author: MOORE, Judge.

text:
    ROYAL CONTINENTAL HOTELS, INC., a Florida Corporation, Appellant, v. BROWARD VENDING, INC., a Florida Corporation, Appellee.
    No. 79-2361.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Rehearing Denied Nov. 3, 1981.

      William E. Blyler and James M. Morgan of Patterson, Maloney, Blyler & Feige, Coral Springs, for appellant.
    R. J. Fegers of Reasbeck & Fegers, P. A., Hollywood, for appellee.
   MOORE, Judge.

The appellee, Broward Vending, Inc., was awarded a final judgment in the amount of $14,972.00 in a non-jury trial against the appellant, Royal Continental, for the latter’s breach of contract. Royal Continental appeals the final judgment and we affirm.

The alleged breach of contract centered on the parties’ written contract which contained the following cancellation clause:

This agreement shall remain in effect for a period of five years from and after its effective date and shall automatically be renewed on a five year basis thereafter unless either party hereto serves notice upon the other party of its intention to cancel at least 30 days in advance of the termination of the first year, or during anv yearly renewal thereof, (emphasis added).

During the course of trial, the court determined that this provision of the contract was ambiguous and it received parol testimony regarding the parties’ intention. The trial court then found that it was the intent of the parties that the contract was to have an initial effective period of five years, and that this minimum period could not be terminated by virtue of any language contained in the quoted section. We agree.

Royal Continental entered into a contract with Broward Vending whereby Broward Vending was to provide vending' machines and their contents, for two hotels owned by Royal Continental. Within the first year of the contract, Royal Continental became dissatisfied with the services being provided. As a consequence, Royal Continental initially sought to cancel the contract for cause, but later reconsidered upon advice of counsel. Instead, it opted to cancel the contract on the first anniversary of the contract by relying upon the above-quoted cancellation clause. Royal delivered a notice of cancellation to Broward which objected to the cancellation, and Broward-^eventually filed suit for breach of contract/ ,

It is a cardinal principal of contract construction that the meaning to be attached to the language of an instrument is a question of law to be answered by the trial court where such language is clear, plain, certain, undisputed, unambiguous, and susceptible to only a singular meaning or inference. Royal American Realty, Inc. v. Bank of Palm Beach and Trust Company, 215 So.2d 336 (Fla. 4th DCA 1968); Reliance Insurance Company v. Brickenkamp, 147 So.2d 200 (Fla. 2nd DCA 1962).

It is incumbent upon the trial court, however, to attempt to reconcile inconsistencies in a contract in a manner that renders the contract meaningful. Triple E Development Co. v. Floridagold Citrus Corporation, 51 So.2d 435 (Fla.1951). The paramount concern in construing contacts is the intention of the parties. Hughes v. Professional Insurance Corporation, 140 So.2d 340 (Fla. 1st DCA 1962), cert. denied 146 So.2d 377 (Fla.1962); McDonald v. Connell, 158 So.2d 780 (Fla. 2nd DCA 1963). The intent of the parties is derived from the language of the contract when such language is without ambiguity; however, if an ambiguity exists, parol evidence is properly admitted to resolve such ambiguity and explain the intention of the parties to the contract. Royal American Realty, Inc., supra, at 338; Mason v. Avdoyan, 299 So.2d 603 (Fla. 4th DCA 1974).

It would appear that there was an initial minimum contract term of five years that was not affected by the subsequent language which relates to automatic renewal and termination thereof. Such a construction would comport with logic and reason. See, Baker and Company, Florida v. Goding, 317 So.2d 118 (Fla. 3rd DCA 1975), cert. denied 328 So.2d 840 (Fla.1976). However, we are not empowered to make such an initial interpretation of the cancellation clause. Rather, we are constrained simply to determine whether the trial court properly found that an ambiguity was presented by the clause and, assuming that such an ambiguity did exist, whether it was proper for the trial court to receive parol evidence to elucidate the true intent of the parties.

Of course, the trial court’s finding of an ambiguity in the language of the clause was centered upon the somewhat vague language employed by the parties to define the method and timeliness for termination of the otherwise automatic renewal of the contract. This conditional phrase (which we have underlined for emphasis) makes it unclear whether the cancellation of the contract was possible during the first year of the term, or whether such cancellation was inappropriate until at least the sixth year of the contract. Because of this ambiguity, the trial court received parol evidence which indicated that Broward Vending originally had requested a minimum seven year period due to Royal Continental’s demand that, among other things, new machines be installed in its hotels and that complimentary machines be installed for the benefit of Royal Continental’s employees. Royal Continental initially resisted such a lengthy initial period and the parties eventually agreed instead upon a five year minimum period.

We find that the trial court was correct in its conclusion that a certain amount of ambiguity existed within the subject clause, and that it was therefore necessary to admit parol evidence. Although there appears to be some divergence of opinion as to when parol evidence is properly admitted because of the latent ambiguity — patent ambiguity dichotomy, the distinction between the type of ambiguity involved is one of form over substance. The growing and better reasoned trend of authority indicates that the introduction of parol evidence to probe the true intent of the parties is proper, irrespective of any technical classification of the type of ambiguity present. Although the rule in Florida seems to permit the introduction of parol evidence only when a latent ambiguity is present in a contract, the clause in the instant contract has the characteristics of both patent and latent ambiguities; it is both facially problematic and is somewhat obscured by circumstances beyond the face of the contract. Thus, the trial court was correct in attempting to give some rational meaning to the contract rather than rendering the contract void because of a total lack of meaning.

Appellant’s second point on appeal is that the damages against it were excessive, such excessiveness being due to the trial court’s failure to follow the rule of “reasonable certainty” where damages for lost profits are at issue. We find this contention to be without merit.

Accordingly, the final judgment is affirmed.

BERANEK, J., and KAPNER, LEWIS, Associate Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Cookie Alderman GARRIS, Appellant, v. James Henry CRUCE, Jr. and Margaret June Diehl, Appellees.
    No. ZZ-472.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1981.
    Rehearing Denied Nov. 6, 1981.
    Thomas F. Woods of Woods, Johnston & Carlson, Tallahassee, for appellant.
    Ernest M. Page, Jr., Madison, for appel-lees.
   MASON, ERNEST E. (Retired), Associate Judge.

Appellant appeals from a final summary judgment holding that her complaint for declaratory decree is barred by the various statutes of limitations contained in Chapter 95, Florida Statutes. We affirm.

James H. Cruce died intestate on March 28, 1963. At the time of his death he owned certain real property in Madison County, Florida, which constituted his homestead under the laws of the State of Florida for the purpose of descent and distribution. At the time of his death, he was married to and survived by Lizzie A. Cruce, who retained a life estate in the homestead property. Born of their marriage were two children, James H. Cruce, Jr. and Margaret June Diehl.

Lizzie Cruce died on November 15, 1979. On April 17, 1980, appellant Cookie Aider-man Garris, filed a complaint for declaratory decree seeking a determination that she was the illegitimate child of James H. Cruce and Mary Bell Alderman. Thus, she claimed an interest as a lineal descendant of James H. Cruce pursuant to Section 732.-401, Florida Statutes, to one-third of the homestead property. The trial judge, however, found that appellant’s cause of action if any, accrued on March 28, 1963, and was barred by the statutory limitations of Chapter 95, Florida Statutes. Appellant urges that this determination was incorrect and that the cause should proceed to a trial on the merits.

Appellant correctly notes that, as a general rule, the statute of limitations will not run against a remainderman prior to the termination of a life tenancy where the life tenant’s conduct is consistent with his or her duty toward the remainderman. Wagner v. Moseley, 104 So.2d 86, 90 (Fla.2d DCA 1958). Upon close examination, this rule has no application to this case. Our concern is whether appellant has timely asserted her claim for paternity. Her rights and benefits as an heir, and thus as a re-mainderman, flow only upon a determination that she is a natural child of the deceased. However, if the filial relationship is not so properly determined, it follows that she would have no status as an heir, and thus no remainder interest in the intestate’s estate.

We hold that appellant’s substantive rights, if any, as an heir of James H. Cruce vested at the time of his death in 1963. In Re Estate of Burris, 361 So.2d 152, 156, n.5 (Fla.1973). However, infants not being sui juris, the statute of limitations for initiating this paternity action, Section 95.11(3)(b), Florida Statutes, could not run against appellant during her infancy. See Commercial Building Company v. Parslow, 93 Fla. 143, 112 So. 378 (1927). Nevertheless, since appellant reached her majority on September 15, 1972, the limitation period prescribed by Section 95.11(3)(b) had run by the time she filed her suit on April 17,1980.

Appellant also urges that Section 95.-ll(3)(b) is unconstitutional, citing State, Dept. of Health, etc. v. West, 378 So.2d 1220 (Fla.1979). However, the language of West belies such an argument:

The only proper application of the statute of limitations [Section 95.11(3)(b)] to child support claims would be to those claims that have accrued in the past but which are not adjudicated. The state could properly say that a claim for child support not made within a certain time after it accrued is barred. However, since the duty of support continues throughout the minority of the child, new causes of action are being created each day that the natural father does not provide support. This duty of future support cannot be barred for illegitimate children if it is allowed for legitimate children, (emphasis supplied)

West, at 1228.

