author: BARKDULL, Judge. DANIEL S. PEARSON, Judge,

text:
    Sandra Sue MILLER, Kathleen Louise Mitchell and Lynda Lee Pryor, Petitioners, v. The STATE of Florida, Respondent.
    No. 80-2283.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.

      A. John Goshgarian and Howard Hoch-man, Miami, for petitioners.
    Jim Smith, Atty. Gen., for respondent.
    Before BARKDULL and BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

The petitioners were charged in the county court with a violation of Ordinance 3-12 of the City of Miami, commonly known as the “B-Girl” ordinance. The matters were consolidated before the trial court for trial and each of the defendants filed or joined in a motion to dismiss, which motion was grounded upon the proposition that Ordinance 3-12 was unconstitutional on its face and unconstitutional in its application as applied to similar employees. The motion to dismiss was denied by the trial court.

The evidence before the trial judge indicated that the three individuals were fraternizing or mingling with patrons of an alcoholic beverage establishment. The trial judge found them guilty of a violation of the ordinance and sentenced them accordingly. They appealed to the circuit court, which appeal resulted in a decision affirming the convictions in the following language:

“Affirmed. See City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957); City of Miami v. Jiminez, 130 So.2d 109 (Fla. 3d DCA 1961).”

Certiorari was filed in this court to review the action of the circuit court, sitting in its appellate capacity. Upon such a petition, it is incumbent on this court to examine the record presented to it to determine if the circuit court exceeded its jurisdiction or departed from the established principles of law. State v. Smith, 118 So.2d 792 (Fla. 1st DCA 1960); Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964); Blacharski v. Watts, 268 So.2d 465 (Fla. 4th DCA 1972); City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980). In State v. Smith, supra, we find the following:

“4 — 7] Certiorari is a common-law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of an appeal, but to cause the entire record of the inferior court to be brought up in order that it may be determined from the face thereof whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of law. Confined to its legitimate scope, the writ may issue within the court’s discretion to correct the ■ procedure of courts wherein they have not observed those requirements of the law which are deemed to be essential to the administration of justice. It is important, however, that the court should not broaden or extend the scope of the writ. A judgment void for lack of jurisdiction, or a proceeding characterized by a complete failure to observe essential requirements of law is subject to correction at the discretion of the court vested with the power to issue the writ. Failure to observe the essential requirements of law means failure to accord due process of law within the contemplation of the Constitution, or the commission of an error so fundamental in character as to fatally infect the judgment and render it void. Certiorari is confined to a limited review of the proceedings of an inferior jurisdiction. It is an original action in the sense that the subject matter of the suit or proceedings which it brings before the court are not there reinvestigated, tried and determined upon the merits generally as upon an appeal.” [footnotes omitted]

Examining the record in light of these principles, we find the ordinance in question to be constitutionally valid on its face, and we deny the relief sought. The substance of the ordinance was before the Supreme Court in City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957), and even though the court declined to rule on the facial invalidity we believe that the ordinance in question adequately apprises an employee of an alcoholic beverage establishment of the proscribed conduct, i.e., the employee is not to mingle or fraternize with patrons. This does not mean that an employee of such an establishment cannot respond to an order placed by a patron for food or beverage; however, it is clear on its face that it proscribes an employee or an entertainer from engaging in conduct with a patron which is social in nature.

Therefore, for the reasons above stated, the relief sought by the petition for certio-rari be and the same is hereby denied.

DANIEL S. PEARSON, Judge,

dissenting.

I think the petitioners’ attack on the ordinance on the ground of vagueness is unavailing because of City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957). There the Supreme Court, although avowedly not deciding the validity of a substantially similar mingling and fraternizing ordinance in respect to the actual mingler or fraternizer, did decide that the terms “mingle” and “fraternize” are not vague.

“The words ‘mingle’ and ‘fraternize’ when read in context with the whole of said ordinance have a clear meaning. It is obvious that they mean something more than the ordinary conduct of an employee or entertainer in the performance of duties usually and generally assigned to employees or legitimate entertainers in such establishments. See People v. King, 1952, 115 Cal.App.2d Supp. 875, 252 P.2d 78, for a discussion of the meaning of the word ‘mingle’ in a similar ordinance.” 92 So.2d at 802 (emphasis supplied).

This narrowing construction of the words “mingle” and “fraternize,” while, arguendo, avoiding the constitutional difficulty of vagueness, hardly disposes of, and indeed brings into focus, petitioners’ distinct and separate claim that the ordinance, as now authoritatively construed, is overbroad in that it reaches and impinges upon speech and conduct protected by the First and Fourteenth Amendments to the United States Constitution. As the majority notes, a businesslike exchange involving an order placed by a patron for- food or beverage is not the type of mingling and fraternizing prohibited by the ordinance as construed. But the problem here is that all other mingling and fraternizing is prohibited. Thus, within the ambit of the ordinance is, for example, all social intercourse, all political dialogue and all interpersonal association beyond the call of duty. In sum, the ordinance as authoritatively construed in Kayfetz criminalizes any speech and conduct except that engaged in by “an employee or entertainer in the performance of duties usually and generally assigned to employees or legitimate entertainers in such establishment.” Most assuredly, this construction serves to ban speech and conduct which could be said to affect “adversely . . . the morals of the citizens of [Miami] and its visitors, and is harmful to the general welfare of the community.”. City of Miami v. Kayfetz, supra, at 802. But banned along with this evil is that which the government has no right to ban, namely, constitutionally protected speech and conduct.

It is axiomatic that where a legislative enactment is susceptible of application to protected speech or conduct, it is constitutionally overbroad and therefore facially invalid. Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Brown v. State, 358 So.2d 16 (Fla. 1978); Spears v. State, 337 So.2d 977 (Fla.1976); Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980). In this case, as in any other where the claim is overbreadth, it is not necessary that the petitioners show that their speech or conduct could not be regulated by a legislative enactment drawn or construed with the requisite narrow specificity. Gooding v. Wilson, supra. The petitioners are permitted to raise the unconstitutional overbreadth as applied to others, since the vice of legislation which is susceptible of application to constitutionally protected speech or conduct is that

“... persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a [law] susceptible of application to protected expression.” Gooding v. Wilson, supra, 405 U.S. at 521, 92 S.Ct. at 1105, 31 L.Ed.2d at 413.

In other words, if the ordinance would be unconstitutionally overbroad as applied to anybody, the petitioners, no matter what they did, cannot be punished under it. Spears v. State, supra.

“The details of the offense could no more serve to validate [the] ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.” Coates v. Cincinnati, supra, 402 U.S. at 616, 91 S.Ct. at 1689, 29 L.Ed.2d at 219.

The separation of legitimate from illegitimate speech and conduct “calls for more sensitive tools than [Kayfetz] has supplied,” see Gooding v. Wilson, supra, 405 U.S. at 528, 92 S.Ct. at 1109. Based upon the Kay-fetz authoritative construction, I think we have no choice but to hold that the ordinance in question is unconstitutionally over-broad, to grant certiorari, and to quash the decision of the Circuit Court which affirmed the petitioners’ convictions for mingling and fraternizing.

