author: ORFINGER, Judge.

text:
    Joseph Alison STEVENS, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-101, 80-117.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Rehearing Denied April 27, 1981.
    James K. Freeland, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted of the crime of extortion and has preserved for appeal his contention that the trial court erred in refusing to give a jury instruction on the defense of duress or coercion. Appellant also appeals a judgment of the trial court finding a violation of an earlier probation order which by stipulation was considered on the same evidence as submitted on the extortion charge. Appellant concedes that the appeal of the probation violation order is moot. We affirm.

To entitle a defendant to an instruction on duress or coercion, there must be evidence presented tending to show that the defendant committed the crime against his will because of circumstances which either constituted a real, imminent and impending danger to himself or to some loved one, or from which circumstances shown in evidence the defendant had reasonable grounds to believe that such danger was real, imminent and impending, and did so believe at the time the crime was committed, and therefore committed the crime because of such belief. Hall v. State, 136 Fla. 644, 187 So. 392 (1939).

In Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967), the court quoted from 22 C.J.S. Criminal Law, § 44, p. 135, in part as follows:

The compulsion or coercion which will excuse the commission of a criminal act must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done; it must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime. A threat of future injury is not enough, particularly after danger from the threat has passed . ..

The only other Florida case of which we are aware which discusses this defense is Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980), where the court approved the rejection of a coercion or duress instruction saying:

The evidence does not show a threat of imminent or impending harm to appellant or to a member of his family. Even if the statements of J. C. Cotton had been construed by the jury as a threat, this threat was of some possible future harm. Appellant had adequate time to warn his relatives of the threat and to contact the appropriate authorities. Under these facts, appellant was not entitled to the coercion instruction.

Appellant asserts- that a defendant is entitled to an instruction on his theory of the defense if there is any evidence to support it, no matter how disdainfully the trial judge may feel about the merits of the defense from a factual standpoint, because if there is such evidence, it is up to the jury to pass upon it. Laythe v. State, 330 So.2d 113 (Fla. 3d DCA 1976); cert. denied, 339 So.2d 1172 (1976). Koontz, supra. We will review the evidence to determine if any evidence was submitted that in any way meets the legal test of duress and coercion.

With respect to the crime for which he was charged, appellant admitted making anonymous telephone calls to the victim during which he threatened to kill members of the victim’s family unless appellant was paid $500,000. After several such calls, the victim agreed to give appellant the money and arrangements were made for delivery. Appellant was arrested on April 6, 1979, shortly after picking up the briefcase left by the victim at the drop spot. Other evidence tended to prove that it was the appellant who made the threatening calls.

Appellant testified that he committed the crime under coercion or duress. He stated that on about February 23, 1979, he was abducted and beaten by some people to whom he owed $20,000 for a supply of marijuana and that after escaping and returning home, he received numerous calls from them about the money and inquiries about his health. During the last week in March, by telephone, his abductors suggested the extortion scheme as a means of clearing his debt and making some money for himself, and threatened to torture and kill his mother and girlfriend if he didn’t go through with the scheme. On the following day, he found a severed'cat’s head in his car. He stated that he felt threatened and obligated to go through with the plan, but he did not report the threats or the demands to the authorities. It was a week later, on April 2, 1979, that he made the first phone call to the victim and four days after that, on April 6,1979, he was arrested after picking up what he thought was the extortion payment.

It is clear from the brief summary of the testimony that the evidence did not show either real or apparent imminent or impending harm to appellant or any of his loved ones. Appellant had not been in personal contact with his abductors since the time in February when he escaped from their custody. The telephone threats about which he testified all related to future harm, and, as noted in Cawthon, appellant had ample time to warn his loved ones of the threat and to contact the authorities. The fact or the apprehension of immediate and impending harm was not shown.

Appellant having failed to demonstrate error, the judgment of conviction is

AFFIRMED.

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

      . § 836.05, Fla.Stat. (1979).

      . Federal courts have also held that to support the defense of coercion, there must be evidence of real or apparent imminent and immediate harm, not future harm. See, e. g., United States v. Gordon, 526 F.2d 406 (9th Cir. 1975) and Shannon v. United States, 76 F.2d 490 (10th Cir. 1935), where both courts held that where the threats were of future harm so that the defendants could have avoided the act, they were not entitled to an instruction on coercion.


source: Caselaw Access Project

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

license: Public Domain

text:
    Leslie L. WHITE d/b/a Les White Realty, and Wayne McLaughlin, Appellants/Cross Appellees, v. The MONTEBELLO CORPORATION, and Lucy T. Haynes, Appellees/Cross Appellants.
    No. 80-147.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Rehearing Denied April 23, 1981.
    Mikel W. Carpenter of Jones, Morrison & Stalnaker, P. A., Altamonte Springs, for appellants/cross appellees.

      James J. Files, Winter Park, for ap-pellee/cross appellant Haynes.
    No appearance for appellee/The Monte-bello Corporation.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal an order denying attorney fees under section 57.105, Florida Statutes (1979). Appellee Lucy Haynes cross appeals entry of summary final judgment denying specific performance and damages.

Appellant Wayne McLaughlin was a real estate salesman employed by appellant Leslie White. He showed appellee a home owned by the Montebello Corporation, and on August 24, 1978, accepted a deposit of $300 as earnest money and gave a receipt for this amount. On August 31, 1978, McLaughlin took a standard contract for sale and purchase designed to reflect a sale between Montebello and a purchaser, and modified it to reflect receipt of the deposit by “Les White Realty” as “Broker” instead of Montebello. The form was executed by appellee as “Purchaser.” McLaughlin signed the form immediately below the buyer’s signature in the space marked as “Witness.” On the seller’s portion of the form was printed:

Witness: _ Seller: THE MONTEBELLO CORPORATION
Witness: _ By: _

The seller’s portion of the form was never executed. Upon submission of the form to Montebello, appellant discovered the property was no longer available and appellee was so informed. Appellant offered to return the deposit and offered to show appel-lee similar properties. Appellee contended that Montebello was bound and sought specific performance of the “contract” contending that when McLaughlin signed, even though he signed as “witness,” he bound Montebello.

Appellee’s complaint alleged that the form which she had signed was the written contract between the parties and that the contract was subscribed by appellant McLaughlin for the Montebello Corporation. Appellants and Montebello moved to dismiss but the motion was denied. However, the court later granted their motion for summary judgment.

The question raised by the appeal is whether there was a complete absence of a justiciable issue of either law or fact raised by the losing party so as to entitle appellants to an award of attorney’s fees under section 57.105, Florida Statutes (1979).

We find that no justiciable issue was raised and we reverse the order denying attorney fees.

We question whether the complaint even stated a cause of action because the purported contract was not executed and the allegations of the complaint did not attempt to explain the omission of the seller’s signature or that appellant McLaughlin, as agent for the Montebello Corporation, was acting within the scope of his authority. The propriety of the trial judge’s ruling on this motion was not raised by appellants because they understandably elected to proceed on a motion for summary judgment and ultimately prevailed on the motion.

Neither the affidavits nor the depositions show that appellant was authorized to bind the Montebello Corporation. No proof was offered to show that McLaughlin signed as anything more than as a witness for appel-lee. While the complaint alleged that McLaughlin “subscribed” the “contract” for the Montebello Corporation, there was no allegation or proof that he was authorized to execute the agreement for Montebello and his signature clearly labelled as a “witness” completely refutes the allegation that he acted for Montebello.

Appellee’s claim was totally lacking in a justiciable issue, either of law or fact, and therefore was frivolous. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). This is the type of litigation contemplated by section 57.105, Florida Statutes (1979), and hence the trial court abused its discretion in refusing to award a reasonable fee.

We affirm the trial court’s entry of summary judgment but reverse the order denying a reasonable attorney’s fee for the services of appellants’ trial attorneys and remand for determination and award of such fee.

DAUKSCH, C. J., and COWART, J., concur.


author: PER CURIAM.

text:
    Angel CARDOUNEL and Mercy Cardounel, Appellants, v. SHELL OIL COMPANY, Appellee.
    No. 80-484.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied May 15, 1981.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Wm. Bruce Harper, Jr. and Edwin P. Krieger, Jr. and Roberto Martinez, Miami, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Angel Cardounel pulled into a service station owned by Shell Petroleum Co., leased to Mendez, not to purchase service station products but to secure some water for his overheating vehicle. His automobile blocked access to the pumps; he and Mendez got into an altercation, resulting in Mendez shooting Cardounel.

Cardounel and his wife brought suit, alleging that Shell (as the owner of the station) was the employer or principal of Mendez and that its agents knew that he (Mendez) had a gun on the premises and, therefore, knew or should have known Mendez had violent or dangerous propensities. The trial court entered a summary judgment in favor of the oil company. We affirm.

The trial court was correct on the theory that Mendez' was not an agent or employee, but was an independent contractor. Cawthon v. Phillips Petroleum Company, 124 So.2d 517 (Fla. 2d DCA 1960); McMillion v. Sinclair Refining Company, 236 So.2d 151 (Fla. 1st DCA 1970); Sydenham v. Santiago, 392 So.2d 357 (Fla. 4th DCA 1981); Nelson v. Shell Oil Company, 396 So.2d 752 (Fla. 3d DCA 1981); Miller v. Sinclair Refining Company, 268 F.2d 114 (5th Cir. 1959). The trial court would also be correct in its ruling even if Mendez, the operator, was an employee or agent. The mere knowledge that Mendez had a gun on the premises would not make the oil company liable, unless it knew of particular facts that would have put it on notice of his dangerous propensities.

Therefore, the summary judgment under review be and the same is hereby affirmed.

Affirmed.

