author: CAMPBELL, Judge.

text:
    THE GLADES, INC., a Florida corporation; Connie Hubschman and Samuel Hubschman, trustees, Appellants, v. Sam J. COLDING as property appraiser for Collier County, and Guy Carlton, as tax collector for Collier County, Appellees.
    No. 82-332.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1982.

      Lawrence A. Farese of Cummings & Lockwood, Naples, for appellants.
    John M. Hathaway, Punta Gorda, for ap-pellees.
   CAMPBELL, Judge.

The Glades, Inc., a Florida condominium development corporation, and its trustees, Connie and Samuel Hubschman, appeal that portion of the final judgment which denied them an agricultural tax classification on portions of their property. We affirm in part and reverse in part.

The Glades, Inc., owns 8.2 acres of land known as the Yellow Area. The Hubsch-mans own a 2.3 acre tract called the Green Area, and a 66.02 acre tract known as the Red Area. The Red Area is subdivided into Parts I, II and III. The Hubschman family purchased these tracts in 1965 for approximately $1200 an acre. Before, and at the time of the purchase, the tracts had been used primarily for agricultural purposes.

The Yellow Area was sold in 1972, but in-1979, the Hubschmans reacquired it through The Glades, Inc., as part of an expansion of the Glades Nursery — their retail and wholesale nursery operation. Prior to 1972, the Yellow Area was subdivided and a cul-de-sac which gave road access into the property was constructed.

The Glades Nursery began operations in 1968 on property known as the White Area. It abuts the Yellow Area to the east. During the 1970’s, the nursery began cultivating thousands of exotic plants and trees, and as the nursery continued to grow, the owners planted coconut trees and other plants in the Red Area. They planted the Green Area in 1976. When The Glades, Inc., acquired the Yellow Area in 1979, the corporation installed a sprinkler system and then planted a variety of plants in that area.

The property owners received an agricultural tax classification on Red Area I from 1974 through 1979, and received similar classifications on Red Area II, and the Green Area, for 1977-1979. Red Area III received a like classification in 1979. Only the Yellow Area has not received such a classification.

In 1980, pursuant to section 193.461(3)(a), Florida Statutes (1979), the property owners filed a return and application for agricultural classification of lands with the Collier County property appraiser. On July 9, 1980, the appraiser denied agricultural classification. The property owners appealed to the Collier County Property Appraisal Adjustment Board, but the board upheld the denial. In 1981, they again filed for an agricultural property classification and were again denied. They then sought relief in the circuit court.

In his final judgment, the trial judge found, pursuant to section 193.461(3)(b), Florida Statutes (1979), that based on all the evidence presented, “the Glades Nursery is in fact a bona fide commercial agricultural operation.” He found specifically that Red Areas I and II and the Green and Yellow Areas had been in good faith continuously so used. The court then upheld denial of agricultural classification for Red Area III and for the Yellow Area.

The court found that Red Area III did not contain a sufficient number of plants to qualify as bona fide agricultural use. There is evidence to sustain this finding because frequent flooding of this low-lying area prevents its full use and plants are only sparsely scattered in this area. We, therefore, affirm that portion of the final judgment upholding the denial of an agricultural tax classification for Red Area III.

The trial judge upheld the denial of agricultural tax classification for the Yellow Area for the following reasons:

(1) a road and cul-de-sac exists leading in to the property, as part of a platted subdivision, and therefore the property appears suitable for immediate development; and (2) this parcel has not had the history of agricultural use that the other properties in question have had. And the high purchase price reflects that of developed land.

Given his previous specific finding in accordance with the statute that the Yellow Area had been continuously used in good faith for agricultural purposes since its reacquisition in 1979, these reasons are insufficient to support a denial of an agricultural tax classification for the Yellow Area. Once the court finds a bona fide good faith agricultural use pursuant to section 193.-461(3)(b), the prior or future use of the land is irrelevant. See Fisher v. Schooley, 371 So.2d 496 (Fla. 2d DCA 1979). The purchase price of land is one of the factors listed in section 193.461(3)(b) to be used in determining whether or not that land is being used primarily for a bona fide good faith agricultural purpose. Once that determination is made, the purchase price is no longer important. Therefore, having made the initial finding of a bona fide good faith agricultural use, the trial judge erred in considering the possible future development of the Yellow Area, in considering its brief history of agricultural use, and in considering its purchase price.

We note finally that the property owners filed a motion to tax costs in this action. We deny this motion because of our disposition of this appeal.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

OTT, C.J, and SCHOONOVER, J., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Ed R. WILSON, d/b/a Select Tomato, Appellant, v. Grady PRUETTE, Appellee.
    No. 82-838.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1982.