      . The City of Miami Code, Section 3-12 states:
      “Employees Not To Mingle With Customers. It shall be unlawful for employees or entertainers in places dispensing alcoholic beverages for consumption on the premises to mingle or fraternize with customers or patrons of such establishment (Code 1947, Section 411; Ord. No. 8426, Section 6).”

      . No evidence was adduced to show how the ordinance was enforced in order to support the charge that the ordinance, as applied, was unconstitutional.

      . The business of distribution of liquor is one which is particularly burdened with public concern, which may be limited and regulated by the State as a privilege. Inman v. City of Miami, 197 So.2d 50 (Fla. 3d DCA 1967). In enacting such regulation, the State is not considering ordinary trades, businesses, occupations or professions. State v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947).

      . The petitioner Pryor was also convicted of violating Section 3-11 of the City of Miami Code, which prohibits an employee in a place dispensing alcoholic beverages from being served beverages paid for by a customer or patron. I would deny certiorari in respect to her challenge to the constitutionality of this ordinance, since I believe this challenge to be foreclosed by City of Miami v. Jiminez, 130 So.2d 109 (Fla. 3d DCA 1961) (holding constitutional a similar predecessor ordinance). Moreover, I do not believe any constitutional right of Pryor is implicated by an ordinance which precludes her from drinking beverages bought by patrons or customers in her place of employment.

      . Kayfetz rejected an attack by the licensee of the establishment where alcoholic beverages are sold. The court’s holding was that in respect to the licensee, who had no constitutional right to have his employees or entertainers mingle or fraternize beyond ordinary conduct in the performance of their duties, the ordinance was constitutional.

      . I do not share the majority’s view “that the ordinance in question adequately apprises an employee of an alcoholic beverage establishment of the proscribed conduct.” However, I am bound to follow Kayfetz’s conclusion that the ordinance as there narrowed by the court is . not vague. Were it not for Kayfetz, the vagueness challenge could not so easily be dismissed.

      . What the majority totally overlooks when it says “that the ordinance in question adequately apprises an employee of an alcoholic beverage establishment of the proscribed conduct” is that while that may meet the objection on vagueness grounds, it does not come close to addressing the objection that included within proscribed conduct is constitutionally protected speech and conduct. Vagueness and over-breadth are not the same things. See, e.g., Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Sawyer v. Sandstrom, 615 F.2d 311, 315 (5th Cir. 1980) (“The objectionable quality of overbreadth .. . does not depend upon absence of fair notice to a criminally accused.... ”).

      . While the broad power of the states to regulate the sale of liquors conferred by the Twenty-First Amendment may outweigh any First Amendment interest in acts of gross sexuality, California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); compare Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), or even topless dancing in establishments licensed by the state to serve liquor, New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), I do not think anyone would suggest that in the name of the Twenty-First Amendment, “a state may ban any protected activity on such premises, no matter how innocuous or, more importantly, how clearly protected,” New York State Liquor Authority v. Bellanca, supra, 452 U.S. at 719, 101 S.Ct. at 2602, 69 L.Ed.2d at 362 (Stevens, J., dissenting).

      . Even if we accepted the suggestion, see Coates v. Cincinnati, supra (White, J., dissenting) that we look to the conduct actually involved, the total proof in the present case was that the petitioners were observed engaging in conversations of varying lengths (from 1 to 22 minutes) with patrons. None of the conversations were overheard. If the content of the imagined conversations was the solicitation of drinks from patrons, then the petitioners could have been charged and convicted under Section 3 13 of the City of Miami Code, a separate ordinance which expressly prohibits this solicitation. Ironically, it could be argued that such activity does not violate Section 3-12 as narrowed by Kayfetz, since soliciting drinks, while otherwise condemned, might be considered activity “in the performance of duties usually and generally assigned to employees.” The very existence of Section 3-11, see n. 4, supra, and Section 3-13, each of which prohibits certain unprotected speech and conduct, illustrates the catchall nature of Section 3-12, the problem with which is that it catches too much.


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    APRIL INDUSTRIES, INC., Appellant, v. Eugene S. LEVY, Appellee.
    No. 80-2509.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.

      Wilbur G. Silverman, Jamaica, N. Y., for appellant.
    Stern & Kneski and Peter Kneski, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

April Industries, Inc. appeals from a summary judgment entered against it in an action by appellee Levy, plaintiff below, to enforce a New York judgment awarding Levy’s client attorney’s fees. The disposi-tive issue on appeal is whether the trial court erred in denying the motion of April Industries to quash service and dismiss Levy’s complaint for lack of jurisdiction over a foreign corporation pursuant to Sections 48.193(l)(a) and (b), Florida Statutes (1979).

The facts are briefly as follows. April Industries is a Delaware Corporation with its principal place of business in San Juan, Puerto Rico. April Industries had previously contracted outside of Florida to purchase stock from Arias Cardenas, then a resident of Puerto Rico, shares of stock in a Puerto Rico corporation. April Industries paid for the purchase of stock by giving Arias promissory notes, but claimed certain set-offs under indemnification clauses of the contract and withheld two of the notes which provided for payment of attorney’s fees in the event April Industries defaulted in payment. As part of the purchase contract, the parties entered into an escrow agreement whereby a Miami attorney, Amos Benjamin as escrowee, would hold the notes in Florida.

April Industries defaulted on the notes and Arias sued for damages in a New York court. The New York court granted summary judgment for Arias, who was represented by appellee Levy, for the amount due in the notes and awarded Arias attorney’s fees. In September of 1973 in a separate action which is the subject of this appeal, the New York court determined that $4,500.00 was reasonable attorney’s fees and directed that sum plus costs be paid to appellant Levy. Levy subsequently sued April Industries, Inc. and escrowee Amos Benjamin in Circuit Court in Dade County, Florida seeking to enjoin escrowee Benjamin from delivering the property in escrow to April Industries and alleging that he was a judgment creditor, and that there had been no satisfaction of attorney’s fees. Benjamin responded to the complaint by way of interpleader. The court ordered the escrowed property deposited with the registry of the court. After hearing, the trial court awarded the contested property to appellee Levy, and April Industries appeals.

In Florida, personal jurisdiction over a nonresident defendant may be obtained if it is established that (1) the defendant committed one of the acts listed in paragraphs (a) through (g) of Section 48.193, Florida Statutes and the act committed gave rise to the action sued on, and (2) the method of service of process comports with statutory requirements. See generally Ford Motor Company v. Atwood Vacuum Machine Company, 392 So.2d 1305 (Fla.1981); Underwood v. University of Kentucky, 390 So.2d 433 (Fla.3d DCA 1980); Caribe & Panama Investments v. Christensen, 375 So.2d 601 (Fla.3d DCA 1979). In his complaint to enforce the New York judgment awarding attorney’s fees, Levy alleges two grounds for subjecting April Industries to long-arm jurisdiction, Section 48.193(l)(a), doing business or having an agency in the state and Section 48.193(l)(b), committing a tortious act within the state. We find the facts alleged in the complaint are insufficient to sustain jurisdiction on either ground and reverse without reaching the issue of sufficiency of service of process.

