author: SCHEB, Judge.

text:
    CITY OF ST. PETERSBURG, Florida, Appellant, v. Barry L. WALL and George D. Cranton, Appellees.
    No. 81-1823.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1982.

      Michael S. Davis, City Atty., and B. Norris Rickey, Asst. City Atty., St. Petersburg, for appellant.
    H. Rex Owen and Bruce Crawford of Owen & McCrory, St. Petersburg, for appel-lees.
   SCHEB, Judge.

The trial court entered judgment against the City of St. Petersburg when the city failed to establish a “necessity” in a suit to condemn appellees’ land. After the city’s unsuccessful appeal, the court awarded damages to appellees for losses incurred during the litigation, and the city now challenges these awards. We affirm as to the damages awarded during the appeal period, but reverse the award for losses incurred during the litigation in the trial court.

In 1977 the city filed suit seeking to condemn appellees’ land for use in a proposed storm water retainage system. The trial court determined that the city failed to establish a necessity for the taking and denied its right to acquire appellees’ property. The court entered final judgment in favor of appellees, dismissed the petition for condemnation, and dissolved the lis pen-dens while retaining jurisdiction to assess costs and attorney’s fees against the city.

In January 1978 the city appealed that judgment to this court. Appellees promptly filed a motion for a supersedeas bond with the trial court requesting that the city’s automatic stay under the appellate rules be conditioned upon its posting a bond to secure payment of all damages incurred by appellees as a result of the appellate proceedings. Since jurisdiction had vested in this court, appellees sought an order to authorize the trial court to hear and determine the motion. Having concluded there was no necessity to require the city to post bond, we denied appellees’ motion “without prejudice to appellees seeking recovery of damages and costs resulting from any stay pending appeal pursuant to Rule 9.310(b)(2), Fla.R.App.P.”

We subsequently affirmed per curiam the trial court’s final judgment. City of St. Petersburg v. Wall, 364 So.2d 896 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 69 (Fla.1979).

In October 1979 appellees sued the city for damages incurred due to their inability to use their property as intended because of the city’s actions in condemning it. A jury awarded appellees $6,477.81 for damages incurred during the period in which the condemnation action was pending in the trial court (from September 9,1977, to January 20,1978) and $121,826.95 for damages incurred during the appellate process (from January 20, 1978, to September 17, 1979). Additionally, the court allowed interest on the awards from September 17,1979, to the date of its judgment on August 10, 1981. This appeal ensued.

The city argues that any action for damages resulting from a stay must be based on the requirement of posting a bond. Since no bond was posted, it submits there can be no recovery in this case. In support of its argument appellant cites City of Jacksonville v. Brentwood Golf Course, Inc., 338 So.2d 1105 (Fla. 1st DCA 1976), which held that “[a]n unsuccessful appellant has no duty, independent of that voluntarily undertaken by posting a bond to avoid execution, to pay the successful appellee damages incurred by stay of execution during appellate delay.” We find it unnecessary to determine, as did the First District in Brent-wood, that a municipality’s liability in connection with a stay pending appeal is dependent upon whether the court has required the city to post a supersedeas bond.

Here, the city was on notice that we recognized its potential liability even though we excused it from the expense of posting a bond. There is little reason to request a solvent municipality to post a bond when its potential liability for obtaining a stay is made a matter of record. A stay is not a matter of absolute right. It may be conditioned, and both Rule 5.12, 1962 revision, and Rule 9.310(b)(2), 1977 revision, give courts broad authority over stays. Our order reflected that the stay permitted appellees to seek damages resulting from it. The city had the option of pursuing the appeal without the stay. Having chosen to accept the stay, the city became responsible for damages resulting therefrom. Therefore, we affirm the award of $121,826.95 for damages incurred by appellees during the pendency of the appeal.

The award of $6,477.81 for damages during the progress of the condemnation action in the trial court must be reversed, however. Where, as here, there has been no showing of bad faith, a city should not be held liable for litigating a case which it subsequently loses. All property is owned subject to the power of eminent domain. Where that power is exercised in good faith, damages will not be assessed against the unsuccessful exercise of that legal right, although the landowner is entitled to costs and attorney’s fees. § 73.091, Fla.Stat. (1981). Therefore, we reverse the award of $6,477.81 for damages accruing during the proceedings in the trial court.

Finally, we must also reverse the prejudgment interest on the award from September 17, 1979, to the date of the trial court’s final judgment on August 10, 1981. Where, as here, the damages cannot be computed except on conflicting evidence, inferences, and interpretations, the claim is unliquidated and prejudgment interest is not a proper element of damages. Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978).

We find the other issues raised by appellant to be without merit. Accordingly, we affirm in part, reverse in part, and remand for entry of an amended judgment consistent with this opinion.

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

      . Technically, our order should have been under the 1962 revision instead of the 1977 revision of the appellate rules. The 1977 rules took effect on March 1, 1978. Any appellate proceeding commenced before that date was to continue under the 1962 rules. The city filed its notice of appeal in January 1978. However, the court’s authority is substantially the same under the pertinent old and new rule.

      . We note the city’s supplemental reliance on City of Lauderdale Lakes v. Corn, 415 So.2d 1270 (Fla.1982), but we regard the case as inapposite because it concerns matters of legislative planning.


source: Caselaw Access Project

author: BOARDMAN, Judge.

license: Public Domain

text:
    Moses ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 82-408.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1982.
    Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Moses Ross appeals judgments and sentences for possession of a firearm by a convicted felon and possession of less than 20 grams of marijuana, contending that the trial court erred in denying his motion to suppress the evidence. We hold that the initial stop by the police was not justified, and we therefore reverse.

At about eleven p. m. on September 12, 1981, Sarasota police officers Wall and Benton received a radio dispatch regarding an assault near a bar involving a “black male with short cropped hair, wearing a white tee shirt and wearing blue jeans” who was last seen heading north. While responding to another call, they noticed appellant walking south. Appellant fit the description given over the radio, except that his hair was plaited.

Twenty-five minutes later, after resolving a domestic altercation, the officers relocated appellant and decided to stop him. Upon discovering an outstanding charge against him, they arrested and searched him, finding a pistol and some marijuana on his person, which formed the basis of the instant charges against him.

Clearly, the officers did not have a founded suspicion to justify their stop of appellant. The BOLO description was general, and appellant’s clothing was hardly unusual or distinctive. The description could have fit many people in that area, it being a black neighborhood and an hour when many people were on the street. Moreover, appellant’s hair style and the direction in which he was walking when first spotted were inconsistent with the BOLO information. See State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), aff’d, 387 So.2d 963 (Fla.1980), Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976), cert. denied, 345 So.2d 427 (Fla.1977).

Accordingly, appellant’s judgments and sentences are REVERSED.

HOBSON, A. C. J., and DANAHY, J., concur.


author: PER CURIAM.

text:
    Floyd C. SHUFTY, Appellant, v. STATE of Florida, Appellee.
    No. 81-1678.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1982.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, St. Petersburg, for appellee.
    Floyd C. Shufty, pro se.
   PER CURIAM.

Counsel for appellant submitted the instant appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We have carefully reviewed the entire record on appeal and have concluded that no reversible error exists.

Concerning appellant’s extradition process, pursuant to section 941.03, Florida Statutes (1981), a copy of a warrant supported by an affidavit made before a committing magistrate of the demanding state shall be recognized in lieu of an authenticated copy of an indictment or information. State ex rel. Owens v. Boyer, 207 So.2d 29 (Fla. 2d DCA 1968). Furthermore, since the provisions of the statute were correctly followed here, we hold that the denial of appellant’s petition for writ of habeas corpus was proper.

Affirmed.

OTT, C. J., and RYDER and CAMPBELL, JJ., concur.


author: RYDER, Judge.

text:
    Gilbert JUDGE, Appellant, v. STATE of Florida, Appellee.
    No. 81-2095.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1982.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Contending that because the impoundment of his car was illegal, and thus drugs found during an inventory search should have been suppressed, Gilbert Judge appeals his conviction for trafficking in heroin. We hold that this inventory search was invalid and reverse.