      John Larson Lund, Fort Myers, for appellant.
    Paul J. Martin of Boardman & Martin, P.A., Immokalee, for appellee.
   SCHEB, Judge.

Plaintiff/appellee brought suit to recover payment for goods sold and delivered. Defendant/appellant answered, denying that a sale of goods had taken place and raising as an affirmative defense that the goods were consigned, rather than sold, by plaintiff to defendant.

Plaintiff moved for summary judgment and filed an affidavit in support of his motion stating that he sold defendant the goods described in the invoices attached to his complaint and affidavit. Plaintiffs affidavit, however, did not negative the defendant’s affirmative defense of consignment. Defendant, on the other hand, filed an opposing affidavit specifically supporting his affirmative defense. The trial court entered summary judgment in favor of plaintiff for $7,948 and costs. Defendant filed this appeal. We reverse.

Florida Rule of Civil Procedure 1.510 allows entry of a summary judgment if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. The movant has the burden of establishing that no genuine issue of material fact exists. Jones v. Stoutenburgh, 91 So.2d 299 (Fla.1956). Once an affirmative defense is- raised, the movant has the additional burden of either disproving or establishing the legal insufficiency of the affirmative defense. Stewart v. Gore, 314 So.2d 10 (Fla. 2d DCA 1975).

As a sale was claimed by plaintiff, and consignment was alleged as an affirmative defense, plaintiff had to negative that defense in order to justify entry of a summary judgment. Neither the plaintiff’s affidavit nor the invoices he submitted refuted the defense of consignment. The defendant raised and supported a defense which created a material issue of fact. Therefore, summary judgment was improper.

Accordingly, we vacate the summary judgment and remand this case for further proceedings.

OTT, C.J., and HOBSON, J., concur.


author: DAUKSCH, Judge.

text:
    Julia E. DOUGLASS, Appellant, v. Allen H. JONES and Ann Jones, his wife, Appellees.
    No. 81-1389.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.

      Burton J. Green, Cocoa, for appellant.
    Edward J. Richardson, of Saxon & Richardson, P.A., and M. Brice Corder, Melbourne, for appellees.
   DAUKSCH, Judge.

Appellant, Julia E. Douglass, appeals from a Final Judgment granting the appel-lees, Allen H. Jones and Ann Jones, specific performance of an “Option to Buy” certain real property owned by the appellant. The appellant contends that the judgment of specific performance is not warranted by the evidence and the lower court erred in granting the remedy.

The appellant and her former husband originally owned the property in question as tenants by the entirety. On May 9, 1976, they agreed to lease the premises to the appellees. The Lease consisted of five pages. The fourth page of the document contained an “Option to Buy” the property. The Lease and the Option to Buy were drafted by the appellant and her former husband and were separately executed by the parties. The term of the Lease extended for a period of one year, from May 20, 1976 until May 20, 1977. Paragraph 9 of the Lease, concerning renewal, provided that:

upon the expiration of the designated term of this lease said Tenant shall have the option to renew this lease on a yearly basis for a period not to exceed two years, provided that said option shall always be exercised in writing no later than sixty (60) days prior to the expiration of the preceding term, including the present term.

The Lease made no reference to the Option to Buy, but the Option to Buy stated: “This Option is an addendum to a valid Lease and is valid only if the Lease is in effect and honored by both parties.” The Option to Buy also provided that:

upon the. expiration of the designated term of this Option, said tenant shall have the option to renew this option to buy on a yearly basis for a period not to exceed two (2) years, provided that said option to buy shall always be exercised in writing no later than sixty (60) days prior to the expiration of the preceding term, including the present term.

The appellees did not notify the appellant and her husband .of their intent to renew the Lease in writing until March 26, 1977 (five days beyond the time required by the Lease). In the letter dated March 26, 1977, the appellees acknowledged that the appellant was not required to renew the Lease and in the event that she chose not to, they requested a month-to-month arrangement. No mention was made of any desire or intent to renew the Option to Buy.

The appellant responded to the appellees’ March 26th letter by informing them that she was not willing to renew the original Lease. The appellant acknowledged her willingness to extend the appellees a month-to-month tenancy under the same terms as the original Lease through June 20, 1977 and stated: “In the following 2 months I hope we can agree on and sign a lease that is acceptable to all of us.” The appellant also requested the appellees to contact her if her estranged husband attempted to have them sign a lease with him alone..

