author: THOMPSON, Judge.

text:
    MODERN PLATING COMPANY et al., Appellants, v. Charles R. WHITTON, Appellee.
    No. TT-234.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., Tampa, for appellants.
    John McFayden, Pinellas Park, for appel-lee.
   THOMPSON, Judge.

The employer/carrier (the “E/C”) appeals a final order of the Deputy Commissioner (the “Deputy”), assigning as error the finding of the Deputy that the E/C was not entitled to an offset under the provisions of § 440.15(10)(a), Fla.Stat., based on the total social security benefits received by the claimant and his dependents. We agree and reverse.

The claimant and his dependents were drawing social security benefits pursuant to 42 U.S.C. § 402 and § 423, when it was determined that the claimant was permanently totally disabled (PTD). The E/C began paying PTD weekly compensation benefits (“benefits” reduced by an offset of the total social security benefits received by the claimant and his dependents, so that the sum total social security benefits and the workers compensation benefits paid to the claimant did not exceed 80% of the employee’s average weekly wage. The claimant contested the offset and the Deputy ruled that the E/C could not include social security benefits paid to the dependents in determining the amount of the offset. The Deputy recognized that § 440.15(10)(a), Fla. Stat., had been amended in 1979 (prior to his hearing) to add the words “and his dependents,” but he held that this law affected the substantive rights of the employee and was therefore not retroactive to this employee, whose accident occurred prior to the effective date of the amendment. He relied on the three previous cases of Hersey v. Orkin Exterminating Company, IRC Order No. 2-3622 (November 30, 1978), Contractors Services v. Garoutte, IRC Order No. 2-3514 (August 28, 1978), and Oroweat Foods Company v. Valle, IRC Order No. 2-3512 (August 25, 1978) in which the Industrial Relations Commission held that dependent’s benefits cannot be used in computing the offset allowed to the E/C.

Prior to its 1979 amendment, § 440.-15(10)(a) (1977), provided in part that

Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. s. 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee, had such employee not been entitled to benefits under this chapter, under 42 U.S.C. s. 423 and s. 402, does not exceed 80 percent of the employee’s average weekly wage. However, this provision shall not operate to reduce an injured worker’s benefits under this chapter to a greater extent than they would have otherwise been reduced under 42 U.S.C. s. 424(a). (emphasis supplied)

Title 42 U.S.C. § 423 deals with disability insurance benefit payments, while 42 U.S.C. § 402 deals with old-age insurance benefit payments to the insured individual, and his or her spouse and dependent children.

Title 42 U.S.C. § 424a(a) provides in part that:

(a) If for any month prior to the month in which an individual attains the age of 62—
(1) such individual is entitled to benefits under section 423 [42 U.S.C. § 423], and
(2) such individual is entitled for such month, under a workmen’s compensation law or plan of the United States or a State, to periodic benefits for a total or partial disability (whether or not permanent), and the Secretary has, in a prior month, received notice of such entitlement for such month,

the total of his benefits under section 423 [42 U.S.C. § 423] for such month and of any benefits under section 402 [42 U.S.C. § 402] for such month based on his wages and self-employment income shall be reduced (but not below zero) by the amount by which the sum of—

(3) such total of benefits under sections 423 and 402 [42 U.S.C. §§ 402, 423] for such month, and
(4) such periodic benefits payable (and actually paid) for such month to such individual under the workmen’s compensation law or plan, exceeds the higher of—
(5) 80 per centum of his “average current earnings”, or
(6) the total of such individual’s disability insurance benefits under section 423 [42 U.S.C. § 423] for such months and of any monthly insurance benefits under section 402 [42 U.S.C. § 402] for such month based on his wages and self-employment income, prior to reduction under this section.

In no case shall the reduction in the total of such benefits under sections 423 and 402 [42 U.S.C. §§ 402 and 423] for a month (in a continuous period of months) reduce such total below the sum of—

(7) the total of the benefits under sections 423 and 402 [42 U.S.C. §§ 402, 423], after reduction under this section was made (or which would have been so determined if all of them had been so entitled in such first month), and
(8) any increase in such benefits with respect to such individual and such persons, before reduction under this section, which is made effective for months after the first month for which reduction under this section is made. (Emphasis supplied)

Title 42 U.S.C. § 424a(a), the federal offset provision, refers to “such total benefits under sections 423 and 404” when referring to the federal benefits, while § 440.-15(10)(a), Fla.Stat., prior to the 1979 amendment, provided for the offset of the total benefits “under 42 U.S.C. § 423 and § 402.” The word “total” in both laws is an absolute nullity unless it is given its normal and ordinary meaning: a whole quantity; an entirety; a sum; constituting or pertaining to the whole; entire; complete. The word “total” as used in both the federal and Florida offset statutes means all of the benefits; i. e., the sum of the benefits which are provided in 42 U.S.C. § 423 and § 402. The benefits provided in those sections include not only those paid to the employee or insured individual, but also those paid to the spouse and dependent children of that insured individual, and such combined benefits constitute the “total benefits” referred to in 42 U.S.C. § 424a(a) By extension, these benefits constitute the “total benefits” referred to in § 440.-15(10)(a), Fla.Stat. (1977). As stated by the Florida Supreme Court in American Bankers Insurance Co. v. Little, 393 So.2d 1063 (Fla.1980):

There is really no dispute concerning the purpose of the interplay between federal and state law with regard to offsetting benefits. The parties agree that the change in federal law was designed to give states the benefit of offsets which formerly were taken by the Social Security Administration for persons disabled in job-related injuries. They also agree that each statute contains a hold harmless provision fashioned to prevent a double offset resulting in decreased benefits and that the State of Florida properly took advantage of the change in federal law by enacting its offset provision, effective on July 1, 1973 (emphasis supplied).

There is no federal offset under 42 U.S.C. § 424a(a) if there is a state offset law such as § 440.15(10)(a), Fla.Stat. But it is clear from reading 42 U.S.C. § 424a(a) that the federal government would have taken an offset based upon the total benefits paid under 42 U.S.C. § 423 and § 402 if there was not a Florida offset statute. As the federal government would have taken an offset which would have been based on the total benefits paid the claimant and his dependents under the provisions of 42 U.S.C. § 424a(a), then the E/C was entitled to take an offset based on the total benefits paid the employee and his dependents prior to the 1979 amendment. We recognize that the IRC held to the contrary in Hersey, Contractors Services and Oroweat, and to the extent that those cases are in conflict with this opinion, we decline to follow them.

In view of the foregoing, it is not necessary to decide whether the 1979 amendment to the Florida offset law is retroactively applicable, because as set out in this opinion, the federal offset law would require the consideration of the total benefits paid (including those to dependents) in determining the offset under federal law. The pre-1979 Florida law also required the same total benefits to be considered in determining the offset under Florida law. Therefore, no vested monetary right of the employee would be affected by the 1979 amendment and it is not a substantive change.

In summary, the E/C is entitled to reduce the weekly compensation benefits payable to the employee to an amount whereby the sum of such compensation benefits payable under the Florida law and such total benefits payable to the employee and his dependents under 42 U.S.C. § 423 and § 402 does not exceed 80% of the employee’s average weekly wage or the employee’s average current earnings, whichever is the higher.

Finally, we note that our disposition of this matter results in affirmance of the Deputy’s decision not to assess penalties against the E/C, pursuant to § 440.20(6), Fla.Stat.

This cause is reversed and remanded for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Ret.), Associate Judge, concur.

      . See C.F.R. § 440.408(g) and (h). The examples contained therein clearly demonstrate that the Social Security Administration computes the benefits paid to the insured, his or her spouse, and dependent children in determining the total benefits paid to the insured for purposes of offsetting any workers’ compensation benefits.

      . After the IRC rendered these decisions, the legislature promptly amended the law to add the words “and his dependents” following the words “such total benefits payable for such period to the employee.” Apparently, the purpose of this amendment was to correct the IRC’s misunderstanding of § 440.15(10)(a).


source: Caselaw Access Project

license: Public Domain

text:
    Ed BARBOUR, Jr., and/or Prospectus Construction Co., and/or S & R Transportation Co., Appellants, v. George WATERMAN, Appellee.
    No. VV-24.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.

      Robert E. Sheridan, of Jesse F. Sparks, P. A., Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P. A., Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Appellee, George Waterman, through his attorneys, filed a claim for compensation naming as employer (1) Ed Barber, Jr., and/or (2) Prospectus Construction Co., and/or (3) S & R Transportation Co., giving an address of Post Office Box 926, Apopka, Florida, 32703. In due course, the judge of industrial claims mailed to the named employers at the above post office address a notice of hearing for October 15, 1979, at which time a hearing was held with only claimant and his attorney present. Subsequently, each of the named employers received a copy of a proposed compensation order together with notice of hearing on claimant’s request for attorney fees and costs, prompting each of the employers to file a motion to abate entry of the proposed order on the grounds of lack of notice of the hearing of October 15, 1979. Thereafter the deputy commissioner held a hearing on the motions to abate, took testimony on the issue of notice, and in due course entered the order which is now appealed, finding that all parties had specific notice of the hearing on October 15, 1979, and that Ed Barbour, Jr., and S & R Transportation Co. were joint employers and were jointly and severally responsible for benefits due, which benefits were set forth in the order.