Defendant below was arrested for driving with a suspended license. The record indicates that he was not advised that impoundment need not occur if a reasonable alternative was provided; it also indicates that during consultation with police officers, the available alternatives were not even considered. The overriding rationale of Miller v. State, 403 So.2d 1307 (Fla.1981) is that the purpose of impoundment and inventory search is security and protection of the vehicle’s contents; thus, any search must be for a good faith caretaking purpose and not a subterfuge to conduct a warrant-less search for incriminating evidence.

None of the five circumstances listed in Miller, under which impoundment is reasonable and necessary, existed in this case. After Judge was arrested for driving with a suspended license, both he and his passenger suggested alternatives to impoundment. Although the passenger clearly could not drive the vehicle away because his license was suspended, Judge was not allowed to call his sister as he requested. The car was parked on the shoulder of the highway where it was not illegally obstructing traffic. When a deputy inventoried the car before towing, but after Judge and the passenger were taken away from the scene in police custody, a zippered bag was found underneath the right front driver’s seat of the car.

This situation does not satisfy the state’s burden of showing that impoundment was reasonable and necessary. Although as an appellate court, we cannot say whether or not Judge’s two suggestions were reasonable alternatives, it is clear that the letter of the law set forth in Miller requires the police to advise an accused that unless a reasonable alternative is offered, his car would be impounded. This was admittedly not done here.

This court has adopted the Miller holding in two recent decisions—Rizzo v. State, 412 So.2d 29 (Fla. 2d DCA 1982) and Stevens v. State, 412 So.2d 456 (Fla. 2d DCA 1982). In Rizzo, we held that inventory search is invalid where police do not advise an arrestee that his vehicle will be impounded unless he can provide a reasonable alternative. Similarly, in Stevens we reversed a burglary conviction because police officers did not follow the requirements set forth in Miller regarding impoundment and inventory search. We additionally stated that even where impoundment and inventory search would be proper (because a vehicle could not lawfully be driven from the location where it was stopped), a defendant should be allowed an opportunity to choose another reasonable way to protect his own property, such as having it towed to a destination of his choice by the company of his choice. Stevens, supra.

The impoundment and warrantless inventory search were unreasonable under the instant circumstances. Therefore, the evidence found should have been suppressed.

REVERSED and REMANDED for action consistent with this opinion.

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


text:
    William EBNETTER, Appellant, v. STATE of Florida, Appellee.
    No. 82-137.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

A jury convicted Ebnetter of grand theft, dealing in stolen property, and possessing a vehicle with an altered manufacturer’s number. The court adjudicated him guilty of all three offenses, and sentenced him for dealing in stolen property and for possessing a vehicle with an altered manufacturer’s number. Section 812.025, Florida Statutes (1981), prohibits adjudicating Ebnetter guilty of both grand theft and dealing in stolen property since the charges arose from the same course of conduct. We therefore set aside the adjudication of guilt for grand theft, but in all other respects we affirm.

OTT, C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    Roy Stanley WHITED, Appellant, v. STATE of Florida, Appellee.
    No. 82-176.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1982.
    Peter D. Ringsmuth of Smith, Carta, Ringsmuth & Kluttz, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of Whited’s probation, but we do so without prejudice to his right to seek relief via motion for postconviction relief. Fla.R.Crim.P. 3.850.

OTT, C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    Ronald L. MENDENHALL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1380.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1982.
   PER CURIAM.

Mendenhall filed a motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure, containing two allegations, one being that he did not receive all the credit for time served in jail to which he is entitled. Because the record before us does not refute this allegation, we remand this case and direct the trial court to hold an evidentiary hearing so that Men-denhall may receive all the jail credit time to which he may be entitled. See Wright v. State, 355 So.2d 870 (Fla. 2d DCA 1978). Appellant’s other allegation has no merit, and we affirm the revocation of his probation.

OTT, C. J., and RYDER and CAMPBELL, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    OLD REPUBLIC INSURANCE COMPANY, Appellant, v. WEST FLAGLER ASSOCIATES, LTD., et al., Appellees.
    No. 81-1007.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.

      Pyszka & Kessler, Greene & Cooper and Joan M. Bolotin and Robyn Greene, Miami, for appellant.
    Patton, Kanner, Segal, King & Kubit and Dennis G. King, Miami, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

West Flagler Associates, Ltd. is the owner of a greyhound racetrack insured under a general comprehensive liability policy issued by Old Republic Insurance Company. The policy provided liability coverage for property damage claims incurred during the year commencing May 1, 1977.

In July and August 1977, a small group of West Flagler employees allegedly defrauded winning trifecta ticket holders of a portion of their winnings by issuing bogus tickets. The result of this scheme was to diminish the trifecta pool for legitimate ticket holders: the more winning tickets outstanding, the smaller the payoff to bettors. The track employees allegedly skimmed the amounts represented by the bogus tickets.

Three bettors sued West Flagler and its insurer, Old Republic. The suits, later consolidated, sought damages for the difference in the value of the tickets if the trifec-ta pool had not been rigged as against their value in the rigged pool. The suits did not allege any physical damage to the property, that is, the trifecta tickets.

Old Republic asserted that the policy it issued to West Flagler did not cover the claims for which these plaintiffs sought damages and asked for a determination that it was not obligated to defend West Flagler. The track sought a contrary adjudication. The trial court ruled that Old Republic was obligated to defend the claims and rendered final judgment awarding West Flagler $31,000 in attorneys’ fees incurred in defending the bettors’ suits. Old Republic appeals.

The issue on this appeal is whether the alleged diminution in the bettors’ winnings is “property damage” under the terms of the general liability policy issued by Old Republic to West Flagler. All agree that if this allegation in the bettors’ complaints brought the injury within the coverage of the policy, Old Republic was obliged to defend without regard to its ultimate liability to its insured. Klaesen Brothers, Inc. v. Harbor Insurance Company, 410 So.2d 611 (Fla. 4th DCA 1982); ABC Distributing, Inc. v. Lumbermens Mutual Insurance Company, 646 F.2d 207 (5th Cir. 1981). On the other hand, if these alleged facts did not bring the claims within the coverage of the policy, Old Republic was not obliged to defend, and the judgment against it must be reversed. National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977); Federal Insurance Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979); Capoferri v. Allstate Insurance Co., 322 So.2d 625 (Fla. 3d DCA 1975).

The policy in question covered West Fla-gler’s liability for “property damage .. . caused by an occurrence.... ” It obligated the company to defend:

“any suit against the insured seeking damages on account of such ... property damage, even if any of the allegations of the suit are groundless, false or fraudulent....” (emphasis supplied).

It defined “property damage” as:

“physical injury to or destruction of tangible property ... or ... loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period; ...” (emphasis supplied).

It defined “occurrence” as:

“an accident, including continuous or repeated exposure to conditions, which results in ... property damage neither expected nor intended from the standpoint of the insured; ...”

Each plaintiff alleged that West Flagler’s intentional or negligent acts or omissions caused him to lose a portion of the winnings to which he would have been entitled in the absence of such acts or omissions. Given these allegations, we are compelled to conclude that the trial court erred in ruling that Old Republic was obligated to defend West Flagler and in awarding the track attorneys’ fees because the complaints do not allege facts which show that the plaintiffs’ loss was occasioned by “physical injury to or destruction of tangible property.”