Thereafter, the appellant received notice that the appellees had executed a Lease Renewal Agreement with her husband. The Lease Renewal Agreement purported to renew the Lease of May 9th, but wrote the appellant out of the agreement. This document was not executed by the appellant and she had not discussed its execution with her husband prior to learning of its execution from the appellees. During this period of time, the appellant and her husband were separated and she was not relying on her husband to manage her affairs.

Based on the Lease Renewal Agreement entered into with the appellant’s estranged husband, the appellees sought to exercise the Option to Buy and when the appellant refused, they initiated suit for specific performance of the Option to Buy. The lower court found that a renewal of the Option to Buy was not required to be in writing and granted specific performance.

The appellant asserts that the testimony put on by the appellees did not meet the burden of proof sufficient to support an award of specific performance and we agree. Competent and satisfactory proof that is clear, definite and certain is required, rather than merely a preponderance of the evidence. Unatin v. Hudon, 383 So.2d 1131 (Fla. 5th DCA 1980). The only testimony in the record as to a renewal of any kind refers to the Lease and not the Option to Buy. It is clear that the option to renew the Lease was required to be exercised in writing no later than sixty (60) days prior to the expiration of the original lease term. The only evidence that the appellees offered as to the renewal of the Lease was the appellees’ letter of March 26, 1977 and the subsequent Lease Renewal Agreement executed by the appellees and the appellant’s husband. The time to exercise the renewal of the Lease expired on March 21, 1977 and the letter of March 26th acknowledged that the appellees had not submitted any prior written notice of their intent to renew the Lease pursuant to the terms of Paragraph 9 of said Lease. Therefore, the March 26th letter and the subsequently executed Lease Renewal Agreement were untimely and ineffective.

Not only was the Lease Renewal Agreement ineffective because it was untimely, it was also ineffective because it was not executed by the appellant. At the time the Lease Renewal Agreement was executed the appellant and her estranged husband’s marriage had not yet been dissolved and they held the leased premises as tenants by the entirety. It is well settled in Florida that an estate by the entireties is vested in the husband and wife as one person, and neither spouse can sell, forfeit, or encumber any part of the estate without the consent of the other, nor can one spouse alone lease it or contract for its disposition without such consent. Richart v. Roper, 156 Fla. 822, 25 So.2d 80 (1946); Cooper v. Maynard, 156 Fla. 534, 23 So.2d 734 (1945); Stecher v. Franklin, 405 So.2d 739 (Fla. 5th DCA 1981); Parrish v. Swearington, 379 So.2d 185 (Fla. 1st DCA 1980); Murray v. Sullivan, 376 So.2d 886 (Fla. 1st DCA 1979). An exception to the aforesaid rule is applicable when it is proved by clear and convincing evidence that one spouse, with full knowledge of the facts, constitutes the other spouse as his or her agent, and with such knowledge consents and acquiesces to and in the act of alienation by the agent’s spouse so constituted; but this exception is applicable only if the separate transfer does not adversely affect the interest of the spouse for whom the other spouse is claimed to have acted as agent, and only if such separate transfer occurs with the assent of the spouse for whom the other spouse acted. Murray v. Sullivan, 376 So.2d 886, 889 (Fla. 1st DCA 1979). The factors which would make the exception applicable to effectuate a transfer by only one spouse were not proved by clear and convincing evidence in the instant case.

Although the appellees were allowed to remain on as month-to-month tenants, and the appellant indicated that she was willing to renegotiate a new lease, it appears that the terms of the original Lease terminated. Since the Lease was not timely renewed pursuant to Paragraph 9, and the Option to Buy, by its own terms, was dependent upon the validity of the Lease, the Option to Buy terminated when the Lease expired. The terms of the Lease continued in definition of the tenancy itself, but the Option to Buy expired when the written Lease terminated. Gower-Goheen Realty, Inc. v. Braun, 215 So.2d 499 (Fla. 2d DCA 1968). Moreover, the facts of the case do not form an equitable basis for permitting the appellees to exercise the Option to Buy. See Ledford v. Skinner, 328 So.2d 219 (Fla. 1st DCA 1976). Therefore, the order granting specific performance is reversed.

The appellant’s Motion for Attorney’s Fees on appeal is denied because it is based on the contention that the terms of the Lease provide for such fees. We have already determined that, other than in definition of the tenancy itself, the terms of the Lease expired. Therefore, the right to attorney’s fees under the Lease extinguished.

