author: SHIVERS, Judge. ERVIN, Judge,

text:
    FLORIDA DIVISION OF CORRECTIONS, Appellant, v. John P. MORGAN, Appellee.
    No. QQ-467.
    District Court of Appeal of Florida, First District.
    April 17, 1980.
    Rehearing Denied May 21, 1980.

      Bernard J. Zimmerman and Robert C. Barrett, of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.
   SHIVERS, Judge.

The employer appeals the Order of the Judge of Industrial Claims awarding claimant permanent total disability benefits together with attorney’s fees and costs. We agree with the employer that there is no competent substantial evidence to support the award and, therefore, reverse.

There is no dispute that claimant suffered a compensable low-back injury on July 30, 1974. Two laminectomies were performed, one in late August 1974 and the other in November 1975. Dr. Hoff, the neurosurgeon who performed the laminec-tomies, testified claimant had reached maximum medical improvement (MMI) by December 1,1977, and that he sustained a 50% permanent partial anatomical impairment of the body as a whole. Dr. Matthews, an orthopedist who assisted Dr. Hoff in treating claimant, agreed with Dr. Hoff’s 50% rating but assigned December 15, 1977, as the date of MMI. Dr. Uricchio, an orthopedic surgeon, saw claimant in March, April, May, and July of 1978. Dr. Uricchio testified that claimant reached MMI prior to March 1978 and that claimant had a 25% permanent partial anatomical impairment of the body as a whole. The employer voluntarily paid temporary total benefits until December 15, 1977, 50% permanent partial benefits thereafter, plus medical benefits.

Claimant, aged 44, is a white male with a fifth grade education who has worked primarily as a farm hand, a mechanic, and a truck driver. He has also received training in air conditioning and heating repair. Claimant testified that his reading and writing abilities are limited. He experiences pain in his back and both legs and numbness in his left leg. He can walk for fifteen minutes, sit up to thirty minutes, and can drive for about ten minutes without stopping. Dr. Hoff, Dr. Matthews and Dr. Uricchio agreed that claimant could perform light, sedentary work. They recommended that claimant avoid work that involves heavy lifting, excessive jolting, excessive twisting, prolonged sitting and prolonged standing.

There were two hearings before the Judge of Industrial Claims, one on December 1, 1978, and the other on January 18, 1979. In addition to the medical testimony (in the form of depositions) the claimant testified, an employment expert for claimant (Mr. Deutsch) testified, and an employment expert for employer (Mr. Reiser) testified. Additionally, the deposition of a second employment expert for employer (Mr. Pryor) was admitted into evidence.

Claimant testified he had made no job search. Mr. Deutsch testified that claimant is unemployable based on his testing of claimant, his review of claimant’s medical history, and his familiarity with the job market in Lake County. Mr. Deutsch had not performed a job canvass. Mr. Pryor testified by deposition that he started working with claimant in March 1978 and that claimant was hostile and uncooperative. Mr. Reiser testified that he performed a job canvass and found ten prospective employers for claimant. When Mr. Reiser attempted to tell claimant about these possible jobs, claimant refused to talk to him on advice of counsel. At.the second and final hearing held January 18, 1979, the Judge of Industrial Claims gave employer sixty days within which to find claimant a job. Claimant agreed to cooperate in the job search.

By letter dated January 26, 1979, Mr. Reiser reported that claimant had accompanied him on five job interviews. None of these interviews resulted in claimant landing a job. Four of the places interviewed did not have a job presently available. Two of these locations agreed to keep claimant’s application for future reference. The fifth place interviewed was a welding shop. The owner of the welding shop described a light duty job and expressed an interest in hiring claimant. The proposed job was contingent upon the welding shop receiving certain contracts that had not materialized. Mr. Reiser reported that Mr. Morgan argued he could do nothing of any economic benefit for himself or his family. Mr. Reiser described claimant as “a deeply embittered and hostile gentleman.”

There is no competent substantial evidence to support the finding of permanent total disability based on loss of wage-earning capacity. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla. 1975). The Judge of Industrial Claims did not find that claimant’s injuries excused claimant’s failure to make an independent job search. Mr. Deutsch’s testimony is not competent, substantial evidence of claimant’s unemployability. Cook v. Hamilton County Board of County Commissioners, IRC Order 2-2984 (June 16, 1976).

It is true that claimant, after the second hearing, accompanied Mr. Reiser on all the job interviews Mr. Reiser had set up. It is also true that none of the places interviewed had a job available. We construe this insufficient proof of claimant’s loss of wage-earning capacity. It must be remembered that the burden was on claimant to prove his inability to find employment. The burden, was not on the employer to prove claimant’s employability.

Because the award of permanent total benefits is reversed, the award of attorney’s fees and costs is also reversed.

The order appealed is reversed and remanded for proceedings consistent herewith.

MILLS, C. J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I would affirm the award of permanent, total disability benefits. In my view, the facts in this case are nearly indistinguishable from those in Glenn Brooks v. Haines City Citrus Growers Association, 382 So.2d 725 (Fla.lst DCA 1980). There we reversed the judge’s refusal to grant permanent, total benefits. Here we reverse the judge's award of such benefits. In both cases claimants’ education was limited; their work experience confined to heavy, unskilled labor, and, following their accidents, their job opportunities were restricted to light, sedentary employment. Yet, in both instances, I think it obvious that the claimants’ limited intellectual capabilities precluded office work.

In the present case, I believe that claimant’s job search in a rural county, offering only a few employment opportunities to someone in claimant’s condition, was sufficient to meet the burden placed upon him; and, consequently, he demonstrated it was unlikely he could resume gainful employment. Having done so, the burden shifted to the employer/carrier to present evidence showing some work was available which was within claimant’s capabilities. See Ross v. Roy, 234 So.2d 99 (FIa.1970); Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960); Stanley v. Master Masonry Construction, Inc., 287 So.2d 67 (Fla. 1973); Hogan v. Central Sand Company, 141 So.2d 576 (Fla.1962). The above cases generally state that once a claimant proves he can perform only services limited in quantity, dependability or quality, the burden shifts to the employer to show that a job within his limitations does actually exist. No reasonable job market was shown accessible for the claimant, and, since the employer/carrier failed to meet its burden showing the contrary, claimant was entitled to permanent, total disability benefits as a matter of law.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIRST SOUTHERN FEDERAL SAVINGS AND LOAN ASSOCIATION OF MOBILE, Appellant, v. DEPARTMENT OF REVENUE of the State of Florida, Appellee.
    No. OO-160.
    District Court of Appeal of Florida, First District.
    April 18, 1980.
    Edward T. Barfield of Reeves, Barfield & King, Pensacola, for appellant.
    Jim Smith, Atty. Gen., E. Wilson Crump, III, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See First Nat. Bank, etc. v. Dept. of Revenue, 364 So.2d 38 (Fla. 1st DCA 1978), app. dism., 368 So.2d 1866 (Fla. 1979).

ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.

BOOTH, J., dissents without opinion.


author: SHIVERS, Judge.

text:
    Jay C. CHENEY, Appellant, v. F. E. C. NEWS DISTRIBUTION COMPANY and Liberty Mutual Insurance Company, Appellees.
    No. QQ-178.
    District Court of Appeal of Florida, First District.
    April 18, 1980.
    Rehearing Denied May 16, 1980.
    Janet Freeman, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Marjorie D. Gadarian, of Jones, Paine & Foster, P. A., West Palm Beach, for appel-lees.
   SHIVERS, Judge.

This appeal is from an order of the Judge of Industrial Claims, who held that an injury appellant suffered while working was not related to his employment, and was therefore not compensable.

To recover, appellant must have suffered an accident and injury arising out of and in the scope of his employment. We find that he did because, although his injury resulted from a preexisting physical condition, the effects of that condition were aggravated by his employment.

Claimant sustained a basilar skull fracture on June 8, 1977, while working for the appellee/employer. Before this, in February 1977, claimant had been involved in a nonwork-related automobile accident which caused him to suffer a hematoma, cerebral concussion and amnesia. Following the automobile accident, claimant had recurrent symptoms of headaches and dizziness almost every morning while getting out of bed. He also complained of dizziness resulting from any change of position, and testified that his headaches and dizziness occurred mostly when he was bending down.

After the accident he was hired by his brother, the appellee’s manager, to work for the appellee, a news distributor. The job, in which claimant delivered magazines to retail outlets, required him to bend down to pick up and put magazines on the rack, and to take the outdated magazines off the rack and place them back in the delivery truck.

At the time of the accident, claimant was replacing magazines on the rack in Publix Supermarket when he became dizzy, fell onto the tile terrazo floor and injured his head.

Claimant specifically remembered putting the magazines on the rack, holding them and throwing old ones down on the floor. He testified:

. I bent down to pick them up and put them back in the rack and I was dizzy when I got up, you know, like the room goes around a little bit, and I turned to Mike and I said, “Mike, I do not feel good,” and that’s the last thing I remember.

The Judge, in denying that appellant’s injury was related to his job, stated he relied “very heavily” on the opinion of Dr. Kaplan, a neurologist, whom the Judge considered “more qualified than any witness in the case even though he never saw the claimant.”

The Judge concluded:

Dr. Kaplan . . . could not say with any degree of certainty what caused the claimant to fall on June 8, 1977, suggesting that possibly a dizziness on a postural change caused the June, 1977 fall and the second injury. .
18. The only conclusion that can be reached if Dr. Kaplan’s testimony is ignored is that the claimant fell on June 8, 1977 because of a condition caused by the auto accident.
14. Or if all of the evidence is considered and Dr. Kaplan is relied on, the claimant's fall on June 8,1977 is an idiopathic incident that had no relationship to anything that occurred earlier.
In either case, the fall and injury of June 8, 1977 is in no way related to the claimant’s employment and does not arise out of the claimant’s employment.

While it is true that the condition which caused appellant’s dizziness did not arise from his job, the activity demanded by his work increased the chances of his becoming dizzy. This case is therefore analogous to State of Florida, Department of Transportation v. Hendry, IRC Order 2-3786 (April 1979). In that case, the Commission found that the employee should be compensated because the activity of getting into and out of a car, which was required by his job, aggravated a preexisting physical condition.

