author: PER CURIAM. PER CURIAM. ANSTEAD, Judge,

text:
    NATIONAL BEN FRANKLIN LIFE INSURANCE CORPORATION, a foreign corporation, Appellant, v. Gail COHEN, as Personal Representative of the Estate of Albert E. Cohen, deceased, Appellee.
    Nos. 79-2487, 80-543 and 80-544.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Rehearing Denied June 16, 1982.

      R. Fred Lewis of Magill, Reid, Kuvin, Klingensmith & Lewis, P. A., Miami, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy and Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

After careful review of the record in this cause, we have concluded that the summary final judgment entered on behalf of the plaintiff/appellee must be reversed. The plaintiff failed to nullify all of the defendant’s affirmative defenses and, consequently, it was error to grant summary judgment. In Bunner v. Florida Coast Bank, 390 So.2d 126, 127 (Fla. 4th DCA 1980), we recapitulated the general rule that “to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” Here, defendant asserted affirmative defenses in which it alleged that the insurance policy was fraudulently secured and that upon discovery of the fraud it properly cancelled the contract and notified the insured. Further, defendant affirmatively alleged that the plaintiff colluded with two of defendant’s agents to obtain insurance through a fraudulent scheme. In our view, plaintiff failed to negate these defenses. Thus, the order granting summary final judgment and a subsequent final judgment which awarded attorney’s fees must be reversed.

Since the cause must be remanded for additional proceedings, we believe that the interests of justice will be best served by allowing the parties to amend their pleadings. Appellant/defendant has argued that the plaintiff’s failure to pay cash for the insurance policy as required by Section 627.4035, Florida Statutes (1979), constitutes an absolute bar to recovery. Although this contention may be implicit in the pleadings as they are presently drawn, it ought to- be asserted expressly as an affirmative defense if the defendant intends to continue to rely upon it. This, in turn, would permit the plaintiff to file an appropriate responsive pleading and, thus, properly frame the issues.

Accordingly, the final summary judgment and the final judgment on attorney’s fees are reversed and the cause is remanded for further proceedings consistent with this opinion.

ANSTEAD and HURLEY, JJ., and WARREN, LAMAR, Associate Judges, concur.

ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is denied.

HURLEY, J., and WARREN, LAMAR, Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree with the majority that the petition for rehearing should be denied but add these brief remarks with the hope of resolving the parties’ apparent misunderstanding of our holding and avoiding the same problems on remand.

In defense of the claim on one of its life insurance contracts, the insurance company alleged that the policy was fraudulently secured and that upon the discovery of the fraud it properly cancelled the contract and the insured in essence agreed to the cancellation. There is evidence in the record to support these allegations and the existence of this evidence precludes the disposition of this case by summary judgment. For instance, the company asserts that it specifically advised the agents involved that it would not participate in any bartering arrangements for the payment of premiums and that it was not aware of the circumstances under which this policy was issued. There is also evidence that the insured falsely advised the company that he had paid the full first year premium by check; that he had not actually provided any. consideration to the agent for the payment of the first year premium; and that he had acquiesced in the cancellation of the policy. The appellee disputes the allegations of fraud and points to evidence in the record indicating that the company was aware of and consented to a bartering arrangement by which the premiums were paid and that the entire transaction was legitimate. There is an issue of fact on the fraud defense.

In addition, on appeal, the insurance company has asserted that Section 627.4035, Florida Statutes (1979) bars any recovery under the policy. However, there is no indication in the record that this alleged statutory bar was pleaded below or that the appellee had an opportunity to reply to this defense. We have made no ruling on this issue other than to indicate that upon remand it should be addressed in amended pleadings.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Adrian L. LEONARD, Appellant, v. Dortha A. LEONARD, Appellee.
    No. 81-808.
    District Court of Appeal of Florida, Second District.
    April 23, 1982.
    As Corrected on Denial of Rehearings June 2, 1982.

      Walter W. Manley, II, Lakeland, and Gerald W. Medeiros, Lakeland, for appellant.
    Ernest S. Marshall, Bradenton, for appel-lee.
   GRIMES, Judge.

The final judgment of dissolution in this case awarded the wife permanent periodic alimony of $250 a month and lump sum alimony in the husband’s one-half interest in the parties’ Florida residence. It also awarded the husband lump sum alimony in the wife’s one-half interest in the parties’ Canadian real estate and made other dispositions which are not important here. The husband contends that the court abused its discretion in awarding the wife permanent periodic alimony. The wife cross-appeals on several grounds, including the claim that the court erred in awarding to the husband her interest in the Canadian property.

We must reverse the award of the interest in the Canadian property to the husband as lump sum alimony because his answer and counterpetition contained neither an allegation upon which an award of alimony could be made nor any prayer for alimony. Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981). Under these circumstances we would ordinarily reverse and remand the entire judgment for further proceedings because in a judgment of dissolution the various awards to the parties are usually interrelated. E.g. Powers v. Powers, 409 So.2d 177 (Fla. 2d DCA 1982). However, since the award of periodic alimony to the wife is so clearly justified in this case, we will not disturb that portion of the judgment. Yet we do feel that because we must reverse the award of the wife’s interest in the Canadian property, we must also reverse the award to the wife of the husband’s interest in the Florida property. We cannot say that the judge would have awarded one had he not awarded the other.

From a study of the record it is obvious that the court reached a well informed decision which was in the interests of both parties. The wife needs a home in Florida in which to live, and under the circumstances it was fair to award the husband the entire interest in the Canadian property. Despite this fact, the parties chose to bring their grievances to this court, and we are obligated to follow established legal principles. We are thus constrained to point out that in a dissolution proceeding a trial court is not authorized to make an “equitable division” of the parties’ property absent one of the vehicles legally recognized in marital disputes such as lump sum alimony or special equity. Powers v. Powers; Sangas v. Sangas, 407 So.2d 630 (Fla. 4th DCA 1981).

We reverse the lump sum alimony awards of the Canadian property and the parties’ residence but affirm the balance of the judgment. We remand the case for further proceedings consistent with this opinion.

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


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    DUVAL COUNTY SCHOOL BOARD, and Gallagher Bassett Insurance Service, Employer and Carrier, Appellants/Cross-Appellees, v. Robert C. RUPP, Claimant, Appellee/Cross-Appellant.
    No. AJ-302.
    District Court of Appeal of Florida, First District.
    April 26, 1982.
    Rehearing Denied June 9, 1982.
    Dawson A. McQuaig, Gen. Counsel, and Thomas E. Crowder, Asst. Counsel, Jacksonville, for employer and carrier, appellants/cross-appellees.
    John D. Rawls, Jacksonville, for claimant, appellee/cross-appellant.
   ON MOTION TO DISMISS

ROBERT P. SMITH, Jr., Chief Judge.

In support of his motion to dismiss this appeal by the employer and carrier, Rupp urges that the appeal was untimely in that the notice of appeal was not filed within 30 days after rendition of the principal order of which review is sought, though it was filed within 30 days after the deputy later amended the order to remedy an omission of findings supporting an award of attorney’s fees.

Conceding the applicability of the rule that amending a prior compensation order “in an immaterial way” does not begin again the time for appeal, St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971), we apply that rule with liberality. We do that not necessarily to encourage the appeals that may thereby be saved but to encourage the deputy and parties, within the 30-day period before a compensation order becomes final, to correct remediable errors that might otherwise inspire needless appeals. Section 440.25(4)(a), Florida Statutes (1981); Suarez v. American Building Maintenance, et al., 412 So.2d 32 (Fla. 1st DCA 1982); Genuine Parts Co. v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Giliyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

The amendment to the compensation order adding a paragraph finding bad faith as a predicate for the antecedent attorney’s fee award was a substantial amendment. The time for appeal began again when the amended order was rendered, the appeal was timely, and appellant’s motion to dismiss, which is not otherwise meritorious, is DENIED.

McCORD and BOOTH, JJ., concur.


author: PER CURIAM.

text:
    Elvis HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2213.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 18, 1982.
    Bennett H. Brummer, Public Defender and Sharon B. Jacobs and Judith A. Bass, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Prosecutorial misconduct deprived appellant of his fundamental right to a fair trial, requiring that we set aside his conviction on two counts of robbery and a separate count of possession of a firearm and grant appellant a new trial on all counts.