Ed Barbour, Jr., and Prospectus Construction Co. filed notice of appeal and S & R Transportation Co. filed a separate notice of appeal, the latter appeal not being involved here. Our review of the record satisfies us that there is no competent, substantial evidence to sustain the deputy commissioner’s finding that Ed Barbour, Jr., and/or Prospectus Construction Co. had proper notice of the hearing on Waterman’s claim. To satisfy the requirements of Chapter 440, Florida Statutes, and of basic due process, the record must affirmatively demonstrate that notice of hearing was given to the employer. Reyes v. Johnstone, 388 So.2d 344 (Fla. 1st DCA 1980).

The compensation order dated March 19, 1980, is reversed as to Ed Barbour, Jr., and Prospectus Construction Co., and remanded for a hearing de novo after due notice to all parties.

REVERSED AND REMANDED.

MILLS, C. J., and WENTWORTH, J., concur.

      . Although the claim and subsequent notices spelled the name Barber, at hearing on the motion to abate the record was corrected to reflect the correct spelling of Barbour. The misspelling of the name is not the basis of our determination that Barbour did not receive notice of the hearing.


author: PER CURIAM.

text:
    ANNING-JOHNSON COMPANY and Aetna Life & Casualty Insurance Company, Appellants, v. Charles SLOAN, Appellee.
    No. WW-449.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Robert F. Jordan, of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for appellants.
    Maurice Fixel, of Meyer, Fixel & Cantor, P. A., Hollywood, for appellee.
   PER CURIAM.

Claimant is a 33-year-old male with a high school education who was employed as a welder for Anning-Johnson Company. On October 8, 1974, he fell approximately fifteen feet and sustained an injury to his lower back. His treating physician, Dr. Ra-hilly, testified, and the deputy commissioner had so found, that the claimant has suffered a 20% permanent partial disability to the body as a whole as an anatomical impairment rating. Dr. Rahilly did not place the claimant on any specific restrictions and told him to do whatever type of work he could tolerate. However, the deputy commissioner awarded to the claimant a 50% permanent partial disability rating, which the employer/carrier now appeals.

The employer/carrier urges that the deputy commissioner erred in awarding claimant a 50% permanent partial disability rating in the absence of an adequate work search. We agree and reverse. Aside from one effort to return to his former occupation, the claimant has made no effort to seek employment. Further, he refused the opportunity for retraining as well as recommended surgery. He may properly refuse surgery. See Henderson v. Booth, 281 So.2d 350 (Fla.1973); Sultan & Chera Corporation v. Fallas, 59 So.2d 535 (Fla.1952). However, the cases are legion holding that a claimant must make an adequate work search to establish a loss of wage-earning capacity in excess of his anatomical impairment rating, e. g, Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981); Exxon Company v. Alexis, 370 So.2d 1128 (Fla. 1978). Considering Dr. Rahilly’s advice that the claimant could return to work performing jobs that did not cause him great pain, his refusal of retraining, and his failure to adequately test the job market, we think that the claimant has failed to establish a loss of wage-earning capacity. Therefore, we reverse the deputy commissioner’s award and amend the order to reflect a 20% permanent partial disability rating.

REVERSED.

LARRY G. SMITH and McCORD, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Reinaldo Demetrio MENESES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-183.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1981.
    Pertnoy & Greenberg and Steven M. Greenberg, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and SCHWARTZ, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on July 3,1979 (372 So.2d 1152) reversing the order of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court's judgment by certiorari, the Supreme Court of Florida, 392 So.2d 905, by its opinion and judgment dated January 8,1981 now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the judgment of this court filed July 3,1979 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order of the trial court is reinstated and affirmed. Costs allowed shall be taxed in the criminal court (Rule 9.400(a) Florida Rules of Appellate Procedure).


author: HUBBART, Chief Judge.

text:
    D. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1194.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthoy C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   HUBBART, Chief Judge.

The adjudication of delinquency for the offense of theft [§ 812.014(1), Fla.Stat. (1979)], which is under review by this appeal, is reversed and the cause is remanded to the trial court with directions to discharge the juvenile from the cause. Our review of the record convinces us that the state’s evidence linking the juvenile to the theft offense herein, which was entirely circumstantial in nature, fails to exclude, as required by law, every reasonable hypothesis of innocence. The trial court was, accordingly, in error in denying the juvenile’s motion for judgment of acquittal made below at the close of all the evidence in the cause. See e. g. Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899 (Fla.1954).

A detailed recitation of the facts of this cause is, in our view, entirely unnecessary as it would unduly burden the already well-settled and more than adequate case law on this subject. Suffice it to say, however, that the juvenile’s mere presence at the scene of the theft herein and his flight therefrom with his companion was insufficient evidence in law to link him to the theft offense for which he was adjudicated delinquent. A reversal of this adjudication is, accordingly, mandated under our law. See e. g. Horton v. State, 91 So.2d 304 (Fla.1956); J. O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980); J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1980).

This reversal should not be interpreted, however, as condoning the juvenile’s behavior in this cause as it was, to say the very least, highly suspicious. We only hold that this behavior, without more, was insufficient to adjudicate him delinquent of the theft offense herein. Our law, for reasons deeply rooted in our passionate and perhaps, at times, exaggerated devotion to human freedom, has always set high standards of proof for the state to meet before we condemn a person for violating our criminal laws and subject him to potential incarceration. We do no more than follow that decisional law in this cause believing, as we do, that no person — whatever one may think of him personally — should be stigmatized by a criminal conviction or delinquency adjudication based, as here, upon less than proof beyond a reasonable doubt. See e. g. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Reversed and remanded with directions to discharge the juvenile from the cause.


text:
    Harold E. HUNT, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1471.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Bennett H. Brummer, Public Defender and David B. Javits, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY and PEARSON, DANIEL S. and FERGUSON, JJ.
   PER CURIAM.

Affirmed. O. A. v. State, 393 So.2d 604 (Fla. 3d DCA 1980) (Case No. 78-2065, opinion filed January 27,1981); Sealey v. State, 379 So.2d 430 (Fla. 2d DCA 1980); Tobler v. State, 371 So.2d 1043 (Fla. 1st DCA 1979); DeGeorge v. State, 358 So.2d 217 (Fla. 4th DCA 1978); Greer v. State, 354 So.2d 952 (Fla. 3d DCA 1978).


text:
    Anthony FAUGNO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1860.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980); Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1978); Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971), cert. denied, 247 So.2d 63 (Fla.1971); see also, Williams v. State, 392 So.2d 600 (Fla. 3d DCA 1981).


text:
    John Wesley STACY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1985.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Russ v. State, 313 So.2d 758 (Fla.1975); Snyder v. State, 362 So.2d 971 (Fla. 1st DCA 1978).


text:
    Arnold NORTHERN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2245.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. The prosecutor’s closing argument comments, which the jury was properly instructed to disregard, were not so pernicious, in the context of this case, as to require that the defendant be granted a new trial. See Darden v. State, 329 So.2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977); Thomas v. State, 326 So.2d 413 (Fla.1976); Zamot v. State, 375 So.2d 881 (Fla.3d DCA 1979); Johnson v. State, 348 So.2d 646 (Fla.3d DCA 1977); James v. State, 334 So.2d 83 (Fla.3d DCA 1976).


author: SCHWARTZ, Judge.

text:
    Standford BIRNHOLZ, and Intervenors, Stephens, Magill & Thornton, P. A., and Timothy Carl Blake, Esq., Appellants, v. Sidney STEISEL and Ajax Packaging and Plastics, Inc., a Florida Corporation, and Sidney Steisel, as Executor of the Estate of William B. Steisel, Appellees.
    Nos. 80-556, 80-557, 80-898.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Richard L. Polin, Fort Lauderdale, Jeanne Heyward, Peters, Pickle, Flynn, Niemoeller, Steiglitz & Downs, Ponzoli & Wassenberg, Alfred D. Bieley, Miami, for appellants.
    Murray B. Weil, Jr., North Bay Village, and Ray Ellen Prystowsky, Miami Beach, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

On May 2, 1975, Standford Birnholz filed a ten-count complaint for the recovery of attorney’s fees for services rendered to Sidney Steisel and others in ten separate legal matters. The trial court entered summary judgments for the defendants as to eight of the counts on the ground that the applicable statute of limitations had expired, and these appeals ensued. As to all but one of the counts now in issue, we affirm.

Count I involves a written agreement governed by a five-year limitations statute. § 95.11(2)(b), Fla.Stat. (1975). The other counts are quantum meruit claims based on oral contracts which, as specifically held infra, are subject to the four-year period which became effective on January 1, 1975. § 95.11(3)(k), Fla.Stat. (Supp.1974), replacing § 95.11(5)(e), Fla. Stat. (1971) (three-year statute). The appellants’ primary argument for reversal is based on the contention that the limitations period for attorneys’ services does not begin to run until written demand for payment, which was not made in this case until April 7, 1972, within both statutory periods. We reject this argument. As in the case of the general Florida rule concerning quantum meruit claims for services rendered, Matthews v. Matthews, 222 So.2d 282, 286 (Fla.2d DCA 1969), the universally accepted doctrine as to attorney’s fees is that the statute of limitations accrues when the particular services are completed. Atchison v. Huise, 107 Cal.App. 640, 290 P. 916, 918 (1930); Annot., Limitations — Compensation of Attorney, 60 A.L.R.2d 1008 (1958). Even more specifically, the limitations period is not extended when a demand is made only after the services have already been rendered. On this issue, Shaad v. Hutchinson’s Boat Works, Inc., 84 Misc.2d 631, 376 N.Y. S.2d 861 (Sup.Ct.1975) is directly on point. See also, Hargrove, Guyton, Van Hook & Ramey v. Blanchard, 216 So.2d 127, 131 (La.App., 1968), writ refused, 217 So.2d 413 (La.1969); Stark v. Hart, 22 Tex.Civ.App. 543, 55 S.W. 378 (1900). The authorities cited by the appellants are not on point. More significant, the argument the defendants espouse would permit an attorney, at his option, to delay the running of the statute ad infinitum merely by neglecting to bill his client. It is thus unsatisfactorily contrary to the very purpose of the statute of limitations itself. Hence, we adopt the established rule to the contrary. Applying that doctrine to the case at bar, we conclude that the trial court correctly entered summary judgment as to counts 1, 4-8, and 10. The record, particularly read in the light of the allegations of the complaint itself, conclusively demonstrates that, as to those counts, the plaintiff’s services came to an end beyond the applicable statutory periods. See, Landers v. Milton, 370 So.2d 368 (Fla.1979).