Similarly, since appellant’s rights, if any, as an heir vested at the time of James H. Cruce’s death in 1963, the statute of limitations could properly run on her claim without offending any equal protection guarantees.

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


author: McCORD, Judge. LILES, WOODIE A.

text:
    A. Curtis POWERS, Clerk of the Circuit Court, Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF JACKSONVILLE, a corporation, Appellee.
    No. YY-186.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1981.

      Dennis R. Long, Asst. County Atty., for appellant.
    David L. Fleming of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.
   McCORD, Judge.

Pursuant to the entry of a final judgment of foreclosure, the Clerk of the Circuit Court in and for Alachua County held a foreclosure sale at which a third-party bidder submitted the highest and best bid. After performing his duties provided in Section 45.031(1), Florida Statutes, the Clerk issued his certificate of disbursements of proceeds of the sale. In addition to withholding from the bid amount the fee provided for in the foregoing statute he withheld an additional clerk’s fee in the amount of $149.60 as provided in Section 28.24(14), Florida Statutes, for placing the proceeds of the sale in the registry of the court preliminary to disbursing them in accordance with the court’s judgment. Ap-pellee, the mortgagee, timely filed an objection to the Clerk’s entitlement to the registry fee. The trial court entered its order requiring the Clerk to pay over to the mortgagee the $149.60 sum, holding that the $25 fee provided for in Section 45.031(1) was the only fee to which the Clerk was entitled.

We find the trial court’s determination was correct. Section 28.24 sets out the service charges to be made by the Clerk of the Circuit Court for the various general services rendered by his office. Subsection (14) thereof provides for a fee for receiving money into the registry of the court of one percent of the first $500 and one-half percent for each subsequent $100. Section 45.-031, on the other hand, governs judicial sales procedure, and it sets out the fee to be charged by the clerk “for his services in making, recording and certifying the sale and title” — $25. Subsection (6) thereof further provides: “On filing a certificate of title the clerk shall disburse the proceeds of the sale in accordance with the order or final judgment, ...” This statute mentions no clerk’s fee for administering judicial sales other than the $25 fee. As a part of his duties in handling the sale, the Clerk must receive the purchase money and then disburse it in accordance with the court’s order on final judgment. For the services he performs, Section 45.031 allows him the $25 service charge. This fee for handling a judicial sale is obviously an alternate fee to the Section 28.24 general schedule of the Clerk’s service charges. Section 28.24 governs the general charges, but Section 45.031 governs the particular charge for a judicial sale.

Appellant relies upon Taylor v. Tampa Electric Company, 356 So.2d 260 (Fla.1978), in support of his contention that he is required to receive the fee provided in the general schedule for placing the proceeds of the judicial sale in the registry of the court. Taylor involved money placed in the registry of the court under the eminent domain statute and with the particular wording of that statute and not with a judicial sale. The eminent domain statute provided no alternative fee as does Section 45.031 with which we are here concerned. The court in Taylor did say that the language of Section 28.24 is mandatory and that any exceptions to that statute should be clear. For the reasons we have heretofore stated, we find that the fee provided for the Clerk for his services in administering a judicial sale is clearly an alternative to an exception to the general fees set forth in Section 28.24. We, therefore, conclude that Section 45.031(1) provides the exclusive charge for the Clerk’s services in connection with the sale of real or personal property by forced sale.

AFFIRMED.

SHIVERS, J., concurs.

LILES, WOODIE A. (Retired) Associate Judge, dissents.

LILES, WOODIE A.

(Retired) Associate Judge, dissenting.

I must respectfully dissent, not because I necessarily agree with the results in this particular case, but I believe Section 28.24, Florida Statutes (1979) is mandatory and provides in relevant part:

The clerk of the circuit court shall make the following charges for services rendered by his office. . ..

No exception is provided. See Taylor v. Tampa Electric Company, 356 So.2d 260 (Fla.1978).

Sections 28.24 and 45.031 involve two separate functions and I am unable to conclude that the latter statute constitutes a clear exception to the former thus preempting the allowance of fees mandated by the former.

The rule of statutory construction requires that statutes be construed in pari materia and that a reasonable field of operation be given to each. Ferguson v. State, 377 So.2d 709 (Fla.1979). Here, the statutes involved are easily harmonized providing a $25 fee for the conducting of this sale, filing all the required certifications, issuing the certificate of title, and recording and certifying that title. Where the clerk is statutorily required to provide a separate and distinct service even though he is only required to hold the money for a short time before disbursement, it is for the legislature to change if he is not to receive the fee which is clearly set forth in Section 28.-24(14). For these reasons I would REVERSE.


author: PER CURIAM.

text:
    Myrl HANES, as Trustee under the provisions of that certain Trust Agreement, dated December 16, 1980, Appellant, v. SILGAIN MOTEL CORP., a Florida corporation; Gulf Oil Corp., a Pennsylvania Corporation; Connecticut General Life Insurance Company, a Connecticut corporation; and Alachua County, a political subdivision of the State of Florida, Appellees.
    No. AB-291.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1981.
    Rehearing Denied Nov. 6, 1981.
    Allison E. Folds of Watson, Folds, Stead-ham, Sproull & Christmann and T. Allen Crouch, Gainsville, for appellant.
    Charles B. Carter of Jones & Langdon, Gainesville, for appellees.
   PER CURIAM.

Hanes appeals the trial court’s dismissal of his second amended complaint with prejudice for failure to state a cause of action. We reverse. We find the facts alleged in each count of the second amended complaint sufficient to state a cause of action.

Accordingly, the order of the trial court dismissing appellant’s second amended complaint is reversed and the cause is remanded for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., Chief Judge, and McCORD and MILLS, JJ., concur.


author: SCHWARTZ, Judge.

text:
    Robert MACKIN, Appellant, v. Allan H. APPLESTEIN, Allan H. Applestein Foundation Trust and Federal Insurance Company, Appellees. Allan H. APPLESTEIN and Allan H. Applestein Foundation Trust, Appellants, v. FEDERAL INSURANCE COMPANY, Appellee.
    Nos. 80-786, 80-787, 80-808.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Horton, Perse & Ginsberg and Edward A. Perse, Hawkesworth & Schmick, Jerold Feuer, Miami, for Robert Mackin.
    Kimbrell, Hamann, Jennings, Womack, Carlson, Kniskern and A.H. Toothman and R. Owen Ricker, Jr., Miami, for Federal Insurance Co., Tew, Spittler & Berger and Jeffrey A. Tew, Miami, for Allan H. Apple-stein and Allan H. Applestein Foundation Trust.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   SCHWARTZ, Judge.

In Federal Ins. Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979), cert. denied, 389 So.2d 1107 (Fla.1980), we held that, upon the face of the plaintiff Mackin’s fourth amended complaint against Apple-stein and the Applestein trust, which claimed that intentional torts were committed with a specific intent to harm, the defendants’ liability carrier, Federal, had no obligation to defend or provide coverage. Shortly before the release of that decision, Mackin moved in the lower court to amend the complaint further so as alternatively to claim that Applestein had acted only with imputed or implied malice, an allegation which would presumably have established coverage under Employers Commercial Union Ins. Co. of America v. Kottmeier, 323 So.2d 605 (Fla. 2d DCA 1975), cited with approval in Applestein. After the receipt of our opinion, however, the trial judge complied with our specific directions to do so, see 377 So.2d at 233-34, and entered summary judgments for Federal against Mackin and the Applestein defendants. The present cases are appeals from that judgment and from a later order denying, as to Federal, the motion to amend. We affirm both the judgment and the post-judgment order but remand the cause for further proceedings.

The judgments entered for Federal on the fourth amended complaint were plainly correct. Indeed, the trial court was required to comply with our appellate mandate directing that this be done and had no authority whatever to do otherwise. O. P. Corp. v. Village of North Palm Beach, 302 So.2d 130 (Fla.1974); Jones v. Knuck, 388 So.2d 328 (Fla. 3d DCA 1980); Robinson v. Gale, 380 So.2d 513 (Fla. 3d DCA 1980); Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So.2d 232 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 342 (Fla.1979); Mendelson v. Mendelson, 341 So.2d 811, 813-14 (Fla. 2d DCA 1977).

Similarly, there was no error in the order declining to permit an amendment to the complaint after the thus-required judgments for Federal. At that point, the court had lost jurisdiction to grant such relief. Hargraves v. Costin, 325 So.2d 486 (Fla. 1st DCA 1975); Atlantic Coast Line R. R. Co. v. Gulf Oil Corp., 206 So.2d 688 (Fla. 2d DCA 1968); Marans v. Stang, 124 So.2d 891 (Fla. 3d DCA 1960).

