author: SCHEB, Chief Judge.

text:
    Leigh Anne GOYINGS, a minor, by and through Betty Goyings, as next friend and natural mother, and Betty Goyings, individually, Appellant, v. The JACK AND RUTH ECKERD FOUNDATION; Eckerd Wilderness Educational System; E-Nini-Hassee Girls Camp; The Trustees of the Jack and Ruth Eckerd Foundation, to-wit: Gerald S. Rehm, Executive Director, Jack Eckerd, Ruth Eckerd, J. Floyd Glisson, James Swann, and Robert Coleman; Joe Callan, Director of E-Nini-Hassee Girls Camp; Pauline Murphy; Judy Bell; Kathy “Doe”; Carol “Doe”; and The Travelers Insurance Company, a Connecticut Corporation, Appellees.
    No. 80-2304.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.

      R. Michael Underwood and Kenneth D. Morse of Matthias & Matthias, Orlando, for appellant.
    Rick A. Mattson of Mattson & McGrady, St. Petersburg, for appellees.
   SCHEB, Chief Judge.

In this appeal we must determine the validity of an exculpatory clause and its effect on the appellant’s suit to recover damages for injuries sustained by her minor child.

Appellant, Betty Goyings, enrolled her minor daughter, Leigh Anne, in E-Nini-Hassee Girls Camp, a camp for children with emotional problems operated by the Eckerd Foundation and the Eckerd Wilderness Educational System. She signed a contract submitted by the camp agreeing to pay $750 a month for the full care and support of her minor daughter. The fee included payment for Leigh Anne’s participation in a therapeutic program. While on a two-week canoe trip supervised by the camp, Leigh Anne suffered mental and physical injuries requiring her to be hospitalized.

Appellant, individually and as mother and next friend of Leigh Anne, filed a suit naming appellees as defendants and seeking damages for her daughter’s injuries. She alleged that Leigh Anne had been under continuing psychiatric care prior to entering camp and was required to take prescribed medicine to keep her mentally stable. She further alleged that she relied upon the camp’s verbal agreement to administer the medicine. She complained that the camp’s failure to do so on the canoe trip caused Leigh Anne’s injuries. Appellant pled in the alternative that the camp’s failure to administer the medication was either negligent, intentional, or with a reckless disregard of the consequences.

Appellees filed their answer and then moved for summary judgment relying on an exculpatory clause in the contract appellant signed. The clause stated:

It is further agreed that reasonable precautions will be taken by Camp to assure the safety and good health of said boy/girl but that Camp is not to be held liable in the event of injury, illness or death of said boy/girl, and the undersigned, does fully release Camp, and all persons concerned therewith, for any such liability.

The trial court held that the quoted clause released appellees from any liability and awarded them a summary final judgment. We disagree with the court’s interpretation of the exculpatory clause, and find that there were genuine issues of material fact. Accordingly, we reverse.

At the outset we observe that an attempt by a defendant to exonerate himself from liability for an intentional tort is against public policy. Zuckerman-Vernor Corp. v. Rosen, 361 So.2d 804 (Fla. 4th DCA 1978); Fuentes v. Owen, 310 So.2d 458 (Fla. 3d DCA 1975). Nevertheless, an exculpatory clause, while not favored, may operate to absolve a defendant from liability arising out of his own negligent acts. For such a clause to be effective, however it must clearly state that it releases the party from liability for his own negligence. L. Luria & Son, Inc. v. Alarmtec International Corp., 384 So.2d 947 (Fla. 4th DCA 1980); Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972). In Middleton, the plaintiff appealed from a summary final judgment entered against him in an action for personal injuries which he sustained in a fall on the leased premises. His lease provided that the landlord shall not be liable for “any and all claims for loss, damage or injury of any nature whatsoever to person or property . .. whether caused by negligent acts of the LANDLORD, its agents or servants or otherwise.” 266 So.2d at 679. The court recognized that exculpatory clauses which attempt to relieve a party of his own negligence are not favored. Nonetheless, it upheld that particular provision because it clearly stated that the landlord would not be liable for his own negligence. Accord, Sniffen v. Century National Bank, 375 So.2d 892 (Fla. 4th DCA 1979); Orkin Exterminating Co. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978); Gulf Oil Corp. v. Atlantic Coast Line Railroad, 196 So.2d 456 (Fla. 2d DCA 1967); Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964).