As to count 3, we reach a different conclusion. There is evidence that those services were concluded on April 8, 1972, less than four years before suit was filed. The appellees argue, however, that the three-year statute in effect at that time, Section 95.11(5)(e), Florida Statutes (1971), applies and that Section 95.11(3)(k), Florida Statutes (1975) effective January 1,1975, is not retroactive. They cite Foley v. Morris, 339 So.2d 215 (Fla.1976) for this proposition. We disagree. As the court pointed out in Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978), cert. denied, 378 So.2d 348 (Fla.1979), the holding in Foley was only that a statutory shortening of a limitations period will not be applied retroactively unless the legislative intention to do so clearly appears. The opposite is true when, as in this instance, the period is enlarged before the earlier statute has expired. Garris v. Weller Construction Co., 132 So.2d 553 (Fla. 1961); Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla.1956); Corbett v. General Engineering & Machinery Co., 160 Fla. 879, 37 So.2d 161 (1948); Talbot v. Talbot, 378 So.2d 1307 (Fla. 4th DCA 1980); Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc. supra; Patterson v. Sodders, 167 So.2d 789 (Fla. 2d DCA 1964); Martz v. Riskamm, 144 So.2d 83 (Fla. 1st DCA 1962). The claim involved in count 3 was not barred by the three-year limitations period when it was lengthened to four years on January 1, 1975. The summary judgment on that count is therefore reversed.

Affirmed in part, reversed in part.

      . Counts 2 and 9 remain pending in the trial court.

      . In Steisel v. Birnholz, 313 So.2d 125 (Fla.3d DCA 1975), cert. denied, 330 So.2d 14 (Fla.1976), we ordered an earlier, timely action dismissed for lack of prosecution. Thereafter, Birnholz’s then-lawyers were sued in a malpractice action. They were consequently permitted to intervene as parties-plaintiff below and are co-appellants here.

      . Since each of the counts was distinct and severable from the others and, indeed, would have individually supported an independent action, the summary judgments as to less than all of the counts are presently appealable under Mendez v. West Flagler Family Ass’n., Inc., 303 So.2d 1 (Fla. 1974).

      . The prior statute, which also provided a five-year period, was § 95.11(3), Fla.Stat. (1971).

      . The holding of the Matthews case that “in quantum meruit..., the cause of action accrued when the services have been performed,” 222 So.2d at 286, controls the quantum meruit claims, counts 3-8 and 10.

      . The only case which is even remotely pertinent, Harris v. Butler, 91 Utah 11, 63 P.2d 286 (1936), is completely distinguishable on the ground that the demand there was itself made at the conclusion of the services, when the statute would have otherwise begun to run anyway.

      . Although this date must be accepted for summary judgment purposes, it was not established as a matter of law. The factual issue as to the date of completion must be resolved after remand.


text:
    Eric YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 80-634.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Albert J. Krieger and Paul Morris and Neal R. Lewis, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son and Anthony C. Musto, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

Young appeals from his conviction for trafficking in cocaine. After he would not consent to opening his briefcase, the defendant was taken into custody at the Miami International Airport, and held for almost an hour — during which his plane took off — to await the arrival of a narcotics dog. After the dog alerted to the briefcase, a warrant was secured and cocaine was discovered inside. Because the detention was the functional and constitutional equivalent of an arrest which was (admittedly) not supported by probable cause, the judgment is reversed with directions to discharge the appellant on the authority of Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980), and State v. Mosier, 392 So.2d 602 (Fla. 3d DCA 1981).

      . This disposition moots the state’s cross-appeal, in which it challenges the $10,000 fine and ten year prison term imposed by the trial court despite the minimum mandatory sentence of $250,000 and fifteen years required by Sec. 893.135(l)(b) 3, Fla.Stat. (1979). But see, State v. Benitez, 395 So.2d 514 (Fla.1981).


text:
    Alan V. KIDWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-637.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Rehearing Denied March 30,1981.
    Mandina & Lipsky, Miami, Gargiulo & McMenimen and Brian J. McMenimen, Boston, Mass, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. The points raised by Kidwell on this appeal were not preserved below by appropriate objection, motion, or request for instruction. State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978); Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1981); Mead v. State, 381 So.2d 743 (Fla. 3d DCA 1980); Simpson v. State, 211 So.2d 862 (Fla. 3d DCA 1968). Kidwell’s claim that his trial counsel was ineffective cannot properly be raised for the first time on direct appeal and is a matter to be presented to the trial court under Florida Rule of Criminal Procedure 3.850. State v. Barber, 301 So.2d 7 (Fla.1974); Valero v. State, 393 So.2d 1197 (Fla. 3d DCA 1981).


text:
    Cecil Benjamin CARTHY, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-793, 80-1080.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Mishkin & Buri and Stuart R. Mishkin, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

The defendant Cecil Carthy appeals a final judgment of conviction and sentence dated March 24, 1980, which was entered upon an adverse jury verdict rendered against him after trial below in the Circuit Court for the Eleventh Judicial Circuit of Florida.

We have carefully considered the six points on appeal raised by the defendant in his brief, but our review of the record and .applicable law convinces us that there is no merit to any of these contentions. The defendant received, in our view, an eminently fair trial below and was properly convicted and sentenced under the established law for all the crimes he committed in this shocking, but regrettably all-too-common drug related, execution-style homicide. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); State v. Pinder, 375 So.2d 836, 839 (Fla.1979); Castor v. State, 365 So.2d 701, 703 (Fla.1978); McNamara v. State, 357 So.2d 410, 412 (Fla.1978); Slater v. State, 316 So.2d 539 (Fla.1975); North v. State, 65 So.2d 77, 80 (Fla.1952), aff’d., 346 U.S. 932, 74 S.Ct. 376, 98 L.Ed.2d 423 (1954); Roth v. State, 385 So.2d 114 (Fla.3d DCA 1980); Skelton v. State, 349 So.3d 193 (Fla.3d DCA 1977); Panzavecchia v. State, 311 So.2d 782 (Fla.3d DCA 1975), overruled on unrelated sentencing issue, Williams v. State, 346 So.2d 67 (Fla.1977); Jackman v. State, 140 So.2d 627, 630 (Fla.3d DCA 1962); §§ 775.021(4), 924.33 Fla.Stat. (1979); Fla.R. Crim.P. 3.150(a).

We see no point in an extended discussion of this case as, in our view, it would unduly burden the well-settled principles of law which apply herein. The judgment of conviction and sentence dated March 24, 1980, is accordingly,

Affirmed.


text:
    James P. BEGGINS, Jr., and Victoria Beggins, his wife, Appellants, v. BRADEN-LYNS ASSOCIATES, Appellee.
    No. 80-988.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Douglas Paul Solomon, for appellants.
    Peters, Pickle, Flynn, Niemoeller, Stiegitz & Downs and Nancy Schleifer, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Bartlett Construction, Inc. v. Coastal Plains, Inc., 353 So.2d 892 (Fla.3d DCA 1977).


author: BASKIN, Judge.

text:
    James P. BEGGINS, Jr., and Victoria Beggins, his wife, Appellants, v. BEALL & ASSOCIATES ROOFING CORP., Appellee.
    No. 80-989.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Douglas Paul Solomon, North Miami Beach, for appellants.
    Ainslee R. Ferdie and Louis Gouz, Coral Gables, for appellee.
    Before SCHWARTZ, BASKIN and PEARSON, DANIEL S., JJ.
   BASKIN, Judge.

Homeowners James P. Beggins, Jr. and Victoria Beggins appeal a final summary judgment entered in favor of Beall & Asso-dates Roofing Corporation in a suit in which they sought to recover damages in connection with the faulty construction of an addition to their home.

The Beggins employed Beall to remove a roof already in place and to apply a new base and a new roof on the home with an extension over the addition. Appellants contend that Beall breached its contract by failing to provide adequate drainage and, in addition, negligently failed to disclose existing defects it should have discovered in the course of its work. Beall responds, in an affidavit in support of its motion for summary judgment, that the water drainage problem, including the puddling of water on the flat roof deck, was not a violation of accepted construction standards in the roofing industry and is a common condition in Dade County where the installation of rafters and sheeting is accomplished by persons not employed by the roofer. Beall also contends that performance of its contract would not have changed the pitch of the roof, which was the cause of the puddling. Beall denies any obligation to provide construction advice.

In our view, the pleadings and affidavits filed by the parties raise genuine issues of material fact which remain to be decided. Holl v. Taleott, 191 So.2d 40 (Fla.1966); Leatherby Insurance Co. v. Matherly, 334 So.2d 134 (Fla. 3d DCA 1976). These questions include, among others, determinations as to whether Beall installed the roof over an improperly fitted wall section and, if so, whether it was remiss in its obligation. At issue under the contract is the question of whether Beall had an obligation to provide adequate drainage and whether it did, in fact, do so.