It is appropriate to add, however, that neither this opinion nor any other factor is an impediment to now amending the fourth amended complaint in the manner sought by Mackin and agreed to by Apple-stein and the trust (who all have a common interest in securing coverage), and thereupon to proceeding to a determination of Federal’s liability under the then-existing fifth amended complaint either by again joining and serving the company in the action itself, a demand by the insureds to defend, or both. While we express no opinion upon the ultimate outcome of that controversy, we do observe that, since we have held in Applestein I that the carrier’s responsibility is entirely and exclusively governed by the contents of the operative complaint against the insureds, the judgment entered with respect to the earlier pleading — which we ordered in the prior opinion and affirm in this one — cannot be res judicata Bernard v. Gulf Ins. Co., 542 S.W.2d 429 (Tex.Civ.App.1976); see, C. A. Fielland, Inc. v. Fidelity & Casualty Co. of New York, 297 So.2d 122, 127 (Fla. 2d DCA 1974), cert. denied, 309 So.2d 6 (Fla.1975); see generally, 19 Fla.Jur. Judgments § 123 (1958).

Affirmed and remanded.

      . We review this order as one entered after final judgment under Fla.R.App.P. 9.130(a)(4).

      . Mackin has separately challenged an order granting the Applestein defendants’ motion to lift sanctions which had previously been imposed upon them. The appeal from this non-final order, which is plainly not subject to Fla.R. App.P. 9.130, is dismissed for lack of jurisdiction.

      . Under Fla.R.Civ.P. 1.190(a), pleadings may be amended at any stage with the “written consent of the adverse party.”

      . The statute of limitations would likewise be no defense. Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980).


author: NESBITT, Judge.

text:
    Virgil RIGAUD, Appellant, v. The STATE of Florida, Appellee.
    Nos. 78-863 and 78-924.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The defendant appeals from his adjudication and sentence for the offenses of: (1) obtaining property in return for a worthless check contrary to Section 832.05(3), Florida Statutes (1975) [Count I]; and (2) grand larceny contrary to Section 812.021, Florida Statutes (1975) [Count II].

The only point which requires consideration here is the sufficiency of the evidence to support his conviction on either count of the information. We reverse the conviction for obtaining property in return for a worthless check and affirm the conviction and sentence with respect to grand larceny.

The defendant was a watchmaker. In conjunction with the sale of watches and clocks, he also engaged in the repair of jewelry and the sale of antiques and bric-a-brac. In the spring of 1977, the victim of the alleged offense left antiques, objets d’art and jewelry with the defendant for sale on consignment. When the victim later approached the defendant concerning the progress of the sale, he offered to pay her for all of the items either sold or unsold. The defendant gave the victim his personal check, either on Friday or Saturday. By her undisputed testimony, she agreed not to deposit the check until the Tuesday following its delivery. The reason for the delay in placing the check in the chain of collection was to ensure that a large sum of money, allegedly paid to the defendant by another party, would have previously cleared his account. The victim did not deposit the check until the date agreed, whereupon it was promptly dishonored for insufficient funds.

With respect to Count I, the defendant contends that the exception to Section 832.-05(3), supra, is applicable. The section provides, in pertinent part:

provided however that no crime may be charged in respect to the giving of any such check or draft or other written order where the payee knows or has been expressly notified or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment thereof.

By her own testimony, the payee (victim) had reason to believe that the drawer (defendant) did not have sufficient funds on deposit to ensure payment on the check. Consequently, the provision of Section 832.-05(3), supra, that affords an accused an affirmative defense, is applicable. Tappan v. State, 277 So.2d 310 (Fla.4th DCA 1973). For the same reason, the defendant could not be convicted of the lesser included offense under Section 832.05(3)(b), supra.

The defendant next contends that his conviction of grand larceny should be reversed because the circumstantial evidence did not exclude all reasonable hypotheses except guilt. Specifically, the defendant urges that the victim’s goods may have been taken by the landlord.

The defendant rented his shop from the landlord who operated a business in the adjacent building. The landlord testified that the defendant became overdue in his rental payment. On the last Thursday in May, 1977, the landlord went to the defendant’s shop and demanded payment. According to the landlord, the business was in full operation on that date. The defendant agreed to meet with the landlord on the following day to pay the rent, but did not keep his appointment. The landlord became apprehensive and, on the following Tuesday, used his passkey to unlock the defendant’s shop. As he entered the shop, he noticed it was barren of all merchandise except a few watchbands and other items of little value. Additionally, the defendant’s tools, which were in the shop on Thursday, were no longer present. The landlord restored the identifiable property to its rightful owners. It is undisputed that the shop remained locked at all times until the landlord entered on Tuesday and discovered that the defendant and his merchandise had disappeared. The defendant testified on his own behalf and conceded that only he and the landlord had access to the shop.

Absolute, metaphysical, and demonstrative certainty is not essential to proof by circumstantial evidence. Chason v. State, 148 Fla. 540, 4 So.2d 691 (Fla.1941); Whetston v. State, 31 Fla. 240,12 So. 661 (Fla.1893). However, the evidence must exclude every reasonable hypothesis except guilt. The defendant relies upon our decision in Redding v. State, 357 So.2d 483 (Fla.3d DCA), cert. denied, 364 So.2d 892 (Fla.1978) in support of his argument that the circumstantial evidence is insufficient to prove that the defendant took the victim’s goods. We consider that decision to be distinguishable from the present case. In this case, the jury could infer by the utterance of the worthless check that the defendant’s business was failing. In addition, the defendant’s delinquency in rental payments, his sudden and mysterious disappearance together with all property over which he had dominion, and the fact that the business was in full and regular operation immediately preceding the disappearance of the defendant and the merchandise, warranted the jury determination of guilt. Chason v. State, supra; Dewey v. State, 135 Fla. 443, 186 So. 224 (1938).

The defendant’s hypothesis of innocence was predicated on the theory that the landlord may have taken the victim’s goods. We find that the jury’s rejection of this hypothesis was reasonable under the circumstances of the case. In Piantadosi v. State, 311 So.2d 742 (Fla.3d DCA 1975), the court stated:

On appeal, the test is not whether this court sitting as trier of fact thinks the evidence excludes every reasonable hypothesis but that of guilt, it is whether the jury . . . reasonably concluded that it did.

311 So.2d at 744. See also, Hernandez v. State, 305 So.2d 211 (Fla.3d DCA 1974), cert. denied, 315 So.2d 192 (Fla.1975). At trial, it was admitted that only the defendant and the landlord were in possession of the premises. The landlord testified extensively regarding his relationship with the defendant. He explained the reasons why he entered the shop after the defendant’s sudden disappearance as well as his participation in the distribution of the merchandise. The only question which was not asked was whether the landlord was in fact the thief. Under all the attendant circumstances, we do not find such a question necessary. The perceptions of the landlord, the reasonableness of his conduct, and his credibility were all before the jury. The jury was warranted in rejecting the defendant’s hypothesis of innocence in light of all the evidence presented. Simmons v. State, 99 Fla. 1216, 128 So. 486 (1930).

For the foregoing reasons, the defendant’s conviction of obtaining property in return for a worthless check is reversed. In all other respects, his conviction and sentence are affirmed.


text:
    Michael SPROVERO, Appellant, v. Betty J. MILLER, Appellee.
    No. 80-2504.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.

      Krongold & Bass and Paul Bass, Coral Gables, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

The plaintiff Michael Sprovero, a general building contractor, appeals from an adverse final summary judgment entered below in a slander action wherein no special damages were claimed. The trial court concluded that the oral statements sued upon did not constitute slander per se and, as no special damages were claimed, summary judgment for the defendant was proper. We disagree and reverse.

The oral statements sued upon arose over a construction job done by the plaintiff for the defendant Betty J. Miller. These statements impute conduct and characteristics to the plaintiff which are plainly incompatible with the proper exercise of the plaintiff's business; as such, the statements constitute slander per se. Campbell v. Jacksonville Kennel Club, Inc., 66 So.2d 495, 497 (Fla. 1953); Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (1934); Owner’s Adjustment Bureau, Inc. v. Ott, 402 So.2d 466 (Fla. 3d DCA 1981); Carter v. Sterling Finance Co., 132 So.2d 430 (Fla. 1st DCA 1961). This result is not changed by the fact that some or all of the slanderous statements may have had reference to single acts of misconduct allegedly committed by the plaintiff as, in any event, these alleged acts fairly implied the lack of qualities and skill the public is reasonably entitled to expect from persons engaged in the construction business. See e. g., Restatement (2d) of Torts § 573, comment e (1977).

The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings. The reversal shall be without prejudice to the defendant to raise any free speech defenses which may be applicable in this case. See e. g., Owner’s Adjustment Bureau, Inc. v. Ott, 402 So.2d 466 (Fla. 3d DCA 1981) (Hubbart, C. J., concurring) and authorities collected.

Reversed and remanded.


author: HENDRY, Judge.

text:
    Johnny Leon WHITLOCK, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1904.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Bennett H. Brummer, Public Defender, and John Lipinski, Sp. 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 HENDRY, JJ.
   HENDRY, Judge.

This appeal challenges the imposition of mandatory three year prison terms on a youthful offender pursuant to section 775.-087(2), Florida Statutes (1979). We reverse and remand for resentencing.

Appellant Whitlock entered guilty pleas to charges of robbery and unlawful possession of a firearm while engaged in a criminal offense. Appellant qualifies for the more lenient sentencing provisions of the Youthful Offender Act, Chapter 958, Florida Statutes (1979). Notwithstanding appellant’s status as a youthful offender, prior to sentencing the trial judge stated that he was obligated to impose a mandatory three year minimum term of imprisonment for each charge in accordance with section 775.-087(2) because appellant carried a firearm during the robbery. Consequently, appellant was sentenced to two concurrent three year minimum terms.