There is abundant authority to support our conclusion. In Escambia Chemical Corp. v. U.S. Fidelity & Guaranty Co., 212 So.2d 884 (Fla. 1st DCA 1968), the insured sought to compel its carrier to defend against a claim seeking to recover lost profits. The insured had sold fertilizer to the claimant and guaranteed that crops fertilized with its product would produce as well as crops fertilized with a competitive brand. The guaranteed results did not occur. The claimant alleged that the insured was liable for the difference between the value of the crops fertilized with the insured’s product and the value of comparable crops fertilized with the other brand. The issue was whether the insurer, U. S. Fidelity & Guaranty Co., was obligated to defend the claim under the terms of a “property damage” clause of a liability policy which, like the policy here, obligated the insurer to pay sums the insured owed as damages “because of injury to or destruction of ... tangible personal property ... including the loss of use thereof, resulting from an occurrence.” Id. at 885. The court held that the cause of action alleged in the claimants’ pleading was not a loss or an occurrence within the meaning and intent of the property damage provisions of the liability policy. We think the same must be said here. When the parties to this insurance contract agreed that the insurer would protect West Flagler against liability for damage to “tangible property,” they did not contemplate or intend to provide liability coverage for intangible economic loss.

In Temco Metal Products Co. v. St. Paul Fire & Marine Insurance Co., 273 Or. 716, 543 P.2d 1 (1975) (en banc), one Meyer sued Temco for damages incurred when Meyer cashed a forged Temco check. Meyer alleged that Temco negligently permitted its employee to acquire blank Temco checks and a protectograph which was used to imprint amounts on the checks. St. Paul refused to defend Temco. Temco sought to recover defense costs from St. Paul.

The St. Paul policy — again, like the one in the case at hand — protected Temco from liability for property damage defined as “injury to or destruction of tangible property.” 543 P.2d at 2. The issue, then, was whether Meyer’s payment of moneys on the forged checks was “property damage” as contemplated by the policy. The Oregon Supreme Court, affirming a trial court judgment that the insurer had no obligation to defend, stated:

“We assume that money, in certain contexts, can be considered tangible property and that it is capable of being destroyed. However, we do not believe that paying money out on forged checks constitutes injury to or destruction of it as contemplated by the parties to the policy in question.
“The premiums paid to insurance companies are computed on the basis of the probabilities of occurrences coming to pass that are within the insurance coverage. Since the contracts are the drafting product of the companies, their provisions are, quite rightly, construed most strongly against the company in questionable cases, (citation omitted). This principle cannot be carried to the point of extending the coverage to make the policy something different than contemplated, however. (citation omitted). Where the interpretation urged is not only strained, but would encompass a risk not contemplated by the kind of policy issued nor intended to be undertaken by the company, the insurer is entitled to that fair construction which reflects the understanding of the parties.... ”
543 P.2d at 2, quoting State v. Glens Falls Insurance Company, Inc., 132 Vt. 97, 315 A.2d 257, 258 (1974) (emphasis supplied).

The foregoing statement applies with equal force in the present case. We think it clear that investments, anticipated profits and financial interests in business ventures are intangibles and not “property” as that word is defined in the instant liability policy. Thus, where a complaint alleges injury to investments and anticipated profits and the like, it does not allege facts within the coverage of such a policy, and the insurer has no obligation to defend the suit. Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 294 N.E.2d 7 (1973). Accord, Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Company, 508 F.2d 417 (7th Cir. 1975) (claim against insured which allegedly sold defective tennis rackets to plaintiff for sums plaintiff required to refund to customers classified by court as essentially one for loss of anticipated profits and loss of goodwill; insurer not obligated to defend under policy making it liable for injury to or destruction of tangible property caused by an occurrence); Yakima Cement Products Co. v. Great American Insurance Co., 14 Wash.App. 557, 544 P.2d 763 (1975) (contractor’s claim against subcontractor for costs incurred because of delay and for injury to contractor’s reputation from subcontractor’s misfabrication of concrete panels not within property damage coverage of subcontractor’s liability policy; insurer not obligated to defend). Cf. Dreis & Krump Manufacturing Co. v. Phoenix Insurance Co., 548 F.2d 681 (7th Cir. 1977) (complaint against insured for loss of use of allegedly defective brake and for costs of attempts to rectify defect did not allege tangible property damage; insurer not obligated to defend); Sentry Insurance Co. v. S & L Home Heating, 91 Ill.App.3d 687, 47 Ill.Dec. 102, 414 N.E.2d 1218 (1980) (loss of plant employees’ productivity and expenses of remedying allegedly deficient ventilating system were “economic losses” and not “property damage” and were not covered under general liability policy obligating insurer to defend “property damage” claims); General Insurance Co. of America v. Palmetto Bank, 268 S.C. 355, 233 S.E.2d 699 (1977) (suits which alleged that lessor of warehouse had wrongfully distrained bailed goods did not allege an “occurrence” which caused “property damage” within meaning of liability policy; lessor’s insurer under no duty to defend).

The complaints were devoid of any allegation that anything West Flagler did injured or destroyed the trifecta tickets, the only “tangible property” at issue. Only the tickets’ economic value, i.e., an intangible, was alleged to have been diminished. Old Republic never undertook to insure West Flagler for its liability for intangible or economic losses. Therefore, the bettors’ complaints, which plainly sought to recover for intangible losses, do not satisfy the definition of property damage in the instant policy and do not invoke the insurer’s duty to defend. See Ludwig Candy Co. v. Iowa National Mutual Insurance Co., 78 Ill.App.3d 306, 33 Ill.Dec. 605, 396 N.E.2d 1329 (1979); Inland Construction Corp. v. Continental Casualty Co., 258 N.W.2d 881 (Minn.1977); County of Monroe v. Travelers Insurance Co., 100 Misc.2d 417, 419 N.Y.S.2d 410 (S.Ct.1979).

Reversed and remanded with directions to vacate the judgment in favor of West Flagler Associates, Ltd. and to enter judgment in favor of Old Republic Insurance Company.

      . The State Attorney’s Office recovered most of the money. It was put into a fund and used to settle the numerous claims which arose.

      . In one of the actions, since Old Republic was not named as a defendant, West Flagler filed a third-party complaint against Old Republic seeking a coverage declaration.

      . We omit any extended discussion of the nonexistence of coverage for the intentional acts alleged in plaintiffs’ complaints. Plainly, Old Republic had no duty to defend against injuries resulting from intended acts because the policy provides coverage only for property damage caused by an “occurrence,” and defines an “occurrence” as an “accident” which causes “unintended” property damage. See, e.g., National Union Fire Insurance Co. v. Lenox Liquors, supra; Federal Insurance Co. v. Applestein, supra; Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977); Simmons Refining Co. v. Royal-Globe Insurance Co., 543 F.2d 1195 (7th Cir. 1976); Battisti v. Continental Casualty Co., 406 F.2d 1318 (5th Cir. 1969); Proctor Seed & Feed Co., Inc. v. Hartford Accident & Indemnity Co., 253 Ark. 1105, 491 S.W.2d 62 (1973). Moreover, Old Republic had no duty to defend against claims based on negligent breach of contract or warranty because this type of coverage was plainly excluded by a separate provision of the policy.
      Thus, the only basis on which the trial court could have concluded that Old Republic had a duty to defend is that the negligence plaintiffs alleged caused “property damage.” Therefore, we address only that issue.

      . The policy also covered the “loss of use of tangible property which has not been physically destroyed.” This clause is also plainly inapplicable since plaintiffs did not lose the use of the trifecta tickets. See General Insurance Co. of America v. Western American Development Co., Inc., 43 Or.App. 671, 603 P.2d 1245 (1979).

      . West Flagler was separately insured under a policy specifically designed to protect against loss of money caused by employee dishonesty. That policy, however, like most standard fidelity bonds, did not contain a duty to defend clause.

      . United States Fidelity & Guaranty Co. v. Mayor’s Jewelers of Pompano, Inc., 384 So.2d 256 (Fla. 4th DCA 1980), relied on by West Flagler, involved a theft of jewelry which the court found to be an injury to tangible personal property and is thus distinguishable. Moreover if, arguendo, the policy in question there had, as the policy in the instant case, restricted injury to “physical injury,” then, presumably, the theft, despite rendering the jewelry valueless, would not have come within the definition of property damage: “If, as United States Fidelity & Guaranty maintains, property is damaged only when it suffers actual, physical damage, it would have been relatively simple to include the word physical in its definition.” Id. at 258.


text:
    David SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1745.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Bennett H. Brummer, Public Defender and Jay M. Levy, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

By this belated appeal, see Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), we are asked to review a final judgment of conviction and sentence imposed by the trial court dated November 5, 1979. We reverse on the ground that the trial court had no jurisdiction to enter this judgment of conviction and sentence.