Count I charged appellant with robbery with a firearm, committed on May 14, 1980. Count II charged him with possession of a firearm while engaged in a criminal offense on the same date. Count III charged him with robbery with a firearm, committed on May 20, 1980. Both robberies occurred at the South Miami Dry Cleaners and Laundromat and involved the same victim. The prosecutor, in his opening statement to the jury, said, “Keep in mind the fact that between the days of the 14th and the 20th there was the 17th of May when the riots began here in Miami.” Defense counsel’s objection was sustained, his motion for mistrial was denied, and the court instructed the jury to disregard the statement.

Appellant was identified by the victim as having participated in both robberies. The state offered no other identification testimony. Appellant testified, denying that he had been in the laundromat on either date. Against this conflicting testimony as to identity of the robber, the respective credibility of which we do not attempt to weigh, the prosecutor in closing argument to the jury (1) expressed thanks to the jury on behalf of the victim, (2) referred to crime on the rampage in the community, (3) referred to the victim’s tearful breakdown on the witness stand and implied that such was due to tactics of defense counsel, and (4) expressed his personal belief in the guilt of appellant as to both robberies. Defendant’s several motions for mistrial and his post-trial motion for new trial were severally denied.

It is the responsibility of the prosecutor to seek justice, not merely to convict. That responsibility will be more nearly met when the jury is permitted to reach a verdict on the merits without counsel indulging in appeals to sympathy, bias, passion or prejudice. Prosecutors should give careful heed to the admonitions and restraints set forth in the numerous time-honored cases cited and discussed by Mr. Justice Drew in Grant v. State, 194 So.2d 612 (Fla.1967), some of which are also cited and discussed by Judge Mann in Chavez v. State, 215 So.2d 750 (Fla. 2d DCA 1968).

In line with numerous decisions of the appellate courts of this state, we conclude that the prosecutor’s remarks in this case were so prejudicial to the rights of the appellant as to deprive him of his fundamental right to a fair trial, necessitating the reversal of his conviction for a new trial on all counts.

Prior to commencement of the trial, appellant moved to sever Counts I and II, relating to the robbery on May 14, from Count III, relating to the robbery on May 20. Appellant contends that the court order denying that motion was error, citing in support of his position Paul v. State, 385 So.2d 1371 (Fla.1980) which adopted the dissenting opinion of Judge Robert Smith in Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979). There is merit to this argument. Rule 3.152(a), Florida Rules of Criminal Procedure, mandates a severance upon a defendant’s timely motion when two or more offenses are improperly charged in a single indictment or information. Rule 3.150(a), Florida Rules of Criminal Procedure, provides that two or more offenses may be charged in the same indictment or information when “based on the same act or transaction or on two or more connected acts or transactions.” The two robberies were separate acts, and in spite of the close similarity of the modus operandi employed in connection with each, the two were not “connected acts” in the episodic sense. Paul v. State, supra. Since the two offenses were improperly charged in a single information, it was error to deny the appellant’s timely motion for a severance.

Notwithstanding the mandatory nature of the rule, the error is not reversible per se, but is reversible only if it results in a miscarriage of justice or has injuriously affected the substantial rights of the defendant. We conclude that the unique circumstance of this case — the single victim being the only state witness to identify appellant as being a participant in either of the robberies — renders the error harmless.

The purpose of requiring a severance was cogently stated by Judge Robert Smith in Paul v. State, supra, 365 So.2d at 1066:

But the more important purpose of requiring separate trials on unconnected charges is to assure that evidence adduced on one charge will not be misused to dispel doubts on the other, and so effect a mutual contamination of the jury’s consideration of each distinct charge. When as here the accuracy of an identification witness is critical in each unconnected case, their identifications will be regarded as mutually supportive although they are not mutually corroborative in law or in fact. The support that each identification lends to the other enables the prosecution to try the accused on a theory of cumulative guilt.

Here, the possibility of effecting an improper “mutual contamination” was not present. Had appellant been separately charged with and tried for each of the two robberies, the victim’s testimony as to appellant’s participation in both would be admissible at the trial of either, not to prove his guilt of the crime charged by evidence of his having committed a separate crime, but as tending to prove that the victim was clearly able to identify the defendant partly because of exposure to his similar memorable conduct on another occasion. See, Williams v. State, 110 So.2d 654 (Fla.1959); People v. DuPree, 69 Ill.App.3d 260, 25 Ill.Dec. 735, 387 N.E.2d 391 (1979) (two robberies of same victim at restaurant five days apart); Choctaw v. State, 387 N.E.2d 1305 (Ind.1979); State v. Crosby, 564 S.W.2d 357 (Mo.App.1978).

The judgments and sentences are severally reversed and this cause remanded for a new trial on all counts.

      . See, e.g., Grant v. State, 194 So.2d 612 (Fla.1967); Goddard v. State, 143 Fla. 28, 196 So. 596, 600 (1940); Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979); Porter v. State, 347 So.2d 449 (Fla. 3d DCA 1977); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975); Brown v. State, 284 So.2d 453 (Fla. 3d DCA 1973); Price v. State, 267 So.2d 39 (Fla. 4th DCA 1972); Chavez v. State, 215 So.2d 750 (Fla. 2d DCA 1968); Davis v. State, 214 So.2d 41 (Fla. 3d DCA 1968).

      . §§ 59.041 and 924.33, Fla.Stat. (1981).


author: NESBITT, Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION; Mireya Lopez and Allstate Insurance Company, Appellants, v. Orlando VEGA, a minor, Mercedes Vega, a minor, and Consuelo Vega, a minor, by and through their natural parents and next friends, Pilar Vega and Orlando Vega, and Pilar Vega and Orlando Vega, individually, Appellees.
    Nos. 81-821, 81-1353 and 81-1355.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 18, 1982.

      Vernis, Bowling, West, Montalto & Goodman and Richard N. Blank, Fort Lauder-dale, McCormick, Bedford, & Backmeyer and Thomas E. Backmeyer, Miami, for appellants.
    Barranco & Kellough, P. A., and Steven Kellough, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

A vehicle operated by Mireya Lopez went out of control on an expressway, jumped the curb which formed the perimeter of the roadway and went down an embankment into plaintiffs Vegas’ back porch, pinning Mrs. Vega under the wreckage. Mrs. Vega, joined by her husband for his derivative claim, brought a personal injury action against the Department of Transportation (DOT), for failure to install a guardrail; and Mrs. Lopez, for negligent operation of her vehicle. The jury returned a joint and several verdict against the defendants in favor of Mrs. Vega for $240,000 and in favor of Mr. Vega for $10,000. DOT appeals the final judgment on the basis of sovereign immunity. Mrs. Lopez appeals the cost judgment entered against her. Mr. Vega cross-appeals the judgment in his favor as inadequate.

DOT correctly contends that it was immune from liability for the injuries to the Vegas. The Department’s decision as to whether to erect a guardrail as a barrier on the expressway was a planning level decision as that term is defined in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). The plans and designs for the expressway did not include the installation of a guardrail to either insulate or act as a barrier between the highway and the adjacent property. We have recognized that the placement or nonplacement of traffic control signals and pedestrian control signals is a discretionary planning level function unless mandated by a particular statute. A. L. Lewis Elementary School v. Metropolitan Dade County, 376 So.2d 32 (Fla. 3d DCA 1979). More recently, the Fourth District, in Payne v. Palm Beach County, 395 So.2d 1267, 1268 (Fla. 4th DCA 1981), held that “[wjhether to extend a road or build a guard rail are classic examples of the type of planning level policy decisions which remain in the protected sphere of sovereign immunity.” Consequently, since DOT enjoyed sovereign immunity in its decision not to erect a guardrail, we reverse the final judgment entered against it in favor of both Mr. and Mrs. Vega.

As to Mrs. Lopez’ claim that the cost judgment has made her jointly and severally liable for all costs including those resulting from the plaintiff’s claim against the Department of Transportation, we reverse. Because we have determined that there is no liability against DOT, the cost judgment against the Department must also be reversed. See Goldstein v. Acme Concrete Corporation, 103 So.2d 202, 205 (Fla.1958). In Food Fair Properties, Inc. v. Snellgrove, 292 So.2d 66 (Fla. 3d DCA 1974), we recognized the injustice of allowing a plaintiff to obtain a cost judgment against the single losing defendant where those costs included prosecution of a successful joint defendant. Accordingly, Mrs. Lopez may not be taxed for the costs attributable to the successful defendant, DOT. See Food Fair Properties, Inc. v. Snellgrove, supra. For this reason, the cost judgment, now extant only with respect to Mrs. Lopez, is reversed and remanded for deletion of those costs attributable solely to the Department of Transportation.

