author: SUNDBERG, Justice.

text:
    DADE COUNTY, a political subdivision of the State of Florida, d/b/a Jackson Memorial Hospital, Petitioner, v. Isabel FERRO and Jorge Ferro, Respondents.
    No. 57282.
    Supreme Court of Florida.
    June 12, 1980.
    Michael J. Murphy, of Fowler, White, Burnett, Hurley, Banick & Strickroot, and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    Robert L. Parks and Joel D. Eaton, of Podhurst, Orseck & Parks, Miami, for respondents.
   SUNDBERG, Justice.

Respondent Isabel Ferro, joined by her husband, Jorge Ferro, brought this medical malpractice suit seeking damages against Dade County d/b/a Jackson Memorial Hospital (Hospital) for alleged negligent radiation therapy treatments which were administered to Mrs. Ferro between December, 1970, and May, 1971. The treatment resulted in the permanent loss of the use of both of respondent’s arms. Respondent discovered the alleged malpractice in September, 1975, and filed a medical mediation claim on April 27, 1977, within two years after discovery of the alleged malpractice but more than four years after the allegedly negligent treatment occurred.

The Hospital moved for a judgment on the pleadings, or in the alternative, a summary judgment, based on the affirmative defense of the statute of limitations contained in section 95.11(4)(b), Florida Statutes (1975), which requires that an action for medical malpractice be brought within four years from the time the incident giving rise to the action occurred. The trial court held that section 95.11(4)(b) (effective May 20, 1975) applied to the facts in this case but denied Hospital’s motions on the ground that the statute unconstitutionally violates respondent’s right of access to the courts for redress of any injury as guaranteed by article I, section 21, Florida Constitution. The trial court specifically found that the legislative findings contained in the preamble to The Medical Malpractice Reform Act of 1975 were insufficient to demonstrate an “overpowering public necessity” which would justify abolition of respondents’ common-law rights. Petitioner, by certiorari, seeks review of the interlocutory order on the basis that the trial court passed upon the validity of the state statute and upon final judgment such action would be directly appealable to this Court. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

There are two issues presented by this petition for certiorari. First, whether the four-year absolute bar contained in section 95.11(4)(b), Florida Statutes (1975), is applicable to the facts of this case as found by the trial judge. Second, if applicable to this case, whether the four-year absolute bar to medical malpractice claims contained in section 95.11(4)(b) unconstitutionally denies a claimant access to the courts under article I, section 21 of the Florida Constitution. Because we resolve the first issue adversely to the ruling of the trial court, it is unnecessary to reach the second issue presented. Singletary v. State, 322 So.2d 551 (Fla.1975); Re Estate of Sale, 227 So.2d 199 (Fla.1969).

To assist in resolution of the question presented it is beneficial to review the history of chapter 95, Florida Statutes, as it pertains to the facts in this case. On the inclusive dates during which the alleged malpractice occurred, the applicable statute of limitations was section 95.11(4), Florida Statutes, which established a four-year limitation period for actions not otherwise specifically provided for in chapter 95. See Foley v. Morris, 339 So.2d 215 (Fla.1976). The limitation period in medical malpractice actions, however, was measured from the date of discovery of or opportunity to discover the injury, through use of reasonable care. See Nardone v. Reynolds, 333 So.2d 25 (Fla.1976).

By chapter 71-254, Laws of Florida, effective July 1,1972, section 95.11(6), Florida Statutes, was amended to impose a two-year statute of limitations for medical malpractice claims. It was provided therein that a “cause of action . . . [for medical malpractice is] not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.” (Emphasis supplied.) Apart from shortening the limitation period, this amendment essentially codified existing case law respecting the date upon which medical malpractice claims accrued. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Vilord v. Jenkins, 226 So.2d 245 (Fla. 2d DCA 1969). See Nardone v. Reynolds, supra.

Effective January 1,1975, section 95.11(6) was amended and redesignated section 95.-11(4), Florida Statutes, by chapter 74-382, Laws of Florida. The two-year limitation period for medical malpractice actions was brought forward, but the “accrual” language of the former section was modified to read that “the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” See Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978), cert. denied, 361 So.2d 831 (Fla. 1978).

The version of section 95.11(4), Florida Statutes, with which we are here concerned was the result of an amendment enacted by chapter 75-9, Laws of Florida, which became effective May 20,1975. The pertinent portion of subsection (b) of section 95.11(4) provides:

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

Respondents assert that this provision contains two different limitation periods. The first is the classic limitation period which commences to run upon discovery of the injury (or ability to discover through the exercise of due diligence). The other limitation period is an “ultimate” or “final repose” provision which commences to run upon the date of the incident out of which the injury arose without regard to time of discovery. As noted, respondents’ suit was filed within two years of the alleged discovery date but more than four years from the incident or occurrence.

It is maintained by respondents that since chapter 75-9 was enacted subsequent to the incident or occurrence out of which Mrs. Ferro’s injury arose, application of the four-year repose provision to them would result in retroactive application. Since chapter 75-9 evidences no intent that it was meant to be retroactively applied, it cannot be applied to respondents under the rationale of Foley v. Morris, supra. Petitioner responds that chapter 75-9 is not a retroactive measure vis-a-vis respondents because their injury was not discovered until September 1975, and therefore no cause of action arose until after the effective date of that enactment (May 20,1975). Based upon the decision in Johnson v. Szymanski, 368 So.2d 370 (Fla. 2d DCA 1979), the circuit judge agreed with petitioner and ruled that application of the statute to the facts of this case was prospective in nature.

We must respectfully disagree with the learned trial judge in his conclusion that Johnson v. Szymanski is controlling here. In that case the four-year statute of limitation was in force at the time the medical malpractice occurred; however, prior to discovery of the injury chapter 71-254, Laws of Florida, was enacted which imposed a two-year limitation period measured from the date the cause of action accrued. Accrual under that enactment was expressly linked to discovery of the injury or ability to discover the injury through use of reasonable care. The trial court in Johnson had concluded that the pivotal date at which the limitation period attached was the date the malpractice occurred, and not the date it was discovered. Consequently, the two-year statute was deemed retroactive as to the plaintiff and inapplicable. The district court of appeal recognized the rule of Foley v. Morris that a shortened limitation period should not be given retroactive effect unless the legislature has expressed such intent in “clear and explicit language.” It concluded, however, that the cause of action did not accrue under the very terms of chapter 71-254 until the injury was or should have been discovered. It reasoned, then, that since the shortened statute of limitations did not attach until discovery, which in that case was subsequent to the effective date of the statute, no retroactive effect was involved in applying that shortened limitation period.

Conceding the correctness of the district court opinion in Johnson v. Szymanski, as do the respondents, it is distinguishable from the instant case in two particulars. First, the underlying basis for the decision was the express language of chapter 71-254 which stated that no cause of action accrued until discovery, and under the statute accrual of the cause of action was the only relevant measurement date. Second, and more important, that case did not deal with a “final repose” provision which is completely unrelated to discovery of the injury. While the date of discovery is entirely relevant in ascertaining the attachment date of a statute of limitations which measures from that date, it is equally irrelevant in ascertaining the attachment date of a statute of limitations which measures by its terms from the date of the incident giving rise to the injury. The only relevant date in the case of the latter type statute of limitations is the date of occurrence or incident. Consequently, while the reasoning of the district court in Johnson is applicable to the two-year limitation period of section 95.11(4)(b), that reasoning may not be extended to the four-year limitation period of the statute.

Petitioner next contends that Foley v. Morris, supra, is inapplicable to the facts of this case because there the cause of action accrued through discovery prior to the effective date of the shortened statute of limitations. The assertion is that no substantive rights accrue until the discovery takes place and, therefore, no retrospective consequences can flow from a shortened statute of limitations which is enacted prior to discovery. To support this proposition the following quotation from Foley is utilized:

Generally referring to the conceded authority of the Legislature to pass a statute of limitations or to change a period previously established by law and to make the changes applicable to existing causes of action so long as a reasonable time is permitted by the new law for commencing an action before the action is barred, we approve the following language from American Jurisprudence:
“Where the legislature has not sufficiently manifested its intent whether a statute of limitations should apply retrospectively or should apply prospectively only, the question is passed on to the courts to determine, as a matter of construction, in which of these ways the statute should apply. In most jurisdictions, in the absence of a clear manifestation of legislative intent to the contrary, statutes of limitation are construed as prospective and not retrospective in their operation, and the presumption is against any intent on the part of the legislature to make such a statute retroactive. Thus, rights accrued, claims arising, proceedings instituted, orders made under the former law, or judgments rendered before the passage of an amended statute of limitations will not be affected by it, but will be governed by the original statute unless a contrary intention is expressed by the legislature in the new law.” 51 Am.Jur.2d § 57, Limitation of Actions.