      . The appellants herein rely heavily on the case of Jax Liquors, Inc. v. Hall, 344 So.2d 247 (Fla. 1st DCA 1976). We find that case not to be decisive of the issue herein. In the Jax case, supra, the evidence showed that Jax sought and obtained armed security guards to preserve order and deal with unruly patrons, and that Jax had exercised a right of control concerning the manner in which the guard performed his duties. The instant case contains no evidence of this nature.

      . We do not here decide the status between the oil company and the operators, because we do not think it is necessary to a determination of this opinion.

      . The complaint alleged that the station was located in a “high crime area” which, under the current circumstances, may well have justified the operator having a gun on the premises.

      .The plaintiffs made bare conclusions as to the company knowing or that it should have known of the operator’s dangerous propensities, but failed to disclose any facts that would have supported such a conclusion. See and compare: Lombardy v. Stees, 132 Colo. 570, 290 P.2d 1110 (1956); Strawder v. Harrall, 251 So.2d 514 (La.App.1971); Martin v. Jones, 302 Mich. 355, 4 N.W.2d 686 (1942); Wellman v. Pacer Oil Company, 504 S.W.2d 55 (Mo.1973).


text:
    John Paul FOTORNY, Appellant/Cross-Appellee, v. Jeanne Helen Juback FOTORNY, Appellee/Cross-Appellant.
    No. 79-1104.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Rehearing Granted as to Attorney fees only May 8, 1981.
    Gary M. Glickman of Glickman & Witters, West Palm Beach, for appellant/cross-appellee.
    James P. O’Flarity, Palm Beach, for ap-pellee/cross-appellant.
   PER CURIAM.

The parties to this litigation were divorced in 1968, when the appellant, husband, was ordered to pay to the appellee, wife, thirty dollars per week child support and five dollars per week alimony. In January, 1971, the child support was modified to thirty-five dollars per week. In April, 1974, by agreement, the child support was again modified, this time to sixty dollars per week. The record does not indicate any attempt by the appellee to have the alimony increased until the present petition was filed in August, 1978.

The appellant appeals an order entered in April 12, 1979 again modifying the child support payments, and for the first time increasing the alimony from five dollars to twenty-five dollars per week. Only the alimony award is appealed. The appellee cross-appeals, contending that the new payments should have been made retroactive to the date of filing her petition for modification.

The record supports the trial court’s finding of a substantial change of circumstances warranting the increase in alimony and we affirm that portion of the order. See, Steinau v. Steinau, 343 So.2d 631 (Fla. 4th DCA 1977).

The trial court erred, however, by not making the support payments retroactive to the date of filing the petition for modification. Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3rd DCA 1978); Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977); Meltzer v. Meltzer, 262 So.2d 470 (Fla. 3rd DCA 1972); Steinau, supra.

The order of modification increasing the child support and alimony is affirmed and this cause is remanded with directions to correct the date of commencement of the support payments.

AFFIRMED and REMANDED.

DOWNEY, ANSTEAD and MOORE, JJ., concur.


text:
    David Ronald ARNETT, Appellant, v. STATE of Florida, Appellee.
    No. VV-376.
    District Court of Appeal of Florida, First District.
    April 2, 1981.
    Rehearing Denied May 11, 1981.

      Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, .Atty. Gen., Wallace E. All-britton and Carolyn M. Snurkowski, Asst. Attys. Gen., and Margie Starnes, Legal Intern, Tallahassee, for appellee.
   PER CURIAM.

The sole question presented in this appeal from the sentence imposed following appellant’s plea of guilty to the offense of second degree murder is the constitutionality of Section 947.16(3), Florida Statutes (1979).

Under the provisions of Section 947.16(3), the trial court judge, at the time of sentencing for certain enumerated crimes, may enter an order retaining jurisdiction over the offender for review of a parole commission release order. The retention of jurisdiction is limited in its duration to the first one-third of the maximum sentence imposed. In retaining jurisdiction, the trial court judge must “state the justification with individual particularity”. § 947.16(3)(a), Fla. Stat. (1979). Where jurisdiction has been retained, the parole commission must notify the original sentencing court of its release order. Within ten (10) days thereof, the original sentencing court must notify the parole commission of its desire to further retain jurisdiction. If the original sentencing court desires to further retain jurisdiction, the court, after review of the information upon which the parole commission’s release order was based, may vacate the release order if it is found that “the commission’s order is not based on competent substantial evidence or that the parole is not in the best interest of the community or the inmate”. §§ 947.16(3)(e), (f), Fla.Stat. (1979). The statute further provides that the trial court judge’s decision to vacate the parole release order is not appealable.

Appellant asserts the statute is unconstitutional because it violates Article II, Section 3, Florida Constitution, separation of powers, and the due process provisions of Article I, Section 9, Florida Constitution, and the U. S. Constitution. The State contends that appellant lacks standing to raise the constitutional issues and that the constitutional questions have not been adequately preserved for appeal.

Initially, we reject the State’s argument that appellant lacks standing to challenge the constitutionality of Section 947.-16(3). The trial court has entered an order retaining jurisdiction over appellant for review of a parole commission release order. In our view, neither the fact that the parole commission has not yet entered a release order nor the fact that the trial court judge has not yet vacated such parole release order deprives appellant of standing to challenge the statute’s constitutionality. See State v. Benitez, 395 So.2d 514, 1981 FLW 319 (Fla.1981). Additionally, we reject the State’s assertion that appellant has not properly preserved his challenge to the statute. Appellant clearly objected to the invocation of Section 947.16(3) on specific constitutional grounds and the trial court ruled upon appellant’s challenges. Contrast, Williams v. State, 378 So.2d 837 (Fla. 1st DCA 1979) [review granted Case No. 58,704]: Chatman v. State, 393 So.2d 557 (Fla. 4th DCA 1980).

Having disposed of these preliminary matters, we now consider the merits of appellant’s constitutional challenges. Appellant asserts Section 947.16(3) violates Florida’s constitutional separation of governmental powers. Art. II, § 3, Fla.Const. Appellant, relying upon Article IV, Section 8(c), Florida Constitution, submits that the parole powers are an executive function vested solely in the parole and probation commission. Appellant reasons, therefore, that Section 947.16(3) violates the constitutional provision regarding separation of governmental powers by usurping the parole function from the executive branch and assigning it to the judicial branch in certain circumstances. We find appellant’s argument unpersuasive. Similar challenges have been made to legislation which forbids the parole of capital felons for twenty-five years, Section 775.082(1), Florida Statutes (1979), and which forbids the parole of con-victees of specified crimes committed while in possession of a firearm until after service of three years imprisonment, Section 775.-087(2), Florida Statutes (1979). Such challenges have been consistently rejected. Dorminey v. State, 314 So.2d 134 (Fla.1975); Owens v. State, 316 So.2d 537 (Fla.1975); Sowell v. State, 342 So.2d 969 (Fla.1977); Scott v. State, 369 So.2d 330 (Fla.1979); Owens v. State, 300 So.2d 70 (Fla. 1st DCA 1974), appeal dismissed 305 So.2d 203 (Fla.1974). The rationale of these decisions is that Article IV, Section 8(c) does not restrict the legislature from establishing minimum conditions under which parole may be granted. In effect, Section 947.16(3) merely establishes minimum conditions under which parole may be granted during the first one-third of the maximum sentence imposed. Such conditions are within the legislature’s prerogatives and within its constitutional powers to prescribe punishment for crimes.

Appellant further asserts that Section 947.16(3) violates the due process provisions of Article I, Section 9, Florida Constitution and Amendments V and XIV, United States Constitution. Appellant contends the due process provisions are violated because the statute fails to specify standards which must be met before the sentencing court may retain jurisdiction, it fails to provide for notice of proceedings to retain jurisdiction or a hearing to defend against retention of jurisdiction, and because the statute prohibits an appeal from a trial court’s decision to vacate a parole commission release order. Appellant’s due process arguments are primarily premised upon his assertion that sentencing under Section 947.16(3) is akin to sentencing as an habitual offender pursuant to Section 775.084, Florida Statutes (1979). Relying upon Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Eutsey v. State, 383 So.2d 219 (Fla.1980); and Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979), appellant asserts Section 947.16(3) does not fulfill the due process requirements which must attend the imposition of an enhanced sentence.

We find that retention of jurisdiction under Section 947.16(3) is not analogous to proceedings under the habitual offender statute. See Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1980) (Cowart, J., concurring specially). Invocation of Section 947.16(3) does not constitute an enhanced sentence nor is it dependent upon a new finding of fact that was not an ingredient of the offense charged. Rather, the invocation of Section 947.16(3) is similar to traditional sentencing procedures where, within limits fixed by the legislature, the trial judge is given broad discretion to determine the type and extent of punishment for convicted defendants. In such proceedings, the full range of due process rights is not required. Williams v. New York, 337 U.S. 241, 93 L.Ed. 1337, 69 S.Ct. 1079 (1949). The trial court judge’s initial decision to retain jurisdiction is not subject to any statutory guidelines or criteria. See Moore, supra, at 279. The lack of statutory guidelines, however, does not create due process infirmities since the trial judge, in deciding to retain jurisdiction, is merely exercising his broad discretion to determine the appropriate sentence within the prescribed legislative limits. The statute itself provides the defendant adequate notice that the trial court judge may retain jurisdiction. An opportunity to defend against retention is provided by the right to offer “submissions and evidence . . . which are relevant to the sentence” at the sentencing hearing. Fla.R.Crim.P. 3.720(b). The prohibition of appeal from the trial court’s decision to vacate a parole commission release order does not violate due process since there is no constitutional right of a convicted person to be conditionally released before the expiration of a valid sentence. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).