Our review of the record reveals that a prior judgment of conviction and sentence dated August 2, 1979 was imposed in this cause, which sentence was later orally vacated by the trial court and the present judgment and sentence entered. The latter sentence under review considerably aggravates the prior vacated sentence ostensibly on the basis that the defendant David Scott violated a plea negotiation condition by failing to appear in court on a certain date to begin serving his August 2, 1979 sentence which had been expressly stayed until that date. Without determining whether the defendant’s asserted violation of that plea condition was involuntary because his subsequent arrest on a non-support charge in another county made it impossible for him to appear in court as scheduled, we think it plain that the court had no jurisdiction, in any event, to vacate and aggravate the previously imposed August 2, 1979 sentence because to do so constituted a violation of the defendant’s double jeopardy rights. Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977); see also Royal v. State, 389 So.2d 696 (Fla. 2d DCA 1980). The August 2,1979 judgment of conviction and sentence was complete in itself and was legally incapable of being subject to a condition subsequent; it could not, therefore, be later vacated for an alleged failure to perform a future act in compliance with a plea negotiation agreement. See e.g., Buckbee v. State, 378 So.2d 39 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980).

The judgment of conviction and sentence under review is reversed and the cause is remanded to the trial court with directions to reinstate the August 2,1979 judgment of conviction and sentence previously entered in this cause.


text:
    William “Bill” POLERO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2526.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Donald L. Ferguson, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Knight v. State, 394 So.2d 997 (Fla.1981).


text:
    John CAULEY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-728.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Bennett H. Brummer, Public Defender and Albert J. Zemlock, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Sebastain, 171 So.2d 893 (Fla.1965).


text:
    DERMA LIFT SALON, INC., a Florida corporation, B. G. Gross, M.D., and Francis Maschek, Petitioners, v. Honorable Edward SWANKO, Acting Circuit Court Judge, of the Eleventh Judicial Circuit, Respondent.
    No. 82-1767.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Harvey Richman, Miami Beach, for petitioners.
    No appearance for respondent.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The petitioners, who are defendants below in a medical malpractice action, contend that the trial court, having entered a final order dismissing the action and denied rehearing thereon, lost jurisdiction over the action and should be prohibited from the further exercise of jurisdiction. The remedy they seek is appropriate. City of St. Petersburg, Florida v. The Circuit Court of the Sixth Judicial Circuit (Fla. 2d DCA 1982) (Case No. 82-1372, opinion filed July 14, 1982); State v. Gooding, 149 So.2d 55 (Fla. 1st DCA 1963).

On May 11, 1982, the trial court entered an order dismissing without prejudice an action brought by the plaintiff, Maria Oshi-ro, as personal representative of the estate of Jose Oshiro. The basis of the dismissal was that the plaintiff had persistently and continuously failed to comply with rules of discovery and orders of the court to enforce discovery. Plaintiff’s timely motion for rehearing of this order of dismissal was denied on July 19, 1982. On July 20, 1982, the plaintiff filed a motion to set aside the order denying rehearing. On August 18, 1982, the trial court vacated the order denying rehearing and, sub silentio, vacated the order of dismissal by ordering that the “litigation is reinstated and reopened and Plaintiff may go forward with this cause of action.”

The trial court’s order of dismissal entered May 11,1982, albeit “without prejudice,” was a final appealable order, Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980), subject to the further jurisdiction of the trial court only upon a timely filed motion for rehearing under Florida Rule of Civil Procedure 1.530, see Snyder v. Gulf American Corporation, 224 So.2d 405 (Fla. 2d DCA 1969), or on its own initiative within the time allowed for a rehearing motion. When the plaintiff’s motion for rehearing was denied by the trial court on July 19, 1982, the trial court’s jurisdiction over the cause terminated. City of St. Petersburg, Florida v. The Circuit Court of the Sixth Judicial Circuit, supra. See Nahoom v. Nahoom, 341 So.2d 257 (Fla. 3d DCA 1977); State v. Gooding, supra.

Accordingly, the petition for writ of prohibition is granted. The trial court is directed to quash its order of August 18,1982, and to reinstate the order of dismissal. We assume it will not be necessary to issue the writ.

      . The plaintiffs motion to set aside the order denying rehearing contained no allegations which could arguably bring it within Florida Rule of Civil Procedure 1.540.


text:
    Milton CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1930.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Milton Campbell, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, 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.


author: MILLS, Judge. ERVIN, Judge,

text:
    Brian M. BUNDY, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AG-375.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.

      Brian M. Bundy, pro se.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Bundy appeals Florida Parole and Probation Commission action establishing his presumptive parole release date. We affirm.

Bundy argues that § 947.165(1), Florida Statutes (1981), prohibits an aggravation for exceptionally brutal or heinous behavior because a depraved mind is an element of second degree murder of which he was convicted. We do not agree.

A depraved mind is equated with the common meaning of malice, i.e., ill will, hatred, spite, or evil intent, an indifference to life. Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981). This is less than brutal or heinous, in particular, two shootings, strangulation, repeated stabbing, and a beating. Exceptionally brutal behavior is not an element of second degree murder.

No violation of the plea bargain is revealed in the record, nor is this the proper forum to raise this issue.

No abuse of discretion is shown in the Commission’s failure to apply certain mitigating factors.

AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I respectfully dissent. Under the Commission’s rules, the offense severity rating, based upon the inmate’s present offense for the conviction of second degree murder, places him in the category of “greatest most serious — 2.” Applying this characteristic to Bundy’s salient factor score of “one,” caused by one prior conviction, creates a matrix time range from 83 through 107 months. Although the Commission unquestionably possesses the discretion to set the time at the maximum range, the difficulty I have with the agency’s action is its superimposing upon 107 months, an additional 119 months for the following described aggravation: “[T]he offense involved exceptionally brutal or heinous behavior indicative of wanton cruelty, in that ..., the victim was shot twice, strangled with a rope, stabbed repeatedly and beaten about the head with a blunt instrument.” In my judgment there is a lack of either legislative or administrative authority to so aggravate under the circumstances presented.

Section 947.165(1), Florida Statutes (1979), provides in part that “[fjactors used in arriving at the salient factor score and the severity of offense behavior category shall not be applied as aggravating circumstances.” Florida Administrative Code Rules 23-21.10(2)(a) and (c) respectively preclude the Commission from using as an aggravating factor elements of the crime, or information included in the severity of offense behavior. In considering these prohibitions, I can only conclude that the aggravating factor used was simply duplica-tive of the present offense characteristic, which the Commission had previously applied to establish petitioner’s matrix time frame.

Section 782.04(2), Florida Statutes, defines second degree murder as “any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, .... ” The words “exceptionally brutal or heinous behavior indicative of wanton cruelty” are — except for their semantic effect — substantially no different than the statutory definition of second degree murder. This court has interpreted the depraved mind element of the statute as follows:

“Depraved mind” within the second degree murder statute has been variously defined as importing malice in the sense of ill will, hatred, or evil intent, and as an inherent deficiency of moral sense and rectitude. Ramsey v. State, 114 Fla. 766, 154 So. 855. It has also been stated that malice is not limited in its meaning to hatred, ill will and malevolence, but “denotes a wicked and corrupt disregard of the lives and safety of others * * * a failure to appreciate social duty.” 40 Am.Jur.2d, Homicide, Section 50.

Hines v. State, 227 So.2d 334, 335-36 (Fla. 1st DCA 1969).