339 So.2d at 217. Petitioner emphasizes the term rights accrued under the former law and concludes that the rule of Foley only applies to causes of action which have accrued through discovery and are, therefore, vested prior to enactment of the shortened statute of limitations. There are at least three flaws in this argument.

First, the quoted passage from American Jurisprudence refers to “rights accrued, claims arising, proceedings instituted, orders made under the former law, or judgments rendered before the passage of an amended statute of limitations.” It is not limited to rights accrued in the sense of the accrual of a cause of action. Where a statute of limitations is measured by occurrence rather than accrual of a cause of action it must be assumed that some claim arose upon the occurrence of the event causing injury.

Second, the penultimate paragraph of the opinion in Foley states:

Since the legislative intent to provide retroactive effect to Section 95.11(6), Florida Statutes, is not express, clear, or manifest, we conclude that it does not apply to causes of action occurring prior to its effective date.

339 So.2d at 217 (emphasis supplied). If the decision was limited to situations where a cause of action had “accrued” prior to the effective date of the shortened statute, it is unlikely that Justice Drew would have utilized the term “occurring.”

Last, such a limited construction of the Foley decision simply would make no sense when dealing with a statute of limitations which measures from the date of the occurrence or incident. Not only is the date of discovery and accrual irrelevant to such a statute, but application of that date to a case such as this achieves the absurd result of extinguishing a cause of action at the very time the act first became effective. In Maltempo v. Cuthbert, 288 So.2d 517 (Fla. 2d DCA 1974), cert. denied, 297 So.2d 569 (Fla.1974), the district court expressly refused to countenance such a result by retroactively applying the shortened statute of limitations:

If we were to answer the certified question affirmatively, we would be holding that the plaintiff’s cause of action expired at the very time the act first became effective. We hold that this result should not obtain and, therefore, answer the certified question in the negative.

288 So.2d at 520. Maltempo was discussed and approved in Foley.

Accordingly, we hold that section 95.-ll(4)(b), Florida Statutes (1975), evinces no express, clear or manifest intent that it be applied retroactively and, therefore, the four-year limitation period contained therein may not be applied to a medical malpractice claim where the occurrence or incident out of which the claim arose predates the effective date of the statute.

For the reasons expressed herein the order of the trial court is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON and ALDERMAN, JJ., concur.

BOYD and McDONALD, JJ., dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Frederick B. SPIEGEL, Respondent.
    No. 59024.
    Supreme Court of Florida.
    June 12, 1980.
    Wallace N. Maer, Asst. Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Frederick B. Spiegel, in pro. per., for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On April 7,1980, The Florida Bar filed its petition alleging:

a) The accused was convicted of a felony in September of 1974 and was by the operation of Rule 11.07(2)(a) of the Integration Rule of The Florida Bar, suspended from the practice of law indefinitely.
b) As a result of the suspension there was media coverage which included at least three (3) consecutive articles in the local newspapers as well as The Florida Bar media coverage.
c) As a result of the conviction, from which the respondent was ultimately found not guilty, [see Spiegel v. State, 349 So.2d 187 (Fla. 3d DCA 1977)] the respondent stood suspended for more than three (3) years.
d) On Januray [sic] 9, 1979, the respondent filed a Notice of Reversal of Felony Conviction, pursuant to Rule 11.07(2)(a) of the Integration Rule of The Florida Bar, and subsequently the Florida Supreme Court entered an Order Nunc Pro Tunc reinstating the Petitioner as a member of The Florida Bar in good standing as of January 9, 1979.
e) On July 24, 1979, a grievance committee found probable cause for further disciplinary proceedings as to possible violations of the Disciplinary Rule of The Florida Bar by respondent. However, based on the three-year suspension already served, the grievance committee agreed to accept a Conditional Guilty Plea in exchange for a Public Reprimand to be published in the Southern Reporter.
f) The Board of Governors, at its meeting of March 13-15,1979, voted to accept respondent’s Conditional Guilty Plea in exchange for a Public Reprimand to be published in the Southern Reporter and the three-year suspension already served.

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Frederick B. Spiegel, is hereby disciplined by suspension from The Florida Bar for a period of three years, already served, and reinstated as a practicing lawyer. Further, in accordance with the Conditional Guilty Plea, he is to be disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $50 are hereby taxed against the Respondent.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. John B. FASSETT, II, Respondent.
    No. 59033.
    Supreme Court of Florida.
    June 12, 1980.
    Lance J. Thibideau, Asst. Staff Counsel, Fort Lauderdale, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for complainant.
    John B. Fassett, II, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of article XI, rule 11.13(6)(c) of the Integration Rule of The Florida Bar and Disciplinary Rules 6-101(A)(3), 7-102(A)(5), and 7-102(A)(8) of the Code of Professional Responsibility of The Florida Bar. We approve the Petition, and we hereby reprimand respondent, John B. Fas-sett, II, for these violations. Respondent’s designation in wills, estates and estate planning is hereby suspended for a period of one year from the entry of this opinion. The publication of this opinion in Southern Reporter shall serve as Respondent’s public reprimand. Costs in the amount of $361.25 are hereby taxed against the Respondent.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: COBB, Judge.

text:
    Bessie ANDERSON, Appellant, v. John S. CHIROGIANIS et al., Appellees.
    No. 79-916/T4-516.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Rehearing Denied June 26, 1980.
    Ned N. Julian, Sanford, for appellant.
    Sutton G. Hilyard, Jr., and Karen L. Goldsmith of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
   COBB, Judge.

On August 1, 1978, the plaintiff, while fishing beside a road, was struck in the leg by a piece of sheet metal which fell from defendants’ passing truck. She was taken to a hospital emergency room, where physicians determined that no sutures were required. Butterfly bandages were applied and the injury covered with sterile gauze. The day after the accident, an investigator employed by plaintiff’s attorney removed the bandages in order to photograph and measure the laceration.

According to trial testimony of the treating physician, some infection of the injury was apparent on the following day, August 3.Subsequently, an abscess developed requiring surgery and thirty-seven days of hospitalization, resulting in a substantial area of scar tissue. The treating physician attributed all of this to the initial injury. He also testified to plaintiff’s complaints of soreness in the injury area while working in the fields in September, 1978, although he anticipated ultimate resolution of this problem. He gave plaintiff a five per cent disability rating.

On the other hand, an examining physician attributed some of her pain complaints to arthritis in the right hip, and said that the laceration would not impede plaintiff’s mobility or working capacity. He also testified that, because of the danger of contamination and infection, lay people should not remove dressings. There was testimony from another physician that plaintiff previously had suffered from pain in the right thigh in 1974 caused either by muscle strain or arthritis of the hip.

The medical expenses introduced into evidence by the plaintiff aggregated $6,939.05. The trial court’s instructions were standard ones and are not challenged on this appeal. The plaintiff’s counsel, in closing argument, used the figure of $7,000 as representing her total medical expenses. The jury returned a verdict for $7,000.

The issue on appeal is whether or not plaintiff is entitled to a new trial because of inadequate damages.

Given the amount of damages returned which closely approximates the total medical expenses, the only reasonable inference is that the jury found the original laceration to be the cause of the later infection. In other words, the jury must have rejected the defendant’s theory that the infection and resulting medical expenses were caused by the plaintiff’s supervening act of removing the bandages for an investigator to photograph and measure the laceration. Otherwise, an award of medical expenses up to the date the photographs were taken would have been far less.

Defendants did not object at trial to the reasonableness or necessity of the medical expenses, but argued only the causal relationship to the incident of August 1. Therefore, the issue narrows to a question of whether $60.95 is adequate compensation for the plaintiff’s pain and suffering, which included thirty-seven days of hospitalization.

According to Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969), the test to be applied in determining the adequacy of the verdict is whether a jury of reasonable men could have returned that verdict. In other words

it must be shown that the jury did not consider all the elements of damage involved, missed a consideration of the issues submitted or failed to discharge their duty as given them by the Court’s charge. Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376, 378 (1941).

Here, the trial court instructed the jury that should they find for the plaintiff on the question of liability, then they should award damages to adequately compensate for her losses. The jury was specifically instructed to consider as elements of damage: bodily injury; pain and suffering, past and future; reasonable medical expenses, past and future; and loss of earnings and ability to earn, past and future.

We have reviewed the record and find the verdict to be grossly inadequate. In addition to medical expenses, there was considerable' evidence of additional damages, such as pain and suffering, for which the plaintiff was entitled to recover if properly considered by the jury. See Short v. Grossman, 245 So.2d 217 (Fla.1971).