As to Mr. Vega’s cross-appeal, which claimed that the judgment in his favor (now remaining only against Mrs. Lopez) was inadequate because it totalled less than one-fourth of the medical expenses incurred as a result of his wife’s injuries, we affirm. While it is true that the jury was instructed that the husband was entitled to medical expenses incurred on behalf of his wife, it is equally true that both Mr. and Mrs. Vega introduced medical expenses and separately and individually claimed the right to recover for those expenditures. As a result, we must assume that the jury awarded these expenses to the wife as part of the $240,000 judgment entered on her behalf.

For the foregoing reasons, the judgments in favor of Mr. and Mrs. Vega against the Department of Transportation are reversed. The cost judgment against Mrs. Lopez is reversed and remanded with directions. In all other respects, the judgments appealed from are affirmed.


author: JORGENSON, Judge.

text:
    Alfred R. GRASS and Vera Grass, Appellants, v. GREAT AMERICAN BANK OF NORTH MIAMI BEACH, Appellee.
    No. 81-1823.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 17, 1982.
    Harold A. Turtletaub, Miami, for appellants.
    Ullman & Ullman and Michael W. Ull-man, North Miami Beach, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

Alfred Grass and his mother, Vera, appeal from a final judgment which voids a transfer from Alfred Grass to his mother of his 50% undivided interest in a residential property which he and his mother had previously owned as joint tenants and allows Great American Bank to levy upon the property. We reverse upon a holding that the property in question was homestead and, therefore, not subject to execution. Fla.Const. art. 10, § 4(a).

The property in question was purchased in early 1976 by Alfred Grass from funds supplied by his mother, but titled in his name alone. In September, 1976, Alfred Grass reconveyed the property to himself and his mother, creating a joint tenancy. Thereafter, an application for homestead exemption was made for each succeeding year. In November, 1977, Alfred Grass signed an unlimited guarantee in favor of Great American Bank, securing certain obligations of Grayson Electronics. The guarantee application did not reflect the joint tenancy or Mrs. Grass’s presence in Florida. She was, however, scheduled elsewhere in the guarantee application as a dependent. The unlimited guarantee contains no language limiting the guarantor’s ability to dispose of any scheduled asset. In March, 1979, and prior to default on the guarantee, Alfred Grass, by quit-claim deed, conveyed his undivided one-half interest in the real estate to his mother. Great American Bank obtained a final judgment in its favor against Alfred Grass in May, 1980. Supplementary proceedings followed thereafter, resulting in the order under review.

The trial court found that there was a material reliance on the part of Great American Bank with regard to the financial data supplied by Mr. Grass. It further found that the financial statement was false at the time it was prepared, or in error. (Emphasis added). There being no conclusive showing that the creation of the ■homestead was a fraud upon Great American Bank, the order under review must be reversed.

It is not material that the property was held out as a possible asset at the same time homestead was being perfected. Heddon v. Jones, 115 Fla. 19, 154 So. 891 (Fla.1934). Nor does there appear sufficient evidence to establish fraud or reprehensible conduct. Clutter Construction Corporation v. Clutter, 173 So.2d 761 (Fla. 3d DCA 1965). This is particularly true where the trial court did not conclusively find the financial data to be false, but could have been merely an error. Alfred Grass’s subsequent conveyance of his interest in the homestead cannot be fraud upon Great American Bank since the property was beyond the reach of Great American Bank due to its homestead character, which was clearly established prior to entry of any judgment against Mr. Grass. Heddon, supra; Volpitta v. Fields, 369 So.2d 367 (Fla. 4th DCA 1979), cert. denied, 379 So.2d 204 (Fla.1979).

For the reasons previously expressed, we reverse and remand to the trial court with directions to vacate the judgment under review. We find Great American Bank’s cross appeal to be without merit.

Reversed and remanded with directions.


text:
    Stephen M. DUCKWORTH, Appellant, v. Ingrid O. DUCKWORTH, Appellee.
    No. 81-2018.
    District Court of Appeal of Florida, Third District.
    April 27, 1982.
    Rehearing Denied June 14, 1982.

      A. J. Barranco, Jr. and Steven Kellough, Miami, for appellant.
    Levey & Cowan and Judy D. Shapiro, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

Acting on the advice of her New York attorney, Ingrid Duckworth ignored both Florida summons and a petition for dissolution of marriage served upon her at her place of employment in New York City. The attorney, who is also a member of the Florida Bar, apparently believed that the service of process was void because Ingrid had instituted her own dissolution action in the New York courts. The clerk entered a default in the Florida action. Ingrid had no notice of a subsequent hearing at which her husband, Stephen Duckworth, presented evidence concerning dissolution and custody of the couple’s two minor children. The trial court entered a default final judgment of dissolution awarding permanent custody of both children to Stephen.

After consulting other attorneys, Ingrid filed a sworn motion to set aside the dissolution, incorporating in the motion various meritorious defenses. The trial court granted this motion insofar as it pertained to child custody. The lone issue for our determination is whether the trial court erred in doing so.

It is apodictic that the granting of relief from default judgment lies within the sound discretion of the trial judge. Diners Club, Inc. v. Brachvogel, 395 So.2d 1156 (Fla.1981); Perrin v. Enos, 56 So.2d 920 (Fla.1952); Bay Products Corporation v. Winters, 341 So.2d 240 (Fla. 3rd DGA 1976). Default judgments are not favored and the trial court’s discretion should be liberally exercised and all reasonable doubt resolved in accordance with granting applications for relief so as to permit a determination of the controversy upon the merits. Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla. 3rd DCA 1979); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3rd DCA 1979). The principle of liberality places a heavier burden on the party seeking to reverse an order granting a motion to vacate default, than on a party seeking to reverse an order denying the motion. B. C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3rd DCA 1981); Ellis v. Ellis, 404 So.2d 774 (Fla. 2nd DCA 1981).

However, appellant correctly contends that an attorney’s mistaken view of the law does not amount to the excusable neglect requisite to vacating a default under Rule 1.540(b), Florida Rules of Civil Procedure. Gross v. Simanonok, 366 So.2d 47 (Fla. 2nd DCA), cert. denied, 376 So.2d 75 (Fla.1979); Kuykendall v. Kuykendall, 301 So.2d 466 (Fla. 1st DCA 1974). As a general rule, many jurisdictions impute such negligence to the client, thereby preventing the vacation of a default upon retention of different counsel.

Nonetheless, we are averse to visiting the sins of the attorney upon the client here, when to do so would severely affect the rights of innocent third parties; to wit: the minor children. Decisions awarding custody must be made in the best interests of the children involved; thus, the distinction between the instant cause and the cases cited by appellant in his brief. As was stated in Doane v. Doane, 279 So.2d 46 (Fla. 4th DCA 1973), “Bearing in mind that a determination of the child’s best interests is of special concern in cases of this type, it would seem that the testimony of the child’s natural mother would be of aid to the court, irrespective of the default judgment entered against her." 279 So.2d at 47. [emphasis supplied]

The Doane case is distinguishable though, and no Florida court has addressed a record analogous to the one confronting us. But in similar cases from a jurisdiction which normally imputes attorney negligence to the client, courts have refused to allow child custody to be determined by default in the face of motions to vacate filed by a natural parent. Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975); Cole v. Cole, 462 S.W.2d 172 (Mo.App.1970). We are in accord with the reasoning in these opinions.

The appellant has failed to meet his heavy burden of demonstrating that the trial court abused its discretion in vacating the portion of the default judgment awarding permanent child custody to Stephen Duckworth.

Affirmed.