Appellant submits that his status as a youthful offender under Chapter 958 precluded the minimum three year sentences imposed under section 775.087. The state, in turn, argues that appellant should not have been classified as a youthful offender because section 958.04(l)(c) excludes persons found guilty of a capital or life felony from the sentencing provisions of the Act. The fallacy in this argument is that armed robbery, although a felony of the first degree, is not a capital or life felony. See sections 812.13(2)(a); and 775.081. Thus, while appellant’s first degree felony plea precluded mandatory classification as a youthful offender pursuant to section 958.-04(2)(b), the trial judge still had the discretion to classify the appellant as a youthful offender under subsection (1), which he so exercised. State v. Goodson, 403 So.2d 1337 (Fla.1981) (if eligibility requirements of subsection (1) of the Act are met, the trial court “may” classify that person as the trial court “may” classify that person as a youthful offender; if eligibility requirements of subsection (1) are met and the person is not disqualified by the requirements in subsection (2), the court “shall” classify that person as a youthful offender). See also Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980); Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980). Accordingly, we find that appellant was properly classified as a youthful offender.

Section 958.05 of the Act expressly provides that youthful offenders be sentenced “in lieu of other criminal penalties authorized by law,” and enumerates three alternative sanctions which may be levied on such offenders. This section plainly circumscribes the penalties for youthful offenders and forbids the imposition of sanctions other than those provided therein. We find support for this conclusion in the legislative intent behind enactment of the statute. As stated in section 958.021, the legislature’s goal was to improve the chances of correction and successful return to the community of youthful offenders sentenced to imprisonment by preventing their association with older and more experienced criminals during the terms of their confinement. Clearly, this objective would be defeated if youthful offenders were sentenced to mandatory terms of imprisonment under section 775.087(2). Moreover, the Act itself provides for mandatory one year sentences for particularly serious crimes or dangerous offenders; a provision plainly substituting for the minimum three year sentence for adult offenders under section 775.087.

We hold that the sentencing provisions of the Youthful Offender Act are the exclusive sanctions for defendants who meet its criteria. We also agree with appellant that the imposition of a mandatory minimum three year sentence for unlawful possession of a firearm was erroneous for the additional reason that this crime is not one of the enumerated crimes in section 775.087(2).

The sentences are reversed and this cause remanded to the trial court for resentencing under Chapter 958.

Reversed and remanded.

      . Subsections (1) and (2) of section 958.04 read as follows:
      958.04 Eligibility for youthful offender; classification.—
      (1) The court may classify as a youthful offender any person:
      (a)Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
      (b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
      (c) Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
      (2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
      (a) Has not previously been found guilty of a felony, whether or not the adjudication of guilt has been withheld; or
      (b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.

      . We point out that under the Act appellant can be sentenced to three years imprisonment (see § 958.05); but that the mandatory minimum term of imprisonment under § 775.087(2) was improper.


text:
    The STATE of Florida, Appellant, v. Collin HIXON, Appellee.
    No. 80-2205.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Andrew M. Kassier, Asst. Public Defender, for appellee.
    Before DANIEL S. PEARSON and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The appellee having confessed error in the trial court’s granting of his sworn motion to dismiss, and such error clearly appearing, see Ensor v. State, 403 So.2d 349 (Fla.1981), the order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Kathleen A. FERRERO, Petitioner, v. Frank A. FERRERO, M. D., Respondent.
    No. 81-626.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Joseph M. Gersten, Miami, for petitioner.
    Harold P. Barkas, Miami, for respondent.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The Writ of Certiorari is granted and the order requiring psychiatric examinations of the parties and their minor children is quashed. Schottenstein v. Schottenstein, 384 So.2d 933 (Fla. 3d DCA 1980).


text:
    Ernesta CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-278.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. See: Wilson v. State, 245 So.2d 693 (Fla. 1st DCA 1971); Powell v. State, 131 Fla. 254, 175 So. 213 (1937); Clinton v. State, 58 Fla. 23, 50 So. 580 (1909); Clinton v. State, 56 Fla. 57, 47 So. 389 (1908); Vol. 16, Fla.Jur.2d, Criminal Law, 1331; Section 924.33 Florida Statutes (1979).


text:
    John W. MELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-28.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Bennett H. Brummer, Public Defender and James V. Johnstone, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

We have carefully considered each of the points on appeal and find no reversible error. The statement attributed to the deceased placing defendant at scene of crime was inadmissible hearsay but harmless error where defendant’s presence at scene of the crime was established by other competent evidence. See, e. g., Roth v. State, 359 So.2d 881 (Fla.3d DCA 1978), cert. denied, 367 So.2d 1126 (Fla.1979).

Affirmed.


text:
    ENOCH ASSOCIATES, INC., Appellant, v. MOULT INVESTMENTS, LTD., Appellee.
    No. 80-1983.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.

      Stern & Kneski and Peter Kneski, Miami, for appellant.
    Daniel A. Wick, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

This is an appeal from the judgment of the trial court awarding attorney’s fees to the defendant. The award was made on authority of Section 57.105, Florida Statutes (1979). Since the plaintiff was the prevailing party in the underlying judgment, as a matter of law, there was a justiciable issue of law or fact presented by its action. Consequently, an award of attorney’s fees to the defendant was improper.

For this reason, the judgment awarding attorney’s fees is reversed.


text:
    The STATE of Florida, Appellant, v. Jan Anthony FOX, Appellee.
    No. 80-1678.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Deborah Whisnant, Asst. Public Defender, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   SCHWARTZ, Judge.

After conducting the hearing on the defendant’s sworn motions to dismiss we required in Fox v. State, 384 So.2d 226 (Fla.3d DCA 1980), review denied, 392 So.2d 1379 (Fla.1980), the trial judge granted the motions. This was error. The conflicting and inherently suspect nature of the defendant’s multiple explanations of his possession of recently stolen property, together with the fact that he was found with additional stolen items, presented what was clearly a jury question of his guilt. Section 812.-022(2), Florida Statutes (1979); State v. Graham, 238 So.2d 618 (Fla.1970); McWhirter v. State, 325 So.2d 463 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 602 (Fla. 1976); Burroughs v. State, 221 So.2d 159 (Fla.2d DCA 1969); Borghese v. State, 158 So.2d 785 (Fla.3d DCA 1963); compare, R. A. L. v. State, 402 So.2d 1337 (Fla.3d DCA 1981); A. R. v. State, 393 So.2d 1174 (Fla.3d DCA 1981).

Reversed.


text:
    Arthur POVIDO, Jack Flax and Isabel Flax, Appellants, v. AMTERRE DEVELOPMENT, INC., Appellee.
    No. 80-2309.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Colodny & Fass, North Miami, and Beth E. Linzner, for appellants.
    Horton, Perse & Ginsberg, Hawkesworth & Schmick, Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Hilgenhurst v. Knight-Ridder Newspaper, Inc., 400 So.2d 523 (Fla.3d DCA 1981); Nemeth v. DeLauega, 354 So.2d 418 (Fla.3d DCA 1978); Gottschalk v. Smith, 334 So.2d 102 (Fla.3d DCA 1976), cert. denied, 341 So.2d 1085 (Fla.1976).


text:
    Edward Leonard WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2049.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Edward Leonard White, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 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:
    Robert B. WHITEHEAD, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2093.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.

      Bennett H. Brummer, Public Defender, and Patricia E. Cowart, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Ensor v. State, 403 So.2d 349 at 352-355 (Fla.1981); State v. Holder, 400 So.2d 162 (Fla.3d DCA 1981).


text:
    Javier LUZARAGA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2012.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Javier Luzaraga, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Petitioner, 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:
    Thurmond RIVERS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-810.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.
    Bennett H. Brummer, Public Defender, and David B. Javits, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 110 So.2d 654 (Fla.1959); McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978).


text:
    Pernell Wade WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1403.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 1981.

      Pernell Wade Williams, in pro. per.
    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.

The motion for post-conviction relief pursuant to Rule 3.850 Florida Rules of Criminal Procedure, was properly denied. Tobin v. State, 401 So.2d 938 (Fla. 1st DCA 1981) and Grooms v. State, 401 So.2d 1139 (Fla.3d DCA 1981).

Affirmed.


author: ORFINGER, Judge.

text:
    James W. SWAN, Appellant, v. FLORIDA FARM BUREAU INSURANCE COMPANY, Appellee.
    Nos. 80-1358, 80-1359.
    District Court of Appeal of Florida, Fifth District.
    Oct. 7, 1981.
    Arthur G. Leonhardt, Jr., of Leonhardt, Trickel, Leigh, Gibson & Martin, Orlando, for appellant.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee.
   ORFINGER, Judge.

In this action brought for damages under a policy of fire insurance, the jury returned a verdict for defendant. Appellant, plaintiff below, challenges the final judgment entered on the jury verdict, and also questions the cost judgment subsequently entered against him.