Accordingly, the judgment of liability in favor of the plaintiff is affirmed; the order denying plaintiff’s motion for new trial on the grounds of inadequate damages is reversed; and the cause remanded with directions to grant the plaintiff a new trial on the issue of damages.

AFFIRMED in part; REVERSED in part; REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

      . In the Griffis case, after reviewing the record, the court found a jury verdict of $1,785 was clearly and grossly inadequate where actual medical expenses were approximately $797.90.


author: DAUKSCH, Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert LAWLER, Appellee.
    No. 79-394/T2-16.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Rehearing Denied June 30, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Jackson 0. Brownlee, Asst. State Atty., Inverness, for appellant.
    Michael H. Hatfield, Umatilla, for appel-lee.
   DAUKSCH, Chief Judge.

This is an appeal from an order dismissing an information and a criminal case under Rule 3.190(c)(4), Florida Rules of Criminal Procedure. Under this rule an accused may set out the facts of the case against him and plead that the facts do not set out a prima facie case of guilt. The state may either demur or traverse the facts. The trial court, whether the state responds or not, must consider the motion and any response and decide whether the facts constitute a prima facie case of guilt. If the undisputed facts do not establish a prima facie case of guilt, then the court must dismiss the information. However, if the undisputed facts do set out a prima facie case or if material facts are in dispute, then the court must not dismiss the information.

From the appellee’s Motion to Dismiss:
3.The undisputed facts are as follows:
a. The arrest of the Defendant took place at least two hundred sixty yards from the position of a large vessel and a bus found to have contained approximately twenty tons of cannabis.
b. The Defendant was found lying face down in some bushes approximately twenty minutes after the vessel had been boarded by officers of the Florida Marine Patrol. Two gun shots had been fired. The Defendant offered no resistance and made no statement to the arresting officer. He did not try to flee or escape. The State can not prove that the Defendant had any controlled substance in his actual possession at the time of his arrest. The arresting officer has given sworn testimony that, in his opinion, the Defendant violated no law of the State of Florida, either a felony or misdemean- or, in his presence and was arrested only because there was alleged to have been a major felony committed approximately two hundred sixty yards away from the Defendant and there were allegedly some unidentified persons seen running from the the vessel where the contraband was located. The Defendant has not been identified as any of the persons who allegedly fled the area where the contraband was confiscated.
c.The State can produce no witness who will testify that the Defendant had in his actual possession an amount of cannabis exceeding even five grams.
d. The State can not produce any witness who will testify that on February 2,1978, the Defendant ever came within two hundred fifty yards of the location of the alleged contraband.
e. The State can not produce any witness who will testify that this Defendant ever saw any of the contraband for which he is being prosecuted.
f. The State’s expert witness will testify that there were no fingerprints matching those of the Defendants (sic) upon any items of contraband in this case and those fingerprints found upon tangible movable items could have been placed upon the items months before the Defendant’s arrest on the 2nd of February, 1978. The exception to this statement is one fingerprint upon a Miami Herald taken from a Blue Wayne Bus.
g. Over three hundred latent prints were processed from the scene which have not been associated with any person charged in this incident.
h. The Blue Wayne Bus aforementioned was parked in this area used for public camping and there is no evidence that the Blue Wayne Bus, in which Defendant’s fingerprints were found, contained any controlled substance in violation of Florida Statute.
i. The sole connection between the Blue Wayne Bus and the alleged felony is its location near other vehicles alleged to be associated with the felony in progress.
j. This is a case of joint constructive possession in an area not in his exclusive possession.

Without going through all the facts exhaustively, we have determined there are enough to establish a prima facie case of guilt. The accused was found within two hundred sixty yards of a vessel and a bus which contained twenty tons of cannabis and the accused’s fingerprints were on some things, one of which was a newspaper in the bus. While the motion is rather inconsistent, apparently the accused was found in actual possession of less than five grams. In paragraph 3b it says “The State cannot prove that the Defendant had any controlled substance in his actual possession at the time of his arrest.” Paragraph 3c says no witness will testify he had “an amount of cannabis exceeding even five grams.” We do not attribute this to poor draftsmanship but to evasiveness.

There are enough facts in the motion to establish a prima facie case under the Rule 3.190(c)(4) requirements. The failure of the state to demur or traverse is not material in this case. State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971).

The order of dismissal is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

COBB and SHARP, JJ., concur.


text:
    Everett L. BURNSIDE, Appellant, v. Jesse McCRARY and Wilkie D. Ferguson et al., Appellees.
    No. 79-1518.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied July 18, 1980.

      Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Long & Smith and H. T. Smith, Jr., Miami, for appellees.
    Before HUBBART and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The final summary judgment under review, which was entered in favor of the defendant Wilkie Ferguson in this legal malpractice action, is affirmed upon a holding that: (a) the defendant Ferguson was, as a matter of law, not guilty of the legal malpractice charged in the plaintiff’s complaint because the record affirmatively establishes that the alleged negligent acts occurred after the defendant had been elevated to the bench without having retained any financial interest in the subject litigation which was thereafter handled by the defendant’s former law firm, and (b) no reversible error appears in the trial court’s denial of the plaintiff Everett L. Burnside’s motion to amend his complaint because the record affirmatively establishes that the alleged additional acts of negligence in the proposed amended complaint in no way caused the dismissal of the plaintiff Burnside’s subject action in federal court, and, thus no actionable legal malpractice was on this record proposed by the plaintiff in the amended complaint.

Affirmed.

      . Our review of the federal district court order signed by Judge Peter T. Fay and dated January 18, 1974, indicates that the plaintiff Burnside’s subject federal action was dismissed as an individual action because “no response was filed by Plaintiff to Defendant’s Motions to Dismiss and to Strike the First Amended Complaint within the time limits established by this Court’s Local Rule 10(c),” (R 546) and as a class action because “no response was filed by Plaintiff to Defendant’s Motion to Dismiss Class Action, no response was made by Plaintiff or his counsel to this Court’s Order scheduling the hearing to determine whether this cause should be permitted to proceed as a class action, and no appearance was made at the January 3,1974 class action by either Plaintiff or his counsel” (R 546). In short, the plaintiff Burnside’s federal court action was dismissed for failure of plaintiffs counsel to file proper responsive pleadings when required and to make necessary court appearances, acts which the record affirmatively establishes were committed after the defendant Ferguson had left his former law firm and assumed the bench. As such, the additional acts of alleged negligence charged in the proposed amended complaint are moot and cannot constitute actionable legal malpractice herein as they did not form the basis upon which the subject federal court action was dismissed.
      In this connection, we do not read footnote 2 of the court’s order as stating additional grounds for the dismissal of the individual action as it is plain that the court hei<¿ was merely listing the various grounds of the motions to dismiss and strike, which motions the plaintiffs counsel never responded to; it was the failure to respond, however, that formed the basis for the dismissal of this portion of the plaintiffs lawsuit. We reject plaintiff’s contentions to the contrary on this appeal.


author: DANAHY, Judge.

text:
    Janis Indulis UBELIS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1146.
    District Court of Appeal of Florida, Second District.
    May 30, 1980.
    Rehearing Denied June 27, 1980.
    J. Leonard Fleet, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The appellant was driving a motor vehicle when he struck another vehicle causing the driver’s death. He was charged by a two count information with (1) manslaughter, causing another’s death when driving while intoxicated, in violation of Section 860.01(2), Florida Statutes (1977); and (2) vehicular homicide, operating a motor vehicle in a reckless manner likely to cause the death of another, in violation of Section 782.071, Florida Statutes (1977). A jury found him guilty on both counts and the court sentenced him to three years on each count, to run concurrently. The appellant contends he may not be convicted of both manslaughter and vehicular homicide when there was a single death. We agree.

Only one judgment and sentence can be imposed for one homicide even though the information charges two separate statutory violations. In Miller v. State, 339 So.2d 1129 (Fla.2d DCA 1976), the appellant was charged with manslaughter while intoxicated and manslaughter by culpable negligence. A jury found him guilty as charged on both counts and the trial court sentenced him to a term of ten years on count I to run concurrently with a one-year term on count II. This court reversed reasoning that the separate counts in the information charged only a single offense by different acts for which only one sentence is appropriate. The same result is found in the cases of Carr v. State, 338 So.2d 267 (Fla.lst DCA 1976), Phillips v. State, 289 So.2d 769 (Fla.2d DCA 1974), and Thomas v. State, 380 So.2d 1299 (Fla.4th DCA 1980). In Brown v. State, 371 So.2d 161 (Fla.2d DCA 1979), the appellant, like the appellant in the case at bar, was charged with vehicular homicide and manslaughter. The trial court entered a judgment and sentence only on the conviction for manslaughter. This court stated “the trial judge correctly recognized that only one sentence can be imposed for the homicide although the information charged two separate offenses.” Id. at 162. In a case involving the same offenses, our sister court came to the same conclusion. Stridden v. State, 332 So.2d 119 (Fla.lst DCA 1976).