As to the first ground for long-arm jurisdiction pursuant to Section 48.-193(l)(a), we reject Levy’s argument that the presence of a corporation’s personal property in Florida pursuant to an escrow agreement entered into outside of Florida, and the control of that property by a Florida escrowee according to the terms of that agreement are sufficient to find that the corporation conducts business or has an agency in Florida. In order to establish that a defendant was carrying on business or a business venture in this State, either itself or through an agent, the activities of the corporation sought to be served must be considered collectively and show a general course of business activity in the state for pecuniary benefit. Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975) (intent to sell property in Florida through agent). Accord Anson v. Lemperuer, 390 So.2d 478 (Fla. 1st DCA 1980) (express object of partnership was to acquire land in Florida and develop condominium units); Southeast First National Bank of Satellite Beach v. Atlantic Telec, Inc., 389 So.2d 1032 (Fla. 5th DCA 1980) (contract evidenced an ongoing sales distribution business looking towards continued activity in Florida); Citizens State Bank v. Winters Government Securities Corporation, 361 So.2d 760 (Fla. 4th DCA 1978) (obligation of series of transactions to buy and sell future contracts in Florida). The escrow arrangement is neither an agreement for sale of property in Florida or sale of foreign property to Florida residents for profit, nor is it evidence of continuing business ventures within the State. Accordingly, we find that April Industries is not subject to long-arm jurisdiction pursuant to Section 48.193(l)(a).

We also find that April Industries is not subject to long-arm jurisdiction pursuant to Section 48.193(l)(b), for committing a tortious act within the State. In his third amended complaint, Levy alleges that his client Arias and April Industries conspired in Florida to deprive Levy of his attorney’s fees awarded by the New York judgment and wrongfully secured the satisfaction of judgment in the New York court. Assuming that a conspiracy did occur in Florida, the commission of the tortious act essential to depriving Levy of his attorney’s fees was the alleged fraudulent satisfaction of judgment perpetrated in the New York court. The gist of a civil action for conspiracy is not the conspiracy itself but the civil wrong which is alleged to have been committed pursuant to the conspiracy. Orlando Sports Stadium, Inc. v. Sentinel Star Company, 316 So.2d 607 (Fla. 4th DCA 1975). The alleged wrong to Levy occurred in New York, not Florida. Cf. Godfrey v. Neumann, supra, note 2, (commission of tort in Florida by nonresident is sufficient minimum contact with Florida to justify long-arm jurisdiction); Watts v. Haun, 393 So.2d 54 (Fla. 2d DCA 1981) (act essential for success of tort occurred in Florida).

Reversed and remanded with directions to dismiss complaint.

      . New York law gives an attorney a lien upon his client’s cause of action and provides that the court upon petition of the client or attorney may determine and enforce the lien, McKinney, Judiciary Law, § 475.

      . Though it is stated that Florida law requires more activities or contacts with Florida than are required by constitutional due process considerations, Bloom v. A. H. Pond Co., Inc., 519 F.Supp. 1162, 1167 (S.D.Fla.1981), recent decisions of the United States Supreme Court reaffirming the need for minimum contacts established by International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), see Rush v. Savchuk, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980); WorldWide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), and recent interpretation of Section 48.193, Florida’s long-arm statute enacted Ch. 73-179, § 1 Laws of Fla., effective July 1, 1973, greatly expanding those acts for which long-arm jurisdiction will lie, see Ford Motor Company v. Atwood Vaccum Machine Company, supra, (lack of direct presence and activity within borders of Florida is no bar finding minimum contacts in products liability case); Godfrey v. Neumann, 373 So.2d 920 (Fla. 1979) (commission of tort in Florida by nonresident is sufficient minimum contact); Lacy v. Force V Corp., 403 So.2d 1050 (Fla. 1st DCA 1981) (breach of contract to be performed in state is act permitting Florida courts to acquire jurisdiction), have brought the Florida and federal practice closer in line.


author: PER CURIAM.

text:
    COMMUNITY HEALTH OF SOUTH DADE, INC., Appellant, v. Modena HALE, as Personal Representative of the Estate of James Hale, a minor, deceased, and Modena Hale and James Hale, individually, Appellees.
    No. 81-9.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Harold C. Knecht, Jr. and David A. Crowley, Coral Gables, for appellant.
    Rosenblatt, Greene & Arnowitz, Greene & Cooper and Marc Cooper, Miami, for ap-pellees.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

The judgment under review in the plaintiffs’ favor against the present appellant is affirmed without prejudice to any subsequent proceeding for contribution or indemnity by the appellant against any other party defendant.


text:
    W. C. HERRELL, Jr., Appellant, v. ALLIS-CHALMERS CORPORATION, Appellee.
    No. 81-156.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Dixon, Dixon, Hurst, Nicklaus & Webb, Daniels & Hicks and Patrice A. Talisman, Miami, for appellant.
    Greene & Cooper and Marc Cooper, Cor-lett, Merritt, Killian & Sikes and David F. McIntosh, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

The sua sponte dismissal of the cause without prejudice because both parties failed timely to file a pre-trial catalogue was an abuse of discretion and is reversed. Maqueira v. Almas, 409 So.2d 199 (Fla. 3d DCA 1982); see also, Techno Industrial Corp. v. Cooper Industries, Inc., 410 So.2d 584 (Fla. 3d DCA Case no. 81-278, opinion filed, February 23, 1982).


author: PER CURIAM. JORGENSON, Judge,

text:
    Ervin A. HIGGS, Property Appraiser of Monroe County, Florida, Appellant, v. PROPERTY APPRAISAL ADJUSTMENT BOARD OF MONROE COUNTY, Florida, Appellee.
    No. 81-158.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Dent, Pflugner, Rosin & Haben and John C. Dent, Jr. and Stanley Hendricks, Sarasota, for appellant.
    Lucien C. Proby, Jr., Key West, for appel-lee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the judgment of the trial court denying the Property Appraiser in-junctive and other relief sought pursuant to Section 194.032(6)(a)(3), Florida Statutes (1977), against the Property Appraisal Adjustment Board. In essence, this statute provides that if, after investigation, the Department of Revenue makes a probable cause determination that “there exists a consistent and continuous violation of the intent of the law or administrative rules by the Property Appraisal Adjustment Board in its decisions,” see Property Appraisal Adjustment Board of Sarasota County v. Florida Department of Revenue, 349 So.2d 804 (Fla. 2d DCA 1977), the Property Appraiser may bring suit to enjoin such future violations and to “restore the tax roll to its just value in such amount as determined by judicial proceeding.”

All statutory predicates having been satisfied, the Appraiser sued. Among other things, he alleged that the Board engaged in a consistent and continuous violation of the intent of the law or administrative rules in that the Board’s “written decisions” did not comply with Section 194.032(5), Florida Statutes (1977). That statute provides, in pertinent part:

“[T]he property appraisal adjustment board shall render a written decision.... The decision of the board shall contain findings of fact and conclusions of law and shall include reasons for upholding or overturning the property appraiser’s determination. The clerk, upon issuance of the decisions, shall, on a form provided by the Department of Revenue, notify by first-class mail each taxpayer, the property appraiser, and the department of the decision of the board.” (emphasis supplied).