      . E.g., Cockerham v. Zikratch, 127 Ariz. 230, 619 P.2d 739 (1980); Orange Empire National Bank v. Kirk, 66 Cal.Rptr. 240, 259 Cal.App.2d 347 (1968); Eastman Kodak Co. v. Guasti, 68 Ill.App.3d 484, 25 Ill.Dec. 20, 386 N.E.2d 291 (1979); Rose v. Rose, Ind.App., 390 N.E.2d 1056 (1979); Milinsky v. Schmidt, Ellis & Associates, Inc., 48 Mich.App. 192, 210 N.W.2d 367 (1973); Scarlett v. Bonagurio, 600 S.W.2d 673 (Mo.App.1980); Tahoe Village Realty v. De-Smet, 95 Nev. 131, 590 P.2d 1158 (1979); Howard v. Williams, 40 N.C.App. 575, 253 S.E.2d 571 (1979); Southern Bond Company v. Teel, 550 P.2d 571 (Okl.1976); King v. Brown, 103 R.I. 154, 235 A.2d 874 (1980); Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis.2d 498, 285 N.W.2d 720 (1979).


author: RYDER, Acting Chief Judge.

text:
    LAKE PLACID HOLDING COMPANY, Petitioner, v. Elissa Landi PAPARONE, Respondent.
    No. 81-2331.
    District Court of Appeal of Florida, Second District.
    April 28, 1982.
    Rehearing Denied June 2, 1982.

      Julian Clarkson of Holland & Knight, Tampa, for petitioner.
    Gerald F. Richman and William C. Hear-on of Floyd, Pearson, Stewart, Richman, Greer & Weil, P. A., Miami, for respondent.
   RYDER, Acting Chief Judge.

Petitioner, Lake Placid Holding Company (Lake Placid), seeks certiorari review of the trial court’s refusal to discharge a lis pen-dens filed by Elissa Paparone. We find that the lis pendens should have been discharged, and therefore reverse.

Respondent Paparone intervened in pending litigation between petitioner and parties who had agreed to purchase extensive land holdings; she also filed a crossclaim against petitioner. The crossclaim sought, alternatively, to establish an equitable lien against the property, to impose a constructive trust upon the property, to enjoin Lake Placid from disposing of the property, to set aside a settlement agreement between the original parties or to recover damages.

The basis for Paparone’s intervention and crossclaim was the substantial interest she claimed to have in the property transaction because she brought the purchasers and Lake Placid together for consummation of the sale. Her claim essentially rested upon a letter from her former husband, the president of Lake Placid, which set forth their agreement in regard to payment of a real estate commission to Paparone. Upon closing, she was to be paid $20,000.00 in cash, in addition to 50% of the profits received.

However, after Paparone was allowed to intervene by court order and agreement of counsel, Lake Placid entered into a settlement agreement which they kept secret from her; this agreement reconveyed the subject property to Lake Placid by a recorded deed. Six days later, the lawsuit pending between Lake Placid and the purchasers of the property was dismissed. Three claims remain pending below. Lake Placid seeks a declaratory judgment stating that no amounts are due Paparone from the agreement stated by letter. Paparone’s complaint in intervention and crossclaim allege her entitlement to an interest in the subject property, which had been transferred without her approval or knowledge. In order to further protect her rights and her purported 50% interest in the profits participation agreement, Paparone filed a notice of lis pendens. This lis pendens concerned the property which was originally sold and then reconveyed back to Lake Placid from the purchasers as the basis of their settlement.

In its motion to discharge the lis pendens, Lake Placid contended that (a) the action was not founded on a duly recorded instrument or mechanic’s lien, and (b) respondent was a registered real estate broker who was prevented from filing a lis pendens. The motion for discharge was denied after the trial court considered memoranda from both parties and oral argument. In its order, the trial court specifically found that the relief sought by Paparone was not in her capacity as a broker to collect a commission and that a ¡is pendens was proper because the relief sought by Paparone (regarding her claims to a vested interest in the subject property) might specifically affect the property in question. We disagree.

First, there is no written recorded instrument upon which Paparone’s claim is made. Instead, the claim of respondent is based upon a contract for a real estate broker’s fee and section 475.42(l)(j), Florida Statutes (1979), prohibits assertion of a lien on this basis. No matter what one chooses to call it, a rose is a rose is a rose — the 1975 agreement is nothing other than a contract for a real estate broker’s fee on which Pa-parone is now suing to collect.

Therefore, the pleadings filed by Paparone do not allege a direct and legally recognizable claim against the property encumbered by the lis pendens. DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925); Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla. 3d DCA), cert. denied, 374 So.2d 99 (Fla.1979). A cause of action for equitable relief such as a lis pendens does not arise simply because a promise to pay is subsequently broken. Hallmark Manufacturing, Inc. v. Lujack Construction Co., 372 So.2d 520 (Fla. 4th DCA 1979). A complaint which will not support a claim against the specific property at issue cannot provide a basis for tying it up by a filing of notice of lis pendens. Wiggins v. Dojcsan, 411 So.2d 894 (Fla. 2d DCA 1982) (Grimes, J., dissenting).

Since there is no justification for burdening the alienability of this property, the lower court should have discharged the ¡is pendens.

REVERSED and REMANDED for action consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ., concur.


author: SHARP, Judge.

text:
    Ramon Raman ABREO, Appellant, v. STATE of Florida, Appellee.
    No. 81-1221.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    Rehearing Denied June 3, 1982.
    James B. Gibson, Public Defender, and Leonard R. Ross, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Appellant’s conviction for manslaughter is supported by substantial, competent evidence and is affirmed. The weight to be afforded the evidence was properly an issue for the trier of fact. Tibbs v. State, 397 So.2d 1120 (Fla.1981).

AFFIRMED.

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

      . § 782.07, Fla.Stat. (1979).


text:
    MARGLAD MOTEL and Old Republic Insurance Company, Appellants/Cross-Appellees, v. Bessie THOMASON and Division of Workers’ Compensation, Appellees/Cross-Appellants.
    No. AF-238.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Rehearing Denied June 16, 1982.
    John F. McMath, P. A., Miami, for appellants/cross-appellees.
    David H. Levine of Ser, De Cardenas, Levine, Busch & Allen, P. A., Miami, for appellees/cross-appellants.
   PER CURIAM.

In her claim for compensation for an accident occurring on November 12, 1979, claimant sought an attorney’s fee. The deputy found the accident to be compensa-ble, awarded appropriate compensation, and reserved jurisdiction to award an attorney’s fee. We affirm the compensation order and conditionally grant the award of appellate attorney’s fee. The fee will be awarded depending upon the deputy commissioner’s finding of entitlement to a fee below. Acevedo v. Ampco Products Company, 407 So.2d 376 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.


text:
    Onelio DIAZ, Appellant, v. STATE of Florida, Appellee.
    No. AE-387.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Rehearing Denied June 10, 1982.
    Bill Salmon, Gainesville, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See State v. Barnabe I. Perera, et al., 412 So.2d 867 (Fla. 2d DCA 1982).

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: SHAW, Judge.

text:
    Erma MATTHEWS, Appellant, v. SUN BANK OF ST. LUCIE, and the Hartford Group, Appellees.
    No. AF-79.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Rehearing Denied June 16, 1982.

      Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant.
    Charles Desmond Crowley, Fort Lauder-dale, for appellees.
   SHAW, Judge.

Claimant, at the time of her employment, suffered from a pre-existing back disease that was susceptible to aggravation. In the course of employment, she injured or aggravated her back by lifting and tossing twenty-five pound bags of coins into a small safe beneath her teller’s window, from a kneeling position. The deputy found that this injury was noncompensable, because it could as well have occurred in her nonem-ployment life and was routine to her job. We disagree. We consider that the physical damage here did not arise solely out • of claimant’s idiopathic condition, but that the lifting and tossing of the twenty-five pound dead weight bags of coins contributed to the risk and aggravated the injury. Thus, there is a causal connection between the employment and an injury arising out of that employment. See Southern Bell Telephone & Telegraph Co. v. McCook, 355 So.2d 1166 (Fla.1977) and Market Food Distributors, Inc. v. Levenson, 383 So.2d 726 (Fla. 1st DCA 1980).

On cross appeal, the employer/carrier urges that there was no timely or specific notice of the claimed injury. We see no merit in this argument, since it is clear from the record that the employer was on timely notice of the injury and its relationship to claimant’s employment.

REVERSED and REMANDED for proceedings consistent with this opinion.

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


author: PER CURIAM. SHIVERS, Judge,

text:
    Roy L. MORRIS, Petitioner, v. Ralph W. NIMMONS, a Judge in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, and Dale Carson, Sheriff of Duval County, Florida, Respondent.
    No. AI-495.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Rehearing Denied June 22, 1982.

      Louis 0. Frost, Jr., Public Defender, and Raymond A. David, Jr., Asst. Public Defender, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Petitioner seeks review of the order of the trial court denying his motion for discharge under the speedy trial rule, Florida Rule of Criminal Procedure 3.191.