Because the appellant’s act of driving a vehicle caused a single death, he could not be convicted of both of the offenses charged. We therefore reverse and remand to the trial court for the entry of but one judgment adjudicating appellant guilty of manslaughter and the imposition of one sentence therefor. It is not necessary for appellant to appear in court for resentenc-ing.

GRIMES, C. J., and BOARDMAN, J., concur.


author: CAMPBELL, Judge.

text:
    Nancy D. HOLMES, Appellant, v. Charles D. HOLMES, III, Appellee.
    No. 79-1859.
    District Court of Appeal of Florida, Second District.
    May 30, 1980.
    As Modified On Denial Of Rehearing and Clarification June 25, 1980.
    Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for appellant.
    Henry P. Trawick, Jr. of Trawiek & Grif-fis, P. A., Sarasota, for appellee.
   CAMPBELL, Judge.

The former wife, Nancy D. Holmes, appeals the lower court’s judgment on her motion for contempt, seeking to enforce certain provisions of the final judgment of dissolution of marriage dated August 19, 1971, which incorporated an agreement between the parties providing for, among other things, alimony and child support and medical and educational benefits for the children of the parties. The former husband, Charles W. Holmes, III, cross-appeals.

The wife’s motion for contempt sought relief in regard to the husband’s failure to pay past due alimony and child support, failure to pay medical expenses incurred for the four children of the parties, failure to pay to the wife on behalf of the children necessary expenses for their college education, and failure to provide the wife with a major medical insurance policy. The court entered its judgment on August 16, 1979, and awarded the wife $846.83 for past due alimony and child support, $500 toward medical expenses for the children, and required the husband to pay the premiums on one of two designated medical insurance policies to be chosen by the wife.

However, the trial court’s judgment dismissed that portion of the wife’s motion for contempt which sought to compel the husband to pay to the wife the college education expenses for three of the children, holding, under the authority of Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978), that because the three children were over the age of eighteen, they must file an action in their own behalf to enforce the agreement between husband and wife for their education expenses. We affirm the trial court in all but its dismissal of the wife’s motion regarding the college education expenses of the children and reverse in that respect.

At the time of the trial court’s judgment on the motion for contempt, two of the three children to which the college education issue pertained were twenty-one and the third was twenty years of age. All three are twenty-one at this time.

The agreement between the husband and wife in 1971 provided for the wife to have custody of the children and for the husband to pay to the wife twice a month a sum certain designated for the support and maintenance of the wife and children. It also provided that upon emancipation of any child that sum would be modified, emancipation being defined as follows:

“Emancipation of a child” as used in this agreement shall mean that time when a child either: (a) marries, (b) permanently leaves Wife’s place of residence, (c) becomes financially self-supporting, (d) attains the age of 21 years, provided that she is not then actively pursuing a full time college education, or (e) terminates by graduation or otherwise her pursuit of higher education, including college, advanced and professional education and is 21 years or older.

It is clear from those terms that the age of the children was not to be the determinative factor in regard to their “emancipation.”

The agreement specifically provided for the children’s college education under a section entitled “Additional Support for Children”, which reads:

Husband further agrees to pay all expenses reasonably necessary in connection with the college and professional education of such of the children as desire to pursue same, including tuition, books, room, board and incidental expenses; provided, that Wife shall have consulted Husband and obtained his approval with respect to the selection of the college or university in which such education is to be pursued.

That provision obviously contemplates the wife being primarily responsible for the selection process of a college for the children’s education, subject to the husband’s approval.

The trial court’s reliance on Kern v. Kern, supra, was misplaced. There the wife had filed for modification of the child support provisions of a final judgment of dissolution of marriage, seeking to require the husband to provide for the college education of the adult children of the parties where there had been no agreement to do so and the final judgment did so provide. The district court there held that absent an agreement, a divorce court had no jurisdiction to require a parent to furnish an adult child with support in the form of a college education. In a footnote to that holding, the court emphasized: “Nothing in this opinion should be construed as limiting the power of a court to enforce a stipulated-to agreement between the parties in a dissolution proceeding.” 360 So.2d at 486, n.6.

Here the agreement between the parties specifically contemplated that the husband would pay the college education expenses of the children beyond the age of twenty-one if necessary. The wife has standing to seek enforcement of that provision, both by reason of her being the custodial parent of non-emancipated children and by reason of being the contracting party to the agreement so providing. This is in accord with the recent decision of Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980).

We, therefore, AFFIRM in part and REVERSE in part and remand for treatment consistent with this opinion.

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

      . The same rationale would, of course, apply to enforcement of any amounts due for child support until the emancipation of the children as defined in the agreement.


text:
    In re ESTATE of Anna YANOWSKY, Deceased. In re ESTATE of Peter YANOWSKY, Deceased.
    Nos. 80-167, 80-168.
    District Court of Appeal of Florida, Second District.
    May 30, 1980.
    Rehearing Denied July 3, 1980.
    Gregory H. Fisher and Stephen J. Wein, St. Petersburg, for appellant.
    William C. Ballard and Timothy K. Mar-iani of Fisher & Sauls, P.A., St. Petersburg, for appellees.
   CAMPBELL, Judge.

Appellant is the adopted son of the decedents, Peter and Anna Yanowsky, and was fifteen years of age and residing with them at the time of their deaths. Appellees are the personal representatives of the deceased parents’ respective estates. At issue is the correctness of certain portions of the probate court’s order which was entered on the appellees’ consolidated petition to determine survivorship and beneficiaries. We affirm.

Peter and Anna Yanowsky were bludgeoned to death by appellant and a classmate on May 25,1978. It was subsequently determined that their deaths were simultaneous. At the time of their deaths, each had a will which left certain sums of money to relatives and the residue to the surviving spouse, and provided that in the event both died as a result of a common disaster, the residue of their property should be placed in a support, maintenance and education trust for appellant. Among other assets, decedents owned the marital residence as tenants by the entirety and a total of $2,275 in United States Savings Bonds which each had separately purchased and registered in coownership form with appellant at various times when appellant was between five and ten years of age.

Appellees’ consolidated petition sought to determine, inter alia, whether the marital residence was homestead property, or whether it passed under the residuary clause of decedents’ wills. In addition, the probate court was asked to decide whether appellant was entitled to the savings bonds under the survivorship provision of the Treasury Regulations. 31 C.F.R. § 315.62.

With respect to the marital residence, the court ruled that, having been held by decedents as a tenancy by the entirety, the residence was not homestead, and that, upon the simultaneous death of the parents, it was to be divided one-half to each estate and pass under the residuary clauses of their wills. Since the court ruled that the murder inheritance statute was applicable, appellant was denied any interest in the residence which he might have had as the residuary beneficiary of the wills of his parents. We agree with the reasoning of the probate judge on this point and affirm. A wrongdoer will not be permitted to profit from his criminal act. Carter v. Carter, 88 So.2d 153 (Fla.1956).

With respect to the United States Savings Bonds, the court concluded that although the Treasury Regulations controlled the determination of ownership on the death of a coowner, they did not specifically treat the question of a coowner’s rights where he murdered the other coowner. Because the United States Supreme Court has held that state law may be applied under appropriate circumstances, Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964); Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), and because Florida law prevents a person from profiting by his wrongdoing, Carter v. Carter, supra, the court ruled that the bonds should also be distributed as part of each decedent’s estate.

The essence of appellant’s argument with respect to the probate court’s ruling on this point is that while the court correctly looked to state law, it erred in applying Carter v. Carter, supra, and instead should have granted appellant a one-half interest in the bonds under the rationale of Ashwood v. Patterson, 49 So.2d 848 (Fla.1951). We agree with the probate court’s result based on state law, as Ashwood v. Patterson, supra, can and should be distinguished, but we also conclude that the same result can be based on federal law.

Yiatchos and Free v. Bland stand for the proposition that a wrongdoer will not be allowed to profit by using the Treasury Regulations pertaining to survivorship rights of coowners of treasury bonds to contravene state law; therefore, state law should prevail to determine the survivor’s or beneficiary’s interest in the savings bonds. The question in Yiatchos was whether, as a matter of federal law, a deceased husband had defrauded his surviving widow of her rights in community property by purchasing bonds with community funds and registering them in his name with his brother as named beneficiary. Whether there was fraud, however, depended upon the surviving widow’s rights under state law.

