “Generally, where error is clearly made to appear, injury is presumed to follow, unless the record affirmatively shows to the contrary.”

      . Livingston v. L’Engle, 27 Fla. 502, 8 So. 728, 732 (1891).

      . Heath v. First National Bank, 213 So.2d 883, 888 (Fla. 1st DCA, 1968); Leonard v. Leonard, 259 So.2d 529, 532 (Fla. 3rd DCA, 1972):
      “Notwithstanding a presumption of correctness which is to be accorded to the judgment, and that an appellate court should not substitute its judgment for that of the trial court on a matter which was based on findings of the trier of facts, we must observe the principle that it is proper and is the duty of an appellate court to reverse such a judgment when it is determined that the finding or conclusion upon which it was made is clearly wrong through being contrary to the manifest weight of the evidence, or contrary to the legal effect of the law applicable thereto.”


author: MARCUS, Justice .

text:
    STATE of Louisiana v. Roger Dale DOUCET.
    No. 65113.
    Supreme Court of Louisiana.
    Dec. 13, 1979.
    Rehearing Denied Jan. 28, 1980.
    Raymond D. Fuljenz, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Evelyn Oubre and Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   MARCUS, Justice .

Roger Dale Doueet was charged by bill of information with armed robbery in violation of La.R.S. 14:64. He entered a plea of not guilty and not guilty by reason of insanity. After trial by jury, he was found not guilty as charged and sentenced to serve fifteen years at hard labor. Defendant’s conviction and sentence were affirmed by this court. We granted a rehearing to reconsider whether the trial judge erred in disallowing the late filing of a motion to suppress a witness’ identification testimony. On rehearing, we found that the trial judge erred in his refusal; however, finding no trial errors except this refusal, we did not reverse and order a new trial, but rather remanded the case to the trial court for a hearing on the motion to suppress the identification pursuant to State v. Simmons, 328 So.2d 149 (La.1976), reserving defendant’s right to appeal an adverse ruling. On remand, after a suppression hearing, the trial judge denied defendant’s motion to suppress the identification testimony. Defendant appeals from this ruling, relying on seven assignments of error, comprising one argument, for reversal of his conviction and sentence.

Defendant contends the trial judge erred in denying his motion to suppress the in-court identification of him by Billy Weldon, the victim of the armed robbery, because Weldon’s observation of him in response to erroneous subpoenas tainted his in-court identification.

The record reflects that on June 24, 1976, between 3:00 a. m. and 3:30 a. m., a man entered a 7-11 store and robbed Billy Weldon, the cashier, at gunpoint. At approximately 11:00 a. m. that same morning, a photographic lineup was conducted in which Weldon was shown six photographs, including a photograph of defendant. Weldon immediately identified defendant as the man who had robbed him earlier that morning. On March 10, 1977, nine months after the robbery and the photographic lineup, Weldon was subpoenaed by the state to appear at a hearing on a motion for a new trial in an unrelated matter involving this same defendant. Weldon was not called as a witness, but sat in the rear of the courtroom and recognized defendant as the man who robbed him. Weldon again observed defendant on November 10, 1977, when he was subpoenaed by the state to attend defendant’s competency hearing. Weldon did not testify at this hearing and the record does not reveal why Weldon received a subpoena in either instance. Defendant’s trial began on November 14, 1977. On November 15, 1977, defendant filed a written motion to suppress Weldon’s identification testimony on the grounds that Weldon’s identification was tainted by the prior in-court viewings.

Assuming, without deciding, that the in-court viewings of defendant by Weldon were considered impermissibly suggestive, this alone would not indicate a violation of defendant’s right to due process. It is the likelihood of a misidentification which violates due process, not merely the suggestive identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, 353 So.2d 1005 (La.1977).

The trial court properly admits an in-court identification if it has a source independent of the out-of-court identification. State v. Taylor, 347 So.2d 172 (La.1977). The independent source negates the likelihood of a mistaken identification. In this determination, we must consider certain factors which include: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these facts is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, supra; State v. Williams, 375 So.2d 364 (La.1979); State v. Guillot, supra.

Weighing these indicia of reliability present in this case against the marginal suggestiveness of the prior in-court viewings, it is clear that there was little chance of misidentification, and thus defendant was not denied due process. Weldon, the robbery victim, testified that he got a good, clear look at the robber’s face for between three and five minutes. The 7-11 store was well-lit and the robber wore no mask or other artifice to conceal his face; and, although Weldon had never seen him prior to the robbery, the record indicates that he was clearly able to see his face as he opened the cash register. Weldon testified that he had no doubt that defendant was the man who robbed him. No one ever asked him to identify defendant during the prior in-court viewings or in any way indicated that he was charged with the 7-11 robbery. Weldon was able to describe defendant to deputies immediately after the crime occurred, and, from a photographic lineup of six photographs, he selected a photograph of defendant as the man who had robbed him only seven hours after the robbery occurred.

These factors indicate that Weldon’s in-court identification was based on an independent source and was not tainted by Weldon’s response to the unexplained subpoenas. Hence, defendant’s due process rights were not violated. The trial judge did not err in denying the motion to suppress the in-eourt identification of defendant by Weldon.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

       Honorable Jesse N. Stone, Jr. served as Justice Ad Hoc in the vacancy created by the resignation of Tate, J.

      . 367 So.2d 281 (La.1978).

      . 371 So.2d 739 (La.1979).