REVERSED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, J., concur.


author:
PER CURIAM.
      SHARP, Judge,

text:
    Jean Bushby ADAMS, Appellant, v. George Thomas ADAMS, Appellee.
    No. 82-180.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.
    Tonya L. Baccus of Ennis & Northcutt, Indian Harbour Beach, for appellant.
    Walter T. Rose, Jr., of Rose & Weller, Cocoa Beach, for appellee.
   PER CURIAM.

AFFIRMED.

COWART, J., and WEINBERG, RICHARD, A.J., concur.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

I concur in this case because of the broad discretion accorded trial judges in dissolution cases by Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, I believe the trial judge could have awarded more of the husband’s income to the wife as alimony and child support without abusing her discretion.

Mrs. Adams was an “Army wife.” She and Mr. Adams were married eighteen years and had four children who ranged in age from eight to sixteen years at the time of the dissolution. The trial judge split the assets of the parties about fifty-fifty. She awarded combined alimony and child support equaling forty-nine percent of the husband’s net income to the wife. The trial judge indicated that even though the need for more support by the wife and children was apparent, she believed it would be an abuse of her discretion to award more than fifty percent of the husband’s net income as support.

The husband’s net income is approximately seven hundred thirty dollars ($730.00) per week. Thus, the husband has approximately fifteen hundred dollars ($1,500.00) per month to support himself. Under this decree, the wife must support herself and the four children on the same amount. Her living expenses, which include a monthly mortgage payment in the amount of seven hundred twenty-one dollars ($721.00), substantially exceed her income, even when her part-time earnings and the hoped-for earnings of the children from a paper route are included.

The equitable distribution concept that makes fifty-fifty a fair starting point for division of marital property should not apply to support as a hard and fast rule. Such a rule creates a hardship for large families such as this one, where the wife and minor children may need more than fifty percent of the husband’s net income for a limited time. Or does Florida endorse and implicitly follow the rule of the “Lion’s share”?


author: PER CURIAM.

text:
    Michael GOWINS, Appellant, v. STATE of Florida, Appellee.
    No. 82-188.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See State v. Hicks, 421 So.2d 510 (Fla.1982).

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


author: COWART, Judge.

text:
    Romualdas J. JABLONSKIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1097.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.

      Romualdas J. Jablonskis, pro se.
    No appearance for appellee.
   COWART, Judge.

Without conducting an evidentiary hearing and without attaching any portion of the case file or record, the sentencing court denied appellant’s motion for jail time credit under section 921.161, Florida Statutes (1981). The motion refers to sentences on three different charges and to pre-sentence incarceration in jail in Illinois as well as in Orange County, Florida. It may be that appellant is erroneously claiming credit for the same jail time against two or more sentences. See Lund v. State, 396 So.2d 255 (Fla. 3d DCA 1981); Lawrence v. State, 306 So.2d 561 (Fla. 4th DCA 1975); Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974). The motion claims entitlement to 109 days of pre-sentence jail time, but the motion does not clearly allege facts as to exactly when, where and for what periods of time appellant was incarcerated on what charges prior to which sentence. Nor does the judgment below show that appellant received credit for all jail time to which he was entitled. These are aspects of the difficulties involved in post-conviction motions claiming improper or insufficient credit for pre-sentence jail time. See Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981). Under Rule 3.850 as presently written we must reverse and remand for the trial court to either (1) enter another order that on its face and by attached portions of the court files and records shows that appellant received proper credit for all jail time served before sentencing or (2) conduct an eviden-tiary hearing to determine the questions of fact necessary to make a record demonstrating that appellant has received proper jail time credit under the statute.

REVERSED AND REMANDED.

ORFINGER, C.J., and COBB, J., concur.

      . The motion is properly treated as a motion under Florida Rule of Criminal Procedure 3.850.


author: PER CURIAM. ROBERT SMITH, Jr., Chief Judge,

text:
    Dyrone GILLEY, Appellant, v. STATE of Florida, Appellee.
    No. AJ-230.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    Neal L. Betancourt, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have considered the briefs, the record, and the oral argument of counsel and find no reversible error. The judgment and sentence of the trial court is, therefore, AFFIRMED.

McCORD and MILLS, JJ., concur.

ROBERT SMITH, Jr., C.J., dissents.

ROBERT SMITH, Jr., Chief Judge,

dissenting.

In my opinion the trial court unduly and prejudicially limited appellant’s valuable right of cross-examination by forbidding questions to the prosecution witness Smith concerning his conversations with authorities that, should he plead guilty and testify against appellant, the prosecutor would recommend no more than a 10-year sentence for Smith and the court would consider even a probationary sentence. Though, as the trial court noted Smith forfeited any benefit of that agreement by going to his separate trial, persisting vainly in his not guilty plea, Smith after conviction still expected and hoped for leniency in sentencing, and he hoped to earn it by testifying for the state in appellant’s separate trial. Appellant’s counsel was entitled to show not only that the witness Smith hoped for leniency but also the basis in his mind for that undoubted hope, whether well-founded or not.