In the case under consideration, claimant’s duties required him to carry magazines, put them on the floor, then on a rack, and take others off a rack. These activities indicate the necessity to bend, twist and turn to accomplish his job. .

Positional changes often portended claimant’s dizziness. At home he could control the amount of twisting, turning and bending that he did, but not at work. Here the employment activity did contribute to the injury. It is less likely the employee would have fallen at home where he could have better and more selectively controlled his positional changes. See also Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944).

We disagree with appellee’s contention that Southern Bell Telephone and Telegraph Co. v. McCook, 355 So.2d 1166 (Fla. 1977) mandates the affirming of the appealed order. In that case, an employee with a congenital back condition, while using the restroom at work at a scheduled break, leaned over to pick up a stray roll of toilet paper and suddenly experienced a grabbing sensation in her back. The McCook case is distinguishable from the one under review. The Hendry case noted the entire pertinent statement in McCook:

McCook suffered from an idiopathic condition- which manifested itself for the first time during the course of employment, for reasons entirely extraneous to her job conditions or duties.

We hold that claimant suffered an accident and injury arising out of and in the scope of his employment.

REVERSED and REMANDED for further proceedings consistent herewith.

ERVIN and SHAW, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Ralph Paul OESTERLE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1878.
    District Court of Appeal of Florida, Second District.
    April 18, 1980.
    Rehearing Denied May 5, 1980.
    Michael H. Hatfield, Umatilla, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

This is an appeal from the denial of a motion to suppress a confession.

The facts are not in dispute. At the hearing on the motion to suppress, Deputy Jerry Fennell of the Highlands County Sheriff’s Department testified that in the early hours of April 19, 1979, he received word that a plane loaded with marijuana had just landed in DeSoto County near the Highlands County line. He proceeded to the area, where he found the plane in a pasture about two miles southwest of the intersection of two dirt roads, Marguerita Road and Ten Mile Grade Road. The plane was visible from the intersection but could be reached only by going through a gate in a fence on the south side of Ten Mile Grade Road.

At about 5:00 a. m. Deputy Fennell, along with officers in three or four patrol cars and two or three unmarked vehicles, took up a position on Marguerita Road near the intersection. They saw no vehicles until approximately 6:30 a. m. when a pickup truck with a “topper” on the back approached them from the north on Margueri-ta Road. The truck went past them and turned west onto Ten Mile Grade Road. The officers saw that there was more than one man in the truck and that in the direction the truck was traveling, it would pass the access to the pasture where the plane was located.

Deputy Fennell and another officer got into Fennell’s patrol car to follow the vehicle. As they did so, they noticed the truck had an out-of-county tag and that they could not see through the windows of the topper. Fennell then stopped the truck. On direct examination he testified that he could not remember whether he had done so before or after it had passed the entrance to the pasture. On cross-examination, however, he stated that the gate was about three-quarters of a mile from the intersection and that he had stopped the truck approximately one to one and a half miles beyond the intersection.

Shortly after Deputy Fennell stopped the truck, Deputy Kenny Carlton of the DeSoto County Sheriff’s Department arrived on the scene and questioned its driver, appellant. During this questioning, appellant admitted that he was in the area to meet the airplane and unload its cargo.

The state charged appellant with trafficking in cannabis. He filed a motion to suppress his statements and admissions, but the court denied this motion. Appellant then entered a plea of nolo contendere, reserving the right to appeal the denial of his motion. The court accepted the plea and made a finding, to which both appellant and the state agreed, that appellant’s confession was necessary for the state to obtain a conviction. Thereafter, the court adjudged appellant guilty and sentenced him to five years in prison.

As a preliminary matter, we must first consider whether, having pled nolo contendere, appellant may now appeal the denial of his motion to suppress his confession. In Brown v. State, 376 So.2d 382 (Fla.1979), the supreme court held that a defendant may only reserve the right to appeal the denial of a motion to suppress where the suppression would be dispositive of the case. It further held that “as a matter of law a confession may not be considered dispositive of the case.” 376 So.2d at 385. Despite this language, we do not believe that the supreme court meant that the parties could not, with the approval of the court, stipulate to a finding that the suppression of a confession would be dispositive of the case. Our sister court has just reached the same conclusion in Jackson v. State, No. NN-168 (Fla. 1st DCA Mar. 28, 1980). Accordingly, we will proceed to the merits of this appeal and examine appellant’s argument that the trial court should have suppressed his confession because it came about as the result of an illegal stop and detention.

In order for a law enforcement officer to stop and detain a vehicle, the officer must have a well-founded suspicion of the presence of criminal activity. E. g., McClure v. State, 358 So.2d 1187 (Fla. 2d DCA 1978). As we recently noted in State v. W.O.R., 382 So.2d 763 (Fla. 2d DCA 1980), a well-founded suspicion is “ ‘a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.’ ” At 764. In the present case, the information available to Deputy Fennell did not give rise to a well-founded suspicion. Appellant’s truck was proceeding lawfully along a public road and gave no indication of turning into the gate which provided the only access to the marijuana plane. Moreover, neither the fact that the truck had an out-of-county tag nor the fact that the topper’s windows were blacked out was sufficient to indicate criminal activity. Hence, the stop and detention of appellant were illegal, and as a result, the- confession which the officers obtained immediately thereafter was also tainted. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); In re R.L.J., 336 So.2d 132 (Fla. 1st DCA 1976).

We reverse appellant’s conviction and the denial of his motion to suppress.

HOBSON and CAMPBELL, JJ., concur.

      . In Brown the court was concerned that any attempt to demonstrate that a confession was dispositive would result in a mini-trial of the case. Obviously, where there is a stipulation, such a result would not occur.


author: ERVIN, Judge. BOOTH, Judge,

text:
    Grover W. BURGAN and American Sportsman of North Florida, Inc., Appellants/Cross-Appellees, v. The PINES COMPANY OF GEORGIA, LTD., a Limited Partnership, Bridle Woods, Ltd., a Limited Partnership, and Bridle Woods II, Ltd., a Limited Partnership, Appellees/Cross-Appellants.
    No. NN-7.
    District Court of Appeal of Florida, First District.
    April 22, 1980.
    Rehearing Denied May 8, 1980.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for appellants/cross-appellees.
    John F. Fannin, Jacksonville, for appel-lees/cross-appellants.
   ERVIN, Judge.

This appeal is from a final judgment denying appellants’ action for specific performance of five written documents providing for the sale of realty. Appellants argue that because there was no ambiguity on the face of the documents, as found by the trial court, the court erred in admitting parol evidence for the purpose of showing that the parties intended to make only one contract involving the sale of seven tracts of land. We affirm.

The appellees owned a large, undeveloped parcel of land which was divided into tracts 1, 2, 2A, 3, 4, 5, 6, 7 and 8. The appellants purchased the eastern portion of tract 1 and the western half of tract 3, which adjoined tract 1. Later, appellant Burgan formed appellant American Sportsman, a corporation to develop a recreational-retail complex with tennis and racketball courts, an archery range, skeet and trap shooting, camping and day-care facilities. Burgan needed more land and offered to purchase the remainder of tract 3 and tract 4 from appel-lees.

Initially, appellees were to sell tract 4 and the remainder of tract 3 for $310,000 down and a mortgage. Before closing, appellees offered to sell all the remaining tracts in the parcel for the same down payment. Appellants agreed to the new offer.

Seven contracts for sale were drawn which showed title to the tracts in one or other of the appellees. The cash requirement was allocated among the contracts. All of the contracts provided for the same closing date. At closing, Burgan announced he could not meet the $310,000 cash requirement and demanded appellees convey him the land covered by only five of the contracts. Those five contracts required $39,260 down and the discharge of an existing mortgage on tracts 3 and 4. After the appellees refused to close on less than all of the contracts, the appellants sued for specific performance of the five contracts. The appellees affirmatively defended that the contracts were not intended to be separate, complete agreements in themselves, but that they were all part of a package deal which contemplated sale of all of the seven tracts. Appellants moved to strike the defense, asserting that the five contracts were not facially ambiguous and that the parol evidence rule prohibited evidence that they were not contracts complete in themselves.

Before the trial judge, the parties stipulated that extrinsic evidence would be allowed subject to the appellants’ standing objection to the admission of parol evidence. While the trial judge refused to order specific performance, he decreed an equitable lien for sums expended by the appellants before they refused to close.

We agree with the appellees that the trial judge was not bound by the parol evidence rule in deciding whether the seven contracts were each a separate, complete agreement, or whether the parties had agreed that all of the contracts together were the “complete and accurate ‘integration’ . .’’of their agreement. Although the rule precludes evidence of understandings, parol or otherwise, which preceded a final integration of the parties’ contract, if there is disagreement whether the particular writing is in fact a complete and accurate integration of the contract, the parol evidence rule is not applied. 3 Corbin On Contracts, § 573 at 357-59 (1960). And no relevant evidence, parol or otherwise, is excluded. Id. at 360. Accord, Florida Capital Corporation v. Robert J. Bisset Construction, Inc., 167 So.2d 595, 597 (Fla.2d DCA 1964). See also Brown v. Financial Service Corporation International, 489 F.2d 144, 149 (5th Cir. 1974). As observed in Jackson v. Parker, 153 Fla. 622,15 So.2d 451, 460 (1943): “Parol evidence is admissible to connect several written instruments and show that they were all parts of one transaction.”

We conclude that parol evidence was, under the circumstances, admissible to establish that the parties intended one integrated package transaction for the sale of all seven contiguous parcels of real estate. The parcels were negotiated and signed by the same parties, using identical forms which called for but one closing date.