Appellant also contends the statute violates due process because it is impermissibly vague in providing that jurisdiction be retained by the “trial court judge” and that review of a parole release order be made by “the original sentencing court”. We find these phrases are susceptible of common understanding in the context of the whole statute and find no due process deficiencies.

Accordingly, the sentence imposed is affirmed.

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


text:
    EVANS PACKING COMPANY; Risk Management Services, Inc., Appellants, v. Mary K. CAMPBELL, Appellee.
    No. XX-136.
    District Court of Appeal of Florida, First District.
    April 2, 1981.
    Rehearing Denied May 11, 1981.
    Kathleen R. Hudson, St. Petersburg, for appellants.
    Richard R. Roach, Jr., of Woods & Roach, P.A., Lakeland, for appellee.
   PER CURIAM.

It was agreed and stipulated at the pre-hearing conference that all proper medical treatment had been provided by the employer/carrier, and at the hearing held on April 3, 1980, it was the claimant’s position that she was entitled to permanent and total disability benefits or permanent partial disability benefits in excess of those assigned by the doctor and accepted by the carrier. There was no request for future medical care.

The carrier correctly cites City of Hialeah v. Hilyard, 379 So.2d 1029 (Fla. 1st DCA 1980) for the proposition that it is error for a Deputy Commissioner to rule on issues not in controversy. Paragraph 2 of the decretal portion of the order is stricken, The order is otherwise affirmed.

MILLS, C. J., and SHAW and JOANOS, JJ., concur.


author: WENTWORTH, Judge.

text:
    Nora June STEPIEN et al., Appellants, v. BAY MEMORIAL MEDICAL CENTER et al., Appellees.
    No. XX-294.
    District Court of Appeal of Florida, First District.
    April 2, 1981.
    Rehearing Denied May 11, 1981.

      Glen R. Peterson, Panama City, for appellants.
    William E. Harris, Panama City, for ap-pellees.
   WENTWORTH, Judge.

Appellant seeks review of a judgment entered upon directed verdict in favor of appellee Medical Center. We find that the evidence presented a factual issue for the jury’s determination, so as to preclude a directed verdict, and reverse the order appealed.

Appellant brought this negligence action for injuries, including a fractured hip, sustained during a fall while a patient at the Medical Center. At the time of this incident appellant had a full cast on her left leg due to a previous fall at the Center. Considering the evidence in the light most favorable to appellant, as we are required to do upon this directed verdict, Rodi v. Florida Greyhound Lines, 62 So.2d 355 (Fla.1953), it was established that appellant was receiving medications which included various sedatives, that she had a temperature in excess of 100°, that she was disoriented, and that she had previously displayed suicidal “ideations” which were known to the hospital staff. It was hospital policy that such patients be watched closely and provided a medical bed with side rails, but on the night of her injury appellant was moved from such a bed into a darkened room, without any night lighting or an operative nursing attendant call system, and with a bed which did not have side rails. All room lighting and hallway lighting had been turned off when appellant awoke in the early morning darkness and fell while attempting to use the bathroom, and appellant testified that she would have attempted to call a nurse for assistance had. there been an operative call system in her room.

Where a plaintiff in a medical negligence action does not establish what standard of care existed under the circumstances of the case, and therefore is unable to show a breach of such care, a directed verdict is appropriate. Memorial Hospital South Broward Hospital District v. Doring, 106 So.2d 565 (Fla.2d DCA 1958). But where only the exercise of common sense and ordinary judgment are required, a medical negligence action may be proved without the aid of expert medical testimony. Atkins v. Humes, 110 So.2d 663 (Fla.1959); Reynolds v. Burt, 359 So.2d 50 (Fla. 1st DCA 1978). A hospital is bound to exercise such reasonable care as a patient’s known condition may require, South Miami Hospital v. Sanchez, 386 So.2d 39 (Fla.3d DCA 1980); Sprick v. Northshore Hospital Inc., 121 So.2d 682 (Fla.2d DCA 1960), and although appellant’s physician’s instructions may have .been fully complied with, the present case nevertheless involved a factual issue, which the jury could have determined without the aid of expert testimony, as to whether appellee Medical Center failed to exercise such reasonable care as the Center’s knowledge of appellant’s physical condition may have warranted.

The order appealed is reversed and the cause remanded to the trial court for further proceedings.

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


text:
    Freddie O. HADLEY, Appellant, v. SCHOOL BOARD OF LEON COUNTY, Florida, Appellee.
    No. VV-430.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    Rehearing Denied May 13, 1981.
    Clinton H. Coulter, Jr. of Duvall & Coulter, Tallahassee, for appellant.
    Charles A. Johnson, Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed on authority of Blanchette v. School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1979).

MILLS, C. J., JOANOS, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


author: LARRY G. SMITH, Judge.

text:
    Chester COXWELL, Appellant, v. STATE of Florida, Appellee.
    No. OO-437.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Rehearing Denied May 13, 1981.
    L. S. Selvey, II, Tallahassee, for appellant.

      William Meggs, David P. Gauldin, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Appellant Coxwell appeals his conviction for the first degree murder of his wife. He seeks reversal based upon his contentions that the trial judge erred (1) in denying his motion to transfer the case from Leon County back to Liberty County, where the offense was committed; (2) in denying his requested jury instruction on the offense of criminal solicitation, Section 777.04(2), Florida Statutes; and (3) in admitting, over his objection, testimony of conversations between appellant and two other persons. We find no reversible error, and affirm.

The conviction here appealed arose from appellant’s second trial for the same offense. His first degree murder conviction in the first trial was reversed because of error in restriction of cross-examination of a key prosecution witness. Coxwell v. State, 361 So.2d 148 (Fla.1978). Prior to his first trial, appellant succeeded in obtaining a change of venue from Liberty County to Leon County, based upon his contention that he could not get a fair and impartial trial in Liberty County because of adverse pretrial publicity. On remand, appellant moved the trial court to change venue back to Liberty County, grounding his motion upon the sole contention that he had a constitutional right to be tried in Liberty County, where the offense occurred, pursuant to Article I, Section 16, Florida Constitution. His motion for removal of the trial back to Liberty County was denied by the trial court on the premise that appellant had waived his right to have the trial in Liberty County when he moved for a change of venue to Leon County. We agree with the trial court’s conclusion.

When a change of venue is granted at the request of the defendant, he waives his right to trial in the county where the crime was committed. Ashley v. State, 72 Fla. 137, 72 So. 647 (1916); Hewitt v. State, 43 Fla. 194, 30 So. 795 (1901). Further, when a change of venue is granted in any criminal case, the county to which the cause is transferred becomes the county in which the accused is constitutionally entitled to trial. Turner v. State, 87 Fla. 155, 99 So. 334 (1924). Furthermore, a reversal for errors committed during the trial has the effect, upon remand, of leaving the case standing at the point of selecting a jury for a new trial, and appellant cannot now be heard to complain on matters of venue. Kaminski v. State, 72 So.2d 400 (Fla.1954); and see also State v. Adjmi, 170 So.2d 340 (Fla.3rd DCA 1964). Appellant does not argue here and did not assert in his motion that trial in Leon County would or did prejudice him in any way. We accordingly hold that there was no error in refusing to grant his motion to send the case back to trial in the same county from whence it came, being the same county in which appellant had previously contended he could not receive a fair trial.

In his second point, appellant argues that the trial judge should have given a jury instruction on the offense criminal solicitation. He contends that the charge contained in the indictment, murder in the first degree, encompasses the lesser offense of criminal solicitation. He further maintains that although there was evidence from which the jury could have concluded that appellant was guilty of criminal solicitation, the jury could also have concluded that Kilpatrick, the actual perpetrator of the crime, did not kill the victim Mrs. Coxwell as a result of appellant’s request, but at the request or enticement of Judy Barnes, or even that he committed the homicide because he was angry with the victim because of her racial remarks.

We hold that the trial judge did not err in refusing the jury instruction on criminal solicitation. First, we disagree with appellant’s argument that criminal solicitation is a lesser included offense in this case. The indictment charged murder in the first degree, and the evidence produced by the state in support of that charge established, when viewed in the light most favorable to the state, that Kilpatrick’s commission of the homicide was done as a. consequence of the counsel, procurement or instigation of appellant. Under this evidence appellant was a principal in the first degree, and could be and was properly found guilty of the offense of murder in the first degree as charged. One who successfully solicits another to commit a crime is guilty of the offense committed. Perkins, Criminal Law, 2d Edition, “Solicitation,” at page 582.

Secondly, although the witness Kil-patrick testified in an earlier deposition that overtures had been made to him by Judy Barnes to kill Mrs. Coxwell, at the trial he denied the truth of such prior statements and denied even knowing Judy Barnes. Judy Barnes testified that she had no knowledge of or association with Kilpa-trick. We think a jury issue was presented solely on the issue of whether appellant counseled or procured the killing of his wife. Since the state carried its burden of proving the fact of a criminal connection between appellant and the actual perpetrator, and that the crime was committed by the counsel, procurement or instigation of appellant, the evidence established appellant’s guilt of murder, not criminal solicitation. Compare Lee v. Tucker, 37 So.2d 582 (Fla.1948).

Here, as in Martin v. State, 342 So.2d 501 (Fla.1977), the death of the victim was not an issue, but an incontrovertible fact (Id. at 502). Accordingly, the trial court was under a duty to instruct only on all degrees of murder, manslaughter, and justifiable and excusable homicide. The trial judge here actually went further, and instructed on the attempt to commit each of the unlawful homicide offenses. As pointed out by the state, had the jury been inclined to grant a “jury pardon” by conviction of a lesser offense, the jury could have returned a verdict of attempted murder, which, like the offense of criminal solicitation, is a first degree felony. However, our decision is not based upon the giving of the attempt instructions, but upon the ground that the criminal solicitation instruction is not required where the homicide has actually been committed.