Petitioner is charged with escape from the Jacksonville Correctional Center. A ca-pias was issued in Duval County on March 23, 1981, and on April 3, 1981, petitioner was arrested in Nassau County. He was charged with resisting arrest and battery on a law enforcement officer and held in the Nassau County jail until the charges were disposed of by sentence on October 1, 1981. On October 6,1981, he was transferred to the Duval County jail.

On October 30, petitioner filed a motion for discharge pursuant to Rule 3.191(a)(1), Fla.R.Crim.P., alleging that he had not been brought to trial within 180 days from the date he had been taken into custody. The trial court denied the motion for discharge on the grounds that the speedy trial time did not commence to run until disposition of the Nassau County charges. The court relied on State ex rel. Avera v. Harper, 379 So.2d 1299 (Fla. 4 DCA 1980), finding that there was no material distinction between that case and the instant one. We agree with the trial court.

In State ex rel. Avera, the defendant was arrested in St. Lucie County and, “immediately subsequent” to his arrest, was informed of an outstanding Palm Beach County warrant. He was sentenced on the St. Lucie County charges and then transferred to Palm Beach County. The issue on appeal was whether the speedy trial time ran from the date of his arrest in St. Lucie County or from the date he was transferred to Palm Beach County. The court held that the time began to run from the date the defendant was transferred to Palm Beach County.

In the instant case, petitioner was being held in Nassau County on Nassau County charges. He was not in the custody of Duval County officials until the Nassau County charges were disposed of. Since there was no evidentiary hearing, we do not know exactly what the defendant was told when he was taken into custody on April 3, 1981. The state and defense stipulated in writing that the defendant “was arrested in Nassau County pursuant to the capias, and was charged with additional law violations stemming from the arrest.” However, it is not clear whether the defendant was actually arrested on the Duval County charges on April 3. The preposition “pursuant to” is defined as “in the course of carrying out: in conformance to or agreement with: according to ...” Webster’s Third New International Dictionary, Unabridged. At the hearing on the motion for discharge, the following colloquy occurred:

“[STATE]: ... • the State and Defense are stipulating that there was a capias issued by this Court on March the 3rd, (sic) which is in the file; that the defendant was arrested and taken into custody on April the 3rd; that the reason he was approached on April the 3rd was because of this capias issued from this court.
******
COURT: You are stipulating that the reason why the officer approached the defendant on April 3, 1981, was because of the attempt to take the defendant into custody by reason of the capias just referred to?
[STATE]: Yes, sir.”

The defense also so stipulated. Thus, it appears that when the defense and state stipulated that the defendant was arrested “pursuant to” the capias and charged with additional law violations, the stipulation only meant that the defendant was arrested “in the course of carrying out” the capias. The capias was filed with the Circuit Court in and for Duval County on October 7,1981. The return stated that the capias was executed on October 6, 1981.

The petitioner contends that the issue in this case is whether or not petitioner was in custody on the Duval charge or merely being “held” in Nassau County with a Duval County detainer on him. He also asserts that Singletary v. State, 322 So.2d 551 (Fla.1975), provides the answer. However, Sin-gletary does not address the situation before us. In Singletary, the Court held that when one is served with a summons to answer a criminal charge, it is the equivalent of an arrest for purposes of the speedy trial rule.

One served with a summons to answer a criminal charge is no less an accused charged with a crime than one formally placed under arrest by warrant. The anxiety and concern attendant on public accusation commence at that point.

However, in State v. Bassham, 352 So.2d 55 (Fla.1977), the Supreme Court held that a detainer placed by one county for a prisoner held by another county is not custody for purposes of the speedy trial rule. The Court cited with approval to State ex rel. Williams v. Eastmore, 297 So.2d 572 (Fla. 1 DCA 1974), wherein this Court held that a detainer was not the equivalent of an arrest because when a detainer is placed, the defendant is not “placed into custody as a result of his alleged criminal episode ...” on which the detainer is based.

In the instant case, we find that the petitioner was arrested and taken into custody in Nassau County as a result of his criminal actions in Nassau County; that he was held in the Nassau County jail as a result of the Nassau County charges; and that he could not be considered to be “arrested as a result of the conduct or criminal episode which gave rise to the crime charged” in Duval County, Rule 3.191(a)(4), Fla.R.Crim.P., until he was no longer in custody as a result of the conduct or criminal episode which gave rise to the Nassau County charges. Our interpretation of the rule under these circumstances is in accord with Grace v. State, 354 So.2d 444 (Fla. 1 DCA 1978), decided under the old rule, wherein this Court held that when a defendant is being held in one county on charges arising in that county, he is not available for trial in a different county within the same judicial circuit. We therefore find that the petitioner is not entitled to discharge and accordingly, this petition for writ of prohibition is DENIED.

BOOTH and JOANOS, JJ., concur.

SHIVERS, J., dissents with written opinion.

SHIVERS, Judge,

dissents with opinion.

I respectfully dissent. Even though there was not an evidentiary hearing, I believe that the stipulated facts are sufficient to show that the petitioner was arrested on the Duval County charges on April 3, 1981. The fact that he was also arrested on Nassau County charges does not alter the time limitations for bringing him to trial imposed by the speedy trial rule. Rule 3.191(a)(1) states that a person charged by indictment or information with a felony shall be brought to trial within 180 days from the date they are taken into custody. Subsection (a)(4) states:

For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged ....

I think there is a material distinction between this case and State ex rel. Aver a v. Harper, 379 So.2d 1299 (Fla.App.1980) because in this case the petitioner was arrested on the Duval charges as well as the Nassau charges and in Averra the defendant was arrested only on the 'St. Lucie County charges and merely informed of the outstanding Palm Beach County warrant. Numerous cases, including State v. Bassham, 352 So.2d 55 (Fla.1977) and State ex rel. Williams v. Eastmore, 297 So.2d 572 (Fla. 1 DCA 1974), cited by the majority, have held that a detainer is not an arrest; I do not think that we can treat an arrest as a detainer.

I would grant the petition.

      . The written stipulation does not give any date for this occurrence.

      . According to the Memorandum of Law filed by defendant in the trial court, defendant was sentenced to six months on the Nassau County charges, and the sentence was completed on October 2, 1981 — six months after petitioner’s arrest on April 3, 1981.

      . Although the capias was not executed until October 6, 1981, and petitioner was not transferred to Duval County until October 6, 1981, petitioner could be considered arrested on the Duval charges on October 3 since his sentence on the Nassau County charges was completed on October 2.


text:
    Todd Edwin HYDE, Petitioner, v. The Honorable W. L. BAILEY, as Judge of the Circuit Court of the Fourteenth Judicial Circuit, in and for Washington County, Florida, Respondent.
    No. AK-205.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Rehearing Denied June 18, 1982.

      Richard M. Powers, of Flynn & Powers, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for respondent.
   ROBERT P. SMITH, Jr., Chief Judge.

Hyde’s petition for writ of prohibition urges that more than 180 days have elapsed since his arrest and that the trial court no longer has power to try him on an information charging possession of more than 20 grams of marijuana, a third degree felony. We disagree. Hyde previously was charged with the same offense by an earlier information, on which trial was prevented by Hyde’s nolo contendere plea, reserving the right to appeal an issue on which he subsequently prevailed in this Court. Hyde v. State, 405 So.2d 445 (Fla. 1st DCA 1981). The charge on which Hyde is now to be tried is the same as that previously charged and is made by a new information filed after the State’s abortive effort, properly prevented by the trial court, to proceed under an information increasing the charge to a first degree felony. Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971).

Hyde’s nolo contendere plea prevented his timely trial upon the information first filed, and his successful appeal secured to him the right to withdraw that plea and go to trial on a plea of not guilty. As Hyde was not “to be tried again,” Rule 3.191(g) is inapplicable. Cf. Weed v. State, 411 So.2d 863 (Fla.1982). None of the certain time limitations expressed in the Rule applies to Hyde’s case, and he is now to be tried within a reasonable time as determined by constitutional standards. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). He has shown no prejudice, nor any unreasonable delay, and his petition for writ of prohibition is accordingly

DENIED.

McCORD and BOOTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    MECCA FARMS, INC., and Hartford Ins. Co., Appellants, v. Efren ESPINO and Rodriguez Enterprises, Inc., Appellees.
    No. AE-402.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Rehearing Denied June 10, 1982.

      Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, Charles Desmond Crowley, Fort Lauderdale, for appellants.
    Donald F. Harrington, Miami, for appel-lees.
   WENTWORTH, Judge.

The employer/carrier appeal an order of the deputy commissioner finding the claimant’s accident compensable, based on the “bunk-house rule.” We affirm.

Claimant was a migrant worker, working for appellant/Mecca Farms, when he was shot by co-residents of the migrant camp where he was living. The incident occurred at approximately 3:40 a. m. when claimant discovered two men attempting to steal his food. Claimant and his assailants were all residents of a migrant camp in which Mecca’s employee, Benito Rodriguez, leased houses. Rodriguez rented some of the leased buildings to third parties, but for laborers like claimant, who worked for Mecca, the housing was provided rent free. Rodriguez was employed by Mecca Farms to manage and supervise the migrant workers at the farm. The deputy found that the housing was furnished to claimant for the benefit of Mecca and the injury was therefore compensable under the bunk-house rule.

That doctrine permits workers’ compensation for an accident which would not normally be compensable because it occurred outside the ordinary course and scope of employment. The rule is applicable when the employment contract contemplates that the employee sleep on premises provided by the employer. Wilson Cypress Co. v. Miller, 157 Fla. 459, 26 So.2d 441 (1946). Such premises need not be the only available housing, and their use need not be contractually required if the employer contemplated the employee’s use of the housing. Id.

In this case, we find no serious question as to the employer’s expectation that claimant would reside in the premises provided. In Carr v. United States Sugar Corporation, 136 So.2d 638 (Fla.1962), the Court noted with approval the following:

The claimant belongs to a class of agricultural labor that has developed in the last twenty years. Migrating workmen or migrants as they are called, are now an important and necessary adjunct to modern agriculture’s labor pool. As the word implies, they move habitually from one region or climate to another following the work of picking and harvesting potatoes, other vegetables, fruit and grain, sometimes on a contract job basis, other times on an hourly or quantity basis. As they are migratory workmen they do not establish residences so that their housing, and in many cases their supply of food, is a part of their employment. This is an advantage to the employer because, in most cases, the work being done must be completed as soon as possible as the products dealt with are of a perishable nature. Providing housing, therefore, is an assurance that the workers are readily available at any time within a short distance from the work area.

Id. at 641 (quoting Dupree v. Barney, 193 Pa.Super. 331, 163 A.2d 901 (1960)).

As noted in the quoted passage, the employer clearly benefits from having such workers together and readily available. If an employer chooses to pay one employee to make these arrangements, that circumstance does not alter the fact that the contract of employment between it and the worker contemplated that housing would be furnished.

A second requirement for applying the bunk-house rule is that the source of injury should be a risk distinctly associated with the conditions under which the claimant lived. Carr, supra. The deputy commissioner found in this case that the particular conditions of the migrant camp created the source of the injury. This finding is supported by competent substantial evidence. The order notes:

Accordingly, I find that the accident arose out of the employment in that it had its origin in the placing of several employees of Mecca Farms, Inc., in close proximity in their living quarters, which placement exposed the claimant to the type of food-stealing incident by co-employees that apparently did occur here.

Finally, appellants contest the amount of claimant’s average weekly wage. Although the evidence is ambiguous, it is competent to support the deputy’s finding.

AFFIRMED.

ERVIN and SHIVERS, JJ., concur.


author: ERVIN, Judge.

text:
    Cedric SPEIGHTS, Appellant, v. STATE of Florida, Appellee.
    No. AF-64.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Rehearing Denied June 10, 1982.

      Michael E. Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Harry M. Hipler, Asst. Atty. Gen., Jacksonville, for appellee.
   ERVIN, Judge.

In affirming the appellant/defendant’s conviction, explication of Sections 590.08 and 590.15, Florida Statutes (1979), is required by determining whether the crime of unlawfully burning wild lands includes, as an element, proof that the defendant burned lands that he did not own or control. We determine that the issue of ownership or control of the lands burned is not an element of the crime but is an affirmative defense.

Defendant and appellant Cedric Speights was observed setting a field on fire one evening at the old Imerson Airport in Jacksonville. An eyewitness to Speights’ efforts at torching the field summoned firemen. Subsequently, the police arrested Speights, and he was charged with violation of Section 590.08, which makes it unlawful to burn any forest or wild lands not owned or controlled by the person burning the land.

The appellant was positively identified at trial as the one who had torched the field. At the close of the state’s ease, the appellant’s counsel moved for a judgment of acquittal based on the fact that the state had not proven all elements of the crime, more specifically that appellant did not own or control the land burned. The lower court relied on the state’s argument in denying appellant’s motion. The state cited Section 590.15, which assigns the burden of proof of showing the right or authority of a person to burn particular property to the defendant as an affirmative defense.

The presentation of the parties’ respective cases having been completed, over defense counsel’s objection, the jury was instructed that the issue of ownership or control by the defendant of the land burned was one for the defendant to prove and that the state need not prove that the defendant did not own or control the property burned. Thereafter, the jury returned a guilty verdict.

On appeal Speights argues: (1) that the state did not prove an element of the crime requiring it to show that Speights did not own or control the land burned, and, (2) that the jury was improperly charged. The appellant contends that the lower court’s failure to rule that the state was required to prove that he did not own or control the property acted to form a mandatory presumption that Speights did not in fact own or control the property. And, it is argued, such a mandatory presumption results in an unconstitutional shifting of the burden of proof from the state to defendant in violation of Speights’ Fourteenth Amendment United States Constitutional due process rights. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

The key question presented is whether proof of lack of ownership or control of the land burned is an element of the crime. If it is, then, the appellant’s argument concerning a shifting of the burden of proof is merit worthy. However, our analysis reveals that this factor is not an element of the crime but an affirmative defense which a defendant may plead when he has been charged with a violation of Section 590.08, Florida Statutes. Although the foregoing section suggests that proof of lack of ownership or control of the land may be an element of the crime, Section 590.15, Florida Statutes, indicates that this factor is an affirmative defense. There is an apparent conflict between the two statutes. Application of the rules of statutory construction is necessary to ferret out the answer.

“It is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute.” State v. Webb, 398 So.2d 820, 824 (Fla.1981). One method to ascertain the legislative intent is by tracing the legislative history of an act, the evil to be corrected, and the purpose of an enactment. State ex rel. Register v. Safer, 368 So.2d 620, 624 (Fla. 1st DCA 1979). “In seeking legislative intent by tracing history of legislation, it is proper to consider acts passed at prior or subsequent sessions including those repealed, as well as those passed at the same session.” Watson v. Holland, 155 Fla. 342, 20 So.2d 388, 393 (1944), cert. denied, 325 U.S. 839, 65 S.Ct. 1408, 89 L.Ed. 1965 (1945).

Examination of the history of this crime reveals that the crime was codified in three different forms; although the basic evil to be corrected and intent behind the law appear unchanged. The original law was codified in Chapter 2527, Laws of Florida (1879), and punished anyone who set fire to open and wild lands. No exception was made for eases wherein the owner of land burned his own property. The obvious intent of the law was to deter and punish any burning of wild property.

By 1927 legislators recognized the need to except the land owner or his lessee from the statutory proscription. See Ch. 12024, § 1, Laws of Fla. (1927). Further reform of the provisions of this crime occurred in 1935 by virtue of an overhaul of numerous sections of the law that now form the bulk of Chapter 590, Florida Statutes. See Ch. 17029, Laws of Fla. (1935).

Although the 1935 revision added numerous provisions to the law regarding forest protection, they are not applicable to the case at bar. The primary thrust of the law, as it impinges on the appellant’s plight, was to clarify the operative provisions of the crime of burning wild lands. This may be observed from the timing and circumstances of the enactment in that they were formal only and acted as a vehicle for clarification of the existing policy. Williams v. Hartford Accident and Indemnity co., 382 So.2d 1216, 1220 (Fla.1980). The basic purpose of the law remains unchanged from the original 1879 statute: the burning of wild lands is a criminal offense.

Two factors, including the title and the operative provisions of Chapter 17029, Laws of Florida (1935), convince us that the 1935 clarification serves only to reform the operative provisions of the statute making the burning of wild lands a crime without regard to the issue of ownership. The title to the act refers only to making “it Unlawful to Burn, or Cause to be Burned or set Fire to or cause to be set Fire to, any Forest, Grass, Woods, Wild Lands or Marshes .... ” It makes no reference to the issue of ownership or control of the land. Although not a part of the statute, the title is, nonetheless, a valuable aid in sifting out the legislative intent behind its enactment. Cook v. Blazer Financial Services, 332 So.2d 677, 679 (Fla. 1st DCA 1976); see also Webb, supra, at 824.