We have considered the other points raised by appellants, which question factual findings of the trial judge, or which restate the issue argued above and, finding evidence to support the judge’s findings, we affirm the judgment in its entirety, including its imposition of an equitable lien in favor of the appellants.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I would reverse the judgment sought to be reviewed, which judgment is, in pertinent part, as follows:

“There is no obvious ambiguity on the face of the five documents sued upon, captioned AGREEMENT FOR SALE AND PURCHASE, nevertheless the court admitted testimony at trial and other explanatory evidence concerning them, subject to the Plaintiffs’ standing objection on the ground of the parol evidence rule
* * * * * *
“The seven agreements were silent regarding the Defendants’ contention that the underlying assumption of the parties was that the seven agreements were intended to be considered as a whole and were to be construed as one, entire contract. Nevertheless, considering all the evidence, the court does not invoke the parol evidence rule and finds from the discussions and actions of the parties and their attorneys, which are not inconsistent with the writings, the Defendants’ aforesaid contention is correct. The parties did make a single, entire contract, which is manifested in the seven documents, . . . ”

The foregoing judgment finds that the five contracts sought to be specifically enforced contain “no obvious ambiguity.” The court further finds the agreements are “silent” as to the defendants’ contention that the “underlying assumption of the parties” was that the seven agreements were to be one contract. These findings by the trial court require application of the parol evidence rule and preclude the use of extrinsic evidence to vary or add to the terms of the contract. The court’s conclusion that the seven separate contracts were a single contract can only be based on evidence outside the written agreements in contravention of the parole evidence rule.

The parol evidence rule is not a rule of evidence but a rule of substantive law. Under this Rule, a finding of ambiguity is a prerequisite to the use of extrinsic evidence to vary the terms of a valid contract. It is also held that extrinsic evidence may not be used to create the ambiguity, as stated in J. C. Penney Co. v. Koff, 345 So.2d 732, 735 (Fla.4th DCA 1977):

“[T]he courts are allowed to consider extrinsic evidence only when confronting an ambiguous contract provision, and they are barred from using evidence to create an ambiguity to rewrite a contractual provision, or to vary a party’s obligation under a contract.”

My review of the record fails to reveal a basis for the majority’s affirmance of the trial court’s conclusion, since that affirmance requires a finding that, contrary to the trial court’s finding, the five agreements are ambiguous. The record will not, in my opinion, support that finding.

I respectfully dissent.

      . As to tracts 2, 2A, 5, 6, 7 and 8, no cash consideration was recited on the face of the documents, although appellants were to assume the current balance on certain mortgages, and no cash money deposits were required for tracts 2, 2A, 4, 5, 6, 7 and 8.

      . Pearson v. Pearson, 342 So.2d 1018 (Fla.4th DCA 1977); Evans v. Borkowski, 139 So.2d 472, 474 (Fla. 1st DCA 1962); E. A. Turner Construction Co. v. Demetree Builders, 141 So.2d 312, 314 (Fla. 1st DCA 1962); J. M. Montgomery Roofing Co. v. Fred Hauland, Inc., 98 So.2d 484 (Fla. 1957).


text:
    Timothy Charles McCORD, Appellant, v. STATE of Florida, Appellee.
    No. NN-80.
    District Court of Appeal of Florida, First District.
    April 22, 1980.
    Robert Augustus Harper, Jr., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Webb v. State, 373 So.2d 400 (Fla. 1st DCA 1979).

MILLS, C. J., and ERVIN and SHIVERS, JJ., concur.


author: NESBITT, Judge. HUBBART, Judge

text:
    Barry Scott ADLER, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-134, 79-833.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.

      Jack R. Blumenfeld, Moran & Gold and William M. Moran, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

In these consolidated appeals, the defendant seeks reversal of the trial court’s denial of his motions to: (1) withdraw his plea of guilty prior to imposition of sentence; (2) vacate his guilty plea after adjudication and sentence; and (3) disqualify the trial judge. We affirm the trial court’s rulings for the reasons presented.

A recitation of the chronology of the salient events is necessary to understand the defendant’s position in the trial court. He was indicted on September 12,1977 for: (1) murder in the first degree; (2) robbery; and (3) kidnapping, all committed against Robert Topping. Also indicted, as a co-defendant, was Andrew Schell. As the case progressed for trial, it became the subject of plea negotiations. Defendant’s counsel sought and obtained a written confirmation of the agreement reached with the state regarding the plea negotiations. On October 25,1978, pursuant to the agreement, the defendant plead guilty to the above counts as modified. The court accepted the guilty plea and ordered a presentence investigation. The defendant was allowed to remain at large on bail pending sentencing. On November 13, 1978, the state confirmed by letter to defendant’s counsel its understanding with respect to the sentencing of the defendant. The sentencing phase was scheduled for January 8, 1979. On December 19, 1978, the defendant filed his motion to withdraw the plea of guilty prior to imposition of sentence. An evidentiary hearing on the motion was conducted prior to sentencing following which the trial court denied the motion. After allowing the defendant his allocution rights, the court adjudicated and sentenced him for murder in the second degree and kidnapping and imposed consecutive ninety-nine year terms of imprisonment. No adjudication or sentence was imposed as to the robbery count. New counsel was substituted and filed the motion to withdraw the plea of guilty after adjudication. A hearing thereon was scheduled before the original trial judge for April 6,1979. On March 29, 1979, the motion to disqualify the trial judge was filed. On the appointed date, the motions were summarily denied with the order denying the motion to vacate citing: “that no evidentiary hearing is appropriate or required.”

Since the motion to disqualify the trial judge was not made within ten days prior to the hearing as required by Florida Rule of Criminal Procedure 3.230(c), and no good cause was shown for the failure to have timely filed the motion, it was properly denied. Skipper v. State, 114 Fla. 312, 153 So. 853, appeal dismissed 293 U.S. 517, 55 S.Ct. 76, 79 L.Ed. 631 (1934).

The arguments advanced here for a reversal of the motion to withdraw the guilty plea prior to imposition of sentence and the motion to withdraw the plea of guilty after adjudication and imposition of sentence are substantially alike and inter-related. In summary, the defendant contends: (1) his guilty plea was not freely and voluntarily entered because he intended to enter a plea of nolo contendere; (2) the trial court erred in accepting the guilty plea without making the inquiry required by Florida Rule of Criminal Procedure 3.172; (3) the state attorney failed to honor its agreement to make no recommendation regarding the length of defendant’s sentence; and (4) good cause was shown for withdrawal of the guilty plea prior to imposition of sentence.

In resolving these matters, we are fully aware that a plea of guilty must be voluntarily and intelligently entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record must affirmatively demonstrate the defendant understood the nature of the plea and the charges and that he was admitting guilt. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). A guilty plea must not be influenced by ignorance, mistake or unfilled inducements by the prosecution. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). The law favors a trial on the merits. Roberts v. State, 142 So.2d 152 (Fla. 3d DCA 1962). The withdrawal of a guilty plea will not be refused where it is the least evident that the ends of justice will be subserved by allowing a plea of not guilty to be entered in its place. Hill v. State, 110 So.2d 464 (Fla. 2d DCA 1959). A motion to withdraw a plea of guilty prior to imposition of sentence should be liberally construed in favor of the defendant. United States v. Klein, 560 F.2d 1236 (5th Cir. 1977), cert. denied 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978).

Withdrawal of a guilty plea is not a matter of right but of discretion and will not be set aside absent a showing of abuse. Meaton v. United States, 328 F.2d 379 (5th Cir. 1964), cert. denied 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965). The defendant must establish good cause for withdrawal of a guilty plea prior to imposition of sentence, Fla.R.Crim.P. 3.170(f); State v. Braver man, 348 So.2d 1183 (Fla. 3d DCA 1977), cert. denied 358 So.2d 128 (Fla.1978), and, after imposition of sentence, establish manifest injustice, Williams v. State, 316 So.2d 267 (Fla.1975).

Most of the defendant’s contentions are dispelled by the plea colloquy which discloses the following:

MR. KESSLER: State your name.
THE DEFENDANT: Barry Scott Adler.
MR. KESSLER: Are you the Barry Scott Adler indicted by this court in the State of Florida versus Barry Scott Adler, 77-27914?
THE DEFENDANT: Yes. I am.
MR. KESSLER: At this time, most respectfully, Mr. Adler is going to withdraw his previously entered plea of not guilty to Counts I, II and III of the Indictment.
The State is going to reduce Count I from first degree to second degree.
MR. STELZER: The State will nolle pros Count IV of the Indictment.
MR. KESSLER: There are other areas. However, for the purpose of the change of plea, I would rather not state them to the Court at this time. They do not affect the taking of the plea in any respect.
THE COURT: Is this an open plea to the Court?
MR. KESSLER: Yes.
We have a letter which indicates the principal areas of our plea agreement. There are other matters that are not indicated in the agreement. However, they do not affect the plea.
Mr. Adler will enter a plea of no contest to the reduced charge in Count I; as charged, Count II, as charged, Count III.
MR. STELZER: It is a plea of guilty, as I understood the agreement.
MR. KESSLER: We have no problem with that, Your Honor.
THE COURT: What are the facts of the case?
THE COURT: Mr. Adler, you say you are nineteen years old?
THE DEFENDANT: Yes.
THE COURT: How far did you go in school?
THE DEFENDANT: I graduated high school.
THE COURT: Are you under the influence of any drug or medication, intoxicant of any. kind, which would interfere with your ability to decide what is best for you under these circumstances?
THE DEFENDANT: No.
THE COURT: There is some indication of some mental disability in the past. Are you laboring under such mental disability at this time?
THE DEFENDANT: No.
THE COURT: When was the last time you saw a psychiatrist who may have treated you for any problem you may have had?
THE DEFENDANT: Around four weeks.
THE COURT: Are you taking any psychotropic medication, any psychiatric mediation of any kind?
THE DEFENDANT: No.
THE COURT: Do you feel you are in full command of your faculties and you are able to determine what is best for you under all the circumstances presented to you in this case?
THE DEFENDANT: Yes.
THE COURT: Your attorney, Mr. Kes-sler, said you want to change your plea as to the first three counts in the Information to plead guilty to second degree murder, robbery and kidnapping.
Do you want to do that?
THE DEFENDANT: Yes.
THE COURT: Do you understand what will happen as a result of the plea? I will order a PSI concerning you. Depending on the results of the PSI — but entirely up to me, it is completely within my discretion — I may sentence you to anything up to three consecutive life sentences in the state prison.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Apart from what you know as to what the sentence may be, have you been promised anything or threatened in any way to get you to plead guilty to these charges?
THE DEFENDANT: No, sir.
THE COURT: Are you pleading guilty solely and only because you are guilty of these charges?
THE DEFENDANT: Yes.
THE COURT: Do you understand that by pleading guilty you are giving up many constitutional rights which are guaranteed to you? You are giving up your right to a trial by jury. You are giving up your right to require the State to prove that you are guilty to the jury beyond a reasonable doubt. You are giving up your right to confront the witnesses at the trial — that is, see them and have your lawyer cross-examine them in your presence. You are giving up your right to subpoena witnesses on your own behalf at the trial.
You are giving up your right to take the stand at the trial in your own behalf, or not take the stand and have the jury instructed that they are not to hold that against you in any way.
Do you understand that by pleading guilty you are giving up all those rights?
THE DEFENDANT: Yes.
THE COURT: Have you had sufficient time to discuss the subject of your plea and its consequences with Mr. Kessler, your attorney?
THE DEFENDANT: Yes, sir.
THE COURT: The Court, finding that the plea has been freely and voluntarily made—
MR. KESSLER: May I have a moment with Mr. Kaye? There may be another question we should dispose of at this time.
THE COURT: Do you feel you are in full possession of your faculties, do you not?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with the services of Mr. Kessler and Mr. [Ot-eri] and Mr. Weinberg on your behalf?
THE DEFENDANT: Yes.
THE COURT: Finding that the plea has been freely and voluntarily made, without promise or threat, and upon an adequate factual foundation, I accept the withdrawal of the not guilty plea and entry of the guilty plea to the reduced charge of second degree murder, as charged in Count I, and to the charge of second degree kidnapping and armed robbery in Counts II and III of the Indictment.
What is contemplated as far as the custodial status of this defendant?
MR. STELZER: That is correct. Part of this agreement is that Mr. Adler is now going to start cooperating with the State of Florida, start answering questions which the State of Florida has deposed Mr. Adler that — we wanted to depose Mr. Adler for about fourteen months now.
THE COURT: That is the first the Court has heard of that.
MR. KAYE: As Mr. Kessler said, there are certain aspects of the plea which do not affect the plea, which as far as the defendant’s willingness to cooperate with the State is not predicated upon the plea. It is contained in the letter that is the substance of the plea negotiations, which should be made part of the record.
As an addendum to that, that was contemplated by the defense and the State.
MR. KESSLER: As a further example, the defendant is to waive his psychiatric patient privilege between himself and Dr. Michael Gilbert in order that the State may take testimony from Dr. Gilbert, among others.
THE COURT: I will set it for January 8. I will not adjudicate him at this time. He can remain free pending his bond.
MR. STELZER: Do you find the defendant is competent at this time to enter a plea of guilty?
THE COURT: I have found that the plea is freely and voluntarily made, on an adequate factual foundation, with no promise or threat, or with any mental impediment of any kind.
MR. KESSLER: Thank you.