Finally, there was no error in the admission of testimony by Judy Barnes that on an occasion prior to appellant’s alleged counselling or procuring the death of his wife, she (Judy Barnes), appellant, and one Tom Melton (not a witness at the trial) engaged in a conversation in which appellant offered Melton money to kill Mrs. Cox-well. The admissibility of this testimony does not depend, as appellant contends, upon the establishment of any conspiracy between appellant and Melton. The evidence was admissible as an exception to the hearsay rule to show appellant’s then existing state of mind toward his wife. Van Zant v. State, 372 So.2d 502 (Fla.1st DCA 1979).

The judgment of conviction and sentence are affirmed.

SHAW and WENTWORTH, JJ., concur.

      . “That a person committed a crime other than the one he is charged with is not a legal defense requiring a jury instruction.” Palmes v. State, 397 So.2d 648 (Fla.1981).

      . Although the Florida Evidence Code, Chapter 90, Florida Statutes (effective July 1, 1979), would not be applicable since this case was tried before its effective date, we note that under Section 90.801(l)(c) appellant’s statements would not technically be “hearsay,” and would in any event be admissible under Section 90.803(3)(a)(l) or (2), to prove state of mind.


author: ERVIN, Judge.

text:
    Robert L. LUTSCH, Appellant/Cross-Appellee, v. A. Q. SMITH et al., Appellees/Cross-Appellants.
    No. UU-411.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Rehearing Denied May 11, 1981.

      Robert P. Cates, of Goldin & Cates, Gainesville, for appellant/cross-appellee.
    Stephen A. Scott and John R. Ficarro, Gainesville, for appellees/cross-appellants.
   ERVIN, Judge.

Lutsch appeals a judgment awarding ap-pellees damages caused by His failure to pay appellees, unregistered real estate brokers, a commission on certain business property, sold by the Lutschs. We have examined the record and affirm as to all points raised in his appeal.

We also affirm all points raised in appel-lees’ cross-appeal, with the exception of that point relating to the issue as to whether the lower court erred in failing to render judgment against both Mr. and Mrs. Lutsch, the joint owners and partners of the business property conveyed.

In Smith’s complaint against the defendants-sellers, Robert Lutsch and his wife Barbara Lutsch, it was alleged that the defendants breached the sales agreement (signed by Smith and by Robert Lutsch only) due to their failure to pay a commission on the property sold by them to the buyers, Mr. and Mrs. Fansler, who had been procured to buy the property through the services of Smith. The plaintiffs sought recovery under various theories, including breach of contract, unjust enrichment and quantum meruit. The court found for plaintiffs as to those three theories and imposed judgment in the amount of 12% of the value of the property conveyed, which amount, while not characterized by the court as a commission, nevertheless corresponded precisely with the percentage which the parties agreed would be assessed against the sale of the property.

Among other things, the appellant argues that since the amount awarded to appellees, unregistered real estate brokers, was a commission, the agreement is unenforceable because of the prohibitory language in Section 475.41, Florida Statutes (1977), interdicting the payment of a real estate commission to one not so registered. Appellees respond that the statute has no application if the parties’ primary purpose was to convey an ongoing business — not real estate. We agree with appellees’ position. Whether a sale should be considered one of business or of real estate was recognized in Willner v. Wilder, 280 So.2d 1 (Fla. 3d DCA 1973), as one turning upon the parties’ intent. If the transaction is considered one primarily involving the conveyance of a business, not of real estate, the statute’s provisions are said to be inapplicable. Id. In Willner, the statute was applied because no sale or transfer of the business occurred, but rather a lease of property which was considered suitable as either a nightclub or a restaurant.

The facts before us are clearly distinguishable. Here, no lease of the property was required in the conveyances. Mr. Lutsch’s testimony, moreover, shows that the purpose of the sale was to transfer an ongoing, successful business operation. Numerous negotiations were held between Lutsch and Fanzler concerning the restaurant’s operations, including the examination of prior income tax and sales tax returns, as well as the names of the suppliers whom Lutsch had relied upon in his restaurant business. Finally, and perhaps most importantly, the record reveals the Lutschs’ no-competition contract, agreeing not to operate a restaurant within a 70-mile radius of Cedar Key for a period of five years following the sale. The court clearly had before it sufficient evidence supporting its finding that the parties’ primary purpose was to convey a business operation. Compare also Schindler v. Florida Real Estate Commission, 144 So.2d 862 (Fla. 3d DCA 1962) and Chapman v. Hughes, 272 F.2d 193 (5th Cir. 1959).

We agree with appellees’ cross-appeal that the lower court should have entered judgment against Mrs. Lutsch. The lower court’s judgment found that since Mrs. Lutsch did not sign the sales agreement, she was not obligated on it and that there were “no allegations of agency, ratification or other allegations which may have sought to establish a contractual relationship between Barbara J. Lutsch either expressed or implied.” The judgment did not address, however, plaintiffs’ argument that Mr. and Mrs. Lutsch were doing business as a partnership. If such business relationship in fact existed and were proven, it would be immaterial whether Mrs. Lutsch did not sign the sales agreement, or did not expressly or impliedly ratify it, because under the general law of partnership each partner is considered the agent of the partnership for the purpose of its business, and each act of a partner during the continuance of the partnership, and within the scope of its object, binds all other partners. See § 620.60(1), Fla.Stat. (1979).

While the complaint did not expressly state that Mr. and Mrs. Lutsch were general partners in their restaurant business, it was alleged that both owned and operated the business which was sold to the Fan-slers. Additionally, at trial, the plaintiffs introduced into evidence various exhibits, including the deeds of conveyance and certain financing statements which referred to the Lutschs as joint owners of the property, or referred to them in both their own names as “doing business as Seabreeze Restaurant.” Finally, and most importantly, the admission of Robert Lutsch, in response to plaintiffs’ request for admissions, acknowledged that he and his wife at all times pertinent to the action were partners, and shared 100% of the profits from their ownership and operation of the business which was sold to the Fanslers.

A generally recognized method of proving the existence of a partnership is an “admission .. . made by any partner concerning partnership affairs within the scope of his authority . .. . ” Section 620.61. Mr. Lutsch’s admission was not introduced into evidence at trial; yet, in our judgment, the admission was appropriately before the court, and so should have been considered as relevant to the question whether Mr. and Mrs. Lutsch conducted their business as general partners.

Florida Rule of Civil Procedure 1.370(b) (effect of admissions) states: “[A]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal of amendment of the admission.” (e. s.) It is now well settled that as between parties an admission in a pleading is accepted as a fact without the need of supporting evidence. Sponholtz v. Sponholtz, 180 So.2d 497 (Fla. 3d DCA 1965); Carvell v. Kinsey, 87 So.2d 577 (Fla.1956). Moreover, Young v. Metropolitan Dade County, 201 So.2d 594 (Fla. 3d DCA 1967), refers to Rule 1.370 as authorizing an admission in a sworn pleading as establishing proof of an issue at trial. Therefore, since Rule 1.370 does not even refer to admissions in pleadings, but rather to requests for admissions, it would seem that the rule in Young would apply a fortio-ri to admissions in response to a request for admissions.

While it is fairly clear that an admission obtained from a response to a request for an admission is a conclusively established fact, it is not clear as to whether that admission must be introduced into evidence at trial to preserve its conclusive effect as the appellant/cross-appellee contends. Admissions obtained under Federal Rule of Civil Procedure 36, the counterpart to Florida Rule of Civil Procedure 1.370, may be offered into evidence. C. Wright and A. Miller, 8 Federal Practice and Procedure, § 2264 (1970). However, admissions in response to requests to admit under Federal Rule 36 have been characterized as judicial admissions as distinguished from evidential admissions. Id. C. McCormick, Handbook on the Law of Evidence, § 262 (3d ed. 1972), gives this description of a judicial admission:

Judicial admissions are not evidence at all, . .. which have the effect of withdrawing a fact from issue and dispensing with the need for proof of the fact. (e. s.)

We therefore conclude that an admission obtained in a response to admit does not have to be introduced into evidence since the admission would not go to a contested issue of fact. The admissions concerning the partnership here were already facts of record; moreover, the Lutschs’ status as joint owners of the restaurant business was clearly revealed on the various transfer exhibits which were admitted into evidence. To require further proof of the partnership relationship would only, in our judgment, have been a waste of judicial time.

Appellees also urge in their cross-appeal that the trial court erred in not awarding attorney’s fees to the plaintiffs because the breached sales agreement provided that the cost of litigation to enforce the agreement would be borne by the seller. This asserted error is, however, premature. After the plaintiffs had rested, it was stipulated between counsel for the plaintiffs and defendants that evidence relating to the reasonableness of the attorney’s fee would be admitted into evidence by affidavits and that any objection as to hearsay would be waived, although defense counsel reserved the right to argue the question of the reasonableness of the fee. It appears from the record that a subsequent hearing would be held on the issue of reasonable attorney fees. This was the view taken by the trial court since it reserved jurisdiction on that issue, thereby awaiting a hearing on a motion to tax costs. Attorney’s fees may of course be taxed as costs incidental to the main cause of action if they are provided for by contract, agreement or statute. Dorner v. Red Top Cap & Baggage Co., 160 Fla. 882, 37 So.2d 160 (1948); Shavers v. Duval County, 73 So.2d 684 (Fla.1954); Rivera v. Deauville Hotel, Employer’s Service Corp., 277 So.2d 265 (Fla.1973). The entry of the judgment without the lower court acting on the reasonableness of fees does not later preclude the court from considering the question within a reasonable time after the appeal has been concluded. See Roberts v. Askew, 260 So.2d 492, 493 (Fla.1972). Such an opportunity will be afforded.