In Hines we stated that the purposeful pointing of a gun at the head of another from a very short distance implies malice of the type required by the statute, even though a willful design is absent. Id. at 336. A case more applicable to the facts before us is Weaver v. State, 220 So.2d 53, 60 (Fla. 2d DCA 1969), cert. denied, 225 So.2d 913 (Fla.1969), in which the court commented that the depravity of mind required in second degree murder has been equated with malice in the commonly understood sense of ill will, hatred, spite or evil intent. The court considered that but for the absence of premeditation, appellant’s behavior would have been sufficient to justify a conviction of first degree murder, since the facts revealed that before the homicide, the officer had been disarmed, yet appellant pursued his efforts to attack, even after the officer had signaled a willingness to break off the affray; the officer was then shot twice in the back; the defendant not only firing all bullets, but continuing to pull the trigger several times on empty cylinders, and finally, the defendant’s own res gestae acknowledgement to another officer at the scene that he intended to kill the victim.

I would agree that the wanton, heinous behavior of the inmate, as described by the Commission in its aggravation, would support also a conviction of the greater offense of first degree murder — provided premeditation were present, but premeditation was not and could not be alleged as an aggravating factor. Thus, the circumstances of the aggravation must be considered duplica-tive of the present offense conviction of second degree murder. Accordingly, I would reverse the aggravation.

In stating the above, I certainly agree that the crime the inmate committed was exceptionally abhorrent. Yet, society’s outrage could have been vindicated by other means. The lower court, in imposing its sentence of 100 years, had the authority to retain jurisdiction over the first third of the maximum sentence imposed, Section 947.-16(3), Florida Statutes, yet chose not to do so. The Commission is endowed with the power to increase the matrix time range for the specific offense characteristic by amending its own rules, but it had not done so at the time it established the parole release date. Perhaps the major obstacle to the Commission’s exercise of discretion is the Objective Parole Guidelines Act itself, which was designed to replace a system which had determined parole release dates by purely subjective considerations. Section 947.002(1), Florida Statutes. The adoption of the Act was clearly influenced by ameliorative incentives, but unfortunately the law’s application to specific instances does not always comport with the public’s perception of justice. At any event, this is an argument which should be addressed to the legislature’s wisdom. So long as the Act remains in its present state, I consider that we have no recourse other than to interpret it consistently with the legislative purpose.


author: MILLS, Judge.

text:
    Antonio Elilio PADILLA-BATISTA, Appellant, v. STATE of Florida, Appellee.
    No. AH-4.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    No appearance for appellee.
   MILLS, Judge.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we find no reversible error.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Robert HYNES, Appellant, v. REISLER ELECTRIC and Nationwide Insurance, Appellees.
    No. AH-184.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Thomas D. Masterson, of Masterson, Rogers, Patterson & Masterson, P. A., St. Pe-tersburg, for appellant.
    Barbara J. Paulson, of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellees.
   WIGGINTON, Judge.

The sole issue in this workers’ compensation appeal is whether the employer/carrier is estopped from denying responsibility for payment of hospitalization expenses and attendant care undisputedly arising from a non-compensable automobile accident involving claimant. The deputy commissioner denied the claim for medical benefits. We affirm.

Claimant has a long history of back trouble, including an industrial accident with Reisler Electric on August 10, 1979, from which he had not reached MMI at the time of the automobile accident in question. As a result of his 1979 industrial injury, claimant had been repeatedly hospitalized at Sun Bay Community Hospital under the care of Doctors West and Rieth for an acute lumbo-sacral sprain. At the hearing, the hospital’s insurance verification clerk described the standard procedure for securing authorization by carriers on compensation cases. Generally, a day or so after admission, the carrier is contacted by a clerk who has only an admitting diagnosis, the patient’s and doctor’s names, and a form indicating whether the admission was covered by health insurance, medicare or workers’ compensation. This was the standard procedure used on those occasions when claimant was hospitalized for his industrial accident.

On February 23, 1981, claimant was involved in a nonwork related automobile accident. Within hours of his accident, claimant was forced to seek medical attention from Doctors West and Rieth for low back pain. They immediately placed him in Sun Bay Community Hospital. The admitting diagnosis was “acute lumbo-sacral sprain,” exactly the same diagnosis for which he had been hospitalized previously. The administrative form which reached the hospital’s insurance verification clerk was clearly designated as a compensation claim, although it is not clear from the record whether claimant designated it as such, or not. There was no indication on the form that the sprain resulted from an automobile accident. Therefore, the only notification received by the carrier was that claimant was admitted to the same hospital by the same treating physicians under the same diagnosis as when he was hospitalized for the 1979 compensable injury.

The carrier authorized the hospitalization but required confirmation every seven days. Claimant testified that while hospitalized, he called the carrier who assured him that he would be compensated for his injury. However, claimant also testified that he did not inform the carrier’s adjuster that he had been in an automobile accident, assuming that the hospital had done so. Upon receipt of Dr. Rieth’s medical report on March 30, 1981, the carrier learned for the first time that claimant’s latest hospitalization was caused by an unrelated automobile accident. The carrier timely controverted all benefits related to that accident as not necessitated by a compensable injury.

Under the circumstances, we cannot accept claimant’s contention that despite honest mistake on the part of all parties involved, only the carrier had a duty to investigate the causal relationship. The carrier did all that it could, in good faith, to meet its responsibility under the Workers’ Compensation Law, and should not be charged with the duty to second-guess a hitherto reliable hospital source.

Nor do we agree with claimant that because of the carrier’s acquiescence, he was misled. There is no evidence in the record to establish that the carrier ever withheld or misled claimant concerning the compens-ability of this accident. Unlike those cases relied on by claimant, the carrier here lacked knowledge of the status of claimant’s injury. The representation or misrepresentation was not made by the carrier but by a third party, the hospital. Cf. Engle v. Deerborne School, 226 So.2d 681 (Fla.1969); Kellner v. F N D Enterprises, Inc., 406 So.2d 1245 (Fla. 1st DCA 1981); and Pate v. Bay County School Board, IRC Order 2-3076 (December 9, 1976). Here there was no knowing, active acquiescence on the part of the carrier. For that reason, it should not be estopped from denying claimant benefits.

Accordingly, in that the confusion was not precipitated by or knowingly acquiesced in by the carrier, we affirm the deputy’s order denying claimant’s claim for medical care and attendance.

MILLS and ERVIN, JJ., concur.


text:
    Carolyn King SHARPE, as Personal Representative of the Estate of William Anthony Sharpe, deceased, Appellant, v. MONFORT OF COLORADO, INC., Appellee.
    No. AI-222.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Timothy D. Ellis, of Brown, Terrell & Hogan, Jacksonville, for appellant.
    Sammy Cacciatore, of Nance, Cacciatore & Sisserson, Melbourne, amicus curiae, for appellant.
    John J. Schickel, of Cowles, Coker, Myers, Schickel & Pierce, Jacksonville, for appellee.
    Jack W. Shaw, of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, amicus curiae, for appellee.
   PER CURIAM.

Sharpe appeals an order dismissing her complaint seeking damages in a tort action against Monfort. The lower court’s dismissal was based upon the finding that Sharpe’s exclusive remedy was under the Florida Workers’ Compensation Act (the Act), Chapter 440, Florida Statutes. We affirm.

We need not consider Sharpe’s argument that an employer’s intentional torts are not covered by the Act, since the facts, as alleged, do not constitute an intentional tort. The constitutionality of the Act may not be attacked for the first time on appeal. We observe that if the constitutionality of the Act had been raised below, the argument would fail. The constitutionality of Chapter 440 has been upheld repeatedly against attack. Iglesia v. Floran, 394 So.2d 994 (Fla.1981); Seaboard Coast Line R. Co. v. Smith, 359 So.2d 427 (Fla.1978); Walker and LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977). Punitive damages are not allowed, as an employer’s liability under the Act is in lieu of all other liability. Section 440.11(1), Florida Statutes (1979). Accordingly, the dismissal is AFFIRMED.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


author: JOANOS, Judge.

text:
    Dorothy B. OVEN, Appellant, v. John DAWIRS, Appellee.
    No. AJ-313.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    W. J. Oven, Jr. of Oven, Gwynn & Lewis, Tallahassee, for appellant.
    Everett P. Anderson, Tallahassee, for ap-pellee.
   JOANOS, Judge.