The court then adjourned but shortly thereafter, on its own initiative, reconvened where the following transpired:

THE COURT: Gentlemen, because of the statements which were made at the conclusion of the hearing, I think we ought to supplement the record somewhat by assuring the Court that part of these negotiations which obviously called for Mr. Adler’s cooperation did not involve any return for that cooperation, any statement by the State that it would recommend any particular penalty or anything else.
MR. KAYE: Just to clarify the record, the arrangements that were entered into between the defense and the State were as contained within the body of the letter which is now made part of this record: that Barry Adler would plead guilty to second degree murder, robbery and kidnapping, with the sentence being left entirely up to the Court, based upon the PSI; that as also part of the plea, the defendant would be willing, if the State so chose, to speak to the State and testify about matters the State would ask him about, in any matter whatsoever. That is it.

There is no obligation and no recommendation, one way or the other. The State may still reject any testimony, reject any use that he may be to the State.

The only thing that was offered — in fact, it was not even requested — it was offered by the defense — that if we so choose, the defendant would be willing to talk to us.

MR. KESSLER: That is correct.
THE COURT: Do you understand what we have just said?
THE DEFENDANT: Yes.
THE COURT: You have not been promised anything at all — that the police or the State Attorney or anyone would recommend or make any statement whatsoever to the Court as to what your sentence should be?
THE DEFENDANT: No.
THE COURT: Is that correct?
THE DEFENDANT: That is correct.
MR. STELZER: Mr. Adler’s parents were here at the other proceeding but were not here today. Mr. Adler testified as a witness for the defense in this case. I would like to make sure that they were apprised of everything that went on and this was with their advice and consent.
MR. KESSLER: Yes.
Your Honor, basically, the reason we asked it to be set for today, as against tomorrow or the regular calendar today, was that the newspapers, at least, will not pick it up.
Mr. Adler’s parents are both apprised of what Mr. Adler is doing, but — they were apprised yesterday that it was going to be today. That is the only difference. There is no problem as far as them knowing exactly what is going on.
THE COURT: Mr. Adler is nineteen years of age?
MR. KESSLER: Yes. He is of age.
MR. KAYE: I have been in contact with the deceased’s family and they are aware of the proceedings and the nature and content.
THE COURT: Thank you.
[Thereupon, the hearing was concluded.]

Prior to sentencing on January 8, 1979, the defendant presented his motion to withdraw the plea of guilty. The defendant testified it was his intention to enter a plea of nolo contendere because: (a) he had not committed the crimes charged; (b) he was not guilty of any of the crimes charged; and (c) he desired to cooperate with the state in obtaining the conviction of an indicted co-defendant, Andrew Schell. He denied authorizing his attorneys to enter a guilty plea. The defendant was impeached by his testimony and responses as made at the plea colloquy. The state did not produce any independent testimony. The court denied the motion to vacate the guilty plea, gave the defendant his allocution rights and pronounced sentence. Defendant’s counsel then made the following plea and statement to the court:

THE COURT: Mr. [Oteri], let me ask you what you are attempting. Are you seeking to withdraw the plea?
MR. [OTERI]: Yes, Your Honor.
THE COURT: Reinstate the first degree murder charge?
MR. [OTERI]: Yes, Your Honor, over my judgment. It is what the defendant wants despite all of the conversation we have had with him.
The fact is, Your Honor, that on a purely emotional, almost, level, that this young man — Judge, I have gotten to know fairly well over the last fifteen, sixteen months, is a very high-strung, emotional young man, very much convinced that a great injustice was done to him when Mr. Schell was allowed to plead and when Mr. Schell was not even subjected to an investigation based upon what he had said.
It may not make a lot of sense, legally, Judge. At this point he has not been sentenced and under your rule, if good cause is shown before sentence, a plea should be allowed to be withdrawn if it is in the interest of justice.
I would say to you, Your Honor, based on my experience and I am sure you have even more experience, to force this man to be sentenced today on a plea that was at least the basis of a mistake on the part of communication between us and Barry, and probably a mistake on the part of the communication between the State and us, to force us to sentence him to jail today, Your Honor, is going to do nothing but clog the court with litigation for years, and make a young man very, very bitter about our system.

In this case, the memoranda setting forth the plea and sentencing negotiations were presented to the court and tendered for admission but never formally made a part of the record which would have been the better practice. Our primary concern in reviewing this appeal has been to determine “exactly what was the agreement,” Güilo v. State, 280 So.2d 501, 502-03 (Fla. 4th DCA 1973), to which the defendant plead guilty. “[I]f the plea was induced by promises, the essence of those promises must be made known.” Davis v. State, 308 So.2d 27, 29 (Fla.1975); Fla.R.Crim.P. 3.171. The purpose, of course, is to assure the reviewing court that the defendant understood the agreement and that his plea was firmly anchored thereto. Since the appellant has included these memoranda as part of the record on appeal and there is no dispute over the content or that they were the same as those referred to in the plea colloquy, we find the rule has been satisfied.

Although not directly addressed, it is apparent that the defendant’s real dissatisfaction is centered upon the indicted co-defendant, Andrew Schell, being allowed to enter a plea of guilty to reduced charges, based upon a plea negotiation, following which his adjudication of guilt and imposition of sentence were withheld and he was placed on concurrent five-year periods of probation. The entire fabric of defendant’s argument here is interlaced with references to this event. Following the tender and acceptance of the defendant’s guilty plea, the trial judge wisely reconvened court so as to assure and clarify that the defendant’s participation or cooperation with the state in the conviction of Andrew Schell had absolutely nothing to do with defendant’s guilty plea. In open court, with defense counsel and the defendant present, the assistant state attorney stated: “There is no obligation and no recommendation, one way or the other. The State may reject any testimony, reject any use that he may be to the State.” This statement was confirmatory of the dialogue which had taken place earlier. The defendant’s counsel stated that the foregoing recitation was a correct understanding. The court then asked the defendant directly whether any statement made to the police or state attorney regarding Andrew Schell constituted any inducement or promise for the plea to which the defendant replied: “No.”

The plea colloquy and memorandum of plea negotiations demonstrate quite clearly the defendant intended and, in fact, did enter a guilty plea primarily because the state reduced the charge from murder in the first degree to murder in the second degree. His contention, therefore, that his plea was not freely and intelligently entered or that he was mistaken as to the entry of a plea of guilty is without merit.

Defendant’s argument that there were significant lacunae by the trial judge with respect to the inquiry required by Florida Rule of Criminal Procedure 3.172 is likewise without merit. We have literally compared the plea colloquy against the inquiry required in the cited rule and find there was substantial compliance. There was a lengthy recitation of the factual basis for the guilty plea. The nature and circumstances of the case dictate the basis for ascertaining whether a guilty plea should be entered and the trial court has broad discretion in determining the procedures to be utilized. Williams v. State, supra.

Finally, the defendant argues that the state failed to honor its plea negotiation commitment because it made a recommendation regarding the length of the defendant’s sentence. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), guidelines for voiding dishonored plea negotiations were announced:

[Circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.

404 U.S. 262, 92 S.Ct. 499, 30 L.Ed.2d 433. From the inception, the inducement for the plea of guilty was that the charge of murder in the first degree would be reduced to murder in the second degree and the sentencing left entirely to the trial court. This is explicit from both the memoranda herein referred to and the sentencing phase of the proceeding. The trial judge did not participate in the plea negotiations. In the memorandum regarding the plea negotiations, the state did indicate it would recommend to the probation and parole officer preparing the defendant’s presentence investigation that he receive a sentence of “life, or maximum on each count.” Assuming that the state initially injected this recommendation after the defendant entered his guilty plea, it did not infringe upon the inducement for the plea. At the plea colloquy, the court made it plain to the defendant:

Depending upon the results of the PSI— but entirely up to me, it is completely within my discretion — I may sentence you to anything up to three consecutive life sentences in the state prison.
Do you understand that?