In support of that claim, the Appraiser introduced certain documents entitled “Record of Decision and Notice of Property Appraisal Board.” While it is obvious that these documents are the Department of Revenue Forms for notifying the taxpayer, the Appraiser, and the Revenue Department of the Board’s decision, there is not the slightest suggestion by the Board, either below or here, that these documents were mere notices and not the Board’s “written decisions.”

The Board does not seriously contend, and indeed cannot, that the written decisions comport with the law’s requirements. Florida Administrative Code Rule 12D-10.-03(5)(a) promulgated by the Department of Revenue to supplement Section 194.032(5) says:

“(5)(a) Every decision of the Board must contain specific and detailed findings of fact which shall include both ultimate findings of fact and basic and underlying findings of fact. Each basic and underlying finding must be properly annotated to its supporting evidence. For purposes of these rules, the following are defined to mean:
“1. An ultimate finding is a determination of fact. An ultimate finding is usually expressed in the language of a statutory standard and must be supported by and flow rationally from adequate basic and underlying findings. “2. Basic and underlying findings are those findings on which the ultimate findings rest and which are supported by evidence. Basic and underlying findings are more detailed than the ultimate findings but less detailed than a summary of the evidence.
“3. Reasons are those clearly stated grounds upon which the Board or property appraiser acted.”

Eight of the decisions contain no reasons, findings or conclusions at all; twelve give as a reason “condition of building” or “condition of house”; three expand upon this by stating “condition of building (or house) not computed properly”; two say “land use restricted”; and the remainder variously state “income factors,” “set back restrictions,” “restricted use of land — Old Island District,” “lot location and restricted use,” and “due to condition.” Given the woeful inadequacy of these statements when measured against the statute’s requirements, it is understandable that the Board advances the argument that the statement of reasons, findings of fact, and conclusions of law called for by the statute are discretionary with the Board. In short, the Board says that “shall” in the statute means “may.”

We cannot conclude, as did the trial court in its final judgment, that these statutory requirements are “purely intended for the guidance of the Board and the conduct of their business.” The statute means “shall” and for good reason:

“The exposure of an official’s decisional referents to the critical scrutiny of others may disclose the inadequacy of those referents and create pressures to bring about their change. This type of constraint upon agency action will not tend to be limited — as is judicial review — to overseeing the good faith of agency policy choices. Rather exposure of the agency’s decisional referents to the critical scrutiny of others possesses a potential .. . for improving the degree of objective rationality of agency decisions.” (emphasis supplied).

McDonald v. Department of Banking and Finance, 346 So.2d 569, 583 n. 12 (Fla. 1st DCA 1977) [quoting from Gifford, Decisions, Decisional Referents, and Administrative Justice, 37 Law and Contemporary Problems 3, 29 (1972)]. See Borovina v. Florida Construction Industry Licensing Board, 369 So.2d 1038 (Fla. 4th DCA 1979); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977); City of Jacksonville v. Arnold, 343 So.2d 962 (Fla. 1st DCA 1977); Gentry v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 283 So.2d 386 (Fla. 1st DCA 1973); Powell v. Board of Public Instruction of Levy County, 229 So.2d 308 (Fla. 1st DCA 1970) (all construing like requirement of Administrative Procedures Act).

Accordingly, the judgment of the trial court is reversed with directions to grant appropriate relief to the Appraiser.

JORGENSON, Judge,

dissenting.

This law suit was brought pursuant to Section 194.032(6)(a)(3), Florida Statutes (1977), which also provides that the burden of proof shall be upon the party initiating the action. Section 194.032(6)(a)(3)(c), Florida Statutes (1977).

In my view the tax appraiser has wholly failed to meet that burden. Any defects in the record below are attributable to him. Accordingly, I would affirm.

      . The Appraiser also alleged that the Board engaged in a consistent and continuous violation of the law by entertaining and according relief on taxpayer petitions which were untime-lv filed. The sole proof of this allegation was that a partial transcript of a Board hearing, admitted in evidence below, revealed that the clerk of the Property Appraisal Adjustment Board stated at the hearing that the petitions were late. We need not decide whether this unsworn declaration was competent to prove the truth of the clerk’s statement, since we decide that the Appraiser’s proof of the deficiency in the Board’s “written decisions” entitles him to relief.

      . Nor does the Board suggest that the requirements of the statute can be substantially satisfied by a transcript of the Board’s hearing which itself shows the reasons, findings and conclusions of the Board. See Eastwood v. Hall, 258 So.2d 269 (Fla. 2d DCA 1972). But see R.B.S. v. Capri, 384 So.2d 692 (Fla. 3d DCA 1980). First, were this the Board’s theory, it would have been incumbent upon it to advance the theory and proffer such a transcript. But second, the parties have informed us that no such transcript exists, because the tape recording of the hearings held on the taxpayer petitions is completely inaudible, notwithstanding a separate statutory mandate that the Board make a verbatim record of the proceedings. See § 194.032(3), Fla.Stat. (1977).


text:
    K. E., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-180.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., BASKIN, J., and BERANEK, JOHN R., Associate Judge.
   PER CURIAM.

Affirmed. State v. Brown, 395 So.2d 1202 (Fla. 3d DCA 1981); Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978).


author: PER CURIAM. FERGUSON, Judge

text:
    A. R. E. E. A., INC., a Florida corporation, Appellant, v. Sandra GOLDSTEIN and Sandra Goldstein & Associates, Inc., a Florida corporation, Appellees.
    No. 81-311.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Schoninger, Jankowitz & Siegfried and Mark L. Deutsch, Miami, for appellant.
    Lapidus & Stettin and Robert P. Frankel, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The final summary judgment entered in favor of defendant Goldstein is affirmed. The record establishes, without genuine issue of material fact, that (a) there could be no tortious interference with the employment contract between plaintiff and Ms. Wiles since the contract was terminable at will, Wackenhut Corp. v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980); see also Lake Gateway Motor Inn, Inc. v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978); and (b) the underlying tort of willful interference with a business relationship, necessary to the establishment of a cause of action for conspiracy to interfere, could not exist since defendant was the source of the business opportunity which defendant and Ms. Wiles allegedly conspired to deprive plaintiff of. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979); Buckner v. Lower Florida Keys Hospital District, 403 So.2d 1025 (Fla. 3d DCA 1981); Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), pet. for rev. denied, 392 So.2d 1371 (Fla.1981), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981); West v. Troelstrup, 367 So.2d 253 (Fla. 1st DCA 1979).

Affirmed.

FERGUSON, Judge

(specially concurring).