Although all Florida courts have generally agreed that to absolve an indem-nitee from liability for his own negligence, an exculpatory clause must be clear and unequivocal, the cases differed in their interpretation of the meaning of “clear and unequivocal.” Some held that a mere promise to indemnify against all losses included those losses attributed solely to the indemnitee’s negligence. See, e. g., Thomas Awning and Tent Co. v. Toby's Twelfth Cafeteria, Inc., 204 So.2d 756 (Fla. 3d DCA 1967). However, the supreme court in University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973), adopted the opposing view and held that to exculpate the indemnitee from liability occasioned by his own negligence, a contract must include an explicit provision to that effect. Appel-lees recognize the principle in University Plaza but contend the language in the exculpatory clause at issue was sufficiently clear to absolve them from all liability. We find, however, that the language in the clause was ineffective because it did not explicitly state that the camp would be absolved from liability for injuries resulting from its negligence.

The rationale for the specificity requirement enunciated in University Plaza is to ensure that the contracting party is alerted to the meaning of the exculpatory clause. Far from unequivocally informing appellant that she was releasing appellees from liability for injuries arising from their negligence, a reasonable interpretation of this provision might give the exculpatory clause quite a different meaning. By their own choice of language, appellees agreed to take reasonable precautions to assure Leigh Anne’s safety. This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved ap-pellees from liability. We cannot ignore this language because all terms of a contract provision must be read as a whole to give every statement meaning. Mount Vernon Fire Insurance Co. v. Editorial America, 374 So.2d 1072 (Fla. 3d DCA 1977); City National Bank v. Citibank, 373 So.2d 703 (Fla. 3d DCA 1979); J.C. Penney Co. v. Koff, 345 So.2d 732 (Fla. 4th DCA 1977). Construing the exculpatory clause as a whole, appellees’ release from liability rests on their exercise of reasonable care to ensure Leigh Anne’s safety and good health. Whether appellees fulfilled this duty is a factual question which the trial court must resolve.

Appellant raises several other points, but since the court based its summary judgment on the validity of the exculpatory clause, we have directed our discussion i;o that basic issue. Two points, however, deserve passing comment. First, appellant’s contention that the exculpatory clause was unenforceable due to the unequal bargaining position of the parties, is, as the trial court held, without merit. Second, the issue now raised by appellant that she lacked capacity to waive her daughter’s cause of action was not before the trial court. Consequently, under accepted principles of appellate review, we cannot consider it. Paul v. Kanter, 155 So.2d 402 (Fla. 3d DCA 1963).

We vacate the summary judgment and remand the case for further proceedings consistent with this opinion.

OTT and RYDER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NATIONAL LINEN SERVICE; Insurance Company of North America, Appellants, v. Howard N. STUBBLEFIELD, Appellee.
    No. YY-48.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Barbara J. Paulson of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellants.
    Lex Taylor, Lakeland, for appellee.
   PER CURIAM.

The employer/carrier appeal the Deputy Commissioner’s award of permanent partial disability based on 15% disability when the highest rating given by a physician was 5%. We agree that the disability rating was erroneous and reverse. Compensability is not an issue on appeal.

The claimant was involved in an accident on December 16, 1978, while driving his employer’s truck, but he did not remember hitting anything inside the cab and received no emergency medical treatment. The next day he saw a doctor for complaints of pain, but there was no objective evidence of physical injury. The claimant went to a chiropractor who treated him every other day until early 1980.

A psychiatrist evaluated the claimant, and said that the claimant believes that the accident left him incapacitated and suffers from hysterical symptoms. The psychiatrist estimated that the claimant’s psychiatric disability due to the accident is 5% of the body. He was the only doctor to give a rating, and the Deputy accepted his opinion over that of other doctors who recommended further testing to eliminate possible physical causes of pain.