To which the defendant replied: “Yes.” The state made no direct recommendation to the trial court with respect to sentencing. Since the sentencing was left entirely to the trial court’s discretion, the fact that the state might have indirectly made a recommendation through the probation and parole officer regarding the length of the defendant’s sentence did not vitiate its bargain because the trial court was not bound by any such recommendation and the defendant clearly understood it. State v. Adams, 342 So.2d 818 (Fla.1977) and Wood v. State, 346 So.2d 143 (Fla. 1st DCA 1977).

Singularly and collectively, it is apparent that no good cause was demonstrated to the trial, court sufficient to vacate the guilty plea prior to imposition of sentence. Fla.R. Crim.P. 3.170(f) and State v. Braverman, supra.

No manifest injustice was demonstrated to warrant vacating the guilty plea after imposition of sentence. Fla.R.Crim.P. 3.850 and Williams v. State, supra.

Affirmed.

HUBBART, Judge

(dissenting)

I must respectfully dissent. I would reverse the judgments of conviction and sentences appealed from and remand the cause to the trial court with directions to allow the defendant to withdraw his guilty plea.

In my view, the defendant established good cause for withdrawing his guilty plea prior to sentencing upon his proper motion in this cause under Fla.R.Crim.P. 3.170(f). The guilty plea herein was induced by promises in plea bargaining discussions, the essence of which were not made known to the defendant at the time the trial court accepted the defendant’s guilty plea. Under the established law of this state, such a plea is involuntary and cannot be permitted to stand; it certainly is subject to withdrawal prior to sentencing upon proper motion of the defendant. Davis v. State, 308 So.2d 27, 29 (Fla.1975); Costello v. State, 260 So.2d 198 (Fla.1972); Canada v. State, 144 Fla. 633, 198 So. 220 (1940).

It is clear from the record of the guilty plea proceedings herein that plea discussions had taken place in the cause, that certain promises had been made to the defendant, but, the essence of those promises, contrary to Davis v. State, 308 So.2d 27, 29 (Fla.1975), were not revealed on the record to the defendant. The record of the plea hearing discloses in part the following:

“[DEFENSE COUNSEL]: State your name.
THE DEFENDANT: Barry Scott Adler.
[DEFENSE COUNSEL]: Are you the Barry Scott Adler indicted by this court in the State of Florida versus Barry Scott Adler, 77-27914?
THE DEFENDANT: Yes, I am.
[DEFENSE COUNSEL]: At this time, most respectfully, Mr. Adler is going to withdraw his previously entered plea of not guilty to Counts I, II, and III of the Indictment.
The State is going to reduce Count I from first degree to second degree.
[PROSECUTOR]: The State will nolle pros Count IV of the Indictment.
[DEFENSE COUNSEL]: There are other areas. However, for the purpose of the change of plea, I would rather not state them to the Court at this time. They do not affect the taking of the plea in any respect.
THE COURT: Is this an open plea to the Court ?
[DEFENSE COUNSEL]: Yes.
We have a letter which indicates the principal areas of our plea agreement. There are other matters that are not indicated in the agreement. However, they do not affect the plea.
Mr. Adler will enter a plea of no contest to the reduced charge in Count I; as charged, Count II as charged, Count III.
[PROSECUTOR]: It is a plea of guilty, as I understood the agreement.
[DEFENSE COUNSEL]: We have no problem with that, Your Honor. . .”
[Emphasis added.]

The letter referred to by defense counsel concerning the so-called “principal areas of our plea agreement” was never made a part of the guilty plea proceeding nor were the contents thereof revealed on the record to the defendant. Moreover, no letter of any kind, as the majority herein concedes, was ever made a part of the record of the guilty plea proceeding. In addition, confusing statements are made to the court by defense counsel revealing the existence of other parts of the plea agreement [not contained in the plea agreement letter] which allegedly did not affect the plea, but which defense counsel did not want to state to the court. No inquiry was made by the trial court as to what defense counsel was talking about.

During the subsequent guilty plea colloquy between the court and the defendant, the record reveals the following:

“THE COURT: Apart from what you know as to what the sentence may be, have you been promised anything or threatened in any way to get you to plead guilty to these charges?
[Em-THE DEFENDANT: No, sir. phasis added.]

This exchange appears to indicate that some type of promise had been made to the defendant as to sentencing, but that promise, whatever it was, is not spread out on the record nor revealed to the defendant in any way. Moreover, after the plea had been accepted, the trial court reconvened after a short recess and additional statements were made on the record by various parties which adds further confusion as to precisely what had been agreed to concerning the plea agreement herein. Finally, the letters referred to by the majority at footnotes 4 and 5 of its opinion can form no basis for our decision herein as they were never introduced as a part of the guilty plea record nor do they represent a meeting of minds as to precisely what this plea agreement was.

All considered, I think good cause was shown by the defendant for withdrawing his guilty plea prior to sentencing. The plea was clearly the product of plea discussion promises, the essence of which were not disclosed on the record during the guilty plea proceeding; confusion abounds as to what those promises were. Our law has long favored the withdrawal of a guilty plea prior to sentencing and a trial on the merits where it is the least evident that the ends of justice would be served thereby. Canada v. State, 144 Fla. 633, 198 So. 220 (1940). Surely, that minimal showing has been made in this case. By finding no error in the trial court’s denial of the defendant’s motion to withdraw his guilty plea prior to sentencing based on this record, we depart, in my view, from the established law of this state.

I would reverse and remand as indicated above.

      . Pursuant to Fla.R.Crim.P. 3.170(f).

      . Pursuant to Fla.R.crim.P. 3.850.

      . Pursuant to Fla.R.crim.P. 3.230.

      . The substance of this letter regarding plea negotiations is as follows:
      This letter will serve to confirm our recent telephone conversation and several other conversations prior thereto, wherein we discussed the possibility of the above-named defendant entering a negotiated plea in this case.
      Our understanding is that the terms and conditions of said plea would be as follows:
      1. The State of Florida would reduce the charge of First Degree Murder as contained in Count I of the Indictment to a charge of Second Degree Murder.
      2. The State of Florida would abandon the charge of Possession of a Weapon while Engaged in a Criminal Offense, as contained in Count IV of the Indictment.
      3. The defendant would tender to the court a plea of Guilty to Count I as reduced to Second Degree Murder, Count II which charges the offense of Robbery, and Count III which charges the offense of Kidnapping.
      4.The sentence to be imposed would be left entirely up to the discretion of Judge Alan Schwartz.
      The State of Florida hereby states that it is prepared to abide by the above-stated plea agreement if the defendant herein fulfills his part of the agreement.
      Since the October 2, 1978 trial date is rapidly approaching, we would appreciate hearing from you as soon as possible on this matter. Thank you for your cooperation.

      .The substance of the letter regarding sentencing is as follows:
      Pursuant to your request for written expression of the State’s position regarding sentencing in the above-styled case, let me say that the State of Florida will recommend, in the Pre-sentence Investigation report, that the defendant be given a sentence of life, or maximum on each count.
      The State will also say in the PSI, that there is a written agreement between the State and the Defense, dated September 14, 1978 (a copy of which is in the Court file), in which the State agrees to leave the sentencing entirely up to the Court. The State, pursuant to that agreement, will not enter an objection if the Court, in exercising its sentencing discretion, chooses to sentence the defendant to concurrent rather than consecutive terms. I believe this phraseology is consistent with the matters we discussed in my office prior to the entry of the plea.

      . Fla.R.Crim.P. 3.170(f).

      . Fla.R.Crim.P. 3.850.

      . Fla.R.Crim.P. 3.230.

      . At this point, an assistant state attorney recited the salient evidentiary facts he expected to present to a jury in the event of trial.

      . See footnotes 4 and 5, supra.

      . See footnotes 4 and 5, supra.

      . See footnote 5, supra.


author: NESBITT, Judge.

text:
    Michael D. FREEMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-920.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied May 21, 1980.

      Ginsburg, Byrd & Jones and Fred S. Pflaum, Sarasota, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   NESBITT, Judge.

The issue which is again before us is whether the imposition of a long term sentence imposed under the guise of a special condition of probation is permissible. Again, we rule that it is not. We therefore reverse the order denying the motion to correct the sentence and remand for proper sentencing.

On June 29, 1978, after a non-jury trial, appellant was convicted under a three-count information for: (1) sale and delivery of a controlled substance; (2) possession with intent to sell a controlled substance; and (3) conspiracy to sell a controlled substance. He was adjudicated and sentenced to serve ten years probation on Count I with a special condition of probation that he be confined to the state penitentiary for a period of five years. As to Count II, he was adjudicated and sentenced to five years probation with a special condition of probation that he be confined in the state penitentiary for a period of five years, that sentence to be served concurrently with the sentence in Count I. As to Count III, the defendant was adjudicated and sentenced to one year probation with a special condition of probation that he be confined to the state penitentiary for a period of one year, that sentence to be served concurrently with the sentence in Count I above.

We have previously held that a lengthy prison term, which has the effect of precluding parole before the term expires, cannot be imposed as a condition of probation especially where its purpose is to punish the defendant. Geter v. Wainwright, 380 So.2d 1203 (Fla.3d DCA 1980); Cooney v. State, 376 So.2d 926 (Fla.3d DCA 1979); Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979).

A review of the record leaves no doubt that the trial court’s imposition of a long term prison sentence, under the guise of a special condition of probation, was to punish the defendant and deny him the opportunity for parole.

There is a clear distinction between a sentence and a condition of probation. State v. Williams, 237 So.2d 69 (Fla.2d DCA 1970). A sentence may be imposed for one or more of the following purposes: (a) to punish; (b) to deter similar criminal acts; (c) to protect society; or (d) to rehabilitate. Probation is a matter of grace and its underlying concept is rehabilitation. Russell v. State, 342 So.2d 96 (Fla.3d DCA 1977). Normally, probation presupposes the fact that a probationer is not in confinement. Bernhardt v. State, 288 So.2d 490 (Fla.1974).