Appellees have also moved for assessment of appellate attorney’s fees against the defendants Lutschs in connection with the enforcement of the contract before this court. The motion is granted and the cause is remanded to the lower court for such determination.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

SHAW and WENTWORTH, JJ., concur.

      . The value of the business portion was determined to be $170,000, while the entire sales price of the business, its improvements, and real estate, was $274,000.

      . It is unnecessary to allege the existence of a partnership. The complaint will generally be considered sufficient if the names of the parties are designated. See DeGraum v. Jones, 23 Fla. 83, 6 So. 925 (1887); Marx v. Culpepper, 40 Fla. 322, 24 So. 59 (1898).


text:
    Ronald MASSEY, Appellant, v. NORTH AMERICAN BIOLOGICALS and Liberty Mutual Insurance Company, Appellees.
    No. WW-133.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Rehearing Denied May 14, 1981.

      Scott V. Berglund, of Abrams & Suskin, North Miami Beach, for appellant.
    H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellees.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Claimant in a workers’ compensation proceeding seeks review of an order denying an award of attorney’s fees. We reverse.

On July 25, 1977, claimant suffered a compensable injury to his right knee. The employer authorized medical attendance by Dr. Drucker, an orthopedic surgeon. Surgery was eventually performed, and claimant continued under the post-operative care of Dr. Drucker who, upon examination of claimant on April 5, 1979, advised claimant to continue with a prescribed exercise program and to return at the end of the week. Up to that time Dr. Drucker had expressed no opinion concerning whether claimant had reached maximum medical improvement nor the nature or extent of permanent disability, if any.

Instead of returning to Dr. Drucker, claimant, at the request of his attorney, went to Dr. Turke, a general surgeon, for the purpose of an examination and a determination of whether claimant had any permanent disability as a result of his industrial injury. After Dr. Turke examined claimant, he prepared a written report dated August 1, 1979, opining that claimant had reached maximum medical improvement and had sustained a 10% permanent partial disability of the leg as a result of the industrial injury.

On August 17,1979, the carrier’s workers’ compensation supervisor wrote to claimant’s attorney (a) acknowledging receipt of the claim and the report of Dr. Turke, (b) denying that Dr. Turke had been authorized to treat the claimant, (c) refusing to accept Dr. Turke’s rating of 10% permanent partial disability or any responsibility for his bill, and (d) concluding with the following statement:

“If you wish to pursue this matter in an amicable fashion, please contact me and we will make the arrangements for Mr. Massey to be examined by Dr. Drucker.”

On this latter note, the matter remained dormant for five months, until, as a result of a further letter from claimant’s attorney, the carrier took the initiative to have claimant again examined by Dr. Drucker for the purpose of determining claimant’s permanent disability rating. As a result of that examination, Dr. Drucker rated claimant as having sustained a 15% permanent partial disability of the leg, which rating the carrier promptly accepted and paid.

At hearing, all issues were settled by stipulation except entitlement to attorney’s fees, and on that issue the deputy determined that there existed no basis for the imposition of attorney’s fees against the carrier.

At that time the applicable statute, Section 440.34(1), Florida Statutes (1977), provided, in relevant part, as follows:

“... if the employer or carrier ... shall decline to pay a claim on or before the twenty-first day after .. . notice of same ... and the claimant shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation, be awarded a reasonable attorney’s fee ..."

The claim in this case was filed July 11, 1979. While ordinarily the twenty-one day period begins to run when the employer receives notice that a claim has been filed, the mere filing of a claim will not operate as notice if the claim itself does not contain sufficient information to enable the employer to initiate an investigation.. Gulfstar, Inc. v. Gordon, IRC Order 2-3267 (1977).

The rationale of this was recently explained by Judge Joanos, speaking for this Court in the case of The Latt Maxcy Corporation, et a1. v. Mann, 393 So.2d 1128 (First District Case 1981), wherein, in discussing this point, he stated:

“This result follows logically from the recognition that during the 21-day period provided by the statute, the employer has both the right and the duty to make a reasonable investigation regarding the validity of the claim. Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970); Thompson v. W. T. Edwards Tuberculosis Hospital, 164 So.2d 13 (Fla.1964); Smith v. Dixie Packers, Inc., 384 So.2d 709 (Fla. 1st DCA 1980). Under a reasonable interpretation of Sec. 440.34(1), the right to investigate must be read in conjunction with the statutory requirement that the employer receive “notice” of a claim. Certainly the legislature intended to give employers a 21-day decision-making period which could be used constructively to arrive at an informed decision. In order for the employer’s right to investigate to have any substance, the employer must know enough about the claim to be able to independently evaluate its validity. Thus, “notice” of a claim for statutory purposes occurs when the employer first receives sufficient information on which it may begin an investigation.

We need not and do not decide that the nonspecific claim, filed July 11, 1979, triggered the commencement of the twenty-one day period. We do hold that the carrier was “on notice” from the time it received Dr. Turke’s written report dated August 1, 1979, since at that time the carrier then had sufficient information upon which it might begin an investigation as to claimant’s having reached maximum medical improvement and having sustained a permanent partial disability rating as a result of the industrial injury. Granted, the carrier was not obligated to accept Dr. Turke’s opinion, but the carrier could not, except at its own peril, ignore the “notice” of the claim of a specified permanent partial disability.

The carrier contends that promptly upon receipt of Dr. Turke’s written report its claims representative wrote to claimant’s attorney offering to make the necessary arrangements for having claimant examined and evaluated by Dr. Drucker, which (so it says) was “... with the clear potential of having this accomplished within the 21-day period following receipt of Dr. Turke’s rating.” The carrier then asserts that the fault for the delay lies with claimant’s counsel who did not respond until some five months later. True, claimant’s counsel, promptly upon receipt of the carrier’s August 17th letter, could have simply made a telephone call to the carrier’s claims representative and settled the arrangements for Dr. Drucker to examine the claimant. Just as simply, the claims representative, upon receipt of Dr. Turke’s report, could have written or called claimant’s attorney and instead of writing as he did, could have and should have then and there made definitive arrangements for a prompt examination and evaluation of claimant by Dr. Drucker. It was, after all, the carrier’s affirmative duty at that point to conduct a reasonable investigation regarding the validity of the claim within the twenty-one day period provided by statute, a duty which it did not discharge by the passive position set forth in the quoted portion of its August 17th letter, followed by five months of inaction. The claimant’s attorney’s failure to promptly respond to the letter from the carrier’s claims representative cannot begin to equate with a thwarting of the carrier’s bona fide efforts to investigate, such as occurred in the case of The Latt Maxcy Corporation, supra. The facts in this case, in respect to this particular point, are much more akin to those in Roberts v. Georgia-Pacific Corporation, 394 So.2d 1093, First DCA Fla. 1981, wherein this Court held, in considering the identical statute, that the denial of an award of attorney’s fees was error.

That part of the order appealed denying an award of attorney’s fees to claimant’s attorney is reversed and this cause remanded for the entry of an order awarding an appropriate fee to claimant’s attorney.

REVERSED AND REMANDED.

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

      . The claim was a non-specific “shotgun” form, simply claiming “... all compensation benefits to which he may be entitled pursuant to F.S. 440.15.”


text:
    ASSOCIATED PLASTICS, INC., and United States Fidelity & Guaranty Company, Appellants, v. Orlando RUIZ, Appellee.
    Nos. WW-276, XX-311.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Rehearing Denied May 11, 1981.
    Summers Warden, Miami, for appellants.
    L. Barry Keyfetz, Miami, for appellee.
   PER CURIAM.

The record indicates that the claimant reached maximum medical improvement from his orthopedic injury on October 11, 1978, and not September 14, 1978. We hereby amend the' deputy commissioner’s order to reflect the later date. Having done so, we find competent, substantial evidence in the record that the claimant also reached psychiatric maximum medical improvement on the same date.

This is a consolidated appeal. We award the claimant’s attorney only one fee for his appellate services.

AFFIRMED as modified.

SHIVERS and WENTWORTH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: HUBBART, Chief Judge.

text:
    Phillip E. BAUCOM, Appellant, v. Ruby D. BAUCOM, Appellee.
    No. 79-1454.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 8, 1981.
    Smathers & Thompson and Cromwell A. Anderson and Keith E. Hope, Miami, for appellant.
    Sinclair, Louis, Seigel, Heath, Nussbaum & Zavertnik and John L. Zavertnik, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

This is an appeal by a husband in a marriage dissolution action from a final judgment entered below ordering him to pay an attorney’s fee to his wife’s former attorneys, upon the wife’s proper motion, for services rendered to the wife at the trial level. We find no abuse of discretion in the trial court’s entry of the attorney’s fee award herein, and accordingly, we affirm the judgment appealed from. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Pfohl v. Pfohl, 345 So.2d 371 (Fla.3d DCA 1977).

The wife’s former attorneys have also filed a motion here in their own name seeking an award of attorney’s fees pursuant to Section 61.16, Florida Statutes (1979) [as amplified by § 59.46(1), Fla.Stat. (1979)], for legal services allegedly rendered to the wife upon this appeal. Section 61.16, Florida Statutes (1979), provides as follows:

“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

Section 59.46(1), Florida Statutes (1979), provides as follows:

“In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.”

Prior to filing the above motion, the said attorneys were granted permission by this court to withdraw as counsel for the wife on this appeal and to proceed as an interested party to enforce the attorney’s fee award entered below from which this appeal is taken. See § 61.16, Fla.Stat. (1979). Thereafter, the said attorneys filed a brief in this court in their own behalf, which brief the wife, through her present counsel of record, specifically adopted by subsequent pleading. The said attorneys also presented an oral argument before this court in support of their position as an interested párty herein.