Appellant’s pharmacy was destroyed by fire and he brought suit against appellee to recover the proceeds of a fire insurance policy issued to him by appellee. Liability was denied on the asserted ground that appellant had either deliberately burned the premises or had caused them to be burned. Appellant contends that the trial court erred in permitting appellee to introduce evidence tending to show that appellant was under investigation for narcotics violation just prior to the fire; that a preliminary search of his records had been made and that the investigating officers had advised appellant that they would be back to make a more detailed search. Appellee contends that the evidence is relevant as tending to show a motive for the fire, i.e., the destruction of the records, which evidence, coupled with evidence that the appellant urgently requested a large increase in his fire insurance coverage two days before the fire, and expert evidence that the fire was deliberately set, supports its defense of arson. Additionally, appellee says that the issue of admissibility of this evidence was not preserved for appeal because no objections to it were offered at the trial.

Prior to trial, appellant filed a motion in limine requesting that the appellee be prohibited “from mentioning, testifying, arguing, or otherwise bringing to the attention of the jury, either directly or indirectly, any mention or reference ... to any charges of narcotics laws violations of plaintiff,” contending that any such evidence would deny appellant due process, violate the rules of evidence and would be extremely prejudicial. The motion was denied. At trial, substantial evidence was introduced to show appellant’s involvement in alleged narcotics laws violations, the search of his records and the announcement by the officers that they intended to return to make a more thorough search. All this evidence was introduced at trial without objection.

Appellee’s contention is correct that no issue as to admissibility of this evidence was preserved for appeal because of the failure of appellant to object to its introduction at trial. Appellant contends that the motion in limine, overruled by the trial court, eliminates the need to object at trial. This precise issue as it applies to civil cases appears not to have been addressed by any appellate court in Florida.

The rule requiring a contemporaneous objection at trial to the introduction of allegedly inadmissible testimony is firmly established in criminal law. In Crespo v. State, 379 So.2d 191 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1111 (Fla.1981), the appellant’s motion in limine was denied pri- or to trial, and appellant did not object at trial to the introduction of testimony initially sought to be excluded. The court concluded that under these circumstances the rule requiring contemporaneous objection to allegedly inadmissible testimony prevented review of appellant’s argument in the absence of fundamental error, which was not found. The rule requiring a contemporaneous objection to the introduction of evidence at trial in order to preserve the issue for appellate review is equally applicable to civil cases. See Marks v. Delcastillo, 386 So.2d 1259 (Fla. 3d DCA 1980). The record here is devoid of any indication that appellant attempted to prevent the admission of the allegedly inadmissible testimony after the denial of the motion in limine and no motion for directed verdict or for new trial was made.

Since the purpose of a contemporaneous objection is the same in civil as in criminal cases, the same rule must apply when an appellant wishes to complain about the admission of testimony attempted to be precluded by the motion in limine. A trial judge can only become aware of a party’s objection to specific testimony or a line of questioning if a proper objection is made at the time it is offered. The judge deserves the opportunity to rule on the evidence in the light of what is happening, the evidence previously admitted and the specific grounds for the objection. Having previously overruled the motion in limine, he might now sustain the objection if it is made, but he cannot be left to guess that a generally phrased pre-trial objection is still valid in the shifting pattern of the actual trial. The “practical necessity and basic fairness” suggested by Castor strongly suggests the rule under the circumstances here. We think the Texas Supreme Court has correctly stated the rule, viz:

If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal.

Hartford Accident and Indemnity Company v. McCardell, 369 S.W.2d 331, 335 (Tex.1963).

Appellant’s contention that the trial court improperly awarded certain items of costs is not supported by the record, nor has appellant demonstrated any abuse of the trial court’s discretion in that regard.

The judgment is AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.

      . The trial court ruled inadmissible evidence of a plea of guilty by appellant, and although appellee cross appeals this ruling, we do not address this issue in the light of our decision.

      . “The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.” Castor v. State, 365 So.2d 701, 703 (Fla. 1978).


author: BOARDMAN, Judge.

text:
    Gerald Lamar WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 81-599.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.

      Bob M. Johnson, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Gerald Lamar White appeals the revocation of his probation. We reverse.

Appellant was originally charged by information with three counts of trafficking in stolen property. He pled guilty and was given consecutive sentences of six months on each count on June 4, 1979. On July 24, 1979, he filed a motion for reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800, which was denied.

On February 26, 1980, appellant filed a motion to reconsider the prior motion for reduction of sentence. This motion was granted on March 10, 1980; the balance of appellant’s jail sentence was suspended, and he was given concurrent five-year probationary terms.

On March 13, 1981, an affidavit of probation violation and warrant were filed charging appellant with having committed several felonies. After hearing, the trial court revoked appellant’s probation and gave him concurrent sentences of fifteen years on each count, despite appellant’s counsel’s contention at the revocation hearing that the trial court had no jurisdiction because it had not had jurisdiction to modify appellant’s sentence when it did so. This appeal followed timely.

Since the original sentence imposed was a legal sentence, the trial court was without jurisdiction to reduce the sentence at the time the second motion was filed. The sixty-day period following the original sentence had expired on August 3, 1979. Fla.R.Crim.P. 3.800; State v. Sutton, 371 So.2d 717 (Fla. 2d DCA 1979); State v. Mancil, 354 So.2d 1258 (Fla. 2d DCA 1978).

At the revocation hearing, the state contended that appellant consented to the trial court’s maintaining jurisdiction in this matter and that therefore he is now es-topped from raising that issue. However, it is well settled that a defendant cannot confer jurisdiction on the trial court by waiver, acquiescence, estoppel, or consent since jurisdiction is established solely by general law. Art: V, § 6(b), Fla.Const.; Worley v. State, 396 So.2d 1153 (Fla. 2d DGA 1981); Sclafani v. County of Dade, 323 So.2d 675 (Fla. 3d DCA 1975); State v. Evans, 225 So.2d 548 (Fla. 3d DCA 1969), cert. denied, 397 U.S. 1053, 90 S.Ct. 1394, 25 L.Ed.2d 668 (1970).

Accordingly, the order purporting to place appellant on probation, the order revoking that probation, and the new judgment and sentence are REVERSED and the cause REMANDED with directions to reinstate appellant’s original judgment and sentence.

SCHEB, C. J., and OTT, J., concur.

      . Of course, for administrative purposes, appellant’s record should be credited with all the time he has served under either sentence for the felonies involved here.


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Appellant, v. James BROWN, Appellee.
    No. 80-1984.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellee.
   SCHEB, Chief Judge.

The state challenges the trial court’s dismissal of charges against appellee, James Brown, on the ground that he had twice been placed in jeopardy for the same offense.

The state charged appellee with aggravated assault and attempted sexual battery with a deadly weapon. The information and bill of particulars alleged that the two offenses occurred on or between December 26 and 27, 1979. However, the proof at trial established that the offenses occurred on December 24 and 25, 1979. Defense counsel moved for a judgment of acquittal on the basis of this variance, and the court granted his motion. Subsequently, the state filed a second information which alleged that appellee committed the aggravated assault and attempted sexual battery on December 25, 1979. The court granted defense counsel’s motion to dismiss on the ground that defendant had twice been placed in jeopardy.

In State v. Beamon, 298 So.2d 376, 379-80 (Fla. 1974), the supreme court enumerated the elements of former jeopardy. It held that

[T]he test to sustain a plea of former jeopardy is that it must be made to appear that
(1) There was a former prosecution in the same state for the same offense;
(2) That the same person was in jeopardy on the first prosecution;
(3) That the parties are identical in the same prosecution;
(4) That the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar.

Applying this test to the facts of the present case indicates that the court erred in granting the motion to dismiss based on the plea of former jeopardy. The state did not twice charge appellee with the same offense. Rather, it charged him by different informations, with two offenses which occurred at different times. The defense of former jeopardy, therefore, does not apply. As the supreme court observed in Beamon:

It is the defendant — not the state — who is estopped. The defendant is estopped by virtue of his inconsistent positions in first claiming as a basis for acquittal the materiality of the date and then contending on the new information that the actual, different date of the alleged offense is immaterial now, so that whatever the day of the alleged offense he was acquitted of it in the first trial.

298 So.2d at 378. Accord, State v. Mayor, 378 So.2d 1324 (Fla. 3d DCA 1980).

Accordingly, we reverse the order granting the motion to dismiss and remand the case for further proceedings.

HOBSON and CAMPBELL, JJ., concur.


text:
    Sol W. MEYERSON and Bernice Ann Meyerson, his wife, Appellants, v. Lynne K. BLOCK, Appellee.
    No. 81-402.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1981.
    Greene & Cooper and Sharon L. Wolfe, Miami, for appellants.
    Robert A. Glassman, Miami, for appellee.
    Before HENDRY and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a final judgment of partition and sale of the Meyersons’ property. We reverse.

Block filed a complaint for partition alleging she was the fee simple owner of an undivided one-half (Vfe) interest in certain property, which she allegedly acquired by warranty deed. The deed listed Sol W. Meyerson and Bernice Ann Meyerson, his wife, as grantors and Lynne K. Block as grantee. The deed was signed by Sol, but not by Bernice.