We find nothing in Section 948.01, Florida Statutes (1979) which authorizes a court to impose a long term prison sentence as a special condition of probation. Florida Rule of Criminal Procedure 3.790 negates the concept:

Pronouncement and imposition of sentence of imprisonment shall not be made upon a defendant who is to be placed on probation regardless of whether such defendant has or has not been adjudicated guilty.

Our holding today is buttressed by that of Hamm v. State, 380 So.2d 1101 (Fla.2d DCA 1980) which held that the imposition of a long prison term under the guise of a special condition of probation may be collaterally attacked via the route of Florida Rule of Criminal Procedure 3.850 because it constitutes fundamental error.

In this case, the error was so egregious that it permeated the entire sentence. Since the defendant has served more than one year in prison, reversal with respect to Count III would normally be moot. However, the practical benefit to the defendant in reversing the entire sentence is to afford him an opportunity to be given credit for time already spent in prison.

Insofar as our decision in McGowan v. State, 362 So.2d 335 (Fla.3d DCA 1978) is contra to this decision or the holdings in Geter v. Wainwright, supra, Cooney v. State, supra, or Shead v. State, supra, we recede from McGowan.

Nonetheless, we acknowledge that a trial court retains authority to impose a short jail term or prison sentence as a special condition of probation where it is reasonably related to a rehabilitative purpose. State v. Jones, 327 So.2d 18 (Fla.1976).

Accordingly, the order denying the motion made pursuant to Florida Rule of Criminal Procedure 3.850, to correct the sentence, is reversed and the entire sentence vacated with directions to resentence the defendant with proper credit for all time spent in incarceration.

Reversed and remanded.


author: SCHWARTZ, Judge. HENDRY, Judge,

text:
    SALINA MANUFACTURING COMPANY, Appellant, v. DINER’S CLUB, INC., Appellee.
    No. 79-1042.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied May 21, 1980.
    Nicholson, Dender & Chandler and James R. Chandler, III, Miami, for appellant.

      Robert Bakerman and Louis A. Supraski, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Reversing the contrary conclusion reached by the trial judge, we hold that a judgment creditor which, through supplementary proceedings, is responsible for subjecting property of a common debtor to execution has priority in the satisfaction of its judgment from that levy, even over another judgment creditor which had first delivered its writ of execution to the sheriff. The issue arose below in the following manner.

In July, 1972, the appellee, Diner’s Club, Inc., secured a $5,167.22 judgment against a person with the improbable name of Isaac E. Newton, III, in the Dade County Civil Court of Record. Although it obtained a writ of execution and took it to the sheriff in October, 1972, no assets subject to execution were discovered and the Diner’s Club was unable to collect any portion of the judgment.

In July, 1973, the appellant, Salina Manufacturing Company, obtained a $2,355.06 Dade County Court judgment against Newton. Its writ of execution was placed in the sheriff’s hands in September, 1973. In the course of its discovery in aid of execution, which it pursued over the next several years, Salina learned that Newton had purchased a boat with his own funds in October, 1975. Since title had been taken in the names of both Newton and his wife by the entireties, the vessel could not then be levied upon pursuant to either judgment or writ of execution. In April, 1978, therefore, the appellant instituted supplementary proceedings, pursuant to Section 56.29, Florida Statutes (1977), so as to subject the boat to its County Court judgment against Newton individually. In December, 1978, the County Court granted Salina this relief, voiding the transfer of the boat to the joint names, and directing the sheriff to “levy on the. . . boat and sell [it] . for the satisfaction of [Salina’s] judgment and execution.”

It was only after the sheriff had advertised the boat for sale in accordance with this County Court order that the Diner’s Club, which had done nothing for over six years, sought to enforce its 1972 judgment. It moved the Circuit Court, as the successor to the Civil Court of Record, to order that its execution be granted priority over Sali-na’s. The Circuit Court granted the motion, ordering the sheriff to sell the boat under the Diner’s Club judgment and writ and permitting the appellee to bid its judgment in at the sale, while requiring all others, including Salina, to make cash bids. After the sale, at which the Diner’s Club successfully bid $4000 on its judgment, Sa-lina took this appeal from the order determining the order of priorities against it.

The trial court obviously followed the general principle that, between two or more judgment creditors, priority as to funds secured through levy upon property of a debt- or which is subject to execution is determined by the order in which the respective writs of execution are received by the sheriff. Blackstone Holding Co. v. Lawrence, 140 Fla. 703, 192 So. 198 (1939); Goodyear Tire & Rubber Co. v. Daniell, 72 Fla. 489, 73 So. 592 (1916); Love v. Williams, 4 Fla. 126 (1851). This doctrine is, however, inapplicable to the present situation.

As we have noted, since the boat was legally titled by the entireties it was not initially reachable by either party’s judgment or writ of execution. Meyer v. Faust, 83 So.2d 847 (Fla.1955); Evins v. Gainesville National Bank, 80 Fla. 84, 85 So. 659 (1920). It was only upon the successful culmination of the supplementary proceedings instituted by Salina that Newton’s theretofore purely equitable individual interest in the boat became subject to levy. In this set of circumstances the controlling principles are the universally-accepted ones stated in 13 Fla.Jur.2d Creditors’ Rights, §§ 308, 309 (1979):

As against third parties, the filing of a creditors’ suit with service of process creates a lien on the equitable assets of the debtor. This lien is not dependent on the creditor’s obtaining an injunction or on the appointment of a receiver. It attaches with the commencement of the suit in equity, even though a judgment at law has not been obtained, and is perfected on issuance of judgment.
‡ sf: * * * sfc
The diligent creditor who discovers and brings into equity the assets of a debtor is ordinarily entitled to priority over all other creditors, including the full claim for costs and expenses of the suit. This rule does not apply, however, where the plaintiff brings a class suit for the benefit of all creditors, or where the property is subject to execution at law under a prior judgment, [e.s.]

Eldridge, Dunham & Co. v. Post, 20 Fla. 579 (1884); In re Pemberton, 260 F. 521 (S.D. Fla.1919); 21 Am.Jur.2d Creditors’ Bills § 92 (1965). It plainly makes no difference that the equitable asset was reached through supplementary proceedings rather than a creditors’ bill, as in the cited cases and authorities. The supreme court said in George E. Sebring Co. v. O'Rourke, 101 Fla. 885, 134 So. 556, 561 (1931):

. the general rule is that in those jurisdictions where proceedings supplementary to execution are authorized by statute, as do sections 4540-4549, Comp. Gen-Laws 1927, such supplementary proceedings are regarded as a substitute for the creditor’s bill of the chancery practice, as they afford a more expeditious and appropriate remedy to reach the concealed assets of the debtor than a bill in chancery and may be so far considered as practically an exclusive remedy except where it does not furnish adequate remedy. [e.s.]

Our conclusion is dictated also by Section 56.29(6)(b), Florida Statutes (1977), which clearly provides that the property held subject to levy in proceedings supplementary shall be sold to satisfy the judgment and execution — that is, Salina’s — which formed the basis of the proceedings themselves. See also Richard v. McNair, 121 Fla. 733, 164 So. 836 (1935).

In holding that the appellant is entitled to priority, we are not uninfluenced by the fact that its efforts were alone responsible for the availability of the funds now in controversy and by the consequent inequity involved in permitting the appellee to reap the benefits of its opponent’s labors. The apples finally fell on Isaac Newton’s head only because Salina shook the tree; it should therefore have the first slice of the pie.

For these reasons, the order below is reversed and the cause remanded to enter judgment against the appellee, in an amount not to exceed the $4,000 bid at the sale, for Salina’s County Court judgment, interest, and costs expended in the supplementary proceedings.

Reversed and remanded.

HENDRY, Judge,

dissenting.

The issue involved in the instant case is simply whether the order of priority as to the satisfaction of judgments remains the same where proceedings supplementary have been instituted against the debtor. It is a firm, long-standing principle that as between two or more judgment lienors, the writ of execution first received by the sheriff is afforded priority with respect to monies collected through levy. Since proceedings supplementary are collateral to the original main action(s) upon which the execution^) is/are supported, I see no reason why the established order of priority should not remain the same in the later proceedings. The order appealed should be affirmed. See Young v. McKenzie, 46 So.2d 184 (Fla.1950); Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483 (1935); Goodyear Tire & Rubber Co. v. Daniel, 72 Fla. 489, 73 So. 592 (1916); Love v. Williams, 4 Fla. 126 (1851); Flagship State Bank of Jacksonville v. Carantzas, 352 So.2d 1259 (Fla. 1st DCA 1977); Smith v. Purdy, 272 So.2d 545 (Fla. 3d DCA 1973); Section 59.29, Florida Statutes (1977).

      . Solomonically, if inconsistently, the court did hold that Salina was entitled to recover the costs of the County Court supplementary proceedings.

      . Although Diner’s Club later sold the boat for an unspecified sum to a bona fide purchaser, only the $4,000 received by the sheriff is now in issue.

      . In expressing ourselves in this way, we do not demean the gravity of the issue before us.

      . See note 2, supra.


text:
    Jacob E. MOSNAT et al., Appellants, v. SUN FIRST NATIONAL BANK OF ORLANDO et al., Appellees.
    No. 79-1724.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied May 21, 1980.
    Howard R. Hirsch, Miami, for appellants.
    Prunty, Ross & Olsen and John W. Prunty, Buchbinder & Elegant and Ira M. Elegant, Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, Miami, for appellees.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See In re Smith Estate, 75 So.2d 686 (Fla.1954); Rowland v. Miller, 81 Fla. 408, 88 So. 263 (1921); 35 Fla.Jur., Wills, § 271. See generally Chapter 737, Florida Statutes (1977) and Annot., 62 A.L. R.2d 1412 (1957).


author: ANSTEAD, Judge.

text:
    Curtis R. GUTHRIE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-502.
    District Court of Appeal of Florida, Fourth District.
    April 28, 1980.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Frank W. Weathers of Weathers & Nark-ier, P. A., West Palm Beach, for appellee.
   ANSTEAD, Judge.