I concur in the results but would reject the majority holding that there can be no actionable interference with an employment contract which is terminable at will. The cases relied upon in the majority opinion, Wackenhut Corp. v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980) and Lake Gateway Motor Inn, Inc. v. Matt’s Sunshine Gift Shops, Inc., 261 So.2d 769 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla. 1979), stand for the rule that allegations of an intentional and unjustified interference with an existing business relationship which causes damage to the plaintiff establishes a prima facie ease, and that the burden then shifts to the defendant to justify that interference. If the defendant can prove that the interference was merely that of lawful competition — a privilege which courts readily recognize when the contract interfered with is terminable at will — the defendant will not be found to have committed the tort of wrongful business interference. See W. Prosser, Law of Torts, § 129 (4th ed. 1971) at pp. 932, 946. See also Insurance Field Services, Inc. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1981); Mays v. Stratton, 183 So.2d 43 (Fla. 1st DCA 1966), cert. denied, 188 So.2d 817 (Fla.1966).


text:
    Andrew JACKSON, Appellant, v. GENERAL INSURANCE COMPANY OF FLORIDA, Appellee.
    No. 81-403.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Dernis, Goberna & Saks, Ann Mason Parker, Miami, for appellant.
    Joe N. Unger, Ronald C. Kopplow, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Pachivas v. General Insurance Co., 411 So.2d 228 (Fla.1982).


author: BASKIN, Judge.

text:
    Leonard JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-557.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Clinton Pitts, Michael Zelman, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

We affirm defendant Johnson’s convictions for robbery and grand-theft second degree of a bicycle entered following his violation of his probation. In accordance with State v. Hegstrom, 401 So.2d 1343 (Fla.1981), however, we vacate the sentence imposed for grand theft. We note that defendant’s multiple convictions preclude a sentence under the Youthful Offender Act, Chapter 958. State v. Goodson, 403 So.2d 1337 (Fla.1981).

Affirmed as modified.


text:
    Manuel Medina MARRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-666.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.

      Pollack, Komorowski & Headley and John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. See, Moore v. State, 407 So.2d 991 (Fla. 3d DCA 1981).


text:
    Leon DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-712.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Bennett H. Brummer, Public Defender, and Elliot L. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Defendant Leon Davis was sentenced to serve four concurrent four-year terms of incarceration followed by concurrent two-year terms of probation. Because the trial court sentenced him pursuant to Chapter 958, Florida Statutes (1979) as a youthful offender, we must remand the cause for correction of his sentence. Chapter 958 authorizes defendant’s placement in a community control program upon completion of incarceration but does not authorize a term of probation. See Riley v. State, 407 So.2d 967 (Fla. 2d DCA 1981); § 958.05(2), Fla. Stat. (1979).

Remanded for correction of the sentence.


text:
    MERIT PUBLICATIONS, INC., a Florida corporation, Appellant, v. COMPACT PUBLICATIONS, INC., et al., Appellees.
    No. 81-883.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.

      Heller & Kaplan and Daniel Neal Heller, Miami, for appellant.
    Levine, Reckson, Reed & Geiger, Miami, for appellees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The partial summary judgment entered in favor of the defendant Compact Publications, Inc., is reversed. Genuine and material issues of fact exist precluding the entry of summary judgment, Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977), including (a) whether the defendant sought to “palm off” its books as plaintiff’s; and (b) the likelihood of customer confusion between the two. See B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254 (5th Cir. 1971); Harlequin Enterprises Ltd. v. Gulf & Western Corp., 503 F.Supp. 647 (S.D.N.Y.1980), aff’d, 644 F.2d 946 (2d Cir. 1981); Teledyne Industries, Inc. v. Windmere Products, Inc., 433 F.Supp. 710, 736 (S.D.Fla.1977); Weiner v. Weisberg, 342 So.2d 535 (Fla. 3d DCA 1977); Luckie v. McCall Mfg. Co., 153 So.2d 311 (Fla. 1st DCA), cert. denied, 157 So.2d 817 (Fla.1963). See generally Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 232, 84 S.Ct. 784, 789, 11 L.Ed.2d 661, 667 (1964) (state action aimed at protecting businesses in the use of trade dress not pre-empted by federal law); Sentco, Inc. v. McCulloh, 68 So.2d 577 (Fla.1953); American Pest Corps., Inc. v. Barco Chemicals Division, Inc., 317 So.2d 789 (Fla. 4th DCA 1975); Crown Central Petroleum Corp. v. Standard Oil Co., 135 So.2d 26 (Fla. 1st DCA 1961), cert. denied, 142 So.2d 731 (Fla.1962).

Reversed and remanded for further proceedings.


author: NESBITT, Judge.

text:
    Nelson SANCHEZ, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, STATE OF FLORIDA, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 81-1125.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.

      Nelson Sanchez, in pro. per.
    James Parks and A. Robert Whaley, Tallahassee, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

Sanchez seeks reversal of an order of the Unemployment Appeals Commission upholding a referee’s finding which denied unemployment compensation benefits on the basis of employee misconduct. We must affirm the referee’s determination of misconduct if it is supported by competent, substantial evidence in the record. CF Chemicals, Inc. v. Florida Department of Labor and Employment Security, 400 So.2d 846 (Fla. 2d DCA 1981); Catholic Social Services v. Florida Department of Commerce, 365 So.2d 427 (Fla. 1st DCA 1978).

Sanchez was employed for a period of approximately four months at Larkin General Hospital in Miami. The record reveals that, aside from engaging in frequent verbal altercations with other hospital employees, Sanchez fought a constant, losing battle with the time clock. Indeed, the record demonstrates that although Sanchez agreed to work a minimum of forty hours per week, he did not satisfy this requirement in any week of the entire four-month period.

The denouement of Sanchez’ employment occurred with an unauthorized absence from “work.” Sanchez asserted as a justification for the missed days, that he undertook during his truancy to undergo elective surgery to repair a deviated septum. There is medical support in the record indicating that the surgery was not of such an emergent nature as to require remedial attention without first obtaining the approval of a supervisor. Sanchez was discharged from his employment at Larkin General Hospital prior to his being discharged from nasal surgery at Palm Springs General Hospital.

Sanchez’ occupational problems have been recognized by various courts as warranting disqualification from compensation benefits. In Chapman v. Division of Employment Security of Department of Labor, 104 So.2d 201 (La.App.1958), a roofer’s helper was terminated from employment for arriving late on three mornings during three weeks of work. Affirming a subsequent denial of unemployment compensation, the court stated: “From time immemorial promptness in reporting to work has been regarded as essential to the proper conduct of an employer’s business, and tardiness has been accepted as sufficient grounds for the termination of employer-employee relationship.” 104 So.2d at 203-204.

A similar pattern of employee belligerence was reprimanded in Unemployment Compensation Board of Review v. Glenn, 23 Pa.Commw.Ct. 240, 350 A.2d 890 (1976), wherein it was determined that: “Habitual tardiness, particularly after warnings that a termination of services may result if the practice continues, is sufficient evidence of an employee’s disregard of the employer’s interest to sustain a finding of willful misconduct.” 350 A.2d at 892. See Malliet v. Levine, 52 A.D.2d 1026, 383 N.Y.S.2d 690 (1976); De Scetto v. Levine, 51 A.D.2d 1100, 381 N.Y.S.2d 356 (1976).