In my opinion the trial court also unduly restricted counsel’s cross-examination into the credibility and competency of the same witness, by foreclosing questions concerning Smith’s drug usage and its effect upon his ability to testify clearly and truthfully.

I would reverse the judgment and require a new trial.


author: JOANOS, Judge.

text:
    MERCURY MOTOR EXPRESS, INC., Appellant, v. William J. CROCKETT, Jr., Appellee.
    No. AL-25.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.

      Michael I. Coulson of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellant.
    Michael E. Seelie of Penland, McCranie & Shad, Jacksonville, for appellee.
   JOANOS, Judge.

The trial court incorrectly determined the measure of damages resulting in an award to appellee of $25,600.00 for the conversion of his tractor, therefore we reverse in part and remand for recalculation of damages.

William J. Crockett, Jr., (“Crockett”) sued Mercury Motor Express, Inc. (“Mercury”), for the conversion of his tractor alleging that an agent of Mercury had come onto his property, taken possession of the tractor (part of a tractor-trailer rig), driven the tractor away and continued to hold it. Crockett also alleged that certain described items of his personal property were in the tractor at the time of the conversion and that Mercury Motors continued to hold those items. As a result, Crockett alleged, he had lost the value of the tractor, the value of the personal property, the use of the tractor, and the use of the personal property. Mercury answered and set up as an affirmative defense the existence of two contracts which they contended should be read together, rendering the repossession of the tractor lawful. Mercury further alleged that all personal property had been returned to Crockett, and counterclaimed for the expense of repossession.

After hearing the evidence, the trial court determined that there had been a conversion of the tractor and Crockett’s personal property and assigned a value of $600.00 to the personal property. To this extent, the determination of the trial court is supported by competent substantial evidence in the record and we will not disturb that determination on appeal. See CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So.2d 73 (Fla. 3d DCA 1973). As to the measure of damages over and above the value of Crockett’s personal property ($600.00), however, appellant’s argument that an incorrect standard was applied is well taken.

“The general rule ... is that damages for conversion are limited to the reasonable value of the property when converted. Damages are based on the fair market value of the property at the time of the conversion plus legal interest to the date of the verdict.” Page v. Matthews, 386 So.2d 815 (Fla. 5th DCA 1980), citing Lilly v. Bronson, 129 Fla. 675, 177 So. 218 (1937), Gillette v. Stapleton, 336 So.2d 1226 (Fla. 2d DCA 1976), and Pettigrew v. W & H Development Corp., 122 So.2d 813 (Fla. 2d DCA 1960). See also Estate of Corbin, 391 So.2d 731 (Fla. 3d DCA 1980). “It is also well settled that one who has a special interest in personal property can only recover in a conversion action the value of his interest in the property.” 386 So.2d at 816. In support of this statement the court in Page made reference to a principle articulated at 89 C.J.S. Trover and Conversion § 164, (1955):

A plaintiff having only a special or qualified right or interest may recover the full value of the converted property as against a stranger; but, as against one having an interest or right in the property, recovery is limited to the value of the plaintiff’s interest or right.

To determine the amount of damages in Page, the court took the value of the property at the time of conversion, credited the defendant with the balance of the purchase price due, and added interest from the date of conversion.

In the present case the trial court found that $25,000.00 was the reasonable market value of the tractor at the time of conversion and awarded that amount in full. This assessment failed to take into account the balance of the purchase price due under one of the contracts held by Mercury, which Page and the authorities cited therein indicate should have been considered. We have not overlooked the fact that in Page, the reasonable market value at the time of conversion was established to be identical to the original purchase price, so that the plaintiff recovered as the value of his interest in the property the exact amount he had paid towards the purchase price.