We have concluded, after considerable deliberation upon receiving briefs from the parties thereon, that the motion for attorney’s fees must be denied. We base this ruling on two grounds, either one of which standing alone is sufficient to defeat the motion.

A

First, the wife herein did not file the motion for attorney’s fees which, as we see it, is fatal to an attorney’s fee recovery in this case under the above statute. The primary purpose of the said statute is to insure that both parties to a marriage dissolution action have a similar ability to obtain counsel. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Bullard v. Bullard, 380 So.2d 1090, 1092 (Fla.3d DCA 1980). Where a party lacks such ability to retain counsel, the statute authorizes the court to order the opposing party to pay reasonable attorney’s fees to the party in need. Implicit therein is the requirement that the party lacking the adequate resources to obtain counsel must apply to the court for an award of attorney’s fees under the statute; the party’s attorneys themselves have no standing under the statute to apply for such an award.

It is true that upon proper motion the trial court may enter an attorney’s fee award requiring that payment be made directly to the attorneys involved and that said attorneys may thereafter seek to enforce that award in their own name. But the statute does not authorize the attorneys themselves to make application, as urged here, for their own fees. It is equally true that the wife’s former attorneys in this case have been permitted by this court to proceed as an interested party upon this appeal, but that was only for the limited purpose of seeking to sustain the trial court award of attorney’s fees to them which had been sought below by the wife for legal services rendered at the trial level. Our order on that matter did not bootstrap the wife’s former attorneys into the shoes of the wife so that they, instead of she, could apply for an award of attorney’s fees in this court under the statute. The statute, in our view, contemplates that only a party to a marriage dissolution action may apply for such an award of attorney’s fees.

B

Secondly, the bulk, if not the entirety of the legal services performed by the wife’s former attorneys upon this appeal, was rendered after they no longer represented the wife. The said attorneys filed their brief herein and made their oral argument before this court at a time when they were proceeding in their own behalf as an interested party. True, these services incidentally benefited the wife herein, but such incidental benefit cannot constitute com-pensable legal services to the wife under the above statute.

Although we recognize that technically some minimal legal services may have been rendered prior to the attorneys’ withdrawal of counsel for the wife herein, we regard the legal work in totality here as essentially performed in defending their own interests as a party herein. It is elementary that a trial court has no authority to award attorney’s fees under the above statute for legal services which have not, in fact, been rendered to the party seeking such fees. See e. g, Tart v. Prebish, 257 So.2d 616 (Fla.3d DCA 1972); Fla.Bar Code Prof.Resp., D.R. 2-106.

Affirmed. Motion for attorney’s fees denied.


text:
    Ruby D. BAUCOM, etc., et al., Appellants, v. Phillip E. BAUCOM, Appellee.
    Nos. 79-2381, 79-2390 and 79-2430.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 8, 1981.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and John L. Zavertnik and Paul A. Louis, Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellants.
    Smathers & Thompson and Hugh J. Turner, Jr. and Cromwell A. Anderson and Keith Hope, Miami, for appellee.
    Before HUBBART, C.J., and BASKIN and PEARSON, DANIEL, JJ.
   PER CURIAM.

With respect to the wife’s former attorneys Sinclair, Louis, Siegel & Heath, we affirm the orders appealed from upon a holding that: (a) the settlement agreement herein was entered into in good faith by the respective parties herein with no intent to defraud the said attorneys of their fees, thereby making the rule stated in Miller v. Scobie, 152 Fla. 328, 11 So.2d 892 (1943) inapplicable; see e. g., Sentco, Inc. v. McCulloh, 84 So.2d 498 (Fla.1955); and (b) no valid charging lien was perfected in this cause by said attorneys as the motion for same filed below was nothing more than an effort to attack the parties’ settlement as a fraud upon the attorneys under Miller v. Scobie, supra; see e. g., Herold v. Hunt, 327 So.2d 240, 241 (Fla. 4th DCA 1976).

With respect to the wife’s former attorneys Stabinski, Funt, Levine & Vega, the order dismissing the instant action with prejudice and denying said attorneys’ motion to enforce their charging lien is reversed and the cause is remanded to the trial court with directions to grant said motion upon a holding that said attorneys, in our view properly perfected a charging lien upon the settlement proceeds in this cause through the notice of lien for attorneys’ fees and costs and the motion to enforce attorneys’ fee and lien filed herein. See e. g., Cruz v. Brown, 338 So.2d 245 (Fla. 3d DCA 1976).

Affirmed in part; reversed in part.


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

text:
    Phillip Guy SELFE and Brenda Selfe, Appellants, v. J. Orson SMITH, Jr., David Willis Smith and The Hartford Accident & Indemnity Co., Appellees.
    No. UU-238.
    District Court of Appeal of Florida, First District.
    April 8, 1981.
    Rehearing Denied May 11, 1981.

      L. Ralph Smith, Jr., of Peeples, Earl, Smith, Moore & Blank, P. A., Tallahassee, for appellants.
    A. Russell Bobo, David W. Spicer and Douglas P. Jones, of McFarlain, Bobo, Sternstein, Wiley & Cassedy, P. A., Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Judge.

The principal issue presented by the appeal is whether appellant Mrs. Selfe, who was injured simultaneously with her infant son in the impact of a motor vehicle collision, may recover for her mental distress over her child’s permanent facial injury. We hold that she may not recover, and that the trial court correctly excluded proof of such damages. On defendants’ cross-appeal the issue is whether the defendants, admittedly liable to the Selfe infant for the negligent operation of defendants’ vehicle, were entitled to plead entitlement to contribution from the child’s parents because they negligently failed “to secure, restrain or otherwise protect the infant” from the foreseeable risks of a traffic accident, by installing and strapping the child in a harness or other restraint device. Again we affirm the trial court, holding that the contribution claim so predicated was properly dismissed.

Appellants and their 16-month old son Joshua were front-seat occupants of the family pickup truck, driven by appellant Phillip Selfe, when it was struck head-on by appellees’ truck. The child, who was lying unrestrained on the seat between his parents, was thrown forward by the sudden braking or by the impact, and he sustained a “crushing, cutting type of injury” inflicted by glass. Liability was admitted, and the jury returned verdicts for Phillip and Brenda Selfe in the amounts of $5,000 and $10,000 and for Joshua in the amount of $135,000. The trial court admitted evidence of Brenda’s emotional trauma due to the collision and her own injury, but insofar as possible excluded narrative testimony describing her anguish in seeing Joshua cut and bloodied at the scene and her later suffering due to Joshua’s scarring and emotional changes. The trial court previously had dismissed defendants’ counterclaim which, in respect to the child’s claim, sought contribution from the appellant parents for their alleged negligence in attending the child.

As a predicate for recovering all damages allegedly caused her by appellees’ negligence, including her suffering on account of injuries to the child, Brenda Selfe urges that the rule requiring physical impact to plaintiff as a condition of compensating plaintiff for mental anguish is satisfied by the impact and minor physical injury that Brenda Selfe herself sustained. But satisfying the “impact rule” — which is defended as verifying otherwise problematic injuries, or as drawing a needed if somewhat arbitrary line between compensable injuries and those that society requires be borne unrecompensed — until now has gained plaintiff damages for only that mental distress which is due to plaintiff’s own injury, or to the traumatic event considered in relation to plaintiff alone. E. g., Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Herlong Aviation, Inc. v. Johnson, 291 So.2d 603 (Fla.1974); Woodman v. Dever, 367 So.2d 1061 (Fla. 1st DCA 1979); Ellington v. United States, 404 F.Supp. 1165 (M.D.Fla.1975). That fact, coupled with the principle that a parent’s recovery for injury to his child is limited to pecuniary losses of services, earnings, and medical expenses, persuades us that in the present condition of Florida case law, notwithstanding her physical injury by the same impact, Brenda Selfe may not recover for her anguish, as such, resulting from the child’s injury.

Nor did the trial court err in dismissing appellees’ counterclaim against the appellant parents for contribution toward damages payable to the child. Recent decisions in the Third and Fifth Districts held, no doubt properly so, that Shor v. Paoli, 353 So.2d 825 (Fla.1977), permits a contribution action against the parent whose negligence contributes to his child’s injury. Quest v. Joseph, 392 So.2d 256 (Fla. 3d DCA 1981); Withrow v. Woods, 386 So.2d 607 (Fla. 5th DCA 1980). Those courts so held even though they consider that a child cannot sue his parent for negligence. Contra, Ard v. Ard, 395 So.2d 586 (Fla. 1st DCA 1981). We therefore agree with Quest’s holding that the negligent owner-driver of the car that struck a child in the street may claim parental contribution toward the damages assessed, on account of a parent’s negligent supervision contributing to the child’s injury. Nevertheless, for contribution purposes, we hold as a matter of law that a parent’s “duty” to supervise and protect his child, actionable if neglected, does not require the parent to buy, install, and make ready for use, in the family vehicle, a child restraint device. Reserving the question of whether a case for the jury would be presented if the parent present in the car failed to buckle his child in a restraint device already installed, we hold that no contribution claim can be made for the parent’s failure to provide the device.

The contribution counterclaim in this case may be considered inadequate in its generality, because its allegations that the elder Selfes negligently failed “to secure, restrain or otherwise protect the infant” do not descend to the particulars of how the parents could and should have protected their child from the risk of being thrown forward into the dash or windshield, supra n. 1. Plainly, appellees choose not to confront the causation-in-fact problems that would arise from their contending that Mrs. Selfe’s negligence was simply her failure to hold Joshua on her lap, and that doing so would have prevented his injury. Rather, appellees treat their pleading as alleging, or as amendable to allege, the Selfes’ specific failure to provide and strap Joshua into a harness or other child restraint device. The issue as so presented by appellees stands in the long shadow of Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966).