For these reasons, we reverse the summary judgment entered by the trial court and remand for further proceedings.

      . Mr. and Mrs. Beggins were sued for non-payment by the second contractor engaged to complete their addition. They filed a claim for damages against Beall & Associates Roofing Corp. as third-party defendant as well as against Additions Unlimited, the first general contractor, and against Braden-Lyns Associates, Inc., the architectural firm involved in the construction.

      . Appellants’ appeal from a final summary judgment in favor of Additions Unlimited is the subject of case number 80-990 decided this date; appellants’ appeal from the final summary judgment in favor of Braden-Lyns Associates, Inc. is the subject of case number 80-988 decided this date.

      .Appellants filed an affidavit stating that a representative of Beall admitted he had put down a portion of the roof over an improperly filled wall section.


text:
    James P. BEGGINS, Jr. and Victoria Beggins, his wife, Appellants, v. ADDITIONS UNLIMITED, INC., Appellee.
    No. 80-990.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Douglas Paul Solomon, North Miami Beach, for appellants.
    Edward C. Tietig, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Bartlett Construction, Inc. v. Coastal Plains, Inc., 353 So.2d 892 (Fla.3d DCA 1977).


text:
    William C. ELSWICK, Appellant, v. Judy Gale MARTINEZ, Appellee.
    No. 80-1044.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Rehearing Denied March 20, 1981.
    Robert M. Brake, Coral Gables, for appellant.
    Irene Redstone, Miami, Legal Aid Socie-to for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We affirm the orders entered by the trial court pertaining to child support, expert witness fees, travel expenses, and costs incident to birth in a contested paternity suit brought pursuant to Chapter 742, Florida Statutes (1975). The awards, including costs incident to birth awarded to the State of Tennessee, are within the purview of section 742.031:

Same; hearings; court orders, support, hospital expenses, etc. — Hearings for the purpose of establishing or refuting the allegations of the complaint and answer shall be held in the chambers and may be restricted to such persons, in addition to the parties involved and their counsel, as the judge in his discretion may direct. The court shall determine the issues of paternity of the child, and the ability of the parents and each of them to support the child and if the court shall find the defendant to be the father of the child he shall so order and shall further order the defendant to pay the complainant, her guardian or such other person assuming responsibility for the child as the judge may direct, such sum or sums as shall be sufficient to pay reasonable attorney’s fee, hospital or medical expenses, cost of confinement and any other expenses incident to the birth of such child. In addition the court shall order the defendant to pay periodically for the support of such child such sums as shall be fixed by the court in accordance with the provisions of this act, and also all taxable costs of the proceedings. Upon request of either party, the issue of the paternity of such child may be tried by jury and the chancellor shall transfer the cause for the determination of such issue.

In addition, we affirm the order awarding legal fees to appellee’s attorney with the exception of that portion expressly attributed by the court to legal services in connection with a prior appeal. Appellate legal fees must be sought in the appellate court by appropriate timely motion. Fla.R. App.P. 9.400(b). Since the trial court lacked authority to award appellate fees absent a remand by this court, Travelers Indemnity Co. of America v. Morris, 390 So.2d 464 (Fla. 3d DCA 1980), we order the $1,000 awarded for appellate legal services deleted from the total award.

Affirmed in part, reversed in part, and remanded.

      . The father appealed the trial court’s denial of his motion to transfer the cause to Tennessee. We affirmed the trial court’s decision in El-swick v. Martinez, 341 So.2d 1095 (Fla. 3d DCA 1976).


text:
    TOWN OF SURFSIDE, Florida, Appellant, v. MORRISON ASSURANCE COMPANY, INC., Appellee.
    No. 80-1064.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Cypen & Nevins and Stephen H. Cypen, Miami Beach, for appellant.
    Stephens, Schwartz, Lynn & Chernay, P. A. and Robert M. Klein, Miami, for appel-lee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

In this appeal, the Town of Surfside challenges an adverse summary judgment which resulted in a denial of insurance coverage for bodily injuries sustained by a child who had been playing ball at a Surf-side park. We hold that the insurance policy furnished the Town of Surfside by Morrison Assurance Company did not exclude the injury sustained. We therefore reverse the summary judgment.

The complaint for declaratory relief filed by Morrison Assurance Company alleged that Alfred DeBlasio had been participating in a softball game at Surfside Park under the supervision of Surfside counselors when the ball was hit into the water beyond the confines of the park. Alfred and another boy went to retrieve the ball, which was floating near the seawall. Alfred saw a big stick on the other side of a bridge and went to get it. Unfortunately, he raised his head while he was still underneath the bridge and injured himself. Alfred’s deposition disclosed that the game was over and the other players were waiting for him to return with the ball, the last one available. He did not think they intended to continue the game. The trial court ruled that Alfred’s injuries resulted from his participation in an athletic activity and were excluded from coverage under the policy.

The contested exclusionary clause states: ATHLETIC PARTICIPATION EXCLUSION: It is agreed this insurance does not apply to bodily injury to any and all persons practicing, instructing, or participating in any physical training, sport, athletic activity or contest.

The issue to be decided is whether Alfred’s acts constituted participation in an athletic activity. In reaching our decision, we are aware that exclusionary clauses must be construed liberally against the insurance company and in favor of the insured. Tropical Park, Inc. v. United States Fidelity & Guaranty Co., 357 So.2d 253 (Fla.3d DCA 1978).

The Supreme Court of Arkansas considered a similar exclusion in Glenn Falls Group Insurance Co. v. Simpson, 246 Ark. 654, 439 S.W.2d 292 (1969). In that case, lightning struck golfers who had sought refuge under a tree when rain interrupted their game at the insured’s country club. The court affirmed judgment for the insured holding that although the injured golfer had been participating in a golf game, he sustained the injury while standing under a tree. Under similar circumstances, other jurisdictions have held that injuries were not sustained during athletic participation and thus were not excluded from insurance coverage. See Hockey Club of Saginaw, Inc. v. Insurance Company of North America, 468 F.Supp. 101 (E.D.Mich. 1979); Zoller v. State Board of Education, 278 So.2d 868 (La.App.1973); Fireman’s Fund Indemnity Co. v. Hudson Associates, Inc., 97 N.H. 434, 91 A.2d 454 (1952); Mountain States Mutual Casualty Co. v. Northeastern New Mexico Fair Association, 84 N.M. 779, 508 P.2d 588 (1973). These authorities persuade us that the trial court’s finding that Alfred’s injury “came as a result of his participation in an athletic activity” does not resolve the issue. We conclude that since the injury was sustained while Alfred was outside the park after the game had ended, he was not participating in an athletic activity at the time he was injured.

Reversed and remanded for further proceedings.


text:
    The STATE of Florida, Appellant, v. James MERRITT, Appellee.
    No. 80-1293.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.

      Janet Reno, State Atty. and Stephen V. Rosin, Asst. State Atty. and Bruce H. Lehr, Legal Intern, for appellant.
    Carl Masztal, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The state brings this appeal from an order dismissing an information filed against James Merritt.

On the basis of self-defense, defendant James Merritt filed a sworn motion to dismiss an information, charging him with attempted first degree murder and the unlawful possession of a firearm while engaged in a criminal offense. In response thereto, the State filed a traverse, specifically denying the factual allegations of the defendant’s motion. The traverse commented that although the defendant stated that “he shot the victim after the victim slapped him and was standing six feet away, this does not indicate that the victim was threatening or attacking the defendant when the defendant shot the victim. Furthermore, ... eyewitness Nealy states: That the victim did not have a weapon, a fact substantiated by the defendant himself ... that the victim was unarmed”. At the hearing on the motion, the trial court considered the motion, the traverse, and the arrest affidavit. Just prior to dismissing the case, defense counsel stated that “... the State cannot find its witnesses, and neither can I; ... never supplied a correct address to me”.

It was error to grant the defendant’s sworn motion to dismiss where the State filed a sworn traverse specifically denying the material facts alleged by the defendant. The language of Florida Rules of Criminal Procedure 3.190(d) is to the effect that “a motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss”, [emphasis supplied] This language is mandatory. See: Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). If the case was dismissed because of the assertion of defense counsel that “.. . the State cannot find its witnesses”, then the trial court was in error. See: Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979). Also, if the dismissal was based upon the failure of the State to provide the defense with the correct address of a witness this too would be an insufficient ground for dismissal. See: Richardson v. State, 246 So.2d 771 (Fla.1971).

Therefore, the order under review be and the same is hereby reversed and the cause is returned to the trial court for further proceedings.