On stipulated facts the trial court held that the appellant’s “dirt bike” was a mo-toreycle within the meaning of an exclusion contained in Section 627.736, Florida Statutes (1977) and that therefore the appellant was not entitled to personal injury protection benefits from the appellee. We affirm.

Section 627.736 provides that persons injured while occupying motorcycles which come in contact with a motor vehicle are precluded from recovering personal injury protection benefits. By stipulation the parties herein agreed that the vehicle in question, a Model F-ll Kawasaki with a 250 cc engine, would unquestionably be a motorcycle if it was equipped for public street use; i. e., if it contained a headlight, etc. However, the appellant contends that because the vehicle was stripped down so as to be legally operable only off the road, the vehicle lost its identity as a motorcycle.

The appellant relies on the case of Roberts v. Carter, 316 So.2d 640 (Fla. 4th DCA 1975) wherein this court held that a stripped-down automobile described as a “thing” and used solely for stock car racing was not an automobile within the meaning of an exclusion in a homeowner’s policy which itself partially defined an automobile as not being a vehicle which is designed for use off public roads. This court affirmed the trial court’s holding that the “thing” was not an automobile within the policy definition since it was a vehicle designed for use off public roads. We do not believe the Roberts decision is of any aid to the appellant here. There is no statutory or policy language available to the appellant here to exclude motorcycles stripped-down for off-road usage.

In Loftus v. Pennsylvania Life Insurance Co., 314 So.2d 159 (Fla. 4th DCA 1975) we held that courts should not distort the usual definition of words in order to impose liability upon an insurer. In State Farm Mutual Automobile Insurance Company v. Nicholson, 337 So.2d 860 (Fla. 2d DCA 1976), the Second District cited the Loftus decision in defining a motorcycle as:

a 2-wheeled tandem automotive vehicle having one or two riding saddles and sometimes having a third wheel for the support of a sidecar.

Although the definition of motorcycle has also been discussed in other contexts we believe the trial court was correct in its application of the plain meaning concept set out in Loftus, supra. In short, we agree that the vehicle in question, under the stipulation of facts agreed to by the parties, is a motorcycle within the meaning of that term as used in Section 627.736 absent the existence of any statutory or policy language to indicate another definition of the term.

Accordingly, the final summary judgment of the trial court is affirmed.

MOORE and BERANEK, JJ., concur.

      . State Farm Mutual Automobile Insurance Company v. O’Kelley, 349 So.2d 717 (Fla. 1st DCA 1977).


author: ERVIN, Judge.

text:
    James C. RAINWATER as Executor of the Estate of Dorothy Edna Rainwater, Appellant, v. VIKINGS MEN’S HAIRSTYLING and State Farm Fire & Casualty Insurance Company, Appellees.
    No. QQ-244.
    District Court of Appeal of Florida, First District.
    April 23, 1980.
    Rehearing Denied May 21, 1980.

      Thomas R. Brown of Brown, Terrell & Hogan, and Robert P. Eshelman, II of Katt-man & Eshelman, Jacksonville, for appellant.
    John C. Taylor, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees.
   ERVIN, Judge.

This is an appeal from an order of the judge of industrial claims, denying the late Mrs. Rainwater’s claim for compensation on the ground she was not an employee of Vikings Men’s Hairstyling. We reverse. We conclude that the acceptance by the carrier of a workmen’s compensation policy covering claimant as an employee constitutes a waiver of her exclusion from the act and operates to bring her under the employer’s coverage. See Section 440.04(2), Florida Statutes (1975).

Dorothy Rainwater filed a claim for disability resulting from an accident alleged to have occurred on January 14, 1977, caused by prolonged exposure to toxic chemicals, while employed as a hairdresser with Vikings. The carrier, State Farm, controverted on the basis the claimant was the business’s proprietor and had elected not to be covered. In holding Mrs. Rainwater was not an employee, the judge made the following findings: (1) That James Rainwater, the executor of Dorothy Rainwater’s estate, and co-owner of Vikings Men’s Hairstyling, did not specify his wife’s name as an employee on the annual audit for the year 1976, although he admitted listing other employees; (2) that Mr. and Mrs. Rainwater did not report her income as an employee on their joint income tax return for the year 1976; (3) that the workmen’s compensation policy named the insureds, James C. and Dorothy E. Rainwater, as proprietors of the business, and (4) that Mrs. Rainwater’s commission earnings were lumped together with Mr. Rainwater’s income under Schedule C of the joint return.

Were it not for the fact that a policy of workmen’s compensation insurance was issued covering claimant, we could readily agree that Mrs. Rainwater was not an employee. Although Mrs. Rainwater was not named as an employee in the insurance policy, the policy listed three employment positions: manicurist, barber, and cosmetologist. The evidence was unrefuted that Mrs. Rainwater was employed as the only cosmetologist at the shop on or about the time the policy became effective, July 25, 1975, and Mr. Rainwater testified she continued to work as a beautician until March,

1977, when she became ill and was replaced by another employee. In addressing the effect of Section 440.04(3), Florida Statutes (1973), our Supreme Court observed:

[A] person not otherwise considered a covered “employee”, or whose services are not included in the definition of “employment”, but for whose benefit a contract of workmen’s compensation insurance has been secured, is subject to the provisions of the Chapter by virtue of the acceptance of the policy by his employer and the writing of the same by the compensation carrier. We think there can be no question that the purpose and effect of Fla.Stat. § 440.04, F.S.A., is to empower an exempt employer to voluntarily assume the obligations and privileges of the Workmen’s Compensation Act and thereby insulate himself from common law liability pursuant to Fla.Stat. § 440.11, F.S.A. Allen v. Estate of Carman, 281 So.2d 317, 322 (Fla.1973).

Finding that a contract of workmen’s compensation insurance was secured for Mrs. Rainwater as an employee, we conclude that the employer/carrier has waived its exemption. This cause is remanded to the judge of industrial claims for further proceedings consistent with this opinion.

SHIVERS and SHAW, JJ., concur.

      . Appellees candidly admit in their brief that Mrs. Rainwater was working at Vikings in August, 1975.

      . Now Section 440.04(2), Florida Statutes (1979).


author: UPCHURCH, Judge.

text:
    Thomas T. FERGUSON and Geraldine G. Ferguson, Appellants, v. Abe COTLER, Appellee.
    No. 79-289/T4-394.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    Phillip H. Logan, Sanford, for appellants.
    William A. Grimm, Winter Park, for ap-pellee.
   UPCHURCH, Judge.

This is an appeal of a judgment from the Circuit Court for Seminole County.

Appellants, Thomas T. and Geraldine G. Ferguson, raise as error that the court erred in its application of the law in First State Bank of Fort Meade v. Singeltary, 124 Fla. 770,169 So. 407 (1936). We restate the question:

Was the trial judge correct in entering judgment for an amount paid to appellants through mistake?

We conclude that the trial judge was correct, but register amazement that appellants would urge that justice would be served if we held the trial court in error.

There is a legend which reflects the honesty of Abraham Lincoln. It seems that Lincoln, while making a purchase, was overpaid a few cents in making change. Upon discovering the error, he immediately walked several miles in the nighttime to return the money to the storekeeper. Appellants did not emulate Mr. Lincoln.

Appellee Abe Cotier overpaid appellants in satisfying a mortgage obligation. Both parties acted through their attorneys and intended to pay and receive the balance due plus costs and attorney fees. Neither party made the calculations, but Cotier paid the Fergusons the amount which his attorney requested and the Fergusons accepted the amount their attorney showed was owed. Appellants concede that the amount collected was overpaid by $6,226.42, the amount of the final judgment. The Fergusons also concede that they have not changed their position as a result of the overpayment and that the overpayment was not part of an accord and satisfaction. The overpayment resulted purely from a miscalculation of the amount due.

Appellants contend that Fort Meade, supra, required Cotier to show he was induced to make the overpayment because of their representations or other inequitable conduct on their part. They reason that because no one made any representations to Cotier he was not induced. They conclude that if Cotier did not prove who made the mistake the mistake could not be mutual and therefore he cannot recover. This reasoning, while perhaps entertaining, defies logic. The court in Fort Meade, supra, stated:

The action for money had and received, although a legal action, is equitable in its nature and is said to resemble a bill in equity and to lie whenever a bill in equity would lie with reference to recovery of the particular sum involved upon plaintiff’s affirmative rescission or avoidance of the transaction concerning it. Osborn v. Bell, 5 Denio (N.Y.) 370, 49 Am.Dec. 275; Culbreath v. Culbreath, 7 Ga. 64, 50 Am.Dec. 375; Note, 52 Am.Dec. 751; Citizens’ Bank v. First National Bank, 101 Fla. 908, 132 So. 478; Cox v. Grosse, 97 Fla. 848, 122 So. 513.
When the fact is proved that one has money received from another, if the recipient cannot show a legal and equitable ground for retaining it, the law creates the privity and promise necessary to sustain the action for money had and received. And it is settled that money paid under a mistake of facts may be so recovered, it being considered unconscionable that money so paid should be detained from the payor on his discovery of the mistake and demand for the money’s return. Where the mistake is mutual, notice of the mistake must precede the right of recovery, and the statute of limitations does not run until the mistake is discovered and demand made.

If both parties act on a set of facts, both believing them correct, when in fact those facts are incorrect, then both parties are mistaken. Such were the circumstances in the Fort Meade case, and such are the facts in the case before us, the only distinction being that in Fort Meade the bank made the calculations and represented to Singletary the amount owed. The mutual mistake was that both thought the amounts demanded were correct; the same is true in the case before us. Both parties believed the calculations were correct. The source of the miscalculation is not relevant here, and the result should be the same irrespective of the source of the miscalculation. Whether or not there was a mutual mistake of fact instead of a unilateral mistake is not controlling. Florida case law supports the proposition that relief will be granted for a unilateral mistake where the mistake goes to the substance of the agreement, is not the result of a lack of due care, and where the other party has not relied upon the mistake to his detriment. Langbein v. Comerford, 215 So.2d 630, 631 (Fla. 4th DCA 1968). “The gist of the action is that the defendant upon the circumstances of the case is obliged by the ties of natural justice to refund the money.” Cullen v. S.A.L.R.R. Co., 63 Fla. 122, 58 So. 182, 184 (1912), as cited in Citizens’ Bank of Ft. Myers v. First Nat’l Bank of Waynesboro, 101 Fla. 908, 132 So. 478 (1931). It is settled that money paid under a mistake of facts may be recovered; it would be unconscionable for money so paid to be retained upon discovery of the mistake and demand for the money’s return, if the recipient does not show a legal or equitable right thereto.