Our view is further buttressed by the operative provisions included in the enactment. Chapter 17029, Section 8, Law's of Florida (1935), is the provision that comprises the present Section 590.08, Florida Statutes (the crime), while Section 13 of the 1935 enactment comprises the present Section 590.15, Florida Statutes (the affirmative defense).

The fact that both provisions in their present form have their origin in the same enactment requires us to read them in pari materia and to harmonize them both. Ivester v. State, 398 So.2d 926, 930 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 470 (Fla.1982). By finding that proof of the lack of ownership or control of the property is an element of the crime, we would in effect be disregarding the provisions of Section 590.15, placing on defendant the burden of establishing the ownership or control of the property he burns. This would render that section meaningless, thereby yielding an absurd result. Courts are to avoid an interpretation of a statute that would produce an absurd or unreasonable result. Wakulla County v. Davis, 395 So.2d 540, 543 (Fla.1981).

Not inconsequential is the fact that the drafters and adopters in enacting the 1935 Act found it appropriate to set forth the crime first, followed by the affirmative defense section. It is an accepted rule of statutory construction that in considering whether to give effect to two potentially conflicting statutes, the last in point of order or arrangement prevails, because it represents the last expression of the legislative will. Kiesel v. Graham, 388 So.2d 594, 595-596 (Fla. 1st DCA 1980), rev. denied, 397 So.2d 778 (Fla.1981). Thus, the issue of ownership or control, while mentioned in the crime, is an affirmative defense by virtue of the fact that the statutory section assigning the burden of proof of this issue is the last expression of the legislature. Such a decision in specifying elements of and defenses to a crime is totally within the purview of the legislature. See, e.g., Borges v. State, 415 So.2d 1265 (Fla.1982).

The appellant has posed one statutory construction argument deserving of close scrutiny. Great reliance is placed on the rule of statutory construction announced almost 100 years ago in Baeumel v. State, 26 Fla. 71, 7 So. 371, 372 (1890), wherein the Supreme Court stated:

[I]f there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception, but if there be an exception in a subsequent clause, or subsequent statute, that is [sic] matter of defense, and is to be shown by the other party.

Appellant argues that the lack of ownership or control of the field burned is an exception in the enacting clause and that the burden is, therefore, correctly placed on the state to prove this fact.

This argument might prove highly persuasive were it not for the Supreme Court’s recent consideration of a statutory scheme almost identical to the statutes at bar. In State v. Buchman, 361 So.2d 692 (Fla.1978) the court examined Section 517.07, Florida Statutes (Supp.1976), which makes it illegal to sell any unregistered security in Florida, unless the sale is of a security from a statutorily exempted class of securities. However, Section 517.17, Florida Statutes (Supp.1976), ascertains the burden of proof by providing that the state need not prove the defendant sold non-exempt securities. The Buchman court refused to engage in the “mental gymnastics” involved in application of the Baeumel rule, and, in much the same manner as we have approached this case, looked directly at the legislative intent: “Our determination is that the lack of an exemption is not an element of the offense, rather the existence of an exemption is a defense available to the defendant.” Buchman, supra, at 695.

Based on our analysis of the history and elements of the offense of burning wild or open lands, the legislative intent in specifically formulating a statutory affirmative defense, and the result reached in a case involving a statutory scheme quite similar to the case at bar in Buchman, supra, we are convinced that there was no due process violation in requiring the defendant to establish ownership or control of the land he was shown to have burned. Such proof is not an element of the crime set out in Section 590.08, Florida Statutes. It is a defense, “[a]nd, certainly, there is no due process problem with requiring that the defendant plead and prove a defense.” Buchman, supra, at 695.

Therefore, the judgment of acquittal was properly denied. Because the lack of ownership or control of the land burned is not an element of the crime charged but is a defense, the record shows that the jury was properly charged.

The appellant also asserts that the lower court erred in denying a motion to suppress the witness’s identification of the appellant, an issue which we have considered but that does not merit written attention.

The conviction is AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.

      . Section 590.08, Florida Statutes, states: “Unlawful burning of lands. — It is unlawful for any person to willfully or carelessly bum or cause to be burned, or to set fire to or cause fire to be set to, any forest, grass, woods, wild lands, or marshes not owned or controlled by such person.”

      . Section 590.15, Florida Statutes, states:
      Burden of proof. — In any prosecution or civil action brought under the provisions of this chapter it shall not be necessary for the state or plaintiff to allege and prove absence of the right or authority of the defendant to set or cause to be set the fire [sic], but such right and authority shall be a matter of affirmative defense to be alleged and proved by the defendant.

      . Section 590.08 exempts individuals who bum land that they “own or control” from the effects of the statute. In assigning the burden of proof, § 590.15, indicates the “right or authority” of one to burn property is an affirmative defense to be proven by the defendant. We find that while different terminology is utilized, “ownership or control” of the wild land burned and “right or authority” to burn are for all purposes synonymous.

      . A mandatory presumption
      may affect not only the strength of the “no reasonable doubt” burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.

        County Court of Ulster County, New York v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). For an excellent analysis and comparison of conclusive, mandatory and permissive presumptions, Judge Wisdom’s incisive opinion in Hammontree v. Phelps, 605 F.2d 1371 (5th Cir.1979), is highly instructive.

      . Chapter 2527, Laws of Florida (1879), states: Burning woods. — Whoever sets fire to or bums any wild forests, woods, lands, or marshes, except between February 15 and March 31, of each year, or between the said dates without giving two days’ previous notice to all persons living within one mile of . the place intended to be fired, shall be punished by imprisonment not exceeding sixty days, or by fine not exceeding one hundred dollars.

      . Chapter 12024, § 1, Laws of Florida (1927), states:
      That whoever sets fire to or burns any wild forest, woods, lands or marshes in this State shall, upon conviction thereof, be punished by fine not exceeding one thousand dollars or by imprisonment in the county jail not exceeding one year, or by both fine and imprisonment in the discretion of the Court. Provided, That the provisions of this Act shall not apply to owners or lessees burning over their own lands where the fire is not allowed to spread over the land of others.

      . Chapter 17029, Laws of Florida (1935), states in relevant part:
      AN ACT Relating to Forest Protection; to Authorize the Establishment and Organization of Forest Protection Districts and to Prescribe the Powers and Duties of the Florida Board of Forestry, the State Forester and Forest Fire Wardens in Connection Therewith; and to Regulate and Control Fires Therein; to Prescribe the Duties of Members of Road Construction and Maintenance Crews and Road Contractors and Sub-Contractors and their Employees in Relation to Fires on and Along the Rights of Way of State, County and Public Roads and to Prescribe the Duties of the State Road Department, the County Commissioners and County Highway Departments in Relation Thereto; to Make it Unlawful to Burn, or Cause to be Burned or set Fire to or cause to be set Fire to, any Forest, Grass, Woods, Wild Lands or Marshes, or to Permit Fires to Escape or to Leave Camp or Warming Fires Unextin-guished; to Authorize the Florida Board of Forestry to Enforce the Provisions of this Act and all Fire Laws of the State and to Appoint Forest Fire Wardens to Assist in Such Enforcement; to fix the Powers and Duties of such Forest Fire Wardens, and to Require any Able Bodied Male Person Between the Ages of Eighteen and Fifty Years to Assist them Under Certain Circumstances; to Authorize the Florida Board of Forestry to Offer and Pay Rewards for the Arrest and Conviction of Persons Violating the Provisions of this Act; to provide Penalties for Violations of this Act and to provide Civil Liability for Damages Caused by such Violations; and to Repeal Section 5284, Revised General Statutes of Florida, 1920, and Sections 1 and 2 of Chapter 12,024, Laws of Florida, Acts of 1927, Relating to Burning or Setting Fire to Wild Forests, Lands, Woods or Marshes. [e.s.]