The complaint was served on the Meyer-sons on November 19, 1980. On December 8, 1980, nineteen days later, the Meyersons’ attorney served, by mail, an answer on opposing counsel. The next day, Block filed a motion for default. The clerk entered a default on December 11, 1980, for “failure to serve or file any pleading.” The Meyer-sons' answer was filed in the clerk’s office on December 12, 1980. On December 18, 1980, Block filed a motion for default judgment and served a copy of a notice of hearing on the motion on the Meyersons. This was the first notice the Meyersons had that a default had been entered against them; they promptly moved to set aside the default. After a hearing, the trial court denied the motion and ultimately entered the final judgment which is the subject of this appeal.

Florida Rule of Civil Procedure 1.500(a) provides:

“When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.” (emphasis supplied).

The Meyersons’ answer was accompanied by a certificate of service stating the answer had been served by mail on December 8, 1980. Since service was complete upon mailing, Fla.R.Civ.P. 1.080(b), at the time the clerk entered the default against the Meyersons on December 11, the Meyersons had served a paper, and the clerk’s entry of the default against them was improper. Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Publisher’s Vending Services, Inc., 296 So.2d 570 (Fla.3d DCA 1974); Pan American World Airways v. Gregory, 96 So.2d 669 (Fla.3d DCA 1957).

Block asserts, however, that in considering whether to set aside the default or enter a default judgment, the trial court could have based on the conflicting affidavits, resolved the factual issue against the Meyersons and found that no answer had been served prior to the default being entered. We reject Block’s argument, because it misperceives the trial court’s role in considering a motion to set aside a default entered by the clerk. As our sibling court noted in Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744, 745 (Fla. 4th DCA 1974), there is a distinction between asking the court to exercise its sound judicial discretion to set aside a default properly entered and seeking a court order to set aside a default improperly entered.

Since the default was, without question, improperly entered, the trial court erred in failing to set it aside. Mo-Con Properties, Inc. v. American Mechanical, Inc., supra. Therefore, we vacate the default and the consequent default judgment and the sale of the Meyersons’ property.

      . A copy of the deed was not attached to the complaint. After the Meyersons filed an answer, which contained a motion for judgment on the pleadings based on, inter alia, the failure to attach the deed, see Fla.R.Civ.P. 1.130(b), Block filed a copy of the deed.

      .The affidavit by the Meyersons’ attorney states that “on the day for filing an Answer and defenses,” the attorney spoke with Block’s attorney, who “readily agreed” to service and filing of the answer by mail. The Meyersons’ attorney “then and there mailed the original of the defenses to the Clerk of the Court and the copy to [Block’s attorney].” The affidavit by Block’s attorney asserts an entirely different version of the telephone conversation. His affidavit states that upon expiration of the twenty-day period for filing an answer, he filed a motion for default. Approximately two days after that, the Meyersons’ attorney phoned him, the conversation lasted “approximately ten (10) seconds,” the Meyersons’ attorney indicated he was filing an answer, and that “he [Block’s counsel] did not agree to anything.” Both parties apparently were mistaken about when the twenty-day period expired. The answer could have been filed or served as late as December 9. Thus, a motion for default would not have been proper until December 10. As noted, supra, the Meyersons served an answer on December 8, and Block filed a motion for default on December 9.

      . We are not dealing with a default entered by the court pursuant to Florida Rule of Civil Procedure 1.500(b).

      . The only factual issue the trial court resolves in deciding if the default was improperly entered is whether there exists evidence that should have prevented the clerk from entering the default. The clerk has no discretion in entering the default. If there is competent evidence that the pleading has been served, the clerk may not enter the default, because the clerk may not resolve a factual issue. However, in this case, since the answer was served by mail, the clerk could not be aware that the answer had, indeed, been served. Prudent counsel could avoid the entire problem, including the expense of having the default set aside, which in this case includes the expense of an appeal by filing as well as serving the answer within twenty days.


author: WENTWORTH, Judge.

text:
    Jerry TAYLOR, Appellant, v. INTERNATIONAL PAPER CO. and Division of Workers’ Compensation, Appellees.
    No. YY-133.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.

      Richard C. Trollope of Fitzpatrick, Sy-frett & Hutto, Panama City, for appellant.
    C. Douglas Brown of Isler, Brown, Smoak & Watson, Panama City, for appellee.
   WENTWORTH, Judge.

Claimant seeks review of a workers’ compensation order which, based on a 1977 accident, limits his claim for permanent partial disability to the schedule set forth in § 440.15(3)(b), Florida Statutes. We affirm.

Claimant contends that the deputy commissioner erred in finding that claimant sustained a scheduled disability rather than a disability to the body as a whole, as follows:

According to Dr. McArthur, the Claimant reached maximum medical improvement on June 13, 1979, and has a 30% permanent partial impairment to his right lower extremity. . . . The impairment rating given by Dr. McArthur did not take into consideration any impairment caused by his chronic phlebitis. . . . Dr. Syfrett treated the Claimant in conjunction with Dr. McArthur for his thrombo-phlebi-tis... . After consulting the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Dr. Sy-frett thought his impairment was 25% of the whole man. While the problem is confined to the veins in the Claimant’s leg at the present, there is always a chance in such cases that a clot will break loose and cause a pulmonary embolization. The Employer in this case has agreed to pay thé Claimant permanent partial disability equal to 30% of his lower right extremity. F.S. 440.15(3)(b). The Claimant seeks benefits under 440.-15(3)(u) on the theory that his thrombo-phlebitis is a disease of his circulatory system and, by definition affects his entire body.... [Tjhere is no evidence supporting his contention that the effects of his injury extend beyond his leg. Throm-bo-phlebitis confined to the Claimant’s leg is a scheduled injury in Florida. Wholesale Tours International v. Courtney, I.R.C. Order 2-3126 (1977) and Gray Drugstores, Inc. v. Herring, 9 F.C.R. 85 (1975). If the Claimant’s thrombo-phlebi-tis does affect other parts of his body in the future, his remedy is to seek modification under F.S. 440.28.... [T]he claim for permanent partial disability based on the loss of wage earning capacity is denied because compensation for his disability is limited to 30% of his lower right extremity which has been, or is being, timely paid by the Employer in accordance with F.S. 440.15(3)(b).

We find no error in the deputy’s view of the evidence showing impairment confined to claimant’s leg. Nor was he compelled as a matter of law to accept the medical testimony rating vascular disease, affecting only claimant’s leg, as a total body impairment under American Medical Association Guides standards. Cf., § 440.15(3)(a).

Claimant further argues that the deputy commissioner erred in failing to elevate the degree of scheduled impairment above the medical rating for orthopedic purposes, inasmuch as claimant suffers from both an orthopedic, injury and throm-bophlebitis. The record indicates that issue was not before the deputy commissioner for consideration since claimant sought only compensation for earning capacity loss or disability of the body as a whole. Our affirmance is of course without prejudice to a claim other than that determined by the order appealed.

BOOTH and SHAW, JJ., concur.


text:
    Ola May MAYBERRY, Appellant, v. SUNLAND TRAINING CENTER and Division of Risk Management, Appellees.
    No. YY-345.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    J. Randall Hooper, of Scruggs & Carmichael, Gainesville, for appellant.
    Jack A. Langdon, of Jones & Langdon, Gainesville, for appellees.
   PER CURIAM.

This cause is before us on appeal from a Deputy Commissioner’s order denying payment of certain medical bills incurred by the claimant in treatment of a back injury. The parties stipulated that the injury arose out of and in the course of her employment. The deputy ruled, however, that medical services rendered by Dr. Joseph Cauthen and by North Florida Regional Hospital in January, 1980, were unauthorized.

The employer/carrier stipulated that proper notice of the accident had been given, that Dr. Cauthen had requested authorization prior to performing back surgery, and that such authorization had been withheld without any offer of alternative treatment. Under such circumstances, the Deputy Commissioner erred in denying payment of Dr. Cauthen’s and North Florida Regional Hospital’s bills incurred in the necessary treatment of the claimant’s admittedly compensable injuries. See Hall's Camp, Inc. v. Decker, 394 So.2d 1041 (Fla. 1st DCA 1981); Lance v. Witters, 270 So.2d 4 (Fla. 1972).

Claimant’s failure to introduce medical bills into evidence does not preclude the recovery of those expenses since Dr. Cau-then testified as to the amount of his charges and their causal connection to the claimant’s injury, See Hall’s Camp, Inc. v. Decker, supra at 1044, and the amount of North Florida Regional Hospital’s bills may be determined on remand. Accordingly, that portion of the Deputy Commissioner’s order denying payment of Dr. Cauthen’s and North Florida Regional Hospital’s medical bills is reversed and remanded for further proceedings in accordance with this opinion.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: ERVIN, Judge.

text:
    S. C. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. YY-365.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    Michael E. Allen, Public Defender, Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

S.C.H. appeals from an order of disposition adjudicating him delinquent and committing' him to the custody of the HRS. The appellant asserts that the state did not properly comply with Florida Rule of Juvenile Procedure 8.200(b) prior to the court’s pronouncement of disposition. We agree and remand with instructions.