We agree that the survivorship provision may not be claimed by a coowner or beneficiary as a sanctuary for his wrongdoing. Appellant’s rights, if any, with respect to the savings bonds can be determined by the Treasury Regulations. Those regulations provide that appellant was not entitled to the bonds unless his parents predeceased him without having presented the bonds for payment or reissue. Appellant would not have become the sole and absolute owner until those conditions were met. 31 C.F.R. § 315.62. Since the parents apparently retained possession of the bonds, and had another child as well as other relatives, they could have intended to surrender the bonds for payment or reissue or several other methods of disposition of the bonds that would have precluded appellant from ever becoming owner of the bonds or their proceeds. We will not assume that they did not so intend. By murdering his parents, appellant not only deprived them of their options in regard to the bonds, but he now attempts to claim that he assured himself of a one-half interest in the bonds. To support that claim would be to reward a wrongdoer for his crime, something which the federal courts have consistently refused to do in similar contexts. New York Mutual Life Insurance Company v. Armstrong, 117 U.S. 591, 6 S.Ct. 877, 29 L.Ed. 997 (1886); Austin v. U. S., 125 F.2d 816 (7th Cir. 1942). Indeed, in Austin, although federal law gave the beneficiary of a war risk life insurance policy an absolute right to the proceeds upon the death of the insured, the court held that a beneficiary who murders the insured is not, on equitable grounds, entitled to the proceeds. Issuance of the war risk policy was authorized and governed by federal law. We see no basis for a different result here.

Since the Florida courts also apply this equitable principle, we would not reach a different result in the absence of any federal law. Carter v. Carter, supra; Hogan v. Martin, 52 So.2d 806 (Fla.1951). Appellant’s reliance on Ashwood v. Patterson, supra, is misplaced. The court’s conclusion in that case that a husband who murders his wife is still entitled to one-half of property held as a tenancy by the entirety was compelled by the nature of that tenancy under Florida property law. That is, although the husband was entitled to one-half of the property in any event, he was entitled to the entire property only if he outlived his wife. Since the murder was the act which ensured that he would outlive her, to have granted him the entire property would have permitted him to profit by his wrongful act. Thus, the murder was likened to a dissolution of marriage and the tenancy was converted to one in common. In a tenancy by the entirety both parties must act to dispose of the property. Here, the parents alone could have disposed of the property without the joinder of the appellant. Only their murder by the appellant prevented them from doing so.

We, therefore, AFFIRM.

GRIMES, C. J., and RYDER, J., concur.

      . Appellant confessed, was adjudicated guilty of first degree murder and is currently serving a life sentence.

      . Ten bonds with a face value of $1,700 had been purchased by Anna; four bonds with a face value of $575 had been purchased by Peter. These purchases took place between 1968 and 1973, when the parties still resided in New Jersey. Decedents apparently retained possession of the bonds.
      It is also interesting to note that Peter Ya-nowsky had purchased stock certificates under the New Jersey Gift to Minors Act as a gift to appellant. The probate court ruled that because this Act vested legal title to the stock certificates in appellant prior to his father’s death, appellant could not be divested of his interest under Florida law.

      . That section provides in pertinent part:
      If either coowner dies without the bond having been presented and surrendered for payment or authorized reissue, the survivor will be recognized as the sole and absolute owner. Thereafter, payment or reissue will be made as though the bond were registered in the name of the survivor alone.
      With respect to payment during the lives of both coowners, Section 315.60 of the regulations provides that “[a] savings bond registered in coownership form . . . will be paid to either upon his separate request, and upon payment to him the other shall cease to have any interest in the bond. . . . ”

      . Section 732.401(2), Florida Statutes (1977), provides:
      (2) If the decedent was domiciled in Florida and resided on real property that the decedent and the surviving spouse owned as tenants by the entirety, the real property shall not be homestead property.

      . Section 732.601(3), Florida Statutes (1977), provides:
      (3) When there is insufficient evidence that two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. . . .

      . Section 732.802, Florida Statutes (1977), provides:
      A person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any part of his estate as a devisee. The part of the decedent’s estate to which the murderer would otherwise be entitled shall pass to the persons entitled to it as though the murderer had died during the lifetime of the decedent.

      . 31 C.F.R. § 315.5 provides that the registration used on issue of savings bonds “must express the actual ownership of and interest in the bond and . . . will be considered as conclusive of such ownership and interest.” One of the authorized forms of registration is coownership form. 31 C.F.R. § 315.7. Finally, Section 315.20 provides in pertinent part:
      (a) No judicial determination will be recognized which would give effect to an attempted voluntary transfer inter vivos of a bond, whether between persons designated thereon, or otherwise, or which would defeat or impair the rights of survivorship conferred by these regulations upon a surviving coowner or beneficiary


text:
    CAPE CAVE CORPORATION, Appellant, v. CHARLOTTE ASPHALT, INC., Appellee.
    No. 79-2071.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    Rehearing Denied June 27, 1980.
    Steven M. Siegfried of Schoninger, Jan-kowitz & Siegfried, P. A., Miami, for appellant.
    Richard E. Mandell of Wotitzky, Wotitz-ky, Mandell, Batsel & Wilkins, Punta Gor-da, for appellee.
   CAMPBELL, Judge.

Cape Cave Corporation, defendant in an action by Charlotte Asphalt to foreclose on a mechanic’s lien, appeals the trial court’s entry of a final default judgment for failure of its president, a Mr. Jankowitz, to comply with orders directing him to produce documents in support of Cape Cave’s defense of payment. We reverse in part.

The facts as alleged in appellee’s complaint are that Cape Cave entered into a contract with Lateo Utilities for the construction of improvements on numerous lots being developed by Cape Cave in Charlotte County. Lateo then contracted with appel-lee for the supply of asphalt in connection with paving work. Appellee claimed that although it had subsequently furnished nearly $33,000 worth of materials, Lateo had only paid $5,000, prompting appellee to serve Cape Cave with a Notice to Owner as required by Section 713.06(2), Florida Statutes (1973). Thereafter, Cape Cave was alleged to have made improper payments or retained part of the contract price sufficient to pay appellee’s claim. Finally, ap-pellee alleged that it had complied with all requirements of the Mechanic’s Lien Law, and prayed that final judgment be rendered in its favor and that a lien be impressed on all of the lots encompassed by the development project.

Cape Cave’s answer raised sixteen affirmative defenses, most of which were based on appellee’s alleged failure to comply with various requirements of the Mechanic’s Lien Law. Two of the defenses, however, were that Charlotte Asphalt had been paid and that Cape Cave had only made proper payments to Lateo. Cape Cave also counterclaimed and filed a third party complaint against Lateo which alleged, inter alia, that Lateo had been paid for the asphalt work but had not paid ap-pellee.

This appeal concerns appellee’s attempts to discover evidence of Cape Cave’s defense of payment. The record reveals that appel-lee made and the trial court granted several motions to compel Cape Cave to produce the cancelled checks or any other conclusive evidence that it had paid Lateo for the paving work. Although Mr. Jankowitz asserted that diligent efforts were being made, no substantiating documents were ever produced, prompting appellee to move that the pleadings be struck and a default judgment entered. A hearing was held on this motion and Cape Cave was given a final opportunity to produce. When it did not, another hearing was held, resulting in the order from which Cape Cave appeals. Finding that Cape Cave had wilfully failed to comply with the court’s orders to produce, the court struck Cape Cave’s pleadings, including its affirmative defenses, counterclaim and third party complaint, and ordered it to pay Charlotte Asphalt nearly $28,000, plus interest and attorney’s fees. There was no finding that Cape Cave’s other defenses were, as a matter of law, invalid. Moreover, the court had earlier denied motions for summary judgment on the counterclaim and third party complaint.

Where a party wilfully and flagrantly refuses to comply with the trial court’s order, a trial judge has the discretion to impose appropriate sanctions. A sanction is appropriate if it is commensurate with the offense. Traveler's Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978). Accord, Masons Concrete v. Corbin Weil Pump & Supply, Inc., 364 So.2d 824 (Fla. 2d DCA 1978). In light of Cape Cave’s repeated refusal to comply with the trial court’s orders to produce, we agree that an appropriate sanction should have been imposed. However, as we noted in Traveler’s Insurance Company, citing Flaksa v. Little River Marine Construction, 389 F.2d 885, 888 (5th Cir. 1968), “[dismissal of an action with prejudice and entry of judgment by default are drastic remedies which should be used only in extreme situations, as the court has a wide range of lesser sanctions . . .” Thus, unless the trial court has also found that, as a matter of law, none of Cape Cave’s other defenses were valid, it was an abuse of discretion to strike those defenses, as well as the counterclaim and third party complaint, and to enter a final default judgment. See Zayres Department Stores v. Fingerhut, 383 So.2d 262 (Fla. 3d DCA 1980). Cape Cave’s refusal, or inability, to produce evidence that Charlotte Asphalt had been paid or that proper payments had been paid to Lateo does not mean that it cannot prevail on its other defenses or on its counterclaim and third party complaint. In depriving Cape Cave of the opportunity to do so, the trial court went too far.