Likewise, the discharge of an employee for misconduct in failing to comply with a forty-hour workweek has been held to constitute a valid reason for denying a compensation claim. Nathanson v. Levine, 51 A.D.2d 1100, 381 N.Y.S.2d 358 (1976).

Additionally, an unauthorized absence from work for personal reasons not of a critical nature may comprise employee misconduct justifying a refusal of compensation. Florida Junior College at Jacksonville v. Florida Department of Labor, Division of Employment Security, 381 So.2d 1120 (Fla. 1st DCA 1979); City of Riviera Beach v. Florida Department of Commerce, Division of Employment Security, 372 So.2d 1007 (Fla. 4th DCA 1979).

When viewed against this legal background, the record in this case clearly evinces substantial evidence in support of disqualifying Sanchez from eligibility for unemployment compensation benefits.

Affirmed.


text:
    MASTERS DRIVERS OF FLORIDA, INC., Charlotte O. Rowley, and George W. Rowley, Appellants, v. PROFESSIONAL EMPLOYERS TRUST ADMINISTRATION COMPANY, INC., Appellee.
    No. 81-1136.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellants.
    Tew, Spittler & Berger and Jeffrey Allen Tew, Miami, for appellee.
    Before HUBBART, C. J., BASKIN, J., and BERANEK, JOHN R., Associate Judge.
   PER CURIAM.

Because the record discloses the existence of general issues of material fact concerning whether appellee promised but failed to provide appellants with insurance coverage for pre-existing conditions, we reverse the summary judgment entered by the trial court.

Reversed and remanded for further proceedings.


text:
    Charles WEBER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1342.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Bennett H. Brummer, Public Defender and William A. Cain, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

The appellant seeks review of an adverse jury verdict and sentence accordingly, after being charged with attempted murder and the use of a firearm in the commission of a felony. He urges two points for reversal: The ineffectiveness of counsel and illegal sentence.

We affirm, without prejudice to the appellant raising these issues initially in the trial court. Combs v. State, 403 So.2d 418 (Fla.1981); Valero v. State, 393 So.2d 1197 (Fla. 3d DCA 1981); Cannon v. State, 384 So.2d 970 (Fla. 3d DCA 1980); State v. Barber, 301 So.2d 7 (Fla.1974).

Affirmed.


text:
    Alfonso RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1604.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker and Beth Weitzner, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Jacobson v. State, 375 So.2d 1133 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980); Nunez v. State, 367 So .2d 268 (Fla. 3d DCA 1979); James v. State, 334 So.2d 83 (Fla. 3d DCA 1976).


author: DANIEL S. PEARSON, Judge.

text:
    Billy McCLAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1787.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Taffer & Jacobs and Jack J. Taffer, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Neither the hospitalization of Daniel Rodriguez’s wife, nor Daniel’s understandable desire to be at her bedside rather than in court to testify at McClain’s second trial, was a basis for allowing the State, over McClain’s objection, to use Daniel’s testimony given at McClain’s first trial.

We reject the State’s contention that these circumstances made Daniel “unavailable as a witness” under either Section 90.-804(l)(d) or Section 90.804(l)(e), Florida Statutes (1979). Subsection (l)(d) provides that a declarant is unavailable as a witness if he

“[i]s unable to be present or to testify at the hearing because of death or because of then existing physical or mental illness or infirmity.”

We are directed to no case, and have found none ourselves, which construes this language to include the death, illness or infirmity of a person other than the witness, no matter how closely related to the witness. Indeed, the very strictness with which the identical Federal Rule of Evidence has been construed in respect to the illness or infirmity of the witness himself, compare, e.g., Peterson v. United States, 344 F.2d 419 (5th Cir. 1965) (witness’ pregnancy with complications not sufficient to render witness unavailable), with United States v. Bell, 500 F.2d 1287 (2d Cir. 1974) (witness who had undergone surgery and who would be unable to testify for at least two-and-a-half months could be determined to be unavailable), persuades us that the State’s contention is untenable.

The State’s argument that the witness comes within the definition in Section 90.804(l)(e) fares worse. That section provides that a declarant who

“[i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means”

is unavailable as a witness. It should be obvious that the mere reluctance of a witness to attend a trial — understandable or not — does not mean that the State is unable to procure his attendance. The proponent of the former testimony must establish what steps it took to secure the appearance of the witness, see Government of the Canal Zone v. P (Pinto), 590 F.2d 1344 (5th Cir. 1979); M.S.D., Inc. v. United States, 434 F.Supp. 85 (N.D.Ohio 1977). Here the State, with full knowledge of the witness’ whereabouts, did nothing to procure his attendance.

Notwithstanding that we find error in the trial court’s finding of unavailability and the consequent admission of Daniel’s former testimony, we conclude that, under the circumstances of the case, the error was not only harmless, but one which could be said to have worked in the defendant’s favor. As the defendant argued to the jury, the sole issue in the ease was his identity as the perpetrator of the burglary of the car and the robbery of Daniel’s wife, Pastora Rodriguez, who (with Daniel) occupied the vehicle. The only witness who could and did identify the defendant as the culprit was a bystander. The former testimony of Daniel primarily consisted of a description of the perpetrator which substantially differed from the defendant’s actual appearance and, therefore, was at odds with the bystander’s testimony. Accordingly, the error is harmless, and the judgments of conviction under review are

Affirmed.

      . The defendant’s first trial on the same charges resulted in a mistrial for reasons which are not clear from this record, but which are unimportant to our resolution of the issues on this appeal.

      . There is no question here that were the unavailability requirement met, this former testimony would qualify for admission as an exception to the rule making hearsay evidence inadmissible. Section 90.804(2)(a), Florida Statutes (1979), defines former testimony as: “Testimony given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is offered .. . had an opportunity and similar motive to develop the testimony by direct, cross or re-direct examination.”

      . Even in instances where the witness cannot be found, before the witness will be declared unavailable, there must be a showing of a good faith effort to locate him. Compare Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), with Wilson v. Bowie, 408 F.2d 1105 (9th Cir. 1969).

      .The record does not reflect whether Daniel was subpoenaed. But if he was, the record clearly reflects that no effort was made by the State to have the subpoena enforced.

      . At oral argument, defendant’s counsel conceded that Daniel’s former testimony might reasonably be viewed as favorable to the defendant. He contended that Daniel’s live testimony would, therefore, have cast greater doubt on the bystander’s identification. While that indeed may be true, the defendant overlooks that he did not subpoena Daniel or attempt to procure his attendance, but instead resisted the introduction of Daniel’s former testimony, which, while it may not have been better than live testimony, was better for him than none at all.

      . This disposes of defendant’s second point on appeal that the evidence was insufficient to establish that the defendant committed the crimes in question.

      . The only testimony of Daniel which could be said to have aided the State was that his wife was placed in fear when the perpetrator reached into the automobile and grabbed her purse. This testimony simply corroborated the first-trial testimony of his wife, which was, because she was ill and unavailable, admitted pursuant to the defendant’s stipulation. Of course, the wife’s fear or lack thereof was not a critical issue given the defense of misidentification.