The Deputy assigned a 15% disability rating based on his observation of the claimant. He also found that the claimant did not test his ability to return to work, so the 15% rating was not based on loss of wage earning capacity. The Deputy must base his disability rating on either the physical impairment or loss of wage earning capacity, whichever is greater. Section 440.-15(3)(u), Florida Statutes (1978 Supp.). The Deputy’s finding that the claimant had not tested his ability to work in the open market precludes any reliance on loss of wage earning capacity to raise the rating, Exxon Company, U.S.A. v. Alexis, 370 So.2d 1128 (Fla.1978).

Section 440.25(3)(b), Florida Statutes (1978 Supp.), effective July preceding claimant’s December accident, precludes the Deputy from finding a disability rating in excess of that given by a physician unless it was stipulated to by the parties. Here, there was no stipulation, so the Deputy was limited to the disability rating given by the psychiatrist. We reverse the 15% rating and remand to the Deputy to assign the 5% rating given by the psychiatrist. See Judicial Administration Comm’n v. Marks, 394 So.2d 211 (Fla. 1st DCA 1981).

Reversed and remanded.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    Elbert JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. YY-194.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Sawyer v. State, 401 So.2d 939 (Fla. 1st DCA 1981).

ERVIN, WENTWORTH and JOANOS, JJ., concur.


text:
    LAKE WALES CITRUS GROWERS ASSOCIATION and Self-Insured Services, Inc., Appellants, v. Billy J. GREEN, Appellee.
    No. ZZ-131.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Bernard J. Zimmerman and W. Michael Miller of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Clifton L. Howell, Jr., Winter Haven, for appellee.
   PER CURIAM.

This is an appeal from a non-final order in a worker’s compensation proceeding in which the deputy commissioner ordered that certain medical reports be admitted into evidence, although the parties have not stipulated to their admission, nor had any hearing been held with respect to the same. The same order also cancelled a scheduled hearing in order to allow any party to take depositions if desired.

Sua sponte, we dismiss this appeal since it is an appeal from an interim order which is not reviewable by interlocutory appeal. Rule 9.130(a)(3), Florida Rules of Appellate Procedure, does not provide for appeal of such an order. See Sunland Development Center at Fort Myers v. Euans, 392 So.2d 300 (Fla. 1st DCA 1980); Fidelity & Casualty Company of New York v. Scott, 386 So.2d 315 (Fla. 1st DCA 1980).

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


text:
    Keith WILLEY, Appellant, v. STATE of Florida, Appellee.
    No. AE-269.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Keith Willey, pro se.
    No appearance for appellee.
   PER CURIAM.

We affirm the lower court’s dismissal of appellant’s Motion for Mitigation and Sentence Reduction without prejudice to file a more properly drafted motion pursuant to Fla.R.Crim.P. 3.850. See Catlett v. State, 367 So.2d 735 (Fla. 4th DCA 1979), and Swain v. State, 355 So.2d 865 (Fla. 1st DCA 1978).

Affirmed.

SHAW and THOMPSON, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: DANAHY, Judge. OTT, Judge,

text:
    BALBOA INSURANCE COMPANY, Petitioner, v. W. G. MILLS, INC., Respondent.
    No. 80-1621.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 1981.
    Carroll S. Barco, Law Office of Carroll S. Barco, Orlando, for petitioner.
    Daryl J. Brown of Rosin, Abel, Band, Brown & Russell, Sarasota, for respondent.
   DANAHY, Judge.

W. G. Mills, Inc. (Mills), contracted to build the DeSoto County High School. Its agreement with the DeSoto County School Board provided that all claims and disputes were to be resolved by arbitration. Mills subcontracted certain work on the building to the Colson Plumbing Company (Colson). The subcontract incorporated by reference part of the primary contract between Mills and the school board, including the arbitration provision. Balboa Insurance Company (Balboa) furnished a payment and performance bond on behalf of Colson to Mills.