The lower court ordered both a pre-dispo-sition report and a psychiatric evaluation by a Dr. Miller to aid in determining an appropriate disposition of the case. The pre-dis-position report recommended that appellant receive a judicial warning. That recommendation, however, was in conflict with Dr. Miller’s psychological evaluation, recommending that the claimant be placed in a more structured environment. At the disposition hearing, defense counsel was in receipt of both the pre-disposition report and Dr. Miller’s psychological evaluation. The trial court then questioned the HRS counselor who prepared the pre-disposition report concerning the inconsistency between it and Dr. Miller’s evaluation. The counselor explained that at the time she made her initial recommendation, she had not read Dr. Miller’s report. She then changed her recommendation, advising the court that the appellant be removed from his home and placed in an environment consistent with that suggested by Dr. Miller. She stated that this change in recommendation followed her conversations with a doctor other than Dr. Miller, and after her receipt of other physicians’ reports. The original pre-disposition report made no mention of these other conversations or reports, and the counselor did not submit an amended pre-disposition report reflecting the reasons for her changed recommendation. Notwithstanding the lack of notice to appellant, and his attorney, the court accepted the counselor’s amended recommendation and committed the child to the HRS for a period of one year or until his 19th birthday, whichever should occur first.

The appellant then filed a motion to suspend execution of the disposition imposed by the trial court, alleging that the disposition was based on the counselor's changed recommendation which in turn depended upon psychological reports not made available to the defense. At a later hearing on this motion, another HRS counselor admitted that the original counselor’s modified recommendation followed her review of reports from doctors other than Dr. Miller. The appellant’s counsel again objected, arguing that the defense had been availed no opportunity to refute any of the evidence on which the original counselor based her amended recommendation, thereby severely prejudicing the defendant. The trial court denied the motion.

The appellant’s argument that the lower court erred in committing the appellant to the custody of the HRS without first providing the appellant an amended written predisposition report rests upon Rule 8.200(b), Florida Rules of Juvenile Procedure, which states:

The child, his attorney, and his parent[s] or custodian shall be entitled to a disclosure of all information in the pre-disposition report except those portions classified as confidential by the submitting person or agency, (e. s.)

The appellant further contends that our court’s interpretations of the presentence investigation (PSI) rules, Rules 3.712 and 3.713, Florida Rules of Criminal Procedure, are applicable by analogy. For example, Donlyuk v. State, 330 So.2d 52, 53 (Fla. 1st DCA 1976), construed Rules 3.712 and 3.713 as requiring that relevant information comprising a presentence investigation report be in written form and available to the defendant at a reasonable time before sentencing. Additionally, Dickens v. State, 368 So.2d 950 (Fla. 1st DCA 1979), held that a defendant was entitled to all non-confidential factual information contained in a pre-sentence investigation report prior to sentencing.

Although Florida Rule of Juvenile Procedure 8.200(b) has yet to be judicially construed, we agree that the protections which it furnishes juveniles should be no less than that required of courts when sentencing adult offenders. Certainly, it cannot be seriously contended that a pre-disposition report is not the functional equivalent of a PSI. Here, although the original pre-dispo-sition report and the psychiatric evaluation by Dr. Miller were made available to the appellant at the time of the disposition hearing, the court in effect relied on an amended unwritten pre-disposition report, which was based on medical reports that were not made available to the appellant at or before the disposition hearing. That type of information, if relied on by the court, see Rule 8.200(a), was required to be included within the pre-disposition report, and such information, which was not classified as confidential, should have been disclosed to the appellant pursuant to Rule 8.200(b).

Accordingly, the delinquency disposition is vacated and the cause is remanded with directions that a disposition hearing be conducted in a manner consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur.


text:
    Printy E. LEPPLA, Appellant, v. Norman C. LEPPLA, Appellee.
    No. AB-355.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1981.
    Leonard E. Ireland, Jr., of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant.
    W. N. Avera of Avera & Stripling, P. A., Gainesville, for appellee.
   PER CURIAM.

In the final judgment of dissolution of marriage on appeal, the trial court failed to set forth the determination of which party would make the mortgage payments and bear the expenses for repair and maintenance on the marital home. We remand for the trial judge to make such determination. If the trial judge should determine that the wife is to make all such payments, exclusive of the husband, provisions shall be made for increasing her equity in the property. Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979).

We have considered the other points raised in this appeal and find them to be without merit.

Accordingly, this cause is AFFIRMED in part and REVERSED and REMANDED in part for further proceedings in accordance with this opinion.

McCORD and MILLS, JJ., and AGNER, ROYCE, Associate Judge, concur.


author: OTT, Judge.

text:
    RAYMAR DEVELOPMENT CORPORATION, a Florida Corporation, Appellant, v. Joseph V. BARBARA and Venera Barbara, his wife, Appellees.
    No. 80-1850.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 1981.

      Jan G. Halisky, Clearwater, for appellant.
    No appearance for appellees.
   OTT, Judge.

Appellees purchased a home from appellant and gave a note, secured by mortgage, for a portion of the balance of the purchase price. Upon default in payment of the note, appellant filed this action to foreclose the mortgage. The trial court entered judgment in favor of appellant for the amount due on the note, but refused to foreclose the mortgage because (1) it had not been attested by two subscribing witnesses and (2) appellees had not signed it before a notary public. We reverse.

Since the 1968 revision of article X, section 4, of the Florida Constitution, it is no longer required that homestead mortgages be witnessed. Wiekes Corp. v. Moxley, 342 So.2d 839 (Fla. 2d DCA 1977).

The notarization of a deed or mortgage merely entitles it to be recorded, so as to bind subsequent purchasers, encumbranc-ers, and creditors without actual notice thereof. The liability of the parties to a mortgage, inter se, is not affected by the absence of notarization or the other forms of proof of execution permitted by section 695.03, Florida Statutes.

The judgment is REVERSED with instructions to amend the judgment to order foreclosure of the mortgage for the amount due on the note. In all other respects the judgment is affirmed.

DANAHY and CAMPBELL, JJ., concur.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Thomas McGRIFF, Appellee.
    No. 80-2213.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellee.
   DANAHY, Judge.

The state appeals an order of the trial court which granted appellee’s motion to suppress certain inculpatory statements.

Two uniformed police officers who had probable cause to believe the appellee guilty of attempted sexual battery were instructed to arrest appellee at his home. A man answered the officer’s knock on appellee’s front door and, in response to the officer’s inquiry, stated that he was Thomas McGriff. Appellee invited the two officers into his home after one of the officers requested that they be allowed to come inside. Once inside, the officers, without a warrant, arrested appellee. Later on the same day appellee made inculpatory statements which the trial court subsequently suppressed as the fruit of an illegal arrest.

Initially, we note that a police officer may arrest an individual without a warrant when he has probable cause to believe that the person has committed a felony. § 901.-15, Fla.Stat. (1979). The officers in this case had probable cause to believe that ap-pellee had committed a felony and, therefore, unless the entry into his home was unlawful, the arrest was valid.

Appellee contends that the entry into his house was unlawful because the officers did not first announce their purpose as required by our “knock and announce” law, section 901.19(1), Florida Statutes (1979). That subsection provides as follows:

If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

The question we must resolve is whether the statute requires that an officer announce his purpose before he may, with the consent of the homeowner, enter the premises. On its face, section 901.19 allows an officer to break into a building after he has announced his authority and purpose. We find nothing in the language of the statute, or in the case law interpreting it, to support the proposition that a police officer must announce his purpose when a suspect consents to the officer’s entry into his home.

On the premise that an individual’s home is his or her “castle,” the law has long recognized that a law enforcement officer may not break into a suspect’s house to effect an arrest without first announcing his authority and purpose. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Section 901.19 is a codification of the common law which recognized that fundamental protection. Benefield v. State, 160 So.2d 706 (Fla.1964). Notwithstanding ignorance of purpose, the privacy and sanctity of one’s home is preserved, as long as the suspect retains the choice of whether to allow a law enforcement officer to enter his house.

In the case at bar, appellee freely chose to admit the officers into his home. In Koptyra v. State, 172 So.2d 628 (Fla.2d DCA 1965), we recognized that section 901.-19 does not require an announcement of purpose when the arresting officer peacefully enters a building. See also King v. State, 371 So.2d 120 (Fla. 1st DCA 1978); Powers v. State, 271 So.2d 462 (Fla. 1st DCA 1973).

Accordingly, the order granting appel-lee’s motion to suppress is vacated and the case is remanded for further proceedings consistent with this opinion.

BOARDMAN, A. C. J., and OTT, J., concur.

      . Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), severely limited the constitutional application of section 901.19. In Payton, the court held that, absent exigent circumstances, the Fourth Amendment prohibits a police officer from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. In the case at bar, the suspect consented to the officer’s entry into his home and, therefore, Pay-ton’ s holding does not invalidate the appellee’s arrest.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Keith R. SHORETTE, Appellee.
    No. 80-2095.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Micheál A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellee.
   CAMPBELL, Judge.

The state appeals from the lower court’s dismissal of two counts of aggravated assault charged against appellee, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We affirm the dismissal.

In his motion to dismiss, appellee alleged that he was driving a car with two passengers, one of whom would testify that he had been drinking and was driving in excess of the speed limit. After failing to negotiate a curve in the road, appellee struck an oncoming automobile, injuring the two occupants of the other vehicle. Both victims would testify they were in fear that appel-lee’s car would collide with them, as they were unable to avoid the accident.