Reversed and remanded with directions.


text:
    Carmine A. BRAVO, Appellant, v. Sue H. Odell SAULS, Appellee.
    No. 80-1326.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    James A. Baccus, Miami, for appellant.
    Kavanaugh & Leiby, Miami, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Bloom v. Weiser, 348 So.2d 651 (Fla. 3d DCA 1977); Board of County Commissioners of Metropolitan Dade County v. Lowas, 348 So.2d 13 (Fla. 3d DCA 1977) (if the trial court’s ruling is correct for any reason revealed by the record, its judgment will be affirmed.)


text:
    Oneida HERNANDEZ, as Personal Representative of the Estate of Jesus Hernandez, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, a Foreign Corp., Appellee.
    No. 80-1335.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Alfred H. Fuente, Miami, for appellant.
    Jeanne Heyward, Peters, Pickle, Flynn, Niemoller, Stieglitz & Downs, Miami, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Florida Farm Bureau Insurance Co. v. Shaffer, 391 So.2d 216 (Fla. 4th DCA 1980); Aetna Casualty and Surety Co. v. Goldman, 374 So.2d 539 (Fla. 3d DCA 1979).


text:
    SOCIETE EURO-SUISSE, S. A., Appellant, v. CITIZENS AND SOUTHERN INTERNATIONAL BANK, Appellee.
    No. 80-1458.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Tew, Spittler & Berger and Jeffrey Allen Tew, Miami, for appellant.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Vicent E. Damian, Jr., Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings upon a holding that: (a) the final summary judgment was prematurely entered because the plaintiff [Societe Euro-Suisse, S.A.], through no fault of its own, had not completed its discovery in this case, see e. g. Cullen v. Big Daddy’s Lounges, Inc., 364 So.2d 839 (Fla.3d DCA 1978); Commercial Bank of Kendall v. Heiman, 322 So.2d 564 (Fla.3d DCA 1975); and (b) the incomplete record before the trial court did not, in any event, conclusively foreclose recovery on the plaintiff’s tort claims as pled in the second amended complaint, see e. g., Peoples Bank in North Fort Myers v. Bob Lincoln, Inc., 283 So.2d 400 (Fla.2d DCA 1973); § 673.409(2), Fla.Stat. (1972); 2 R. Anderson, Uniform Commercial Code 3-409:1 (2 ed. 1971); 5 Fla.Jur.2d “Banks” § 213 (1978).


text:
    Adalberto MARTINEZ, Appellant, v. The DEAUVILLE HOTEL and Florida Department of Labor and Employment Security, Unemployment Appeals Commission, Appellees.
    No. 80-2006.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Adalberto Martinez, in pro. per.
    James R. Parks, Tallahassee, for appel-lees.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. § 443.06(1), Fla.Stat. (1979).


text:
    Everett E. HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-216.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Everett E. Hill, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Petitioner, Everett E. Hill, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R. Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Jerry ANDEN, Appellant/Cross-Appellee, v. Dan BIELE, Appellee/Cross-Appellant.
    No. 79-479.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.

      Glenn R. Mee of Andrews, Voorheis, Lehrer & Baggett, Fort Lauderdale, for appellant/cross-appellee.
    Dan Biele, in pro. per.
   PER CURIAM.

Defendant appeals from a final judgment awarding plaintiff $37,700 as the sum due under a promissory note. Plaintiff/appel-lee sued seeking a recovery of sums under a note, and the defendant filed an answer in which a demand for jury trial was made. Although there was some confusion thereafter regarding the setting and resetting of the case on the court’s non-jury calendar, it appears that the defendant’s request for a jury trial was brought to the trial court’s attention in a timely fashion by motion prior to the eventual non-jury trial. The court denied defendant’s request for jury trial and in doing so we conclude the court erred. The rule on this subject is stated in Barth v. Florida State Constructors Service, Inc., 327 So.2d 13 (Fla.1976), and Hightower v. Bigoney, 156 So.2d 501 (Fla.1963). The defendant’s request for a jury trial should have been granted.

The plaintiff seeks by cross appeal to assert error in the denial of a motion for summary judgment made prior to trial. Plaintiff’s arguments in support of the motion for summary judgment are based almost entirely on the testimony given in the actual non-jury trial. Obviously, this testimony was not before the trial court at the time of hearing on the motion for summary judgment. We thus do not decide the issues posed on cross appeal as they are not properly presented for our review.

The judgment below is reversed and the cause remanded for further proceedings which should include a jury trial. We stress, however, that a trial is only necessary to resolve genuinely disputed issues and further summary judgment procedures are not foreclosed by this decision.

REVERSED AND REMANDED.

ANSTEAD, BERANEK, and GLICK-STEIN, JJ., concur.


text:
    Leslie W. LEECH, Jr., Appellant, v. Susan Rothman LEECH, Appellee.
    No. 79-1480.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    Roberta J. Fox of Andrew C. Pavlick, P. A., Miami, for appellant.
    David M. Rogero of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage. The sole issue presented is an award of a 50 per cent special equity to the former wife in a condominium. The judgment is affirmed on the authority of Duncan v. Duncan, 379 So.2d 949 (Fla.1980), and Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

AFFIRMED.

MOORE, BERANEK and HERSEY, JJ., concur.


text:
    W. Thomas GRIMM, Appellant, v. Susan H. GRIMM, Appellee.
    No. 79-1835.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    H. T. Maloney and James M. Morgan of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant.
    Steven Squire of Miller & Squire, Chartered, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a judgment granting a petition for modification of child support. The wife filed the petition for modification and after a contested hearing, the Circuit Court eventually increased child support from $50 per week to $62.50 per week. We have considered the briefs of the parties and the record and conclude that appellant has failed to demonstrate reversible error. The judgment awarding additional child support is therefore affirmed.

AFFIRMED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Martha Louise SUDDUTH, Appellant, v. Almedia Elizabeth SCOTT, Appellee.
    No. 80-648.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.

      Malcolm Anderson, North Palm Beach, and Marjorie Gadarian, Jones & Foster, P. A., West Palm Beach, for appellant.
    Joan H. Bickerstaff, Cocoa Beach, for appellee, Dept, of Health and Rehabilitative Services.
   BERANEK, Judge.

This is an appeal by a dependent adult’s mother from a final order awarding him support pursuant to his grandmother’s petition for support under the Uniform Reciprocal Enforcement of Support Act (URE-SA). We affirm in part and reverse in part.

Mother and father were divorced in 1953, when their son, now 28, legally blind and mentally retarded, was one year old. Father was awarded custody of the son; mother was given visitation privileges but not required to pay support. Immediately following the divorce, father brought son to his mother’s (son’s grandmother’s) home, where he has resided ever since with mother’s knowledge and consent.

Mother, remarried in 1953, has worked strictly as a homemaker with the following exceptions: saleswoman at Burdine’s for three months in 1965, saleswoman at Saks Fifth Avenue for two weeks in 1964 and one month in 1967. She owns no assets other than the jointly owned marital domicile and three jointly owned cars.

In September of 1979, grandmother instituted child support proceedings in Tennessee under URESA against mother. She additionally filed a support action against father, a resident of Georgia, in Georgia. The Georgia court found in favor of the father and against the grandmother. The Tennessee court entered a certificate and order finding mother owed $150 per month support. Tennessee forwarded the certificate, order, and copies of the applicable Tennessee law to Florida, where mother resides, for enforcement under URESA. Mother contested grandmother’s standing to petition for support under URESA and submitted the Georgia court’s order dismissing grandmother’s support petition against father in support thereof. The Florida circuit court overruled mother’s objections, finding grandmother a proper petitioner under Section 88.031(9), Florida Statutes (1979), and further finding mother has the ability to pay $150 in monthly support.

On appeal, mother does not dispute the fact that son, although an adult, is a dependent due to his physical and mental disabilities. The mother concedes that under the circumstances she has a duty to support her son. Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978). Although conceding a duty of support she challenges grandmother’s standing to bring the action as grandmother did not have legal custody of son and further asserts her own inability to pay $150 per month for support. We deem it necessary to discuss only the latter issue. We hold that under the facts of this case the grandmother did have standing.

As to ability to pay mother contends that she has been unemployed since 1967 and has no income or assets of her own. We find the statement of evidence submitted in lieu of a transcript fails to demonstrate mother’s ability to pay. Mother asserts she is being totally supported by her second husband and urges she cannot be required to go to work. This voluntary decision by her, however, does not demonstrate an inability on her part to pay support. The determinative question is her potential to make the payments, whether she receives the money from a job or any other source. If she has the ability to make the money to pay support she cannot refuse to do so merely because she may prefer to be a housewife. Accordingly, we reverse this portion of the order and remand the cause for a further hearing to determine mother’s ability to pay.

AFFIRMED IN PART, REVERSED IN PART.

MOORE, J., concurs.

ANSTEAD, J., concurs in part and dissents in part with opinion.

ANSTEAD, Judge,

concurring in part and dissenting in part:

I would affirm the trial court’s order in its entirety.

The record reflects that the appellee grandmother has cared for the appellant’s disabled child since 1953. The appellant has acquiesced in this custody arrangement and in fact does not challenge the arrangement in these proceedings. Under these circumstances it makes little sense to deny the appellee standing to seek financial aid for the child from one who is legally obligated to provide that aid. The grandmother is the guardian of the child in fact and is acting for the child in these proceedings. Hence, I concur in the majority’s determination on the standing issue. I would also affirm the trial court’s order for support. The record reflects that the appellant is the joint owner of real property worth $75,-000.00 and that she also has an ownership interest in several automobiles. Under these circumstances I do not believe the trial court erred in ordering monthly support payments of $150.00.


author: HERSEY, Judge.

text:
    Arthur CACARO, Petitioner, v. Leslie L. SWAN and Christine F. Swan, his wife, Respondents.
    No. 80-1055.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.

      Thomas A. Bell of Reynolds & March-banks, Boca Raton, for petitioner.
    Edward Oddo, Jr., Pompano Beach, for respondents.
   HERSEY, Judge.

The petitioner, Cacaro, seeks review, by petition for a common law writ of certiora-ri, of an order of the Circuit Court denying dissolution of a notice of lis pendens filed by respondents, Mr. and Mrs. Swan.