AFFIRMED.

ORFINGER and COBB, JJ., concur.


text:
    Sue MILLS, Appellant, v. Lillian S. HEENAN, Appellee.
    No. 78-1656/T4-172.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    Andrew Baron, Orlando, for appellant.
    William A. Greenberg, Orlando, for ap-pellee.
   UPCHURCH, Judge.

This is an appeal from an order granting the petition of appellee, Lillian S. Heenan, to enjoin the burial of her sister Kathleen Heenan within the State of Florida and to permit removal of the body to New York.

Two questions were presented by this appeal:

1. Whether the trial court erred in entering an order in favor of appellee within seventeen hours of filing the complaint.
2. Whether the trial court erred in entering an order permitting the sister to remove the body instead of permitting the natural mother control over the burial of her daughter.

The proceeding in the lower court was not reported and there has been no stipulated statement of facts as permitted by Florida Rules of Appellate Procedure 9.200(a)(3). The record on appeal consists only of the pleadings and the order appealed.

It is apparent from the briefs that the parents of the dead girl are divorced. The sister, appellee, and the natural father, who was not a party, desired burial in New York. The body was transported soon after entry of the order and, we assume, has rested in New York for more than six months.

The findings and judgment of the trial court come to the appellate court clothed with a presumption of correctness and may not be disturbed upon appeal in the absence of a record demonstrating errors of law. White v. White, 306 So.2d 608 (Fla. 1st DCA 1975). It is the duty of appellant to bring before the appellate court a record adequate to support his appeal. Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973). Both parties appeared before the trial court. We have nothing before us on which to base a determination that the trial court acted erroneously.

While in most instances seventeen hours notice of suit is grossly inadequate to enable the opposing party to respond and defend, it is not universally so. The very fact that the trial court held a hearing upon such short notice indicates to us that it was a matter of urgency.

In addition, an appellate court will not determine a controversy where issues have become moot. DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943). The efficacy of our reversal of the trial court’s order at this date is at best questionable. While we are not unsympathetic with appellant’s grief and her desire to have her daughter buried close by, the same desire would naturally apply for the sister. The wisdom of disturbing the resting place of this girl, even if our order was enforceable, is also questionable.

This case was before this court on January 15,1980 for oral argument, and we then expressed doubt whether the points raised could be reached without a record. Counsel for appellant asked for time to attempt to reach a stipulated factual statement. An order was entered granting the parties to February 15, 1980 to submit a statement of facts on which they could agree. On January 30, 1980 appellant moved for a continuance until March 1, 1980. This was denied because of movant’s failure to comply with Florida Rules of Appellate Procedure .9.300(a).

Motions for extension of time have been and will continue to be summarily denied by this court when the moving party fails to comply with the requirement of the rule to contact opposing counsel and to state whether he agrees or objects to an extension. We have observed that the provisions of this rule are ignored by the Bar practicing before us as often as followed and we take the opportunity to call to their attention the necessity of compliance before a motion for extension will be considered.

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.

      . Contents of Motion; Response. Unless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor. The motion shall state the grounds on which it is based, the relief sought, argument in support thereof and appropriate citations of authority. A motion for an extension of time shall, and other motions where appropriate may, contain a certificate by the mov-ant’s counsel that he has consulted opposing counsel and that he is authorized to represent that opposing counsel either has no objection or will promptly file an objection. A motion may be accompanied by an appendix, which may include affidavits and other appropriate supporting documents not contained in the record. A party may serve one response to a motion within 10 days of service of the motion. The court may shorten or extend the time for response to a motion. Fla.R.App.P. 9.300(a).


text:
    SEARS, ROEBUCK AND CO., Appellant/Cross-Appellee, v. Alfred MORENO, Appellee/Cross-Appellant.
    No. QQ-246.
    District Court of Appeal of Florida, First District.
    April 24, 1980.
    Rehearing Denied May 21, 1980.
    H. George Kagan, of Miller & Hodges, Miami, for appellant/cross-appellee.
    Joseph L. Finkelstein, of Pelzner, Sehwe-dock & Finkelstein, P. A., Miami, for appel-lee/eross-appellant.
   SHIVERS, Judge.

Appellant, Sears, Roebuck and Company, brings this appeal from a final workmen’s compensation order entered September 29, 1978, awarding appellee Alfred Moreno temporary total and permanent partial dis•ability benefits. Appellant presents the following points on appeal:

1. Whether the Judge of Industrial Claims erred, as both a matter of fact and matter of law, in finding appellee had sustained a compensable hernia on or about April 23, 1975.

2. Whether the Judge erred in suggesting appellee had satisfied the notice requirements of § 440.185, Fla.Stat. (1975).

3. Whether the Judge erred in failing to make any findings regarding the effects of appellee’s noncompensable hernia upon his present disability.

4. Whether the Judge erred in failing to rule upon the pending claim for loss of wage-earning capacity.

Appellee raises on cross-appeal the single issue of whether the Judge erred both as a matter of fact and matter of law in finding appellee had not sustained a compensable hernia on or about December 8, 1975.

We affirm as to the point on cross-appeal, but reverse and remand as to Points 1, 2, 3 and 4. There is no competent, substantial evidence to support the award of benefits for the right-side hernia.

Appellee allegedly sustained two different inguinal hernias while working for Sears. He filed a claim for compensation for both hernias. The Judge of Industrial Claims awarded benefits for the right-side hernia allegedly sustained in April of 1975 but denied benefits for the left-side hernia allegedly sustained in December of 1975. Neither hernia was compensable.

Appellee testified he first hurt his right side picking up a barbell set about June 1974. He never noticed a lump, but felt sudden excruciating right-side pain. He also testified he told his manager about his pain, but the manager merely told him to go back to work. Appellee continued to work for Sears, but testified that the increased job activity attending the Christmas rush of 1974 aggravated his pain. Ap-pellee first consulted a doctor in January 1975. The treating physician diagnosed a direct right-side hernia and surgically repaired the right-side hernia on April 23, 1975. (The record is unclear why the claim is for a hernia on or about April 1975 when the incident allegedly causing the hernia occurred in May or June 1974.)

Appellant correctly contends that appel-lee failed to prove by competent, substantial evidence the compensability of the right-side hernia. Section 440.15(6), F.S. provides in part:

(6) HERNIA. — In all claims for compensation for hernia resulting from injury by an accident arising out of and in the course of employment, it must be proved to the satisfaction of the division:
(a) That there was an injury resulting in hernia.
(b) That the hernia appeared suddenly.
(c) That it was accompanied by pain.
(d) That the hernia immediately followed an accident.
(e) That the hernia did not exist prior to the accident for which compensation is claimed.

The statutory prerequisites were discussed by the Florida Supreme Court in Garcia v. Continental Vending Machine Corporation, 176 So.2d 329, at 331 (Fla. 1965):

By the quoted section of the statute the Legislature has specifically required definite proof of the various conditions to an award for a hernia claim. The reason for such specificity was discussed in General Properties Co., Inc., et a 1. v. Greening et al., 154 Fla. 814, 18 So.2d 908. We there noted that these so-called statutory “safeguards” were included in the act in order to avoid potentially false claims for a hernia which has developed gradually as contrasted to one which is the immediate product of an industrial accident. The last cited case emphasizes that a hernia is most often the result of congenital weaknesses or gradually developed conditions. Accidental injury is must (sic) less frequent as a cause. Hence, it is that the Legislature has emphatically required detailed proof of the statutory elements as a condition to a hernia compensation award.
In the absence of proof of any one of these five essential prerequisites, recovery under the hernia section cannot be allowed. .

The Judge of Industrial Claims found that these prerequisites had been met as regards the right-side hernia. The evidence fails to support the findings that the “hernia appeared suddenly” and that the “hernia immediately followed an accident.” Cf. Frohman Gear Company v. Fellows, 149 So.2d 557 (Fla.1963).

The disposition of Point 1 on appeal renders Points 2, 3 and 4 moot.

The Point on Cross-Appeal requires af-firmance because the Judge of Industrial Claims found from the evidence that the left-side hernia preexisted the incident ap-pellee/cross-appellant claimed caused the left-side hernia. On September 24, 1975, the treating physician reported that appel-lee “now has a left inguinal hernia.” Ap-pellee alleged that he sustained the left-side hernia while lifting typewriters at work on or about December 8, 1975.

The Order is affirmed in part and reversed in part.

SHAW, J., concurs.

ERVIN, J., concurs and dissents with opinion. ■

ERVIN, Judge,

dissenting.

I respectfully dissent to that portion of the majority’s opinion holding claimant’s right-side hernia noncompensable. I think there is competent and substantial evidence supporting the judge’s implicit finding that the hernia occurred immediately following the accident. As observed by the majority, claimant testified that he felt excruciating right-side pain just after picking up a barbell during the course of his employment, and that his treating physician, upon hearing his history and examining him, diagnosed a right inguinal hernia which was surgically repaired in April 1975.

In my judgment the evidence also sufficiently supports the statutory requirement that the hernia appear suddenly. The fact that claimant never noticed a lump is not in my view fatal to his claim for compensation. A long line of cases recognize that a hernia need not be immediately visible after an accident. E. g., Atlantic Marine Boat Yard v. Daniel, 138 Fla. 864, 190 So. 612 (1939) (lump appeared one month following accident); Cost v. Texaco, Inc., 207 So.2d 437 (Fla.1968) (lump discovered three weeks later); Exxon Co. v. Alexis, 370 So.2d 1128, 1130 (Fla.1979) (injury apparent two months later). As noted in Cost, the statute’s condition “can be met by evidence of immediate manifestations other than a visible lump.” Id. at 438.

While I would affirm the judge’s finding that the right-side hernia was caused by industrial accident, I otherwise concur in the remainder of the majority’s opinion.

      . The Order did not contain a finding as to the date claimant sustained the hernia.