        Be It Enacted by the Legislature of the State of Florida:

      Section 1. This Act may be cited as THE FOREST PROTECTION ACT.
      sf; * * Hi sjc *
      Section 8. It shall be unlawful for any individual, firm or corporation wilfully or carelessly to burn or cause to be burned, or to set fire to or cause fire to be set to, any forest, grass, woods, wild lands or marshes not owned or controlled by such individual, firm or corporation.
      SfS S(5 * * * *
      Section 13. In any prosecution or civil action brought under the provisions of this Act it shall not be necessary for the State or plaintiff to allege and prove absence of the right or authority of the defendant to set or cause to be set the fire [sic], but such right and authority shall be a matter of affirmative defense to be alleged and proved by the defendant.

      . See Note 7.

      . Compare Notes 1, 2 and 7.

      . See also, 30 Fla.Jur., Statutes § 120 n. 67 (1974); 82 C.J.S. Statutes § 347 a., nn. 68, 70 (1953); compare, State v. City of Boca Raton, 172 So.2d 230, 232-233 (Fla.1965) (ambiguous and potentially conflicting sections of city charter); State v. City of Hialeah, 109 So.2d 368, 369-370 (Fla.1959) (city charter effective date as enacted by special law construed); and Johnson v. State, 157 Fla. 685, 27 So.2d 276 (Fla.1946), cert. denied, 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683 (1947) (conflicting second paragraph of search warrant statute takes precedence over first paragraph).

      . Section 517.07, Florida Statutes (Supp. 1976), states:
      Registration of securities. — No securities except of a class exempt under any of the provisions of s. 517.05 or unless sold in any transaction exempt under any of the provisions of s. 517.06 shall be sold within this state unless such securities shall have been registered as hereinafter defined. Registration of stock shall be deemed to include the registration of rights to subscribe to such stock if the notice under s. 517.08 or the application under s. 517.09 for registration of such stock includes a statement that such rights are to be issued. A record of the registration of securities shall be kept in a register of securities to be kept in the office of the department, in which register of securities shall also be recorded any orders entered by the department with respect to such securities. Such register, and all information with respect to the securities registered therein, shall be open to public inspection.
      Violation of this statute is a third degree felony. § 517.302, Florida Statutes (1981).

      . Section 517.17, Florida Statutes (Supp. 1976), states:
      Burden of proof. — It shall not be necessary to negative any of the exemptions provided in this part in any complaint, information, indictment, or any other writ or proceedings brought under this part, and the burden of establishing the right to any exemption shall be upon the party claiming the benefit of such exemption. Any person claiming the right to register any securities by coordination under s. 517.08 shall also have the burden of establishing the right so to register such securities.


author: THOMPSON, Judge. JOANOS, Judge,

text:
    BOB’S BARRICADES, INC., and Risk Management Services, Inc., Appellants, v. Frank M. CATALANO, Appellee.
    No. AF-496.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Rehearing Denied June 16, 1982.
    Kathleen R. Hudson, St. Petersburg, for appellants.
    Joseph V. Barrs of Barrs, Williamson & Levens, Tampa, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) challenge a workers’ compensation order, contending in part that the deputy commissioner (deputy) erred by awarding claimant wage loss benefits. We agree and reverse.

Claimant sustained a compensable back injury on September 28, 1979, for which he was subsequently required to undergo surgery. Claimant testified that after returning to work, he performed the same job, worked the same hours, and made the same wages as he had prior to the accident. After working for more than a year claimant was fired.

Claimant contends that he was fired because of his claim for workers’ compensation benefits. E/C contend that claimant was fired because of his attitude. Subsequent to his termination, claimant conducted a job search. He located employment approximately five weeks after being terminated by E/C. The deputy awarded claimant wage loss benefits for the period of time he was unemployed.

Claimant’s assertion regarding why he was fired does not form a basis for the award of wage loss benefits. There is no competent substantial evidence that the asserted wage loss was the result of the com-pensable injury. Accordingly, the award of wage loss benefits is reversed. Our resolution of this issue obviates the need to address the remaining points raised by E/C.

REVERSED.

WIGGINTON, J., concurs.

JOANOS, J., dissents.

JOANOS, Judge,

dissenting.

There was evidence that claimant’s physician recommended a change in employment because of the injury. There was further evidence that the claimant was fired when the employer was told of the recommendation. In my opinion, that evidence was sufficient to support the decision of the Deputy Commissioner that claimant was entitled to wage loss benefits for the period between the claimant’s firing and his finding employment in a job that he could properly perform. The Deputy Commissioner could properly conclude that this loss of wages resulted from the injury sustained. I, therefore, dissent from the majority opinion.


text:
    MORRISON ASSURANCE COMPANY, Appellant, v. The SCHOOL BOARD OF SUWANNEE COUNTY, Florida, Appellee.
    No. AG-261.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Richard T. Jones of Jones & Langdon, P. A., Gainesville, for appellant.
    William R. Slaughter, II of Slaughter & Slaughter, Live Oak, for appellee.
   PER CURIAM.

A student filed a complaint for damages against the defendants below, Suwannee County School Board and its insurer, Morrison Assurance Company, for injuries sustained while running the 50-yard dash as part of a physical education class. The defendants filed cross-claims for a declaratory judgment on the issue of whether the insurance policy provided coverage for the acts or omissions alleged in the complaint.

After the hearing on motions for summary judgment on the cross-claims, the trial court granted summary judgment for ap-pellee School Board and declared the insurance policy provided coverage for appellee, and appellant had a duty to defend. We reverse.

The applicable general liability insurance policy contains an “Athletic Participant Exclusion” clause, providing:

It is agreed that this insurance does not apply to bodily injury to any and all persons practicing, instructing, or participating in any physical training, sport, athletic activity or contest.

The law is well-settled that the language in an insurance contract should be read in the light of the skill and experience of ordinary people, and resort should not be made to uncommon meanings nor contextual distortion. Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla.1973); Stewart v. State Farm Mutual Insurance Co., 316 So.2d 598 (Fla. 1st DCA 1975).

The exclusionary clause is plain and unambiguous on its face, leaving no room for construction. Application of the plain-meaning rule and common sense leads to the reasonable conclusion that running the 50-yard dash in a physical education class is an activity that falls within the exclusion.

We are in agreement with the Third District which has had more than one opportunity to examine the identical exclusion and has found it unambiguous. See Morrison Assurance Co. v. City of Opa-Locka, 389 So.2d 1079 (Fla. 3d DCA 1980), and Town of Surfside v. Morrison Assurance Co., 394 So.2d 530 (Fla. 3d DCA 1981).

Nor does another policy provision, an exemption under the “Teacher’s Liability Coverage Endorsement,” create an ambiguity as appellee suggests. By its clear terms, the endorsement adds “all teachers” to the named insureds, but nowhere changes, modifies, or overrides the exclusion for instructing or participating in athletic activities.

REVERSED.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Heinz DINTER and Martha Dinter, Appellants, v. Duane E. POTTER, Appellee.
    No. AF-407.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Rehearing Denied June 16, 1982.
    Ronald L. Fried of Golembe & Fried, P. A., Miami, for appellants.
    P. Michael Patterson, Pensacola, for ap-pellee.
   MILLS, Judge.

The Dinters appeal the trial court’s refusal to vacate a default entered against them. We affirm.

The Dinters were granted an extension of time to answer the complaint. In granting the extension, the trial court ordered that the answer be filed by 16 December 1980, or that a default would be entered. Because the answer was not timely filed, the default was properly entered by the clerk.

The Dinters have shown no abuse of discretion by the trial court in refusing to vacate the default. In fact, it appears that the trial court extended the filing time on 12 December 1980 based on the statement of the Dinters’ attorney that the answer was mailed to the clerk on 11 December 1980 when it was not mailed until a later date.

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


text:
    Joseph N. McDONOUGH, Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Appellee.
    No. AF-483.
    District Court of Appeal of Florida, First District.
    May 12, 1982.
    Rehearing Denied June 16, 1982.
    Arthur I. Jacobs of Frates, Jacobs, Far-rar, Novey & Blanton, Fernandina Beach, for appellant.
    Deborah A. Getzoff, Asst. Dept. Atty., Tampa, for appellee.
   MILLS, Judge.

McDonough appeals from the Department of Natural Resources’s (DNR) imposition of a $5,000 civil penalty for his failure to comply with the conditions of permits allowing him to construct residences seaward of the coastal construction control line. We affirm.

The record reveals that McDonough had actual notice of the conditions he was to comply with. His failure to comply under these circumstances subjects him to the penalties provided for in § 161.054(1), Florida Statutes (1980 Supp.).

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