Respondents, after executing and delivering to petitioner a “Condominium Deposit and Receipt Contract” which is, in essence, a purchase and sale agreement for certain real property, filed suit seeking specific performance of that agreement. Respondents allege in their complaint that they were damaged by the delay resulting from petitioner’s refusal to close and perform, thereby incurring lost rents and profits as well as increased bank interest rates and loss of bargain. Respondents also recorded the notice of lis pendens which petitioner subsequently moved to discharge in accordance with Section 48.23, Florida Statutes (1979).

The trial court, after hearing, denied both the motion to discharge the Lis Pendens and a motion to dismiss Counts I, II and III of the complaint.

The respondents’ cause of action was not based upon either a mechanic’s lien or a recorded instrument, but rather upon an unrecorded contract to convey real property. Accordingly, the lis pendens comes within the purview of Section 48.23(3), Florida Statutes (1979) which states:

(3) When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

This enactment by the legislature, in practical effect, was to ensure that the safeguards applicable to injunctions, such as notice, the posting of an adequate bond, and the showing of irreparable harm, may be made applicable to a lis pendens.

Our sister court has held that a notice of lis pendens such as the one involved here may not be filed without a prior court hearing consistent with all requirements for the issuance of an injunction. Kirk v. Baumann, 336 So.2d 125 (Fla. 2d DCA 1976) and see the dissent in Musselwhite v. Raimey, 348 So.2d 330 (Fla. 1st DCA 1977).

For several reasons we do not so interpret the statute. First, a lis pendens is not an injunction nor is it the equivalent of an injunction. While it may constrain aliena-bility by virtue of constituting notice of the claim asserted in the litigation it does not prohibit alienation. It is a matter of notice and indirectly, of jurisdiction over the property described in the notice. It prevents enforcement against the property of liens unrecorded as of the date of filing of the notice. If hearing is a prerequisite then unrecorded liens may well become recorded liens between the time of filing of the complaint and the recording of a notice of lis pendens after notice and hearing. This defeats at least one purpose of lis pendens.

Secondly the statute does not expressly require a hearing before the recording of the notice of lis pendens. Any such requirement must therefore arise only inferentially. With all due respect to those who have previously expressed a contrary view we think that the legislature could have imposed a pre-hearing requirement and therefore would have if one had been intended. The statute attaches only two consequences to the filing of a notice of lis pendens where the relief sought is neither founded upon a mechanic’s lien nor a recorded instrument: the notice expires after one year if not extended by order of the court and “control and discharge” of the notice as in the case of granting and dissolving injunctions is vested in the trial court. We faile to find in this the basis for an inference that a pre-hearing is statutorily mandated.

Additionally, a purchase and sale agreement involving real property may be either in recordable or non-recordable form. Limiting the initial useful life of lis pendens to one year in the case of an unrecorded instrument has a certain logic to it, particularly where the trial court may extend the period if it is warranted. Absolutely prohibiting the recording of a notice without prior hearing in the one case but not in the other is not a reasonable or logical consequence, being based as it is on the mere formality of adding an appropriate ac-knowledgement to create the distinction.

Returning to a consideration of the issue made here we hold that the notice of lis pendens was not subject to motion to discharge simply because there was no hearing prior to its recording. The notice was, however, subject to the trial court’s control as in the case of an existing injunction. Therefore the burden was on the moving party to establish that the lis pen-dens was inappropriate to the circumstances and cause of action stated in the complaint.

The pleadings filed in this court indicate that an evidentiary hearing was held on the motion to dissolve the lis pendens. No transcript of that hearing has been filed in these proceedings. The allegations of the petition filed here are not an adequate substitute for the record. The burden was on petitioner to show a departure from the essential requirements of law for which no remedy by appeal will lie. It may well be that sufficient evidence was adduced at the hearing to warrant the issuance of an injunction.

Without a record to establish that the evidence failed to justify the issuance of an injunction (or the continuance of a lis pen-dens) we are unable to discern any error in failing to grant the motion for discharge.

Certiorari denied.

ANSTEAD and MOORE, JJ., concur.


text:
    Freddie Lee ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1701.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    Alan H. Schreiber, Public Defender, and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Eutsey v. State, 383 So.2d 219 (Fla.1980).

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


text:
    STATE of Florida ex rel. BLUDWORTH, Relator, v. Honorable Lewis KAPNER, Circuit Court Judge in and for Palm Beach County, Florida, Respondent.
    No. 80-2100.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.

      Deborah Dale Pucillo, Asst. State Atty., West Palm Beach, for relator.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Louis G. Carres, Asst. Public Defender, Tallahassee, for defendant-Ronald Brummage.
   HERSEY, Judge.

The State seeks a Writ of Prohibition to restrain the trial court from executing its order finding the defendant not guilty by reason of insanity. Since the order which the State is actually challenging has already been entered, prohibition is not the proper remedy. The purpose of prohibition is to prevent the doing of something, not to compel the undoing of something already done. English v. McCrary, 348 So.2d 293 (Fla.1977). However, upon the State’s request and pursuant to Rule 9.040(c), Florida Rules of Appellate Procedure, we will treat the suggestion for Writ of Prohibition as a Petition for Writ of Certiorari.

Defendant Ronald Brumage was indicated for first degree murder. He entered a plea of not guilty and demanded a jury trial. Subsequently, he filed a notice of intent to rely upon the defense of insanity. On the same day defendant also filed a motion to dismiss the indictment or for a finding of not guilty by reason of insanity. The basis for this motion was that the two court-appointed psychiatrists and one psychologist were each of the opinion that defendant was insane at the time of the alleged offense and that therefore the undisputed facts did not establish a prima facie case of guilt.

In response, the State filed motions to strike and traverses, specifically alleging facts and circumstances from which, according to the State, a jury could conclude that defendant was sane at the time of the offense. However, the State did not allege the existence of any expert opinions which would conflict with those of the court-appointed witnesses.

After reviewing the reports and depositions of the court-appointed experts which were incorporated into defendant’s pleadings, the trial court entered an order finding defendant not guilty by reason of insanity.

Certiorari is a discretionary common law writ which, in the absence of an adequate remedy by appeal, a court may issue to review an order or judgment that is unauthorized or violates the essential requirements of controlling law. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942).

In the instant case, the trial court did not have the authority to render the order now before this Court.

A basic and fundamental principle of our law is that it is the province of the trier of fact, after hearing all of the evidence and considering the applicable law, to determine whether a defendant is guilty or not guilty. The only exception to this principle is that a court sitting as trier of law, when called upon to determine the legal sufficiency of the evidence by a motion for judgment of acquittal, may enter a judgment of acquittal. Fla.R.Crim.P. 3.380. This may be done only “at the close of the evidence for the State or at the close of all the evidence in the cause, .. .. ” Fla.R. Crim.P. 3.380. Thus, in either event, the final determination is made only after there has been a trial, a proceeding in which both the State and defense are afforded an opportunity to present evidence and examine or cross examine witnesses. No such proceeding occurred in the instant case. Jury trial was not waived; the court was not sitting as the finder of fact. Rather, the record evidences that the State refused to consent to a waiver of jury trial, a prerequisite for an effective waiver. Fla.R.Crim.P. 3.260.

More importantly, a defendant is not entitled to a judgment of acquittal simply because he offers expert testimony on the issue of insanity and the government attempts to rebut it without any expert witnesses. United States v. Hall, 583 F.2d 1288 (5th Cir. 1978). Sanity is a question for the trier of fact to determine from all the evidence. Expert testimony, even when uncontradicted, is not conclusive on the issue of sanity and the trier of fact may find such testimony adequately rebutted by the observations of laymen. United States v. Mota, 598 F.2d 995 (5th Cir. 1979), cert. denied 444 U.S. 1084, 100 S.Ct. 1042, 62 L.Ed.2d 770 (1980).

Further, under Rule 3.190(c), pursuant to which the trial court acted, the only relief which may be granted is dismissal of the indictment or information. An order granting such relief may be appealed by the State. Fla.R.App.P. 9.140; § 924.07, Fla. Stat. (1979). However, the State’s right of appeal, a purely statutory right, does not include an acquittal or a judgment of not guilty. Thus, the trial court in this case, by entering a judgment of not guilty, precluded review by appeal.

Since the trial court was without authority to enter the judgment of not guilty by reason of insanity and by doing so left the State at the peril of irrevocable prejudice, certiorari is appropriate. State v. Vinson, 320 So.2d 50 (Fla.2d DCA 1975), aff’d, Vinson v. State, 345 So.2d 711 (Fla.1977).

Although not addressed by the parties, we deter any future double jeopardy arguments by noting that double jeopardy sanctions come to fruition only after the court properly acts in a manner within its jurisdiction and authority. State v. Vinson, supra. We have held that the trial court exceeded that authority when it entered the finding of not guilty; therefore, the matter is still pending. Upon remand, there will not be a second or subsequent prosecution of defendant on the charge herein; rather, it will be the first and same prosecution which was simply prematurely and improperly terminated by the court without authority. State v. Vinson, supra.

Accordingly, certiorari is granted, the order finding defendant not guilty by reason of insanity is vacated, and the cause is remanded for further proceedings not inconsistent herewith.

LETTS, C. J., and GLICKSTEIN, J., concur.


text:
    George W. ENGLISH, III, Petitioner, v. Bernardine B. ENGLISH, Respondent.
    No. 80-2215.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    R. T. Shankweiler, Fort Lauderdale, for petitioner.
    Dale R. Sanders of Lyons & Sanders and Nancy Little Hoffmann, Fort Lauderdale, for respondent.
   PER CURIAM.