The present record indicates that the original value of the tractor was $45,564.48, however, a witness on behalf of Mercury testified that at the time of conversion, the tractor, which had over 200,000 miles on it, had a fair market value of $22,000 to $24,-000. Crockett testified that prior to the conversion he had paid $20,000 to $25,000 towards the purchase price. Documentation of payments in the record indicates Crockett may actually have paid $19,847.96 as of August 30, 1980, shortly before the conversion occurred on September 23, 1980. Based on the evidence and authorities presented by the parties, the award of damages of $25,000 is reversed. The case is remanded to the trial court for redetermi-nation of damages for conversion of the tractor, applying the test set forth in Page v. Matthews. The trial judge may, at his discretion, receive additional evidence on the issue of damages. The award of $600.00 for conversion of Crockett’s personal property is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    John Robert TOWNER, Appellant, v. STATE of Florida, Appellee.
    No. AJ-330.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1982.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Defendant appeals his conviction of grand theft. In one of the two points raised on appeal, defendant alleges that the trial court erred in imposing a $10.00 fee pursuant to § 960.20, Fla.Stat. and in imposing a $2.00 fee pursuant to § 943.25(4), Fla.Stat. as part of his judgment and sentence because he is indigent. However, there is no record evidence that defendant objected below to the imposition of these costs or that he raised the error by a post-trial motion. Accordingly, this point is not preserved for purposes of appeal. We find no error in the other point raised by defendant and affirm his judgment and conviction.

MILLS, BOOTH and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Pearl C. HENLEY, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AI-345.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    Pearl C. Henley, pro se, for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole & Probation Com’n, Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a presumptive parole release date determination; appellee concedes that the offense of conviction should have been scored as “robbery” rather than “armed robbery,” and further concedes that appellant’s contemporaneous conviction of burglary should not have been used as an aggravating factor since it was also used to increase appellant’s salient factor score. We find the order appealed to be otherwise without error, and we therefore reverse the order appealed only as to the points of conceded error.

Accordingly, the order appealed is affirmed in part, reversed in part, and the cause is remanded for the establishment of an appropriate presumptive parole release date.

BOOTH and THOMPSON, JJ., concur.


text:
    Steven BELLE, Appellant, v. STATE of Florida, Appellee.
    No. AK-186.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has been granted an opportunity to file a brief in proper person but has not done so. Having reviewed the entire record, we find no reversible error.

AFFIRMED.

SHAW, JOANOS and WIGGINTON, JJ., concur.


text:
    Richard W. COOK, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-427.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.

      Richard W. Cook, pro se, appellant.
    Earl H. Archer, Asst. Gen. Counsel', Florida Parole and Probation Commission, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

SHAW, JOANOS and WIGGINTON, JJ., concur.


text:
    ATLANTIC CHRISTIAN SCHOOLS, INC., and United States Fidelity and Guaranty Company, Appellants, v. Lissette SALINAS, a minor, and David Salinas, Appellees.
    Nos. 81-1317, 81-1574.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellants.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Coral Gables, for appellees.
    Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

We affirm the Final Judgment and order taxing costs in favor of appellees. The jury returned a verdict in accordance with the evidence and with the court’s instruction that it could find the school negligent in the maintenance or supervision of the playground ladder from which the child fell.

Affirmed.^

       The presence of rocks beneath the ladder distinguishes this case from Alegre v. Shurkey, 396 So.2d 247 (Fla. 1st DCA 1981).


author: BASKIN, Judge.

text:
    Martha MONNAR, Appellant, v. Enrique MONNAR, Appellee.
    No. 81-2226.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.

      M. Carmen Dominguez, Coral Gables, for appellant.
    Daniels & Hicks and Mark Hicks, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the Final Judgment for Dissolution of Marriage in which the trial court found that Mrs. Monnar had no need for alimony and was not entitled to participate in settlement proceeds received as a consequence of Mr. Monnar’s personal injury action. In addition, we find no error in the trial court’s decision that the parties owned the condominium apartment equally as tenants in common, and permitting Mrs. Mon-nar to have exclusive possession. We reverse the provisions of the final judgment which require Mrs. Monnar to pay all expenses necessary to maintain the apartment. As co-tenant in common, Mr. Mon-nar is responsible for half the mortgage payments and interest costs. Connelly v. Connelly, 409 So.2d 175 (Fla. 2d DCA 1982); Waskin v. Waskin, 346 So.2d 1060 (Fla. 3d DCA 1977); Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975). He must therefore pay a portion of past and future payments equal to his percentage of ownership, or, in the alternative, Mrs. Monnar should be credited at time of sale for sums she paid in excess of her share of the obligation. Dominik v. Dominik, 390 So.2d 81 (Fla. 3d DCA 1980); Smith v. Smith, 390 So.2d 1223 (Fla. 1st DCA 1980); accord Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981).

We reverse the portion of the final judgment denying Mrs. Monnar attorney’s fees. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Adler v. Adler, 418 So.2d 1007 (Fla. 3d DCA 1982); Wilds v. Wilds, 399 So.2d 1038 (Fla. 3d DCA 1981); § 61.16, Fla.Stat. (1979).