This appeal involves the apparently novel question of whether, when a commercial lease is silent as to the party responsible for payment of the tax imposed by Section 212.03, Florida Statutes, the burden of payment falls on the landlord or the tenant. We affirm the judgment of the trial court and adopt the reasoning for the result expressed in the final judgment.

Section 212.031(3) provides, in pertinent part:

The tax imposed by this section shall be in addition to the total amount of the rental and shall be charged by the lessor or person receiving the rent in and by a rental arrangement with the lessee or person paying the rental and shall be due and payable at the time of the receipt of such rental payment by the lessor or other person who receives said rental or payment. (e.s.)
The trial court concluded:
[Wjhere the parties have failed to make provision for the burden of the payment of sales tax in the agreement entered into between them, ... such burden rests upon the lessor. We reach this conclusion for the reason that the lessor bears ultimate responsibility and liability to the State for the payment of such tax and for the further reason that Section 212.-031(l)(a), F.S. declares that it is the legislative intent that a person is exercising a taxable privilege who engages in the business of renting, leasing or letting any real property. We construe this to be a direction that the tax is one levied on the lessor.

Appellee has brought to our attention the following additional support for the conclusion reached by the trial court: Green v. Panama City Housing Authority, 115 So.2d 560 (Fla.1959); Gaulden v. Kirk, 47 So.2d 567 (Fla.1950); Florida Department of Revenue v. Maas Brothers, Inc., 226 So.2d 849 (Fla. 1st DCA 1969); and Kirk v. Western Contracting Corp., 216 So.2d 503 (Fla. 1st DCA 1968). In each case the court noted that the tax involved is imposed on the privilege of engaging in the business of renting or leasing the property in question. The final judgment is AFFIRMED.

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


author: ERVIN, Judge.

text:
    Blanche REINOZO, Appellant, v. RIVERGOLD, INC. and Florida Farm Bureau, Appellees.
    No. AK-91.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Phillip C. Houston of Kocha & Houston, West Palm Beach, for appellant.
    Bernard F. Grail, Jr., Vero Beach, for appellees.
   ERVIN, Judge.

Appellant Blanche Reinozo, injured in late 1980, appeals a workers’ compensation order denying her wage-loss benefits for the period July 7, 1981 to January 12, 1982. The factual findings in the order (paragraphs 1 to 12) are supported by substantial competent evidence and not contested on appeal. These findings are affirmed. In paragraph 13 of the order the deputy commissioner relied on our opinion in Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982), and based on the work search requirements of Walburn, denied appellant’s claim. This court has since receded from Walburn in a definitive opinion explaining the requirements of a search for employment. See Regency Inn v. Johnson, 7 FLW 1285 (Fla. 1st DCA June 16, 1982) reh. en banc, (September 23, 1982). Because the deputy commissioner did not have the benefit of our Regency Inn opinion, we VACATE his determinations in paragraph 13 of the order and the denial of wage loss benefits, AFFIRM his findings in paragraphs 1 through 12 of the order, and REMAND for further consideration. Appellant’s motion for attorney’s fees is granted in the amount of $2,000.

MILLS and WIGGINTON, JJ., concur.


text:
    Brian K. SANFORD, Appellant, v. STATE of Florida, Appellee.
    No. AK-366.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee; Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

Appellant raises two issues in this appeal from a judgment and sentence for aggravated assault with a firearm and burglary of a structure while armed with a pistol. As to the first issue, we find no reversible error. For his second issue, appellant points out a discrepancy between the sentence as orally pronounced by the trial court, and as recorded on the form judgment and sentence and uniform commitment to custody. Appellee asserts these discrepancies were not brought to the attention of the trial court. The judgment and sentence appealed is affirmed without prejudice to bring the alleged sentencing discrepancies to the attention of the sentencing court in an appropriate motion for post-conviction relief.

AFFIRMED.

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


text:
    Edwin A. LAWRENCE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-296.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Ronald D. Combs, of Florida Institutional Legal Services, Incorporated, Gainesville, for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See: Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982); Britt v. Florida Parole and Probation Commission, 417 So.2d 1079 (Fla. 1st DCA 1982); and Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982).

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Eloise KAH, as Personal Representative of the Estate of William W. Kah, Petitioner, v. The Honorable Harold R. CLARK, Judge, Respondent.
    No. AN-336.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Thomas R. Brown, and Charles Cook Howell, III, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for petitioner.
    Bruce Barkett, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petitioner filed a motion for respondent to recuse himself from trying petitioner’s malpractice action on the grounds that the respondent was biased and prejudiced against the attorneys representing her in her suit. The respondent refused to recuse himself and this Petition for Writ of Prohibition to compel the respondent to withdraw as the judge presiding over petitioner’s case was filed. In response to an order to show cause why the Petition for Writ of Prohibition should not be granted, the respondent alleged that the motion for recu-sal was legally insufficient in that the motion was not supported in substance by the affidavit of at least two reputable citizens of the county not of kin to the moving party or her counsel and on the further ground that the allegations of the motion were insufficient to be the basis for the disqualification of the respondent for bias or prejudice.

We agree that the motion for disqualification was legally insufficient in that the supporting affidavits were made by co-counsel for the moving party and that there were not two supporting affidavits made by reputable parties who are not related to the moving party or her counsel as required by § 38.10, Fla.Stat. Such supporting affidavits by reputable persons not related to the moving party or her counsel are required unless the trial judge admits he does not stand fair and impartial between the parties or unless the record contains the equivalent of such an admission by the trial judge as existed in Pistorino v. Ferguson, 386 So.2d 65 (Fla. 3d DCA 1980).

The petitioner having failed to comply with § 38.10 and having failed to show any basis for waiver of compliance with said section, the Petition for Writ of Prohibition is Denied.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


text:
    Lavonne DAVIS and Bessie M. Davis, Appellants, v. MORTON F. PLANT HOSPITAL ASSOCIATION, INC., a nonprofit Florida corporation, Appellee.
    No. 82-86.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1982.
    Maureen Emmet-Miller of Riden, Watson & Goldstein, St. Petersburg, for appellants.
    James E. Byrne and James Martin, Clear-water, for appellee.
   PER CURIAM.

The order appealed, which awards attorney’s fees and costs to appellee against appellants, is reversed as to appellant Bessie Davis. The award of fees and costs was imposed as a sanction for appellant Lavonne Davis’s failure to comply with an order compelling answers to interrogatories. The original interrogatories, the order compelling answers to them, and appellee’s subsequent motion for an order holding Lavonne Davis in contempt were all directed solely to Lavonne Davis. Since Bessie Davis was never requested or ordered to do anything in connection with the matters in issue on this appeal, she had no duty in this regard, and sanctions can hardly be imposed on her for ignoring the trial court’s order.

Finding no merit to the other points raised on appeal, we affirm the order appealed as it relates to Lavonne Davis.

Accordingly, the order assessing attorney’s fees and costs against appellants is affirmed as it relates to appellant Lavonne Davis, but reversed as it relates to appellant Bessie Davis, and the cause is remanded with directions to correct the order in accordance with this opinion.

OTT, C. J., and BÓARDMAN and DAN-AHY, JJ., concur.


author: CAMPBELL, Judge.

text:
    REVELS FORD TRACTOR CO., INC., a Florida corporation, Appellant, v. John MEARES, Dorothy Meares and Meares Indian Rocks Landscaping, Inc., a Florida corporation, Appellees.
    No. 82-596.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1982.

      Eric S. Ruff of Trinkle, Redman, Alley & Moody, P.A., Plant City, for appellant.
    John D. Fernandez of John D. Fernandez, P.A., Clearwater, for appellees.
   CAMPBELL, Judge.

Revels Ford Tractor Co., Inc. appeals an order dismissing its amended complaint with prejudice. In its order of dismissal, the trial court referred to two earlier suits saying that “the matters sued on in the instant action were or should have been litigated in these prior actions.”