In Brown, this court held that a teenage passenger’s failure to latch her seat belt in a moving automobile could not be considered contributory negligence barring her recovery against the negligent, operator of a colliding vehicle. That view is the position of courts in a substantial majority of states that bar recovery on account of contributory negligence, and it is the less decisive majority position among the comparative negligence states, with whom Florida became aligned after Brown was decided. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In any event, such authority as exists for the seat belt defense seems limited to cases in which a seat belt is in fact installed and available for use at the time of the collision. See Note, Reallocating the Risk of Loss in Automobile Accidents by Means of Mandatory Seat Belt Use Legislation, 52 So.Cal.L. Rev. 91, 99 (1978) (“Recognizing the efficacy of seat belts in reducing injuries in automobile accidents, courts in a small but growing number of jurisdictions [naming California, Illinois, Indiana, Mississippi, New York, Pennsylvania, South Carolina, and Wisconsin] have allowed the presentation of evidence relating to plaintiff’s non-use of an available belt”).

While there is fragmentary authority for mitigating or apportioning damages based on a parent’s failure to fasten his child’s automotive restraint device, see Latta v. Siefke, 60 A.D.2d 991, 992, 401 N.Y.S.2d 937, 938 (App.Div. 4th Dept.1978), citing Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974), we have read no authoritative suggestion that a parent’s duty to anticipate and protect his infant passenger against the negligence of other drivers extends beyond buckling an available restraint device and encompasses an earlier duty to buy and install such a device. We do not doubt the proposition that the Selfes’ failure to buy, install, and use a child restraint device in their pickup was arguably among the causes-in-fact contributing to Joshua’s facial injuries. But we simply decline to recognize in the common law (there being no statutory obligation) an asserted duty of parents, the predicate for a potential contribution claim, to install child restraint devices in their vehicles. We hold that a jury cannot lawfully impose contribution liability on the parent, in favor of the collision-producing tort-feasor, for such an omission.

Having thus rejected a contribution claim which depends on a nonexistent antecedent duty in parents to buy and install a child restraint device, we need not advance the conventional, if troublesomely unconvincing, arguments against reducing the damages to be awarded in a comparative negligence state to one whose injury was more serious because he did not buckle an available seat belt. See Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138, 95 A.L.R.3d 225 (1977). See Note, Self-Protective Safety Devices: An Economic Analysis, 40 U.Chi. L.Rev. 421, 438-39 (1973); W. Prosser, Law of Torts § 65, at 423-24 (4th ed. 1971).

Thus we affirm the judgment of the trial court denying Mrs. Selfe recovery for her mental distress associated with Joshua’s injury and denying appellees contribution by the allegedly negligent parents. We have also considered the Selfes’ contention that the verdicts for their damages, as distinguished from Joshua’s damages, are inadequate; we find the verdicts are supported by law and by substantial competent evidence.

AFFIRMED.

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

      . The treating physician so described Joshua’s injury. The exact mechanics of the child’s injury are somewhat obscure in the record, due no doubt to difficulty in reconstructing what the child hit, or what hit the child, and to counsel’s restraint in adducing available evidence when the court excluded proof on those issues by dismissing the counterclaim, citing Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966). The counterclaim was dismissed as insufficient and unamendable, so in discussing the counterclaim issue we resort as necessary to the evidence and inferences that might have given it greater specificity, avoiding the objection that the issue is presented here too abstractly. See Quinn v. Millard, 358 So.2d 1378, 1385 (Fla. 3d DCA 1978).

      . Obviously, on the child’s claim, the trial court did not prevent the mother from describing the effects on the child of his injury, treatment, and residual scarring; nor did the court attempt to coerce the distraught mother into reporting those matters like a disinterested newscaster. The jury presumably compensated Joshua for his “loss of capacity for the enjoyment of life” as reflected in his mother’s testimony. Fla.Std. Jury Instr. 6.2a.

      . The history and rationale of the impact rule are ably stated in the majority and dissenting district court opinions in Stewart v. Gilliam, 271 So.2d 466, 477 (Fla. 4th DCA 1972), rev’d, 291 So.2d 593 (Fla.1974).

      . Youngblood v. Taylor, 89 So.2d 503 (Fla.1956); Brown v. Caldwell, 389 So.2d 287 (Fla. 1st DCA 1980); City Stores Co. v. Langer, 308 So.2d 621 (Fla. 3d DCA 1975), dism., 312 So.2d 758 (Fla.1975).

      . Annot., 92 A.L.R.3d 9 (1979) (nonuse of seat belt as contributory negligence in states barring recovery for contributory negligence).

      . Annot., 95 A.L.R.3d 239 (1979) (nonuse of seat belt as comparative negligence); see also Annot., 80 A.L.R.3d 1033 (1977) (nonuse of seatbelt as failure to mitigate damages).

      . See Note, Tests of Causation and the Florida Jury Instructions — The Current Conñict and the Need for a Change, 32 U.Fla.L.Rev. 308, 310-11 (1980):
      Under the rubric of cause in fact, attention is directed to the simple question of what happened and whether the defendant’s conduct produced the injury. This is a factual question for the jury. The second concept, proximate cause, deals with a more complex question: assuming that the defendant’s conduct did result in the injury, whether the law should attach any legal consequences to the defendant’s conduct. This inquiry, being a question of responsibility or remoteness, involves both law and policy. It is thus a question for the trial court.

      .The four principal reasons for denying the seat belt defense were comprehensively stated by the Washington court in Amend: (1) plaintiff need not predict the defendant’s negligence or anticipate an accident; (2) seat belts are not required in all vehicles, and defendant shouldn’t be permitted to take advantage of the fact that they were installed in plaintiffs vehicle; (3) most people don’t use seat belts, so a jury shouldn’t be permitted to find that they should; and (4) allowing a seat belt defense will produce “a veritable battle of experts” on the causation question, and speculative verdicts. 89 Wash.2d at 153, 570 So.2d at 143.

      . Concerning the fundamental issue of whether plaintiff should have anticipated the possibility of defendant’s negligence and the resulting accident, the student author convincingly states:
      The invocation in seat belt cases of the right to assume due care by others is also a superficial reading of precedent. This right exists only “in the absence of notice or knowledge to the contrary.” Automobile drivers are now constantly “on notice” concerning the possibility of an accident and should be held responsible for such knowledge.
      Since 1967, Florida Standard Jury Instructions in Civil Cases has recommended “that no charge be given to the effect that a person may assume that others will use reasonable care,” that being a question for the jury to determine in light of all the circumstances. Id. at 4.7. Obviously, the manufacturer’s duty to make a vehicle reasonably crashworthy is based substantially on a duty to anticipate someone’s negligence. See Nicolodi v. Harley Davidson Motor Co., Inc., 370 So.2d 68 (Fla. 2d DCA 1979).

      . Prosser calls attention to decisions, of which this court’s Brown v. Kendrick is an exemplar, recognizing as causative that contributory negligence which contributes to producing the injury-event, but not that species of negligence which “played no part in bringing about an impact or accident, but ... aggravated the ensuing damages.” W. Prosser, supra, at 423. Thus Brown held, 192 So.2d at 51: “Certainly, .. . the plaintiff’s failure to fasten her seat belt was not such negligence as to contribute to the occurrence of the accident.” Prosser suggests, at 424, that the principle of these decisions be retranslated from that of contributory negligence to that of avoidable consequences:
      [T]he doctrines of contributory negligence and avoidable consequences are in reality the same, ánd . .. the distinction which exists is rather one between damages which are capable of assignment to separate causes, and damages which are not.
      This distinction might be critical in the case before us had we found that the parents arguably had an antecedent duty, actionable in a contribution claim for its neglect, to install a child restraint device in the pickup. Without basis in the record, appellees suggest that this was a slow-speed collision. That, if true, would lend credence to appellees’ claim that Joshua would not have been injured at all had he been secured in the seat. Such allegations and proof would bring this case a step closer to, though not yet on all fours with, Florida precedents recognizing parental supervisory negligence which contributes to the injury-event itself. Parental supervisory negligence exposing a helpless child to foreseeable risks, including the negligence of others, is thus recognized as causally significant, operating as the only proximate cause to bar recovery, or as comparative negligence reducing recovery, or as concurring negligence actionable in a contribution claim by the “other” tortfeasor. Winner v. Sharp, 43 So.2d 634 (Fla.1949); Quest, supra; 3-M Elec. Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979), receded from by Quest; Alves v. Adler Built Indus., Inc., 366 So.2d 802 (Fla. 3d DCA 1979), cert. den., 378 So.2d 342 (Fla.1979); Humphrey v. City of Homestead, 224 So.2d 739 (Fla. 3d DCA 1969), cert. den., 232 So.2d 178 (Fla.1969); annot., 62 A.L.R.3d 541 (1975) (parental contributory negligence in allowing child to walk to school alone).


author: SHIVERS, Judge.

text:
    Ernest ELLISON, Auditor General of the State of Florida, Appellant, v. David L. REID, Appellee.
    No. VV-27.
    District Court of Appeal of Florida, First District.
    April 8, 1981.

      John L. Berry and Jackson D. Ingram, Tallahassee, for appellant.
    James R. Rich, and J. Elliott Messer and James C. Hauser, of Thompson, Messer, Rhodes, Vickers & Hart, Tallahassee, for appellee.
    Jim Smith, Atty. Gen., and Frank A. Viekory, Asst. Atty. Gen., amicus curiae.
   SHIVERS, Judge.

Auditor General appeals a final summary judgment holding appellee property appraiser properly expended public funds for payment of attorney fees incurred by him in successfully defending charges of official misconduct before the Florida Ethics Commission. We affirm.