A dispute arose between Mills and Colson allegedly because Colson failed to complete the work called for in the subcontract. Mills filed an action in circuit court against Balboa as Colson’s surety. Balboa responded with a “Motion to Dismiss” in which Balboa initially maintained that the court was without jurisdiction over the matter because the subcontract, by its incorporation by the primary contract, provided that all disputes were to be settled by arbitration.

The trial court denied the motion to dismiss and Balboa filed a notice of appeal. Mills moved to dismiss the appeal and we denied that motion but directed that the notice of appeal be treated as a petition for certiorari.

Mills contends that Balboa waived its right to arbitration when it moved to dismiss the complaint. We do not agree.

It is well settled that a party waives its right to arbitration by inconsistent conduct. Seville Condominium # 1, Inc. v. Clearwater Development Corp., 340 So.2d 1243 (Fla. 2d DCA 1976). For instance, in Gettles v. Commercial Bank at Winter Park, 276 So.2d 837 (Fla. 4th DCA 1973), the court held that Gettles had waived his contractual right to arbitration when he filed an answer, counterclaim, and motion to dismiss before moving to compel arbitration. Also, answering a cross-claim and filing a reciprocal cross-claim has been held to constitute a waiver of arbitration. King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977). Finally, in Seville Condominium # 1, Inc., this court noted that by initiating legal action and pre-suit statements a party waived its right to arbitration.

In the foregoing cases, the party deemed to have waived arbitration asserted his right to arbitration after he actively participated in the lawsuit. A different result has been reached where a party has sought to enforce his right to arbitration in the initial response to a complaint. In Sun Insurance Office, Ltd. v. Phillips, 230 So.2d 17 (Fla. 2d DCA 1970), an insurer responded to the insured’s complaint with the motion to dismiss and to compel arbitration. In reversing the denial of the motion, we implicitly recognized that the right to arbitration had not been waived by coupling with the motion to compel arbitration a motion to dismiss. Likewise, in Miller Construction Co., Inc. v. First Baptist Church of Live Oak, Inc., 396 So.2d 281 (Fla. 1st DCA 1981), the court rejected the church’s contention that the construction company waived arbitration when it filed a motion to dismiss and to compel arbitration.

In this case, Balboa did not include in the caption of its motion to dismiss the words “and motion to compel.” However, a pleading is not governed by its label, but rather, by its substance. Sodikoff v. Allen Parker Co., 202 So.2d 4 (Fla. 3d DCA 1967). Clearly the initial allegations of Balboa’s motion to dismiss were based on its contractual right to arbitration. The instant case, like Sun Insurance Office, Ltd., presents a situation where the party demanding arbitration did so in its initial response to the law suit. Therefore, we hold that Balboa had not waived its right to have the dispute submitted to arbitration.

Mills has not contended that the arbitration clause was unenforceable or that the dispute was outside its scope. Accordingly, we grant the petition and vacate the order denying the motion to dismiss. The case is remanded for further proceedings consistent with this opinion.

BOARDMAN, J., concurs.

OTT, J., concurs specially with opinion.

OTT, Judge,

concurring specially.

I agree that under present law the arbitration provision contained in the contract in question is enforceable. However, for the reasons I expressed in my specially concurring opinion in McAllister v. Giroux, 401 So.2d 908 (Fla. 2d DCA 1981), I remain unalterably opposed to the concept that the right of free access to the courts can be waived by an agreement for the compulsory arbitration of future disputes.

      . The arbitration clause was apparently part of the A. I.A. Document A-201 which was incorporated by reference in the primary contract. The clause provided as follows:
      All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subpar-agraph 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.


text:
    Diane LESLIE, As Executrix of the Estate of Wilfred Desjadon, Appellant, v. FLORIDA WATER AND UTILITIES CO., Appellee.
    No. 80-1224.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1981.
    Kanner, Brown & Lambert and Richard Kanner and Carl M. Lambert, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before HUBBART, C. J., and PEARSON, DANIEL and BASKIN, JJ.
   ON MOTION TO RECALL MANDATE

PER CURIAM.