Affirmed in part, reversed in part, and remanded.


text:
    Gabriel PRIETO, Appellant, v. GUARANTY NATIONAL INSURANCE COMPANY, the Travelers Indemnity Company, and Bobby Dykes Insurance Agency, Inc., Appellees.
    No. 82-209.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Friesner, Hatfield, Edge & Waks, Miami, for appellant.
    Lanza, Sevier & Womack and James C. Kelley, Coral Gables, Joseph A. McGowan and Robert C. Wines, Franklin D. Kreutzer and Arthur Cohen, Miami, for appellees.
    Before HENDRY, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Aetna Casualty & Surety Co. v. Goldman, 374 So.2d 539 (Fla. 3d DCA 1979), cert, denied, 385 So.2d 757 (Fla.1980); Florida Farm Bureau Insurance Co. v. Shaffer, 391 So.2d 216 (Fla. 4th DCA 1980), petition for review denied, 402 So.2d 613 (Fla.1981).


author: PER CURIAM. JORGENSON, Judge,

text:
    Captain Louis S. LIVINGS, District Nine Supervisor, Florida Marine Patrol, and State of Florida Department of Natural Resources, Appellants, v. Wendell DAVIS, Gilbert Grey, and Harry Robert Jones, Appellees.
    No. 82-409.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Kevin X. Crowley, Tallahassee, for appellants.
    David Paul Horan, Key West, for appel-lees.
    Carol E. Dinkins, Wilton Lawrence Wallace, Edward J. Shawaker, and Wells D. Burgess, Washington, D.C., for the Secretary of Commerce as amicus curiae.
    Before HUBBART, HENDRY and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Tingley v. Allen, 397 So.2d 1166 (Fla. 3d DCA 1981).

JORGENSON, Judge,

dissenting.

I respectfully dissent. In my view, Section 370.15(2)(a), Florida Statutes (1979), is constitutional. I would recede from Ting-ley, supra, and adopt the views of our sister court in Department of Natural Resources v. Southeastern Fisheries Association, Inc., 415 So.2d 1326 (Fla. 1st DCA 1982). See also, People v. Weeren, 26 Cal.3d 654, 163 Cal.Rptr. 255, 607 P.2d 1279 (Cal.1980), cert. denied, 449 U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45.


text:
    CHICAGO INSURANCE COMPANY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 82-497.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Fertig & Curtis and Richard S. Womble, Fort Lauderdale, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley and Jon Derrevere, Miami, for ap-pellee.
    Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Argonaut Insurance Co. v. Maryland Casualty Co., 372 So.2d 960 (Fla. 3d DCA 1979); Lehman-Eastern Auto Rentals, Inc. v. Brooks, 370 So.2d 14 (Fla. 3d DCA 1979).


text:
    Richard Marion CORDLE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-971.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.

      Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before HENDRY, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Alcorn v. State, 422 So. 2d 341 (Fla. 3d DCA 1982); Mock v. State, 385 So.2d 665 (Fla. 2d DCA), petition for review denied, 392 So.2d 1377 (Fla.1980); Horton v. State, 375 So.2d 1112 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 638 (Fla. 1980); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).


text:
    HARKIN CONSTRUCTION, INC., Appellant, v. TOLL DEVELOPMENT CORP. and the Aetna Casualty and Surety Co., Appellees.
    No. 81-140.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    M. Ross Shulmister, Fort Lauderdale, for appellant.
    Stephen L. Griffith, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED. See Atlantic Gardens Landscaping, Inc. v. Boca Raton Land Development, Inc., 360 So.2d 1278 (Fla. 4th DCA 1978).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    John C. OAKFORD, Appellant, v. Catherine D. OAKFORD, Appellee.
    No. 81-2296.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    M. Ross Shulmister and James A. Grady of Shulmister & Grady, Fort Lauderdale, for appellant.
    Douglas S. Lambeth, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Dennis Eugene FERRIS and Lowell Keith Armon, Appellees.
    No. 81-2424.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Dec. 22, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joel S. Fass of Colodny, Fass & Talenfeld, P.A., North Miami, for appellees.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of State v. Turner, 345 So.2d 767 (Fla. 4th DCA 1977).

ANSTEAD, BERANEK and WALDEN, JJ., concur.


text:
    In re the ESTATE OF George H. MINNICK, Deceased.
    No. 82-224.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    James A. Week of Week & Week, Fort Lauderdale, for appellant Jill Anne Gross.
    Shelby D. Wallis, P.A., Pompano Beach, for appellees Dorothy J. Koeppel, Personal Representative of the Estate of George H. Minnick, Deceased, and Dorothy J. Koeppel and Dolores Buckley as third party defendants.
   PER CURIAM.