In January 1975, a former employee of the Palm Beach County Property Appraisers Office filed a complaint against appellee property appraiser with the Florida Ethics Commission, alleging appellee improperly gave examination papers to his employees while attending a training program sponsored by the Department of Revenue pursuant to Section 195.002, Florida Statutes (1973). Additionally, the complaint alleged appellee plagiarized an appraisal report in order to obtain a professional property appraiser’s designation.

When the complaint was filed, there were no administrative rules or procedures governing the Ethics Commission. We issued a writ of prohibition against the Commission hearing the complaint in the absence of established rules of procedure. After the Commission promulgated the rules and procedures, it held a hearing on the merits and found no probable cause to believe appellee had used his position to obtain test answers or had plagiarized an appraisal report in order to obtain a professional property appraiser’s designation.

Between June 1975 and March 1977, ap-pellee incurred $16,798.97 in attorney’s fees for successfully defending the charges before the Commission. Appellee included this expenditure in his budget for approval by the Department of Revenue pursuant to Section 195.087, Florida Statutes (1975), and, prior to the payment of these fees, the Department of Revenue approved appellee’s budget. However, the Auditor General determined the expenditure was improper because it did not serve a public purpose for appellee to spend public funds for private counsel in his successful defense of charges before the Commission. Appellee then filed a complaint in Circuit Court seeking a declaratory judgment concerning the Auditor General’s findings.

The Circuit Court, by final summary judgment, determined appellee was acting in his official capacity and was engaged in the performance of his duties at the time the alleged misconduct occurred. The court confirmed the Ethics Commission’s findings that appellee committed no act of wrongdoing and concluded it was proper for appel-lee to expend a portion of his budget for payment of the attorney’s fees.

Appellant contends the activities of ap-pellee were outside the scope of his official powers and duties and were therefore personal in nature, and appellee should be required to bear the entire cost of his defense. We disagree.

The Circuit Court was correct in entering a summary judgment in favor of appellee. In Markham v. State Department of Revenue, 298 So.2d 210 (Fla. 1st DCA 1974), this court stated the general principle that public officers are “entitled to a defense at the expense of the public in a law suit arising from the performance of the officer’s official duties and while serving a public purpose.” At the time the alleged misconduct occurred, appellee was attending a training program sponsored by the Department of Revenue. Section 195.002, Florida Statutes (1973), referring to the Department of Revenue, states that “the department shall conduct schools to upgrade assessment skills in both state and local assessment personnel.” These continuing education schools are sponsored by the International Association of Assessing Officers in cooperation with the Florida Department of Revenue and serve a valid public purpose. The courses are intended to encourage property appraisers and their staffs to become better skilled in their official responsibilities. There is no doubt a valuable public purpose is served in protecting the effective operation and maintenance of the administration of a public office. If a public officer is charged with misconduct, while performing his official duties and while serving a public purpose, the public has a primary interest in such a controversy and should pay the reasonable and necessary legal fees incurred by the public officer in successfully defending against unfounded allegations of official misconduct. Therefore, we affirm the final summary judgment holding appellee properly expended public funds for the payment of attorney’s fees incurred by him in successfully defending charges of official misconduct before the Florida Ethics Commission.

AFFIRMED.

McCORD and JOANOS, JJ., concur.


author: PEARSON, TILLMAN, Associate Judge.

text:
    Terrel THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-848, 80-849.
    District Court of Appeal of Florida, Third District.
    April 9, 1981.

      Bennett H. Brummer, Public Defender and Richard A. Sharpstein, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   REVISED OPINION

PEARSON, TILLMAN, Associate Judge.

These appeals are from an adjudication of guilt and the imposition of an enhanced sentence for the offenses of murder in the first degree and attempted robbery, as well as from a sentence imposed upon the revocation of probation. We affirm the judgment and sentence for first degree murder, reverse the judgment and sentence for attempted robbery and affirm the revocation of defendant’s probation.

The defendant confessed that on November 21, 1979, he and his co-defendant entered Lester Wright’s grocery store with the intent to commit robbery. Once inside the store, the defendant took out a .38 caliber Smith and Wesson and pointed it at Wright. Wright then tried to bring out his own gun, at which time the defendant told Wright, “Don’t try it because it won’t work.” The defendant then fired one shot and saw Wright hit by the bullet. The two defendants thereupon exited the store, running in a southerly direction. There was additional evidence, other than the defendant’s confession, which would have been sufficient to support a jury verdict of guilt on the murder count. It is not necessary, however, for us to detail that evidence in discussing the issues presented in this appeal.

Pursuant to the jury verdicts, the defendant was adjudicated guilty of first degree murder and attempted robbery. On the murder count, he was sentenced to life imprisonment, with a 25-year mandatory sentence before becoming eligible for parole. § 775.082(1), Fla.Stat. (1979). On the attempted robbery count, he was sentenced to a consecutive 30-year term of imprisonment, with a three-year mandatory sentence before becoming eligible for parole. The State concedes that under Section 775.-087, Florida Statutes (1979), the enhancement of the latter sentence was error, as was the imposition of the mandatory minimum term thereunder. The first three of the defendant’s points concern the sentence he received for attempted robbery. As we have already noted, we find it necessary to reverse the attempted robbery conviction; therefore, we will proceed to the defendant’s next points.

The defendant’s fourth point questions whether a separate sentence may be imposed for the underlying felony of attempted robbery. Section 782.04(l)(a), Florida Statutes (1979), provides that “[t]he unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed. . .or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate [certain enumerated felonies, including robbery,] . . .shall be murder in the first degree...” State v. Pinder, 375 So.2d 836 (Fla.1979), and its progeny have held that a defendant cannot be convicted of both a felony murder and the felony which serves as its basis, where the only evidence to sustain the murder conviction is furnished by proof that the killing occurred as the result of one of the felonies enumerated in Section 782.04(1), Florida Statutes (1979). In other words, where the underlying felony is indispensable to the murder conviction and where there is no evidence of premeditation upon which the jury could have based its guilty verdict for first degree murder, a defendant cannot be convicted of both the felony murder and the felony which served as the basis for the felony murder conviction. See Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980); and Taylor v. State, 386 So.2d 825 (Fla.3d DCA 1980).

It is clear from this record that the killing occurred during the course of an attempted robbery. Here, as was pointed out in Hegstrom, supra, the thrust of the State’s closing argument was that the defendant should be found guilty on the felony murder basis. However, the only possible basis for a finding of a premeditated intent by the defendant to kill Mr. Wright lies in the defendant’s statement just before he fired the fatal shot, “Don’t try it because it won’t work.” Premeditation is a fully-formed and conscious purpose, formed upon reflection and deliberation, McCutchen v. State, 96 So.2d 152 (Fla.1957), but the reflection and deliberation need not occur for a particular period of time before the killing. It may occur a moment before the act. Davis v. State, 138 Fla. 798, 190 So. 259 (1939).

The facts of this case are reasonably susceptible only to a premeditated intent to commit a robbery. An intent to kill or maim if resisted is one of the essential elements of armed robbery. Arnold v. State, 83 So.2d 105 (Fla.1955); and Wilson v. State, 155 Fla. 511, 20 So.2d 673 (1945). Here, every action of the defendant is consistent with the intent to rob and the only action consistent with premeditated murder is the expressed warning which the display of the weapon necessarily invoked. If there were anything before the jury from which it could be concluded that the defendant intended to kill Mr. Wright, as well as to rob him, then our decision would be otherwise. Here, we hold that the defendant’s conviction for attempted robbery cannot stand because the attempted robbery was the underlying felony upon which the defendant was found guilty of the felony murder.

The remaining points do not present reversible error on this record. The fifth point, which claims error upon the revocation of the defendant’s previously-imposed probation, relies upon the proposition that the defendant’s stipulation at the time of the revocation proceeding was not broad enough to support the revocation order. The stipulation was clearly intended to provide the basis for the court to proceed and no reservation of the point now urged was suggested. Such sleight of hand, “now you see it, now you don’t,” is not a part of our law. See Simmons v. State, 305 So.2d 178 (Fla.1974). The sixth point claims that the trial court improperly denied the defendant’s motion to suppress his confession. The point is without support in the record. The seventh, and final, point, which claims that the killing was a justifiable homicide, is based solely on the defendant’s testimony from the stand. We hold that it was properly submitted to the jury for its consideration. The rejection of the defendant’s testimony is supported by the conflicting evidence in the record.

The judgment and sentence for first degree murder are affirmed, as is the order revoking the defendant’s probation. The judgment and sentence for attempted robbery are reversed.

Affirmed in part, reversed in part.

      . The perpetration or attempt to perpetrate any of these felonies is the legal equivalent of that premeditated design to effect death that is otherwise a necessary attribute of first degree murder. Vasil v. State, 374 So.2d 465 (Fla.1979).

      . In Slater v. State, 316 So.2d 539 (Fla.1975), the Florida Supreme Court held that the defendant could properly be charged with, and convicted of, both first degree murder and robbery — two separate offenses for which separate sentences were properly imposed. The Supreme Court noted that the Second District, in Pinder v. State, 366 So.2d 38 (Fla.2d DCA 1978), had opined that in light of Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the decision in Slater, supra, was no longer applicable where a defendant is convicted of felony murder and there is no evidence of premeditation other than the fact that the killing occurred during the perpetration of the underlying felony. In a footnote, the court in State v. Pinder, supra at 836, pointed out that what Slater really said was that two separate sentences could be imposed for premeditated murder and robbery arising out of the same criminal episode. The court noted that in Slater there was no indication that there was a lack of evidence to prove premeditation and referred to comments made by the Slater court in imposing the death penalty, which went to the question of premeditation. However, as will be discussed infra, such is not the case here.