Therefore, we AFFIRM the order insofar as it struck the defenses of payment. However, we REVERSE the striking c* the other defenses and pleadings and the final default judgment. The case is remanded for further proceedings consistent with this opinion.

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


author: WARREN, LAMAR, Associate Judge.

text:
    Luddy Gene KIGHT and Sandra M. Kight, his wife, Appellants, v. CAPELETTI BROTHERS et al., Appellees.
    No. 78-1106.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied July 16, 1980.
    Paul J. Culp, Boynton Beach, for appellants.
    Keith H. Park of Albury, Webb & Park, West Palm Beach, for appellee-American States Ins. Co.
   WARREN, LAMAR, Associate Judge.

Appellants, plaintiffs below, appeal from a final order denying the husband’s motion to strike the motion for equitable distribution of the employer/carrier, denying his motion for attorney’s fees arising out of the motion for equitable distribution, and granting the employer/carrier its pro rata share on the motion for equitable distribution.

The appellant husband, employed by the City of Boynton Beach, was injured during a rescue operation and filed suit against the defendants as third-party tortfeasors seeking damages for injuries and disabilities sustained by him. Prior to trial the action between appellants and one of the defendants was settled and the parties stipulated to a final judgment of dismissal with prejudice; summary final judgment already had been entered for the other defendant.

The plaintiff employee also on March 17, 1975, filed a workmen’s compensation case which finally, after an appeal, was terminated on April 28, 1977, with an award of benefits by the industrial claims’ judge to the plaintiff; this order was entered several months after the above judgment of dismissal. Thereafter, on June 16, 197/, the employer/carrier, appellee here, filed the motion for equitable distribution in controversy.

In a stipulation filed in the cause, appel-lee stipulated that it had knowledge on August 11, 1975, of the suit against the third-party tortfeasors and that its motion for equitable distribution “was the first formal claim of lien” filed by it. And at the hearing on the motion appellee’s witness stated that no claim of lien was filed in the main action because benefits had not been determined.

Appellants’ first point is whether the lower court erred in granting the motion for equitable distribution, contending that the appellee waived any rights it may have had when it failed to file its notice while the lawsuit was in progress as required by Section 440.39(3)(a), Florida Statutes (1977), citing Maryland Casualty Co. v. Simmons, 193 So.2d 446 (Fla.2d DCA 1966); and that the court had no jurisdiction to entertain the motion because it had dismissed the case with prejudice, relying on Haft-Gaines Co. v. Reddick, 350 So.2d 818 (Fla. 4th DCA 1977). Appellee countered by asserting that it could not have been required to file a notice of lien prior to the final judgment since at the time it was entered the com-pensability of the workmen’s compensation claim had not been finally determined; that until such time as it was required by the industrial claims’ order to pay benefits it was required to file nothing in appellants’ civil action.

Section 440.39(3)(a), supra, provides not only for filing in the suit of a notice of payment of compensation and medical benefits to the employee but requires that “said notice shall be recorded. . . . ” In ap-pellee’s motion for equitable distribution, it was stated that it had paid and would pay in the future workmen’s compensation benefits to plaintiff, according to the attached list; the list was entitled Exhibit A and prefacing the named benefits was the statement that it had paid or would pay to or on behalf of the claimant those sums. Neither document was recorded. Recalling that ap-pellee stipulated that its motion “was the first formal claim of lien” filed by appellee, the trial court in Alfar Creamery Co. v. Williams, 366 So.2d 458 (Fla. 4th DCA 1978), denied a motion for equitable distribution because the compensation carrier’s notice of lien was not recorded, and on appeal the order was affirmed. Appellee’s motion likewise should have been denied. The trial court did not have the advantage of Alfar, the decision having been filed after the order here on review was entered.

Appellants’ second point is that the court erred by denying their motion for attorney’s fees for resisting the motion for equitable distribution. In its brief the ap-pellee agrees that if this court should reverse the order of the lower court granting the motion for equitable distribution appellants’ attorney is entitled to a reasonable fee. See Ohio Casualty Group v. Parrish, 350 So.2d 466, 469 (Fla.1977).

The order appealed from, which denied the employee’s motion to strike the appel-lee’s motion for equitable distribution and which denied the employee’s motion for attorney’s fees, is reversed, with direction to award the employee a reasonable attorney’s fee for resisting the motion.

REVERSED WITH DIRECTIONS

MOORE and HERSEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    Mary M. GREENMAN, Appellant, v. William C. GREENMAN, Appellee.
    No. 79-856.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied July 21, 1980.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.

      Linda F. Albritton of Haines & Rossow, Chartered, North Palm Beach, for appellee.
   LETTS, Chief Judge.

On the authority of Zalka v. Zalka, 100 So.2d 157 (Fla.1958); Sheppard v. Sheppard, 45 So.2d 505 (Fla.1950); Rogoff v. Rogoff, 115 So.2d 456 (Fla.3d DCA 1959), and Landsberg v. Landsberg, 115 So.2d 456 (Fla.3d DCA 1959), and Landsberg v. Landsberg, 259 So.2d 727 (Fla.3d DCA 1972), this cause is remanded to the trial court below with directions that the portion of the final judgment awarding the appellant-wife a monetary sum per month, entitled “family support,” should be modified to identify a portion of such sum as alimony and the remaining portion as child support.

We find no other error and accordingly, the final judgment is affirmed with directions to modify the final judgment in accordance herewith.

AFFIRMED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.


author: BERANEK, Judge.

text:
    Lois FEINBERG, Appellant, v. Arthur I. FEINBERG, Appellee.
    No. 80-298.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1980.
    Rehearing Denied July 17, 1980.
    Neil M. Nameroff, Miami, for appellant.
    Harry A. Gaines, Miami, and Arnold R. Ginsberg, of Horton, Perse & Ginsberg, Miami, for appellee.
   ON MOTION TO DISMISS

BERANEK, Judge.

This is an appeal from a final judgment dissolving the marriage between the parties. The wife is the appellant and the husband has moved to dismiss the appeal contending it is not timely.

The final judgment was entered by the trial judge on November 15, 1979. Thereafter, wife’s counsel filed a motion for enlargement of time for filing Motion for New Trial. In this motion it was stated that counsel needed additional time because he had been too busy to prepare the motion for new trial. The motion for enlargement of time did not constitute an actual motion for new trial or for rehearing in any respect. The certificate of service on the motion did not contain a date. On November 27, 1979, the trial court granted the motion for extension of time and, afterward, wife’s counsel filed a motion for new trial which was denied by order of January 21, 1980. Wife’s counsel filed a notice of appeal on February 12, 1980.

Appeal now asserts by motion to dismiss that the appeal is untimely because the notice was not filed within 30 days of the final judgment of November 15, 1979. Ap-pellee contends the motion to enlarge time and order granting same was ineffective in view of the provisions of Rule of Civil Procedure 1.090(b). We agree and grant the motion to dismiss the appeal.

Florida Rule of Civil Procedure 1.090(b) provides as follows:

Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, [may] order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect but it may not extend the time for making a motion for new trial, motion for rehearing or motion to alter or amend a judgment or a motion for relief from a judgment under Rule 1.540(b) or for taking an appeal or filing petition for certio-rari or for making a motion for a directed verdict. (Emphasis supplied.)

The rule specifically prohibits the trial court from extending the time for the making of a motion for new trial or rehearing. Appellant has suggested no reason why these clear provisions should not be enforced. The purpose of the rule is to promote the finality of a court’s judgment and to bring litigation to a conclusion.

We find that the trial court erred in failing to comply with the rule by granting the motion to extend the time. Although we would prefer to determine all cases on the merits, the rule is clear and requires dismissal.

This is not a situation where a timely motion for new trial has been made and subsequently amended beyond the initial ten-day limitation. We conclude that the final judgment was rendered on November 15, 1979, and that the proceedings thereafter did not toll the time for taking an appeal. The appeal instituted by notice filed February 12, 1980, is thus dismissed.