Additional facts were alleged in the state’s demurrer, and appellee agreed to stipulate to them. These facts showed that appellee admitted taking intoxicants, drove at high rates of speed, and after the collision occurred, appellee made no attempt to return to the scene of the accident. Appel-lee moved to dismiss the two aggravated assault counts arguing that the state had failed to establish a prima facie case of his guilt because the undisputed facts clearly demonstrated that the information did not charge defendant with the specific intent necessary to constitute the offense charged. The trial court entered an order granting the motion from which the state appeals.

The state argues that aggravated assault is a general intent crime and cities Dupree v. State, 310 So.2d 396, 399 (Fla.2d DCA 1975) (“[T]he element of general intent in aggravated assault may be satisfied by proof of wilful and reckless disregard of the safety of others.”). We note that the statute has been amended since that opinion and conviction of aggravated assault now requires proof of a specific intent to do violence to the person of another. §§ 784.-011, 784.021, Fla.Stat. (1979). See State v. White, 324 So.2d 630 (Fla.1975). See also J.C.M. v. State, 375 So.2d 873 (Fla.2d DCA 1979); Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979).

Generally, intent is not an issue to be decided on a (c)(4) motion to dismiss as it it usually inferred from the surrounding acts and circumstances. State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979). However, since appellee was charged with a specific intent crime and, as it was left as an undisputed fact that the state was relying upon a general intent, appellee therefore did not have the requisite intent to do violence to the accident victims and the trial court properly granted appellee’s motion to dismiss.

AFFIRMED.

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


author: McCORD, Judge.

text:
    Thomas David McGRAW, Appellant, v. STATE of Florida, Appellee.
    No. NN-438.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.

      Michael J. Minerva, Public Defender, and Harold Long, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

The decision of this Court reported at 387 So.2d 444 (Fla. 1st DCA 1980), was quashed and remanded by the Supreme Court of Florida in State v. McGraw, 401 So.2d 1325 (Fla.1981). The Supreme Court directed that we consider this appeal in light of Ensor v. State, 403 So.2d 349 (Fla.1981).

In Ensor, as here, the issue to be determined was whether an object observed from a “pre-intrusive open view” and believed by a trained police officer to be a weapon can also simultaneously be a “concealed weapon” prohibited under § 790.01, Florida Statutes (1977). There, two police officers stopped an automobile which was running at night with its headlights turned off. The officers looked into the vehicle with their flashlights for hidden passengers, weapons or other contraband in accordance with normal police procedure. As stated by the Supreme Court:

Peering through the front windshield, one officer spotted a portion of a white object protruding from under the left side of the passenger floormat. From squatting and looking into the already-opened passenger door, the officer determined the object to be a derringer pistol. At that point the officer entered the vehicle and retrieved the weapon.

Ensor was charged with carrying a concealed weapon in violation of § 790.01. The state contended that the weapon was in “plain view” and, therefore, properly seized; Ensor contended that if the pistol was in “plain view,” it could not be “concealed,” and the trial court granted Ensor’s motion for dismissal. The Fourth District Court of Appeal reversed, and the Supreme Court affirmed.

The facts of the case sub judice are similar. McGraw was stopped by an officer for driving in an erratic manner; two additional officers arrived at the scene and one of them looked in the window where on the front seat he saw a pistol partially covered by a wet suit. (A cigar box, which was later discovered to contain marijuana, was on top of the wet suit.) He called another officer over, and that officer testified that he, too, saw the pistol. That officer also testified that he did not see the pistol on two occasions when he had been on the driver’s side of the vehicle. Both officers testified they immediately recognized the object partially covered by the wet suit as a pistol. In resolving the question in our previous decision, we considered the holding of the Fourth District Court of Appeal in State v. Ensor, 375 So.2d 13 (Fla. 4th DCA 1979), but found the facts in the instant case distinguishable from those in Ensor. The basis for that distinction was that, here, the officers immediately recognized the object as a firearm, and thus it was not a concealed firearm, while in Ensor, the pistol was not readily discernible.

On the question of the circumstances under which a firearm or weapon is “concealed,” the Supreme Court points to the definition obtained in § 790.001(2), Florida Statutes (1977):

“Concealed firearm” means any firearm . . . when the same is carried on or about a person in such a manner as to conceal said firearm from the ordinary sight of another person.

The Supreme Court went on to say:

We agree with the majority view and find that absolute invisibility is not a necessary element to a finding of concealment under Section 790.001. The operative language of that section establishes a two-fold test. For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person. The term “on or about the person” means physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked. The term “ordinary sight of another person” means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible. . . .
These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon’s possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under 790.001.... In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case. ... We hold that appellant’s prosecution for possession of a concealed firearm was permissible and that the firearm was wrongfully suppressed. The jury should determine whether this weapon was concealed under these facts.

Considering the Supreme Court’s pronouncements in Ensor, we conclude that under the facts of the case sub judice, the question of whether or not the partially concealed firearm (which could be seen by a police officer looking through the window on the passenger’s side but was not seen through the window on the driver’s side) was a concealed firearm was a question of fact for the jury. Neither the trial court nor this Court could properly rule as a matter of law that it was not a concealed firearm. The trial court, therefore, did not err in denying McGraw’s motion to dismiss the charge or in denying his motion to suppress the firearm seized from his vehicle or to suppress the marijuana found in the cigar box after McGraw’s arrest. Having pled nolo contendere reserving the right to appeal the denial of his motions, appellant thereby rested his case on appeal on the validity of the trial court’s rulings on the motions. The trial court having ruled correctly, his convictions are affirmed.

In Ensor, the Supreme Court’s opinion elucidates the difference between “plain view” and “open view.” It would serve no useful purpose to repeat that analysis here. Suffice it to say, however, that the Supreme Court points out that the view of the officers in both Ensor and the case sub judice was “open view” as distinguished from “plain view.”

The trial court imposed an illegal sentence upon McGraw, however, when he sentenced him to three years’ probation for driving with a suspended driver’s license. The maximum period of incarceration for this offense is one year in jail. Section 322.34(1), Florida Statutes (1977); § 775.-082(4)(a), Florida Statutes (1977). The sentence of three years’ probation is illegal since periods of incarceration and probation cannot exceed the maximum allowable sentence for the offense charged. State v. Holmes, 360 So.2d 380 (Fla.1978). The sentence for driving with a suspended driver’s license is, therefore, vacated.

Reversed and remanded for the entry of an appropriate sentence for driving with a suspended driver’s license. The judgments and the remaining sentences are affirmed.

MILLS and BOOTH, JJ., concur.


text:
    Eugene J. PARKER, et al., Appellants, v. James W. WEISS, Appellee.
    No. 00-265.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    J. W. Harrell of Harrell & Perrine, Jacksonville, for appellants..
    Herman S. Paul of Lewis, Paul, Isaac & Castillo, Jacksonville, for appellee.
   PER CURIAM.

Appellants seek review of the trial court’s order requiring specific performance of a contract to convey realty. They assert the trial court erred because the contract lacked consideration and mutuality and because appellee refused to perform the terms of the contract.

During the early fall of 1977, appellants were experiencing financial difficulties and were faced with the possible foreclosure of their home. On September 28, 1977 appellants’ position notably worsened when the mortgage holder filed a foreclosure action. Weiss, a real estate broker subsequently approached appellants concerning the possibility of purchasing their home. On November 15, 1977, the parties entered a “Deposit Receipt & Purchase and Sale Agreement” providing for the sale of the home for $21,000 and for receipt of a $500 note which the purchaser, Weiss, retained as “agent.” A judgment of foreclosure was entered on November 23, 1977 which provided the home would be sold by the clerk of the court on December 15, 1977 unless the Parkers paid the mortgage before that time. Although the contract included a provision for assumption of the outstanding mortgage, the mortgagee refused to permit Weiss to assume it. Nevertheless, Weiss was able to make other arrangements to pay off the mortgage. Appellants, however, were also able to secure sufficient financial backing to satisfy the foreclosure judgment. Although Weiss’s attorney notified appellants of several different closing dates, neither appellants nor their attorney appeared. Weiss then filed this action for specific performance which resulted in a final judgment rendered against appellants requiring them to specifically perform the contract conveying the realty. Appellants appeal this judgment.

Appellants are correct in asserting a contract for the sale of realty, like other contracts, must be supported by consideration. In this case, the purchaser’s promise to pay in exchange for the vendors’ execu-tory agreement was sufficient to form a binding contract. Harper v. Bronson, 104 Fla. 75, 139 So. 203 (1932). Therefore, we need not reach the issue of whether the note retained by Weiss constitutes sufficient consideration. There must also be mutuality of obligation and remedy before specific performance is an appropriate form of relief. Con-Dev of Vero Beach, Inc. v. Casano, 272 So.2d 203 (Fla. 4th DCA 1973). This contract evinces mutual covenants sufficient to sustain this requirement. Although appellants assert Weiss refused to perform the terms of the contract, Weiss testified he attempted to close the sale on three occasions and that he was prepared to pay off the mortgage. This is sufficient record evidence to affirm the trial court’s finding that Weiss was prepared at all times to purchase the property. Accordingly, appellants have failed to demonstrate reversible error. The final judgment is, therefore, AFFIRMED.

McCORD, MILLS and THOMPSON, JJ., concur.