Upon review of the record we do not believe the trial court erred in determining that there were no material issues of fact as to the various claims filed by the appellant and entering summary judgment thereon. In particular we believe the undisputed facts established deficiencies in each of appellant’s claims. We also find evidentiary support for the trial court’s ruling, after trial, on the unjust enrichment claim. Accordingly, we affirm, the orders and judgment of the trial court.

ANSTEAD and HURLEY, JJ., and SHA-HOOD, GEORGE, Associate Judge, concur.


text:
    Ina and Johnny WASHINGTON, Sr., (as Trustee for the Benefit of himself, his wife, the Estate of Cedric Washington and his minor children), as assignee of Anderson Motor Lines, Inc., Appellants, v. FIREMAN’S FUND INSURANCE COMPANY, a foreign corporation authorized to do business in the State of Florida, Appellee.
    No. 82-453.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Marcia E. Levine of Fazio, Dawson & Disalvo, Fort Lauderdale, for appellants.
    Michael J. Murphy of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for appellee.
   PER CURIAM.

This is an appeal from an order finally dismissing an action against Defendant, Fireman’s Fund Insurance Company, for lack of in personam jurisdiction. We hold that the process was properly and sufficiently perfected under the provisions of Section 624.422(3), Florida Statutes (1969) so as to vest the Court with in personam jurisdiction. We reverse upon authority of Confederation of Canada Life Insurance Company v. Vega Y Arminan, 144 So.2d 805 (Fla.1962).

Reversed and remanded.

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Vincent T. BOONE, Appellant, v. STATE of Florida, Appellee.
    No. 82-688.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Doerr v. State, 348 So.2d 938 (Fla. 2d DCA 1977), affirmed, 383 So.2d 905 (Fla.1980).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Samuel Lee KARRH and Timothy A. Cannon, Appellees.
    No. 82-745.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joseph S. Karp of Bernstein, Narkier, Sharff, Monchick & Karp, West Palm Beach, for appellees.
   PER CURIAM.

Affirmed. See Lavely v. State, case number 82-725, opinion filed November 17, 1982, (Fla. 4th DCA 1982).

BERANEK, HERSEY and WALDEN, JJ., concur.


text:
    In the Interest of R.R., a child.
    No. 82-886.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This appeal is moot.

Dismissed.

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Bruce Wesley OLIVER, Appellant, v. STATE of Florida, Appellee.
    No. 82-938.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

No doubt through inadvertence, the trial court found appellant had violated his probation as set forth in Counts I, II, III, and IV. Actually, the State withdrew Count II, as it was unable to offer any proof of the facts alleged therein. On appeal the State concedes appellant should not have been violated on said count.

Accordingly, the order appealed from is modified to delete any reference to Count II and, as so modified, the order and sentence is affirmed.

AFFIRMED AS MODIFIED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Corinne FREEMAN, Zelmar Greenway, Richard Ashton, Leroy Partington, and Christopher Davis, as Trustees of the Firemen’s Pension Fund for the City of St. Petersburg, Florida, Appellants, v. Hugh W. CHAMBLISS, Appellee.
    No. 82-475.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1982.
    Michael S. Davis, City Atty., Kim Street-er, Asst. City Atty., St. Petersburg, for appellants.
    Jay M. Thorpe, St. Petersburg, for appel-lee.
   PER CURIAM.

We construe the final judgment as not barring appellee’s application for benefits on the bases of laches, but as not precluding appellant from seeking to establish that defense at an evidentiary hearing on the merits. As construed, the final judgment is AFFIRMED.

BOARDMAN, A.C.J., and SCHEB and SCHOONOVER, JJ., concur.


text:
    Raymond L. BRYAN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-172.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.

      Raymond L. Bryan, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982); Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

SHAW, THOMPSON and WIGGINTON, JJ., concur.


text:
    David STEVENSON, Appellant, v. Julia Ella WELCH, Appellee.
    No. AN-347.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for appellant.
    Theodore M. Burt of Burt & Philman, Trenton, for appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s non-final order denying a change of venue. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(A).

AFFIRMED.

SHAW, JOANOS and WIGGINTON, JJ., concur.


text:
    CITY OF HIALEAH, Appellant, v. Joseph DEARSTEIN and Division of Workers’ Compensation, Appellees.
    No. AM-166.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    John F. McMath, Miami, for appellant.
    Peter S. Schwedock, Miami, for appellees.
   PER CURIAM.

AFFIRMED. See Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

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