APPEAL DISMISSED.

ANSTEAD and HERSEY, JJ., concur.

      . See Florida Rule of Civil Procedure 1.530(b).

      . We do not determine the timeliness of the motion for extension of time nor do we condone the filing of a document in clear violation of the rule requiring a dated certificate of service.


author: PER CURIAM. COBB, Judge,

text:
    GENERAL INSURANCE COMPANY OF AMERICA, Appellant, v. SENTRY INDEMNITY COMPANY and W. W. Arnold Construction Co., Appellees.
    No. 79-269/T4-386.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    Rehearing Denied June 30, 1980.

      D. Lloyd Zook of Welbaum, Zook, Jones & Williams, Orlando, for appellant.
    James W. Markel of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P.A., Orlando, for appellees.
   PER CURIAM.

W. W. Arnold Construction Company (hereafter Arnold) was the prime contractor on a private construction project. General Insurance Company, (hereafter General) was the surety on Arnold’s payment bond. Spurlin Carpentry, Inc., (hereafter Spurlin) was a sub-contractor for Arnold. Sentry Indemnity Company (hereafter Sentry) was the surety on Spurlin’s payment bond.

Several materialmen for Spurlin filed claims with Sentry on the sub-contractor’s payment bond. Sentry paid the claims, and then filed suit against Arnold and General on the prime contractor’s payment bond. General contended that Arnold’s payment bond was a statutory bond governed by section 713.23, Florida Statutes (1971), and, therefore, Spurlin’s action was barred by the one-year statute of limitation.

The trial judge held the payment bond in this case is a “common law” bond rather than a “statutory” bond because it is broader in scope than required under section 713.23, Florida Statutes (1971). Hawaiian Inn of Daytona Beach, Inc., v. Dunn, 342 So.2d 132 (Fla. 2nd DCA 1977). See United Bonding Insurance Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971); S. W. Fla. Water Mgt. Dist. v. Miller Const., 355 So.2d 1258 (Fla. 2nd DCA 1978). The bond in question does not make any reference to section 713.23. General wrote another bond for the same contractor on another project, which bond was also sued on in this action but is not involved in this appeal, and that other bond specifically incorporated section 713.23 in its terms, so General was not without the means or ability to write a statutory bond if it wanted to. Any ambiguity as to the nature of the bond should be construed against the surety company and in favor of granting the broadest possible coverage to those intended to be benefitted by the protection of the bond. United Bonding Insurance Company v. City of Holly Hill, supra.

The interpretation of a contract by a trial court should not be reversed by an appellate court unless it is clearly incorrect and unsupported by the evidence in the cause. Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979); Safeco Insurance Company v. Rochow, 384 So.2d 163, Case No. NN — 451/T1-92 (Fla. 5th DCA, April 30, 1980). The judgment of the trial court reaches this court clothed with a presumption of validity, Herzog v. Herzog, 346 So.2d 56 (Fla.1977) and we cannot say, based on the evidence before us that it lacks support for its findings, Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1978). Finding no error, the judgment below is

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

W. W. Arnold Construction Company (hereafter Arnold) was the prime contractor on a private construction project. General Insurance Company (hereafter General) was the surety on Arnold’s payment bond. Spurlin Carpentry, Inc. (hereafter Spurlin) was a sub-contractor for Arnold. Sentry Indemnity Company (hereafter Sentry) was the surety on Spurlin’s payment bond.

Several materialmen for Spurlin filed claims with Sentry on the subcontractor’s payment bond. Sentry paid the claims, and then filed suit against Arnold and General on the prime contractor’s payment bond. General contended that Arnold’s payment bond was a statutory bond governed by Section 713.23, Florida Statutes and, therefore, Spurlin’s action was barred by the one-year statute of limitation. The trial court found that Arnold’s payment bond was a common-law bond, rather than a statutory bond and, therefore, not barred by the shorter statute of limitations.

In the 1971 case of United Bonding Ins. Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971), Judge Wigginton discussed the distinction between statutory performance bonds subject to a one-year statute of limitations and common-law bonds. He noted that the bond in question did not specify a time limitation of one year, the statutory restriction, and the bond granted extensive coverage in excess of that required by the statute. Therefore, it was not unreasonable to construe the bond involved as a common-law undertaking subject to the general statute of limitations.

In Hawaiian Inn of Daytona Beach, Inc. v. Dunn, 342 So.2d 132 (Fla. 1st DCA 1977), the trial court had construed certain performance bonds to be common-law, rather than statutory, bonds, and subject to the more generous statute of limitations. This was reversed on appeal because the conditions of the bonds were not broader and more protective than the statute required, and the bonds substantially complied with Section 713.23, Florida Statutes. See also, E. E. Dean Suavely, Inc. v. Sullivan, 360 So.2d 451 (Fla. 1st DCA 1978).

The amount of the payment bond in the instant case was equal to the contract price, it contained a one-year statute of limitation, and it protected the class of people intended to be protected by Section 713.23, Florida Statutes. The payment bond was a statutory bond and the one-year statute of limitation specifically incorporated therein should control.

Accordingly, I would reverse the holding of the trial court.

      . The payment bond in question was issued in 1972. In 1978, Section 713.23, Florida Statutes, was amended to include a form for payment bonds.


author: ORFINGER, Judge.

text:
    MARION COUNTY SCHOOL BOARD, Appellant, v. Ethel CLARK, Appellee.
    No. 79-121.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    Rehearing Denied June 30, 1980.

      Gary C. Simons of Savage, Krim, Simons & Puller, P.A., Ocala, for appellant.
    Mark F. Kelly and John J. Chamblee, Jr. of Law Offices of Fran, Chamblee & Kelly, P.A., Tampa, for appellee.
   ORFINGER, Judge.

Appellee Clark was a teacher holding a continuing contract with appellant. Following a hearing on charges of misconduct in office in which it was alleged that appel-lee struck a student in the face in attempting to discipline that student and that ap-pellee physically restrained and directed the child’s movements prior to striking him, ap-pellee’s continuing contract was terminated and reduced to annual contract and she was suspended without pay for the balance of the school year.

The incident occurred when the teacher escorted the student to the waste basket with her hands on his shoulders so that he could expel some chewing gum from his mouth, which he had been told to get rid of several times and which he had refused to do. The findings of fact by the School Board recite:

After expelling the chewing gum, the student . . . assumed an erect position and turned to face [the teacher] whereupon, either accidentally (as a result of the student’s movement) or as a result of deliberate movement by [the teacher], [the teacher’s] hand made contact with the student[’s] face and her finger struck his eye. (emphasis supplied).

The School Board found this incident to constitute misconduct in office sufficient to warrant the action taken.

Appellee filed a timely appeal to the Department of Education which reversed the decision of the Marion County School Board and ordered appellee’s continuing contract reinstated with back pay. From the decision of the Department of Education the School Board appeals.

Appellant contends that the Department of Education erred in reversing the School Board’s findings, because the Department did not find an absence of competent, substantial evidence to suppc. t the finding of misconduct in office. In reviewing the actions of a district school board adverse to the continuing contract employee, the Department acts in a quasi-judicial capacity and the standard of review is whether the district board’s conclusions are supported by competent substantial evidence. School Board of Pinellas County v. Noble, 372 So.2d 1111 (Fla.1979); O’Neil v. Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). In its order reversing the district board, the Department didn’t say that it found no competent substantial evidence to support the appealed from order, but we review its determination based on that standard.

Based on the record before us, the Department of Education could determine that there is no competent, substantial evidence to support either the charges filed against this teacher or the findings of the School Board. Therefore, the order of the Department of Education is

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., and MELVIN, WOODROW M., Associate Judge, concur.

      . Rule 6B — 4.09(3) Rules of Professional Practices Council, Florida Administrative Code: “Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to impair the individual’s effectiveness in the school system.”

      . § 231.36, Fla.Stat. (1977).

      . § 120.68, Fla.Stat. (Supp.1978).


text:
    Johnny Darrell EZELL, Appellant, v. STATE of Florida, Appellee.
    No. 79-675.
    District Court of Appeal of Florida, Second District.
    June 6, 1980.
    Rehearing Denied July 3, 1980.
    Jack O. Johnson, Public Defender, and Howard L. Dimmig, II, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The only issue on this appeal which warrants discussion is appellant’s contention that the court should not have sentenced him as an habitual felony offender.