Revels sued the Meares and Meares Indian Rocks Landscaping, Inc. in this action for the down payment on a tractor sold to them by Revels in April, 1978. Earlier, Revels had sued Meares for payment for parts, services, and repairs performed from November, 1977, through June 20, 1978. Borg-Warner Acceptance Corporation, Revels’ assignor, had also sued Mr. and Mrs. Meares on an installment sales contract and security agreement for a truck and trailer that Revels sold to Meares in March, 1978. The parties eventually settled that case in favor of Borg-Warner.

After examining the record and even after indulging in the presumption of correctness that attaches to proceedings in a lower court, we cannot anywhere determine that the subject matter of the dismissed complaint was ever litigated in the prior proceedings. The suit for payment for parts, services, and repairs performed nowhere mentions the sale of a tractor and was apparently unconnected with the tractor. The sale of the tractor and the sale of the truck and trailer occurred at different times, involved different financing arrangements, arose from separate contracts, and concerned different goods. Therefore, there is not that identity of causes of action and of the items sued for sufficient to trigger an application of res judicata. Cole v. First Development Corp. of America, 339 So.2d 1130 (Fla. 2d DCA 1976); 32 Fla. Jur.2d Judgments & Decrees § 107 (1981). Neither do we find that the subject matter of the dismissed complaint should have required a compulsory counterclaim in the earlier proceedings. That being the case, the trial court erred in dismissing Revels’ amended complaint with prejudice. Accordingly, we reverse that order so that Revels’ claim may be considered on the merits.

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


author: GRIMES, Acting Chief Judge.

text:
    Frank POTUCEK, Appellant, v. Jill E. SMEJA, Appellee.
    No. 82-1585.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1982.
    Joseph S. Alexander, Clearwater, for appellant.
    John R. Haggitt of Farnell & Haggitt, Clearwater, for appellee.
   ON MOTION TO DISMISS

GRIMES, Acting Chief Judge.

The timeliness of this appeal depends upon whether a motion for rehearing tolls the time for taking an appeal from an order granting relief from a judgment pursuant to Florida Rule of Civil Procedure 1.540(b).

Appellant (Potucek) obtained a default judgment against appellee (Smeja). Thereafter, following the dictates of rule 1.500(d), Smeja filed a motion to set aside the judgment pursuant to rule 1.540(b). After the taking of testimony, the court granted the motion and set aside the final judgment by order dated May 11, 1982. While this ruling was predicated upon a deficiency in the service of process upon Smeja, at the hearing her counsel agreed to accept service; so, the court allowed twenty days for the filing of an answer. Potucek served a motion for rehearing on May 20, 1982, which the court denied on June 9, 1982. Potucek filed his notice of appeal on July 6, 1982. If the motion for rehearing tolled the appeal time, the appeal was timely; otherwise, Potucek was too late.

Appeals from both final and nonfi-nal orders must be taken within thirty days of the rendition of the order to be reviewed. Fla.R.App.P. 9.110(b) and 9.130(b). Florida Rule of Appellate Procedure 9.020(g) defines rendition as follows:

Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, to alter or amend, for judgment in accordance with prior motion for directed verdict, notwithstanding verdict, in arrest of judgment, or a challenge to the verdict, the order shall not be deemed rendered until disposition thereof.

An unauthorized motion for rehearing does not toll the time. Wagner v. Bicley, Wagner & Associates, 263 So.2d 1 (Fla.1972). Whether the motion for rehearing was authorized depends upon an interpretation of Florida Rule of Civil Procedure 1.530 which provides under subsection (a) “for a rehearing of matters heard without a jury, including summary judgments,” and under subsection (b) that a “motion ... for rehearing shall be served not later than 10 days after the ... entry of judgment in a non-jury action.” This rule has been consistently construed to authorize rehearings only on orders and judgments which are final in nature. Gordon v. Barley, 383 So.2d 322 (Fla. 5th DCA 1980); Florida Farm Bureau Insurance Co. v. Austin Carpet Service, 382 So.2d 305 (Fla. 1st DCA 1979).

Potucek argues that an order entered under rule 1.540(b), even though it follows the final judgment, is in essence a final order, itself, toward which a motion for rehearing can be directed. The case of Small v. Small, 313 So.2d 749 (Fla.1975), lends some support to his position. In that case, the supreme court held that an order entered on a petition to modify a divorce decree for changed circumstances was a final order from which a petition for rehearing could be filed, even though Florida Rule of Appellate Procedure 4.2 specified that all postde-cretal orders were interlocutory. The court reasoned that since the Florida Rules of Civil Procedure required pleadings to be filed in modification proceedings as if they were initial pleadings in the action and because the modification order was res judi-cata, the decision was, in fact, final. Justice England in a concurring opinion suggested that whether a postjudgment order is final for purposes of appeal should depend upon whether the order passes upon new matters affecting the substantive rights of the parties.

A motion to set aside a judgment under rule 1.540(b) has some similarities to a modification proceeding in that testimony is often taken and new matters are ordinarily brought to the attention of the court. One might further argue that an order entered pursuant to a rule 1.540(b) motion constitutes such an important ruling that the parties and the court ought to have an opportunity for reconsideration of that order before it becomes binding. On the other hand, many orders granting relief under rule 1.540(b) are not final in the sense that, as in the instant case, they contemplate a further determination of the merits.

Be that as it may, Florida Rule of Appellate Procedure 9.130, adopted by the supreme court subsequent to Small, unequivocally specifies that orders entered under rule 1.540 constitute nonfinal orders which are subject to review under that rule. Thus, rule 9.130(a)(1) states, “This rule applies to review of the non-final orders authorized herein in the district courts of appeal and the circuit courts.” Subsection (5) of the rule then reads, “Orders entered on motions filed pursuant to Fla.R.Civ.P. 1.540 are reviewable by the method prescribed by this rule.”

Thus, we conclude that there is no provision for seeking a rehearing of an order entered under rule 1.540(b). Potucek’s filing of a motion for rehearing, even though the trial court entertained it, did not toll the time for taking an appeal. When the notice of appeal was finally filed, it was untimely. However, Potueek may not be without recourse. If he ultimately suffers an adverse judgment, he can appeal and raise as an issue the propriety of the entry of the nonfinal order which set aside his earlier judgment. Fla.R.App.P. 9.110(h) and 9.130(g).

The motion to dismiss is granted, and this appeal is hereby dismissed.

DANAHY and SCHOONOVER, JJ., concur.


text:
    Richard E. THOMAS, Appellant, v. Edwin C. RATINER, Franklyn B. Glinn, and Ratiner & Glinn, P.A., Appellees.
    No. 82-1292.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Kelner & Kelner, Miami, for appellant.
    Horton, Perse & Ginsberg, Smathers & Thompson, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

The appellee having confessed error, the order granting the judgment on the pleadings is hereby reversed. See Unistar Corporation v. Child, 415 So.2d 733 (Fla. 3d DCA 1982). The cause is remanded to the trial court with instructions to vacate the order granting the motion for judgment on the pleadings and to reinstate the cause without prejudice to the defendants continuing to maintain that the plaintiffs have no valid cause of action against them.

Reversed and remanded with directions.


author:
LEMMON, Justice.
     CALOGERO, Justice,

text:
    STATE of Louisiana v. Anthony J. MART.
    No. 81-KA-2624.
    Supreme Court of Louisiana.
    June 21, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns and William R. Campbell, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Numa Bertel and Dwight Doskey, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
   LEMMON, Justice.

In this appeal from a conviction of second degree murder, defendant principally contends that the state’s evidence was insufficient, that the trial court erred in refusing to grant a mistrial following the prosecutor’s closing argument reference to the possibility of a pardon, and that the trial court failed to instruct the jury properly as to the elements of the responsive offense of manslaughter.

I.