Upon consideration of the Petition for Common Law Certiorari filed December 29, 1980, and the pleadings filed herein, the petition is hereby denied on authority of Parker v. Parker, 182 So.2d 498 (Fla. 4th DCA 1966).

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: DAUKSCH, Chief Judge. COBB, Judge,

text:
    Frank John MARASA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-1052/T4-544.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    Richard D. Nichols of Dorsey, Arnold & Nichols, Jacksonville, for appellant.
    . Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction of murder in the second degree. The principal question on appeal is whether the evidence was legally sufficient to support the conviction. We find it was not.

The facts from the trial reveal that appellant and others were having a drug and liquor party in the early morning hours. Among the people there was the victim of the homicide who, after returning from getting a drink of water, stumbled and sat down on a couch near appellant. After the victim had stumbled someone said “Hit her. She probably won’t feel anything,” apparently according to the fact that she was “stoned or high” — under the influence of the drugs or liquor. Meanwhile, appellant had been showing a new gun after, he apparently thought, emptying the cylinder of all cartridges. When the victim sat down on the couch, the gun discharged and she was killed. The witnesses to the shooting all agreed it was an accident, not intentional, and the witnesses testified that the appellant made a statement like “I have a better idea” when someone said “hit her, she probably won’t feel anything.” The pistol was pointed at or in the general direction of the victim and it fired, killing her. Just after the gun went off, appellant was shocked, emotionally upset and began crying.

The most difficult task for us to perform is to fit these facts into a legal category. In reviewing the case, we begin with the presumption of correctness which accompanies the verdict and the conviction. Both the jury and the trial judge sit in a better position than we to weigh evidence and consider witness testimony so we are most cautious in our review of factual matters. Songer v. State, 322 So.2d 481 (Fla. 1975), vacated on other grounds 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977); Keith v. Amrep Corporation, 312 So.2d 234 (Fla. 1st DCA 1975). See Vanzant v. Davies, 215 So.2d 504 (Fla. 1st DCA 1968), cert. den., 225 So.2d 529 (1969). However, there is a legal difference between the degrees of homicide and if the facts do not support a conviction it is our duty to either reduce the conviction to its proper degree or discharge the accused. In this case the evidence is sufficient to convict the appellant of manslaughter but insufficient to support the judgment for murder in the second degree.

Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual. Sec. 782.04(2), Fla.Stat. (1979). An act is one imminently dangerous to another and evincing a depraved mind if it is an act which (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, (2) is done from ill will, hatred, spite, or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life. Fla. Std.Jury Instr. (Crim.).

Manslaughter is the killing of a human being by the act, procurement, or culpable negligence of another without lawful justification. Sec. 782.07, Fla.Stat. (1979). Culpable negligence is consciously doing an act or following a course of conduct which any reasonable person would know would likely result in death or great bodily injury to some other person, even though done without the intent to injure any person but with utter disregard for the safety of another. Fla.Std.Jury Instr. (Crim.).

So it can be seen, the primary distinction between the two crimes is that manslaughter is committed when one kills as a result of his culpable negligence and it is murder in the second degree when one kills while perpetrating an act imminently dangerous to another and evincing a depraved mind regardless of human life. We must look at the actions of the killer to make a decision as to which crime was committed. Sometimes the difference between the two may be very subtle yet legally distinguishable. Some earlier cases guide us in making our decision.

In State v. Bryan, 287 So.2d 73 (Fla.1973), the supreme court held that the intentional and forceful striking of another in anger with a loaded pistol which results in the discharge of that weapon, killing the victim, is second degree murder. The act of the defendant fell within the second degree murder conviction as “perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life.” Id. at 76.

Mahone v. State, 222 So.2d 769 (Fla.3d DCA 1969), is another example of an action evincing a depraved mind regardless of human life. The appellant had been separated from his wife for two years when he went to her home as he had heard some of their five children were sick. He found his wife in the house with William Marche. A quarrel broke out between Marche and the appellant. After the appellant chased Marche from the house into the yard, Marche threw a whiskey bottle at appellant, who was standing in the doorway. The appellant went into the yard, chased the deceased, caught him, and stabbed him thirteen times.

In contrast are the eases involving the culpable negligence standard of the manslaughter statute. These cases are those in which the shooting was accidental, but the act fits within culpable negligence. In Williams v. State, 336 So.2d 1261 (Fla. 1st DCA 1976), there had been a bar fracas in which the appellant had been involved. During a lull in the fighting, a vehicle in which the victim was riding arrived at the bar. When the driver of the vehicle pulled a shotgun out of his trunk, the appellant took his shotgun out of his truck. Although the appellant had his gun pointed toward the ground, as he shifted his grasp, the shotgun discharged killing the victim. His conviction for manslaughter was affirmed.

The court in McBride v. State, 191 So.2d 70 (Fla. 1st DCA 1966), upheld a conviction for manslaughter on the following facts. The defendant, while voluntarily intoxicated, had on his person a deadly weapon which he brandished in a careless and reckless manner. Even though he may have had no intention of killing the decedent, the court said these acts set the stage for the tragedy and therefore affirmed his conviction.

In considering the facts of this case in conjunction with the Florida Standard Jury Instruction and the statute applicable to second degree murder, we are bound to find the facts are legally insufficient to support the conviction in one very important, if not determinative, aspect. There is absolutely no evidence the appellant’s actions were “done from ill will, hatred, spite, or an evil intent.” The standard jury instruction requires this proof and past case law supports this conclusion. Manuel v. State, 344 So.2d 1317 (Fla. 2d DCA 1977); Moore v. State, 298 So.2d 561 (Fla. 1st DCA 1974); Raneri v. State, 255 So.2d 291 (Fla. 1st DCA 1971); Luke v. State, 204 So.2d 359 (Fla. 4th DCA 1967), cert. denied, 393 U.S. 932, 89 S.Ct. 290, 21 L.Ed.2d 269 (1968).

Both manslaughter and second degree murder can be defined generally as homicides resulting from the criminal actions of the accused who had no premeditated design to kill. Each of these crimes are committed when an unintended death occurs as a result of an act of the killer. It is the nature of the particular actions and the circumstances surrounding those actions of the accused which courts must examine to determine what classification of homicide is proper.

If the accused, through ill will, hatred, spite or with an evil intent, commits an act a person of ordinary judgment would know is reasonably certain to kill or seriously injure and that act exhibits an indifference to human life, then murder in the second degree applies.

However, if the act does not fit within the above definition but is an act utterly regardless of the safety of another and done in such a manner any reasonable person would know would result in death or serious injury, then the acts are deemed culpable negligence and are punishable as manslaughter.

There is no question the death in this case occurred from a senseless, apparently uncaring, reckless act by a person held in low repute in general society, a member of a motorcycle gang, at a “party” which featured drugs and alcohol and in an atmosphere which would naturally and properly disgust good people. This court cannot even approach condonation of the behavior and lawless lifestyle of the participants in this tragic episode but this court is bound to enforce the law for the benefit, and detriment when required, of all persons.

The appellant would have us reverse the conviction because he says the facts of this case fall within the facts of Parker v. State, 318 So.2d 502 (Fla. 1st DCA 1975). In that case, Parker and the decedent were riding in a truck; the decedent was driving and Parker half-cocked a pistol and waved it by the victim’s head when it fired. All the evidence revealed there was no animosity between the two men; they were cousins and friends. Parker was convicted of manslaughter and the appellate court reversed the conviction. However, in that case it was critical to the decision that Parker did not “indiscriminately” fire the gun and there was some indication the gun was a faulty one. Here, the appellant thought he had unloaded the gun, but he had not, he pulled the trigger purposely, apparently, and the gun was pointed at the victim when he pulled the trigger. The fact that he did not intend to kill or injure does not relieve him of his criminal responsibility so we affirm a conviction. But we cannot affirm a conviction of murder in the second degree because the evidence simply does not support that conclusion any more than the evidence would support a murder in the first degree conviction based upon premeditated design. When the legislature assigned degrees to homicide, it was intended various criminally caused deaths would be punished in the various degrees. In order to warrant the second degree punishment, the state must prove a second degree case. It failed to do so here. The judgment is reversed and this cause remanded for entry of a judgment for manslaughter and resentenc-ing. Sec. 924.34, Fla.Stat. (1979).

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

The state presented evidence at trial which, if believed by the jury, established the following case in support of a conviction of second degree murder: The defendant opened a pistol to allow cartridges to drop out; then, without visually or manually checking to see if the cylinder was empty, he deliberately pointed the pistol at the victim to frighten her and pulled the trigger, discharging the pistol and resulting in her death. This was immediately preceded by his statement that he had a “better idea” than hitting her. In effect, Marasa was playing Russian roulette with the life of Cynthia Fishback — and she lost. His subsequent contrition does not alter the nature of the act. There was sufficient evidence for the jury to find that the defendant perpetrated an act eminently dangerous to another, evincing a depraved mind regardless of human life.

The case of Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969) is factually similar. In that case the defendant, as here, was at a jovial drinking party. He took a shotgun, loaded it to “shoot some squirrels,” and told the victim to “act like a squirrel,” at which point the gun went off and killed her. In that case, there was no admission that the defendant deliberately pointed the gun at the victim and deliberately pulled the trigger, as there is here. The First District held these facts sufficient to constitute murder in the second degree. That court stated:

Since the jury accepted the State’s witness’s version of the shooting, so must we, unless it was clearly not in accord with logic and reason. The act of the defendant in pointing the gun at the deceased and at the same time making the remarks which he made was, even though joking, evidence of a corrupt disregard for human life. Even if we accept the defendant’s statement that the gun fired upon closing the breach, which would be construing the circumstances most favorable to the defendant, such action committed while a gun is purposely pointed at the head of another from a very short distance certainly implies malice of the type present when death is caused by recklessness, even though a willful design is absent. 40 Am.Jur.2d, Homicide, Section 53. (Emphasis added).