      .The defendant’s objection was on hearsay grounds only. Even had he asserted that his constitutional right to confront Daniel Rodriguez was violated by the trial court’s ruling, we would find the violation harmless beyond any reasonable doubt. See Phillips v. Pitchess, 451 F.2d 913 (9th Cir. 1971).


text:
    Thelma G. KRUTEL, Appellant, v. Irving G. KRUTEL, Appellee.
    No. 81-1811.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Alan E. Weinstein and Richard J. Preira, Miami Beach, for appellant.
    Silver, Levy & Hershoff and Jay M. Levy, Miami, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The final judgment of dissolution is affirmed on the grounds that (a) the record clearly demonstrates that the parties stipulated to the matters now appealed, Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Dorson v. Dorson, 393 So.2d 632 (Fla. 4th DCA 1981); Groover v. Groover, 383 So.2d 280 (Fla. 3d DCA 1980); Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 202 (Fla.1980); Barr v. Ehrlich, 301 So.2d 147 (Fla. 4th DCA 1974); Curr v. Helene Transportation Corp., 287 So.2d 695 (Fla. 3d DCA 1973), and (b) no error or abuse of the trial court’s discretion has been shown, Canakaris v. Ganakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


text:
    Aldrian COOK, Appellant, v. The STATE of Florida, Appellee.
    No. 82-363.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.

      Aldrian Cook, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

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


author: SHARP, Judge. COBB, Judge, COWART, Judge,

text:
    Johnny Lee BELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-1136.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    James B. Gibson, Public Defender, and Lynda Campbell, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Appellant, Bell, was charged by information with trafficking in illegal drugs, sale of a controlled substance and possession of a controlled substance. Trial by jury was held and Bell was found guilty as charged. He was adjudicated guilty and sentenced to fifteen years on the trafficking count, ten years on the sale count and five years on the possession count. Bell appealed contending the trial court erred in sentencing him on all three counts. We agree and vacate the two sentences for the sale and possession of controlled substances.

Anyone who knowingly sells or is knowingly in actual or constructive possession of illegal drugs is guilty of trafficking in illegal drugs. § 893.135(l)(c), Fla.Stat. (1979). Trafficking may be proven either by the sale or by the possession of illegal drugs. Section 893.13(l)(a) prohibits the sale of a controlled substance and section 893.13(l)(e) prohibits the actual or constructive possession of a controlled substance. In this case there was only one sale of drugs involved.

The sale and possession of illegal drugs constituted a violation of the trafficking offense, and the same elements (sale and possession) were involved in the other two offenses. Therefore, only the sentence for the more serious offense — trafficking—can stand. A contrary holding by us would create double jeopardy problems. State v. Hegstrom, 401 So.2d 1343 (Fla.1981); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Accordingly, the sentences for sale and possession of a controlled substance are vacated. We affirm the convictions and the sentence for trafficking in illegal drugs.

AFFIRMED in part and VACATED in part.

COBB, J., concurs specially with opinion.

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

COBB, Judge,

concurring specially.

Based upon my reading of the recent Florida Supreme Court cases of State v. Monroe, 406 So.2d 1115 (Fla.1981), and State v. Hegstrom, 401 So.2d 1343 (Fla.1981), and the doctrine of stare decisis, I must concur with the majority result. It seems to me, however, that Monroe and Hegstrom are in conflict with the double jeopardy clause of the Fifth Amendment of the United States Constitution.

COWART, Judge,

concurring in part and dissenting in part:

The statutory offense of “trafficking in illegal drugs,” § 893.135(l)(c), Fla.Stat. (1979), prohibits and penalizes the possession and sale and certain other acts involving four grams or more of any mixture, salt, isomer or salt of an isomer of morphine or opium, including heroin. A charge of a violation of this statutory offense necessarily includes, as lesser included offenses involving a lesser quantity of the same controlled substances, both the statutory offense of possession, § 893.13(l)(e), Fla.Stat. (1979), and the statutory offense of sale, § 893.13(l)(a)l., Fla.Stat. (1979).

Since such true lesser included offenses (also sometimes redundantly called “necessarily lesser included offenses” or category 3 lesser included offenses under the categorization in Brown v. State, 206 So.2d 377 (Fla.1968)), never pass the test in Blockburger v. 17. S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), as being essentially separate and distinct from the greater offense, they are therefore, for constitutional double jeopardy purposes, always “the same offense” as the greater offense. Trials, convictions and sentences for both such greater offense and such lesser included offenses are always barred by the double jeopardy clauses of the state and federal constitutions.

The exclusion of such true lesser included offenses from the requirement of section 775.021(4), Florida Statutes (1979), that a separate sentence be imposed on the conviction of each and every violation of a criminal statute, is merely a recognition of the fact that under the Blockburger test the federal double jeopardy clause bars the trial and conviction (and therefore punishment) of both the greater offense and any lesser offense, all of the constituent elements of which are included in the elements of such greater offense. In the double jeopardy context and as used in section 775.021(4), Florida Statutes (1979), the phrase “lesser included offenses” has its true legal meaning and relates only to “a crime within a crime.” “Lesser” means having a lesser number of constituent elements than the greater offense. “Included” means that those lesser number of elements are totally included within the elements of the greater offense. “Offense” means a statutory or common law crime. This definition does not include the pseudo-lesser included offense concept involved in the abrogated “single transaction rule” and implemented by the Brown v. State category 4 rationale, wherein “lesser” meant a crime having a lesser penalty; “included” meant the allegations of the facts constituting a violation of the lesser crime were included in the same count charging the greater crime; “offense” referred to the single or same factual act, occurrence, transaction or episode in which the two crimes occurred and application of the single transaction rule permitted conviction of the category 4 offense but barred a separate sentence (punishment) for it.

Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981), holds that, as the substance of criminal offenses is their constituent essential elements, merely casting the exact same set of elements into the form of two statutes with different numbers, titles and punishments does not create two distinctly different offenses. The same set of constituent elements remained, in substance, but one and “the same offense,” within the meaning of the constitutional double jeopardy clauses, subject to but one trial, conviction and punishment. Thus, after Bartee had once been put in jeopardy for a violation of such a substantive offense described by reference to one statutory section number, he could not, as to the same factual event, again be put in jeopardy for that same substantive offense, although the second time it was described as a violation of a statute with a different title, section number and punishment. Bartee has nothing to do with any concept relating to sentencing only for the more serious of two or more offenses.

This ease does not involve a felony murder, but the majority relies on Hegstrom, which considers legal problems involved in trials, convictions and sentences for both a felony murder and the underlying felony offense. Blockburger, decided in 1932, was cited in no reported Florida case until, in 1979 in Pinder, it was cited as the authority for holding that double jeopardy barred conviction for a felony murder and also for the underlying felony. After Pinder was criticized in Whalen, the same problem was reconsidered in Hegstrom and there it was recognized that Pinder misunderstood double jeopardy and misapplied Blockburger. Accordingly, Hegstrom withdrew from Pin-der and held, correctly, that under a proper Blockburger analysis a felony murder offense and a completed underlying felony offense are distinctly different crimes in substance, each constitutionally subject to a separate jeopardy, trial, conviction, and sentence. Unfortunately, Hegstrom makes statements inconsistent with this conclusion saying that, by definition, proof of the underlying robbery offense was “necessarily an offense included within the [felony murder].” If this statement is correct, then, as explained above, the Blockburger test is failed and both offenses would be “the same offense” within the meaning of the double jeopardy clauses and trials and convictions for both offenses would be constitutionally prohibited. Of course, if trials and convictions are constitutionally prohibited, the point is never reached where the validity of a separate sentence for one of two offenses can even be considered.