After consuming a large amount of beer at a bar during the course of an evening and while apparently in a bellicose mood, defendant got his “drinking buddy” to drive him to his brother-in-law’s home, where defendant shattered a front window with a shotgun blast. As defendant and his companion were heading back to the bar, they observed on the street two black men who were total strangers. For reasons not entirely clear, defendant told his companion (the driver) to turn around and stop. He reloaded his shotgun and got out of the car. With the weapon resting on the roof of the car, defendant fired one shot toward the pedestrians. Although defendant contended later that he intended only to scare the men by shooting birdshot over their heads, the pellets struck the victim in the shoulder and the heart, killing him.

Shortly thereafter, defendant was apprehended, and he was eventually indicted for second degree murder. His companion cooperated with the authorities and testified against defendant.

Defendant’s first conviction was reversed by this court. State v. Mart, 352 So.2d 678 (La.1977). After a second trial, he was again convicted of second degree murder and sentenced to life imprisonment without benefit of probation or parole for forty years. Hence this appeal.

II.

The evidence was clearly sufficient to satisfy a rational juror that defendant acted with specific intent to kill or inflict great bodily harm when he discharged a lethal weapon, aimed in the direction of two innocent and unsuspecting human beings who were strolling along the street at night.

The defenses were that defendant’s intoxication precluded specific intent and that the shotgun blast, intended only to scare the victim, resulted in an accidental killing. In support of these defenses, defendant offered evidence to show that he (as well as his companion) consumed a significant quantity of alcoholic beverage, and he testified that he only meant to “scare” the men, one of whom he claimed provoked the incident by making an obscene gesture toward defendant. Despite his intoxication, defendant was obviously capable of planning an assault on his relative’s home, of operating his shotgun, and of taking aim in the direction of the victim. The evidence was uncontested as to defendant’s clearly unlawful act of intentionally discharging a shotgun at close range in the direction of others, after accurately shooting through the window of his relative’s home, after instructing the driver to turn the car around and drive toward the victim, and after climbing out of the car window and aiming the shotgun. The resulting killing of a human being was also undisputed. When all of the evidence presented is viewed in a light most favorable to the state, we conclude a rational juror could have found proof beyond a reasonable doubt that defendant intended to kill or to inflict great bodily harm. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

III.

During the closing argument, defense counsel made reference to the mandatory life sentence resulting from a second degree murder conviction. In response, the prosecutor argued that defense counsel’s plea failed to “take into account” possible changes in pardon and parole boards and further argued that “we all know from what our common sense tells us that no one serves the time they are given.” The trial court sustained defense counsel’s objection to the state’s remarks and immediately instructed the jury to disregard them. However, the trial court rejected a defense request for a mistrial.

Under the circumstances, the judge did not abuse his broad discretion to determine whether a prosecutor’s prejudicial remark (not falling within the proscription of the mandatory mistrial provisions of C.Cr.P. Art. 770) necessitates a mistrial or an instruction to disregard. C.Cr.P. Art. 771. Although this court has previously cautioned prosecutors about arguing speculative possibilities of future actions by pardon boards, the trial court’s prompt and decisive action sufficiently neutralized the prospects of prejudice so that we cannot say that the argument influenced the jury or contributed to the verdict. See State v. Lindsay, 404 So.2d 466 (La.1981). Therefore, we conclude that the trial judge did not commit reversible error in refusing to exercise his discretion in favor of granting a mistrial.

IV.

The most difficult issue presented in this case relates to the trial court’s clearly erroneous, but unobjected to, instructions defining the elements of the responsive offense of manslaughter.

Defendant’s own testimony at trial effectively admitted the crime of “misdemeanor manslaughter”. In testifying that he intended to “scare” the pedestrians (but not harm them) by discharging the shotgun in their direction, defendant acknowledged that he acted with at least a general intent to place the pedestrians in reasonable apprehension of being struck with shot from the weapon, i.e., to assault them.

In defining the elements of “misdemean- or manslaughter”, the- trial judge erroneously instructed the jury that assault is not an intentional misdemeanor directly affecting the person. If counsel had objected to this instruction and the trial judge had failed to correct the error, we would be required to reverse defendant’s conviction. Thus, the effect of the absence of an objection to the trial court’s instruction is critical to our resolution of defendant’s appellate complaint that the instruction prejudicially removed from the jury the option of returning the responsive verdict of manslaughter resulting from an assault.

The contemporaneous objection rule serves two laudable and related purposes. The first is succinctly stated in Professor Dale Bennett’s original comments to C.Cr.P. Art. 841: to prevent the defendant from having “an anchor to windward” to urge for the first time in the event of conviction. See D. Bennett, The 1966 Code of Criminal Procedure, 27 La.L.Rev. 175 (1967). In fairness to the state, defendant cannot simply watch the proceedings unfold and silently hope that the state will introduce inadmissible evidence or that the trial court will commit error. Significantly, the rule also prevents defendant from adopting, as a matter of strategy, one approach at trial, and then, if that approach fails, arguing a contrary view on appeal.

The second and related purpose is one of judicial efficiency. The defendant has a duty to alert the trial court, if he objects to the admissibility of evidence or the method of proceeding. This allows the trial court to correct (or avoid) error, so that the verdict results from a trial which is as error-free as possible.

Nevertheless, this court has recognized exceptions to the rule’s seemingly inflexible assertion that trial error, unless contemporaneously objected to, cannot be asserted on appeal. In State v. Williamson, 389 So.2d 1328 (La.1980), fundamentally erroneous misstatements of the essential elements of the charged offense were found to require reversal, despite the defendant’s failure to raise an objection in the trial court. In that case this court apparently adopted a view, not totally unlike the federal “plain error” approach, that such fundamentally incorrect jury instructions so affect the fairness of the proceedings and the accuracy of the factfinding process that due process of law requires reversal, even in the absence of compliance with legislative procedural mandates.

The instant case does not present such a situation. Although the instruction may have removed from the jury’s consideration the responsive verdict of manslaughter (as an unintentional killing in the course of an intentional assault), failure to object to the instruction may have been a calculated defense strategy. Given the instructions and the evidence presented, the jury was effectively left to choose between guilty and not guilty. It appears that defendant may have adopted such a strategy, since his closing argument not only stressed the “accidental shooting” defense, but also pointed out that defendant was only guilty of the non-responsive offense of negligent homicide, which necessitated acquittal. Since defense counsel attempted to persuade the jury to return a verdict of not guilty, when the evidence mandated a verdict of guilty of at least manslaughter, the erroneous instruction was arguably helpful to this attempt.

When counsel for defendant fails to comply with the contemporaneous objection rule, even in the case of a fundamentally erroneous instruction on the elements of an offense, it is not unreasonable to require defendant to carry the burden of satisfying this court that the procedural default (that is, the failure to raise the complaint properly) was excusable and was not the result of trial strategy. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Here, defendant has not borne this burden.

Further, the erroneous instruction related only to an element (albeit a crucial one) of a responsive verdict, rather than to the definition of the offense charged. In such a case, it is not so apparent that the erroneous instruction fundamentally affects the fairness of the proceedings and the accuracy of the factfinding process.

Defendant’s conviction and sentence are affirmed.

CALOGERO, J., concurs while not in agreement with the majority’s treatment of defendant’s supplemental assignment of error, paragraph IV in the opinion.

CALOGERO, Justice,

concurring.

I respectfully concur.

With respect to the defendant’s supplementary assignment of error which is treated in section IV of the opinion, I am of the view that it does not have merit because the trial judge’s lengthy and informative instruction did not improperly interfere with the jury’s properly considering the responsive verdict of manslaughter.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judge Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this decision as justices pro tempore, with Chief Justice Dixon and Associate Justices Calogero, Dennis, Watson and Lemmon.

      . Defendant’s other contentions lack any arguable merit and are treated in an unpublished appendix which is part of the official record in this case.

      . At the time the brother-in-law was separated from defendant’s sister.

      . Manslaughter includes an unintended killing resulting from an intentional misdemeanor directly affecting the person. R.S. 14:31(2)(a). An assault (the intentional placing of another in reasonable apprehension of receiving a battery) is an intentional misdemeanor directly affecting the person. R.S. 14:31(2)(a), Reporter’s Comment.