The mandate is recalled. The opinion of this court filed on March 24, 1981, 395 So.2d 601, is withdrawn. The opinion is amended to read:

We hold that under our prior decision in Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla.3d DCA 1978, cert. denied, 370 So.2d 459 (Fla.1979), Leslie is barred from bringing an independent tort action on behalf of her decedent against Florida Water and Utilities Co., the parent company of Florida Water and Utilities, Inc., decedent’s employer, where the decedent had received workmen’s compensation benefits under a policy of insurance jointly insuring Florida Water and Utilities Co. and its wholly owned subsidiary, Florida Water and Utilities, Inc. We hereby certify that our holding in this case is in direct conflict with the holding of our sister court in Wilkerson v. Gulfstream Land and Development Corporation, 402 So.2d 550 (Fla.4th DCA 1981).


text:
    ALTAMIL CORPORATION, Appellant, v. GOLD KIST POULTRY a/k/a Gold Kist, Inc., Appellee.
    No. ZZ-85.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1981.

      Dennis J. Wall, of Rumberger, Kirk, Caldwell & Cabaniss, Orlando, for appellant.
    Charles Vocelle, of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appel-lee.
   PER CURIAM.

AFFIRMED. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), reh. denied; Seaboard Coast Line Railroad Co. v. Smith, 359 So.2d 427 (Fla.1978), reh. denied; United Gas Pipeline Co. v. Gulf Power Co., 334 So.2d 310 (Fla. 1st DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976).

ERVIN, WENTWORTH and JOANOS, JJ., concur.


text:
    John Daniel COFFEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1647.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. State, 396 So.2d 1107 (Fla.1980). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    Sandra F. WYNN, Appellant, v. STATE of Florida, Appellee.
    No. 80-2172.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.
    Jerry Hill, Public Defender and Kathe Kates Davis, Asst. Public Defender, Dar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Sandra F. Wynn appeals her conviction and sentence for robbery with a firearm. She was sentenced to a three-year mandatory prison term to be followed by fifteen years probation. Appellant’s conviction is affirmed. However, because appellant’s sentence may be an illegal split sentence according to Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), the judgment and sentence is affirmed without prejudice to appellant to apply for resentencing in accordance with Villery in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

BOARDMAN, A. C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    Aaron BATES, Appellant, v. STATE of Florida, Appellee.
    No. 81-179.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. State, 396 So.2d 1107 (Fla.1980). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

HOBSON, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    Andrew PRESCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 81-653.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.
    Jerry Hill, Public Defender, Bartow and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. State, 396 So.2d 1107 (Fla.1980). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    Paul Anniston SIMS, Appellant, v. STATE of Florida, Appellee.
    No. XX-233.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Paul A: Rasmussen, Pensacola, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Sims appeals his conviction of robbery, which conviction is affirmed based on our opinion in the related case of Engram v. State of Florida, 405 So.2d 428 (Fla. 1st DCA 198Í.) However, this case is remanded with directions to correct the Uniform Commitment to Custody Order to reflect the 346 days of jail time credit already served, and this mandate will be withheld pending final disposition of the petition for review, if any, filed in Engram. The judgment and sentence as modified herein are AFFIRMED.

McCORD and SHIVERS, JJ., and MASON, ERNEST E., (Retired) Associate Judge, concur.


text:
    Leroy HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. AD-347.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Leroy Hampton, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

Hampton appeals the denial of his Rule 3.850 motion, which alleged his counsel had ineffectively assisted him at his trial. Hampton had earlier raised the same issue on direct appeal in Hampton v. State, 396 So.2d 1236 (Fla. 1st DCA 1981), in which we per curiam affirmed on the authority of State v. Barber, 301 So.2d 7 (Fla. 1974), requiring a defendant to raise such issue via a 3.850 motion.