227 So.2d at 336.

In State v. Bryan, 287 So.2d 73 (Fla.1974), cert. denied, Bryan v. Florida, 417 U.S. 912, 94 S.Ct. 2611, 41 L.Ed.2d 216 (1974), the Florida Supreme Court upheld a second degree murder conviction based on the intentional striking of the victim with a loaded pistol, resulting in its accidental discharge, in the absence of any deliberate act of pointing the pistol or intentional pulling of the trigger.

Williams v. State, 336 So.2d 1261 (Fla. 1st DCA 1976), cited by the majority, was significantly different from the facts before this court. In that case, a shotgun which the defendant was shifting from one arm to the other accidentally discharged, killing an unintended victim toward whom the defendant had evinced no evil intent (threat, harassment, or malice) as found in Bryan, Hines, and in the instant case. In McBride v. State, 191 So.2d 70 (Fla. 1st DCA 1966), also cited by the majority, the crime of second degree murder was not discussed. A manslaughter conviction, based on the careless discharge of a firearm, was affirmed. There was no indication in that case of any malicious remark or any deliberate pointing of a gun and pulling the trigger.

I would affirm the conviction for murder in the second degree.


author: COBB, Judge. DAUKSCH, Chief Judge,

text:
    J. B. THOMAS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-1799/T4-724.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant, J. B. Thomas, Jr., was convicted after jury trial of kidnapping, sexual battery and robbery. His first point on appeal is the claim that the prosecutor improperly injected a racial slur into the trial, wherein a black man was accused of raping a white woman, by making the following closing argument:

Remember I asked Mr. Porter which way is Cape Canaveral — that’s north. But the defense wants you to believe she went out of her way south to give him a lift and ultimately engage in consensual intercourse with him, and she’s been up all this period of time on her feet all this day. He wants you to believe because he says that’s reasonable. I submit to you that is most unreasonable.
You can consider all the evidence. The trial has to be held in public, everything has to be done face to face so you can see and because that is a very great part of this case. Is it reasonable to believe that Debby Sue Clark, under any circumstances and, in particular, these circumstances, would consent to sexual intercourse with that (indicating)?

Defense counsel immediately said: “Objection, Your Honor. I have a motion to make.” The trial court overruled the objection, whereupon defense counsel inquired: “Can I make the motion after the jury is excused?” This request was denied by the court. Consequently, the motion (presumably a motion for mistrial was intended) was never made, then or later. Therefore, the objection was waived and any error, other than fundamental error, cannot be reviewed on this appeal. Clark v. State, 363 So.2d 331 (Fla.1978). See also State v. Cumbie, 380 So.2d 1031 (Fla.1980); Castor v. State, 365 So.2d 701 (Fla.1978). The question, then, is whether or not the prosecutorial comment, omitting the object noun or pronoun following the adjective “that,” constitutes fundamental error.

The defendant contends that the implications of the comment are so inflammatory and abusive as to deny him a fair trial. The state responds that the comment made no prohibited reference to race, but rather referred to trial evidence of disparate lifestyles, social standings and dress between the defendant and the victim, thereby rebutting the defense claim of a voluntary sexual relationship. In point of fact, such evidence was adduced at trial. Other than the statement quoted above, there is no suggestion of any racial allusion occurring during the remainder of the trial.

Given this ambivalent record, an appellate court should not conjecture as to a prejudicial effect upon the jury reaching fundamental error dimensions. See Sullivan v. State, 303 So.2d 632 (Fla.1974). This prejudice is not clear from the record and apparently was not discernible at all to the trial judge.

Appellant’s second point on appeal is that the trial court erred in refusing to instruct the jury on penalties. The trial judge originally agreed to comply with the request of defense counsel to instruct on minimum and maximum penalties. On objection and argument by the state, the trial judge reconsidered and declined to give the requested instruction. There was no timely or specific objection to this declination by the trial court, although defense counsel did raise the issue in a motion for new trial.

In Tascano v. State, 393 So.2d 540 (Fla. 1980), the Florida Supreme Court held that Florida Rule of Criminal Procedure 3.390(a) is mandatory, not merely directory. A rehearing in Tascano is pending. We follow Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), and Florida Rule of Criminal Procedure 3.390(d). The appellant, Thomas, made no specific or timely objection to the trial court’s failure to give penalty instructions. Therefore, he did not preserve the issue for appeal. See also Castor v. State; Engel v. State, 353 So.2d 593 (Fla. 3d DCA 1978).

The appellant also seeks to challenge on appeal the imposition of an enhanced sentence by the trial court. Although the trial court made the requisite record finding required by statute in regard to protection of the public, the appellant objects that the specific factors enumerated in Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979), were not specifically found by the trial court. This objection, however, was not raised before the trial court and, therefore, is not available to the defendant on this appeal. Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980).

Appellant’s last point is that the trial court imposed a general sentence (40 years) for multiple convictions, contrary to Gonzalez v. State, 367 So.2d 1008 (Fla.1979), and Dorfman v. State, 351 So.2d 954 (Fla. 1977). This error is conceded by the state. Therefore, the general sentence of forty years for the three separate convictions is vacated, and this cause remanded for resen-tencing in accordance with Dorfman, with the defendant present. The judgment of guilt is affirmed.

VACATED in part; AFFIRMED in part; and remanded.

ORFINGER, J., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. I am of the opinion this case falls squarely within the dictates of Tascano v. State, 393 So.2d 540 (Fla.1980), and must be reversed.

      . Rule 3.390(d) reads:
      No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.

      . The requirements of section 775.084(3)(d), Florida Statutes (1977), are discussed in Eutsey v. State, 383 So.2d 219 (Fla. 1980).


author: HOBSON, Acting Chief Judge.

text:
    SERVICE INSURANCE COMPANY, Flaquad, Inc., George Hunt, Inc., and Hunt Brothers Construction Company, Inc., Appellants, v. GULF STEEL CORPORATION, a Florida Corporation, Appellee.
    No. 80-476.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1981.

      Richard A. Gilbert of de la Parte and Butler, P. A., Tampa, for appellants.
    John D. Kiernan of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, P. A., St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

Appellants, Service Insurance Company, Flaquad, Inc., George Hunt, Inc., and Hunt Brothers Construction Company, Inc., appeal a final judgment awarding $9,000 attorney fees to appellee Gulf Steel Corporation in a mechanic’s lien foreclosure action.

The issue in this case is whether appellee provided sufficient evidence on which the trial court based its award of attorney fees. At the hearing, appellee presented attorney John Stewart as its expert witness on the matter. Mr. Stewart indicated that he had reviewed appellee’s counsel’s file and the court file. When asked if he had formed an opinion as to a reasonable attorney fee, he answered:

Your Honor, it is a minimum that we would charge in this area of $6,000, and that is just a minimum.
I would suggest to the court that more could be assessed. Six to $7,500, perhaps even $8,000, and that is based upon a complete review of the file and all of those intangible and tangible matters that the attorney for the Plaintiff has suggested or commented on.

Mr. Stewart further stated that he would “not ... feel uncomfortable, if this was to receive even an $18,000 attorney’s fees on the basis of being contingent and on the basis of being recovered.”

Appellants called attorney Edgar W. McCurry as their expert witness. Mr. McCurry testified that his fee in this type of case is generally billed on a per-hour basis at $50 to $75 per hour. Based upon that rate and upon the assumption that appellee’s counsel spend 50 hours on the case, Mr. McCurry testified that a reasonable fee would be between $2,500 and $3,750.

Appellee’s counsel, Mr. Kiernan, stated for the record that his firm was general counsel for Gulf Steel Corporation and not on an hourly fee basis. He had been under the impression that the court would set the fee in the case and that the firm would accept whatever amount the court set. He further stated that he had expended approximately 30 hours on the case. There is no other evidence in the record as to any fee agreement between Mr. Kiernan and appellee.

Section 713.29, Florida Statutes (1979), provides that the prevailing party in an action to enforce a lien is entitled to recover reasonable attorney fees to be determined by the court. This determination should be based upon consideration of all the factors listed in Disciplinary Rule 2-106(B), Code of Professional Responsibility, as follows:

1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
3) The fee customarily charged in the locality for similar legal services.
4) The amount involved and the results obtained.
5) The time limitations imposed by the client or by the circumstances.
6) The nature and length of the professional relationship with the client.
7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
8) Whether the fee is fixed or contingent.

It is apparent from the record in this case that the evidence presented by both expert witnesses and appellee’s counsel failed to deal with several of the criteria mentioned above. Moreover, the court awarded fees in excess of those recommended by the witnesses, where a contingency agreement was not shown. Although the court is not bound by the opinions of expert witnesses, these opinions must be considered in conjunction with a full and thoughtful exploration of the factors set out in DR 2-106(B). In this respect, the trial court erred.

We, therefore, reverse the award of $9,000 attorney fees and remand this cause for a hearing in order to allow the trial court to take testimony in compliance with Disciplinary Rule 2-106(B), Code of Professional Responsibility.

REVERSED and REMANDED.

BOARDMAN and CAMPBELL, JJ., concur.