At sentencing, the state introduced evidence that appellant had committed three felonies in 1971, a second degree misdemeanor in 1971 and a first degree misdemeanor in 1977, all of which occurred in this state. The portion of the definition of habitual felony offender pertinent to this appeal is set forth in Section 775.084(1), Florida Statutes (1977):

(a) “Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has:
a. Previously been convicted of a felony in this state;
b. Twice previously been convicted of a misdemeanor of the first degree in this state or of another qualified offense for which the defendant was convicted after the defendant’s 18th birthday;
2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;

Appellant argues that he cannot be considered as an habitual felony offender under Section (l)(a)l.a. because his felony conviction occurred more than five years ago and because there was no showing that he was in prison as a result of the felony during the last five years. With respect to Section (l)(a)l.b., he points out that he has only been convicted of one first degree misdemeanor.

It is significant to note that because the word “misdemeanor” is stated in the singular, Section (l)(a)2. only requires the last of the two first degree misdemeanors to have been adjudicated within five years of the subject conviction. Therefore, if one of appellant’s 1971 felonies had been a first degree misdemeanor, he would clearly fall within the language of Section (lXa)l.b. Surely the legislature did not intend to punish a defendant who has committed two misdemeanors more severely than one who has committed a felony and a misdemeanor. Thus, we construe Section 775.084(1) to mean that a prior felony conviction is at least the equivalent of one of the two first degree misdemeanors required for sentencing as an habitual felony offender.

AFFIRMED.

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


author: GRIMES, Chief Judge.

text:
    Russell D. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 79-2152.
    District Court of Appeal of Florida, Second District.
    June 6, 1980.
    Rehearing Denied June 27, 1980.

      Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

The state charged appellant with trafficking in cannabis. He filed a motion to suppress evidence obtained as a result of an allegedly illegal search. The trial court denied the motion, and appellant then pled nolo contendere specifically reserving his right to appeal the denial. On appeal, he contends that the arresting officers illegally stopped him because they did not have a well-founded suspicion of criminal activity. Therefore, he maintains, the trial court should have suppressed evidence recovered as a result of the stop.

To stop and briefly detain a vehicle, an officer must have a “well-founded suspicion” that its occupants might be involved in illegal activity. State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977). The officer’s suspicion must be based on observed facts interpreted in light of the officer’s knowledge and experience. State v. W.O.R., 382 So.2d 763 (Fla.2d DCA 1980). Thus, the legality of each stop is dependent upon the facts within the detaining officer’s knowledge.

The evidence reflects that at approximately 7:45 a. m. Officer Tappan was patrolling a remote area in which he knew airplanes carrying marijuana had landed. He saw an airplane flying low overhead and heard it land nearby. He radioed for officers to block the only two exits from the area. Approximately twenty minutes later, these other officers stopped appellant and his codefendants as they attempted to exit the area in a truck camper and a Trans-Am. The camper, which appellant was driving, carried a Kentucky license tag. Officer Tappan testified that in the hour he remained at the scene of the arrest no other vehicles left or entered the area.

Recently this court issued a decision involving a somewhat similar fact situation in which we reversed the trial court’s denial of a defendant’s motion to suppress. In Oesterle v. State, 382 So.2d 1293 (Fla.2d DCA 1980), officers had learned that a plane carrying marijuana had touched down in a nearby field. Access to the field was through a gate on a public highway. The officers stopped Oesterle beyond the gate while he was traveling on the highway. In response to questions by the officers, he confessed to being in the area to pick up contraband. This court held there was no factual basis for the officers’ suspicions concerning the defendant’s vehicle and that, therefore, the trial court should have suppressed his confession.

In Oesterle, the officers could not connect the defendant to the fields where the contraband lay other than by his proximity to an access gate. The defendant had already passed the gate without giving any indication he planned to enter the field. In this case, however, appellant was exiting a deserted and sealed area in which the officers knew that a plane had just landed and that other planes carrying contraband had landed. By exiting the normally deserted field under these circumstances appellant sufficiently associated himself with the suspicious situation and distinguished himself from the public so as to establish a well-founded suspicion upon which the officers could base the stop. See Mock v. State, 385 So.2d 665 (Fla.2d DCA 1980).

AFFIRMED.

DANAHY and CAMPBELL, JJ., concur.

      . The appellant does not contest the legality of the search itself. After he was detained, Officer Tappan smelled the marijuana through a crack in the window of the appellant’s camper. This smell gave the officer ample probable cause to search the vehicle. See Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977). Therefore, if the stop was valid, the contraband recovered was admissible evidence.


text:
    Hermine BURROWS, Appellant, v. Michael C. BURROWS, Appellee.
    No. 78-1348.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Rehearing Denied July 17, 1980.
    James F. Simpson, West Palm Beach, for appellant.
    Timothy W. Gaskill of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P.A., North Palm Beach, for appellee.
   BERANEK, Judge.

The former wife appeals from a final order entered pursuant to former husband’s petition and her counter-petition for modification of the child support provisions of their 1965 dissolution decree. The parties were married at a time when their financial situations were poor. Upon their divorce in 1965, the wife was awarded custody of the parties’ three minor children, and, pursuant to an agreement, the husband was ordered to pay child support of $400 per month. At that time, the wife was unemployed and without assets and husband was near bankruptcy with minimal income. After the divorce, the financial condition of both parties substantially improved. The husband became a very successful real estate developer with income and capital assets sufficient to pay any reasonable amount of child support. The wife secured a job making approximately $20,000 per year. She remarried and was again divorced. At the time of the modification hearing, she had savings of $45,000 cash plus a $45,000 four-bedroom home in which she resided with the one child whose support is in issue here. The home was encumbered by a $15,000 mortgage and wife had no other substantial debts.

Prior to the instant modification proceedings two of the parties’ three children began either living with the father or attending college full time. It is undisputed that the father supported these two children living away from the mother’s home and continued to pay the $400 per month child support to the wife. Peter Burrows, their youngest child, resided with the wife and is the only child whose support is in dispute. The present controversy concerns the amount of child support the husband should pay on behalf of Peter.

It is unquestioned that the father voluntarily provided financial assistance in regard to Peter, including summer camp, clothes and vacation trips. After the hearing, the trial court set child support for Peter in the sum of $200 per montlj, an increase of $66.67 per month from the $133.33 per month which the trial court found represented Peter’s proportionate share of the originally agreed upon $400 per month.

Although Meltzer v. Meltzer, 356 So.2d 1263 (Fla.3d DCA 1978), cert. denied 370 So.2d 460 (Fla.1979), relied upon by appellant, presents a very similar factual situation, we do not find it controlling. Since the Meltzer decision, the Supreme Court issued its decision in Canakaris v. Canakaris, 382 So.2d 1197 (1980), broadening the trial court’s discretion and defining the scope of appellate review thereof as follows:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. (Emphasis supplied.) Canakaris v. Canakaris, supra.

While the amount of the increase of child support ordered here was admittedly small, we cannot say that no reasonable man could reach the conclusion of the trial court after viewing the parties and the subtleties involved. The order below is, therefore, affirmed.

AFFIRMED.

MOORE and HURLEY, JJ., concur.


author: SCHWARTZ, Judge.

text:
    William Jerome WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-973.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.

      Bennett H. Brummer, Public Defender and Jesse J. McCrary, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

After he was arrested and later properly given his Miranda warnings, Warren at first denied any knowledge of the crimes of which he was convicted below. However, upon further questioning by the investigating officer and the presentation of a piece of incriminating evidence — his wallet found at the scene of the offense— he made an oral and then a written confession. On this appeal, it is contended only that the interrogation should have ceased as soon as the defendant denied involvement and that the subsequently obtained confessions should therefore have been suppressed. We do not agree.

The defendant did not in any way indicate that he wished to remain silent, to consult with an attorney, or to end the conversation with the officer once it had begun. Compare, e. g., Breedlove v. State, 364 So.2d 495 (Fla. 4th DCA 1978); Jones v. State, 346 So.2d 639 (Fla. 2d DCA 1977); Webber v. State, 305 So.2d 235 (Fla. 2d DCA 1974); State v. Prosser, 235 So.2d 740, 742 (Fla. 1st DCA 1970), cert. dismissed, 243 So.2d 419 (Fla.1971). And we concur with the statement in United States v. Jones, 486 F.2d 599, 600 (5th Cir. 1973) that “[djenials of a crime by one well aware of his right to remain silent cannot, without more, be taken as an unspoken election to exercise the right to remain silent.” Accord, Brooks v. State, 229 A.2d 833 (Del.1967); State v. Burley, 523 S.W.2d 575 (Mo.App.1975). Since there is ample evidence to sustain the trial court’s finding that the confessions were otherwise freely and voluntarily made, Ashley v. State, 265 So.2d 685 (Fla. 1972); Finley v. State, 378 So.2d 842 (Fla. 1st DCA 1979), the judgment under review is

Affirmed.