Hampton specifically alleged that his counsel was ineffective for two reasons: (1) Counsel “failed to effectively cross-examine [certain] state witnesses,” and (2) counsel “erroneously believed that he could not request an instruction on lesser offenses and therefore he did not request a lesser and it was not preserved for [his] appeal.” As to the first ground alleged, we agree that the conclusory nature of the claimed deficiency is such that it does not meet the first factor in the four-factor test, required in Knight v. State, 394 So.2d 997, 1001 (Fla. 1981), that the claim of ineffectiveness “be detailed in the appropriate pleading.” The second assertion, however, on its face alleges a serious deficiency, since a failure to give a lesser included offense once removed, upon appropriate objection, is deemed harmful error. See State v. Abreau, 363 So.2d 1063 (Fla. 1978). Hampton specifically alleged that he was convicted of burglary, grand theft, and resisting arrest with violence. The trial court’s order of denial stated that the second ground was without merit because there was no dispute at trial that the value of the goods which were taken was more than $100.00. Although the record in the instant case did not include a transcription of the trial proceedings which conceivably may have supported the trial court’s order, we have nevertheless reviewed the record in the prior appeal, and it does in fact show that the value of the goods stolen was in excess of $100. We are of course permitted to take judicial notice of the record of a prior appeal involving the same case. See McNish v. State, 47 Fla. 69, 36 So. 176 (1904).

Accordingly, the order denying the motion to vacate is

AFFIRMED.

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


author: THOMPSON, Judge.

text:
    James T. HAMM, Appellant, v. STATE of Florida, Appellee.
    No. AF-118.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Gregory C. Smith, Asst. Atty. Gen., Day-tona Beach, for appellee.
   THOMPSON, Judge.

The appellant challenges the validity of his probation Orders, contending that the trial court improperly set forth the terms of the restitution that is to be made by the appellant. We agree and reverse.

The appellant was charged with stealing a shotgun and dealing in stolen property (i.e., another shotgun). At the time these crimes occurred, the victim’s house was substantially damaged by shotgun blasts. The victim told an investigating officer that the appellant caused this damage. Additionally, the victim told the officer that before this shooting incident took place, certain jewelry had been stolen from her house, and she suspected that the appellant was responsible for this earlier incident.

The appellant pled guilty to the crimes charged, and a sentencing hearing was scheduled. At that hearing, the trial court placed the appellant on probation, with a condition that he provide full restitution to the victim, who was to furnish an estimate of her damages to the Probation and Parole Commission (“the Commission”). The appellant’s counsel timely objected on several grounds to this condition being imposed. Counsel also requested a hearing on the issue of restitution. The objection was overruled and the request was denied. The Commission later determined that the amount of restitution should include sums for damages to the victim’s house as well as for the stolen jewelry.

In Blincoe v. State, 371 So.2d 595 (Fla. 1st DCA 1979), this court addressed a situation similar to the one at bar. In Blincoe, as a condition of probation, restitution was ordered when the appellant was sentenced, without any prior notice that restitution was to be considered. We stated that “notice of the proposed restitution must be provided a defendant and an opportunity afforded him to be heard on the amount of damage or loss.” Id. at 596. This procedure was not followed in this case, and reversal is required.

We also note that the trial court improperly requested the commission to determine the amount of restitution due. This determination must be made by the trial court. See McClure v. State, 371 So.2d 196, 197 (Fla.2d DCA 1979). Lastly, in determining the amount of restitution to be paid, the trial court may not “require payment in excess of the amount of damage the criminal conduct caused the victim.” Fresneda v. State, 347 So.2d 1021, 1022 (Fla.1977). The appellant was never charged with nor convicted of stealing the jewelry or causing the damage to the victim’s house.

The Orders appealed from are reversed insofar as restitution was made a condition of probation. This cause is remanded with directions to provide the appellant with adequate notice of any proposed restitution, and to afford him an opportunity to be heard on the amount of damages. Such a hearing should be conducted in compliance with this opinion.

ERVIN and SHAW, JJ., concur.