More unfortunately though, in backing away from Pinder and the double jeopardy problem, Hegstrom backs into section 775.-021(4), Florida Statutes (1979), and notices that while that statute mandates separate sentences for every conviction and adjudication of guilt for each criminal offense, it excludes lesser included offenses. Heg-strom then reasons that, since the statute does not require a separate sentence as to lesser included offenses, it must, therefore, prohibit a separate sentence as to convictions of lesser included offenses (Heg-strom’s transmission has only a forward and a reverse — no neutral). Realizing that it has just said that the underlying offense is a necessarily lesser included offense of felony murder (although it has impliedly held contrary wise as to the double jeopardy problem) Hegstrom concludes that, while double jeopardy does not bar a conviction for the underlying felony offense in addition to a conviction for the felony murder, the statute, not the constitution, bars a separate sentence for the underlying felony when one has been sentenced for the felony murder.

If the felony offense underlying a felony murder is NOT a necessarily lesser included offense of the felony murder offense, then Hegstrom is correct in holding that double jeopardy does not bar a conviction of both a felony murder offense and the underlying felony offense. Certainly Hegstrom does not hold, as apparently the majority assumes, that double jeopardy permits Bell to be convicted of both a greater offense and lesser included offenses, all of the constituent essential elements of which are included within the elements of such greater offense, but prohibits sentencing for the lesser included offenses. The above analysis and an awareness of a sworn duty to uphold the U.S. Constitution (see Art. II, § 5(b), Fla. Const.), and no other reason, have forced me to an opinion that obliges me to say that I believe that the majority opinion misapplies Blockburger, misconstrues Hegstrom and erroneously approves, contrary to the double jeopardy clauses of both the state and federal constitutions, Bell’s three convictions for what is, in contemplation of constitutional law, one and “the same offense.”

Accordingly, I would affirm the conviction and sentence as to the trafficking offense and reverse the convictions, as well as the sentences, relating to both the possession and the sale offenses.

      . §§ 893.13(l)(a), 893.13(l)(e), 893.135(l)(c), Fla.Stat. (1979).

      . §§ 893.13(l)(a), 893.13(l)(e), Fla.Stat. (1979).

      . Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981).

      . State v. Pinder, 375 So.2d 836 (Fla.1979).

      . Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

      . Paradoxically, however, the same conclusion (that the underlying felony is NOT a necessarily lesser included offense of felony murder) should have led to the conclusion that the lesser included offense exclusion in section 775.-021(4), Florida Statutes, did not apply, and a holding that the statute requires, rather than prohibits, a separate sentence as to the conviction relating to the underlying felony offense. Such a holding would align the statute with the constitutional double jeopardy clause; these are presently, under Hegstrom, at cross-purposes.

      . If the majority is correct in reading Hegstrom as stating that double jeopardy simply does not apply to multiple convictions for the same offense if they are all obtained in one trial, then Hegstrom is in direct conflict with previous decisions of the United States Supreme Court. The Blockburger case itself involved three convictions of drug sales occurring in one trial on a five count indictment. One and the same act of selling proved all elements of two sections of the federal Narcotic Act and was held to constitute the commission of two separate and distinct offenses justifying and constitutionally permitting two convictions only because each statutory section contained an essential element that the other section did not require. If such multiple convictions were constitutionally permitted because they were obtained in but one trial and were not constitutionally required to rest on substantially different and distinct statutory prohibitions, then the test for substantive difference between crimes, re-enunciated and applied by the U.S. Supreme Court in Blockburger, was totally unnecessary in that landmark case. The Florida Supreme Court’s interpretation of Florida law, such as its construction in Hegstrom, of section 775.021(4), Florida Statutes (1979), is binding on all other Florida state courts, but where the Florida Supreme Court’s interpretation of the federal constitution conflicts with the United States Supreme Court’s interpretation, the district courts of this state have consistently followed the federal interpretation. See, e.g., Edwards v. State, 393 So.2d 597 (Fla. 3d DCA 1981), review denied, 402 So.2d 613 (Fla.1981); Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980). The constitutional prohibition against double jeopardy has always protected an accused not only against the peril of a second punishment but also against even the hazard of trial and possible conviction twice for the same offense. That is why double jeopardy is a defense to a prosecution, not just a bar to two sentences for the same offense. A second conviction for the same offense, even without a separate sentence, has detrimental consequences under habitual offender statutes, parole consideration criteria and legal principles permitting impeachment to be enhanced by evidence of the number of prior convictions of crime. I read no case cited by the majority, including Hegstrom, to hold that double jeopardy authorizes two convictions for the same offense, provided no formal sentence is imposed on the second conviction.


author: COWART, Judge.

text:
    John MEDINA, Appellant, v. STATE of Florida, Appellee.
    No. 81-378.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    James B. Gibson, Public Defender; Michael S. Becker, Asst. Public Defender, and Leonard R. Ross, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant entered a guilty plea pursuant to a plea agreement wherein the State agreed, with the trial court’s approval, that “the maximum period of incarceration that [appellant] would face would be one year under the agreement.” Subsequently, appellant was given a true split sentence as authorized by section 948.01(4), Florida Statutes (1981), committing him to the custody of the Department of Corrections for a term of three years, but providing that, after serving one year in prison, the imposition of the remainder of the sentence imposed be stayed and withheld and appellant be placed on probation for a period of two years. Appellant directly appeals from the sentence, arguing that the sentence imposed violates the plea agreement.

Appellant made no objection at the time of the imposition of sentencing, nor has he made a motion to reduce the sentence on the ground that it violated the plea agreement or otherwise given the trial court an opportunity to consider if the plea agreement was ambiguous as stated and, if so, what the intent of the parties was with respect to the possibility of up to two additional years of confinement in the event of a violation of probation during the two year period of probation. Any question about these matters should be first raised in the trial court. If appellant is aggrieved by the trial court’s construction of the plea agreement, appellant can move the court to permit him to withdraw his plea. If appellant is aggrieved by the trial court’s ruling on his motion to withdraw his plea, he can appeal to this court. Robinson v. State, 373 So.2d 898 (Fla.1979); Orr v. State, 402 So.2d 535 (Fla. 5th DCA 1981).

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . See, for example, Orr v. State, 402 So.2d 535 (Fla. 5th DCA 1981), where such a motion was made.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Ruth Ann HARVEY, Appellant/Cross-Appellee, v. James Frances HARVEY, Appellee/Cross-Appellant.
    No. 81-482.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    Marcia A. Hudgins and Richard L. Wilson, Orlando, for appellant/cross-appellee.
    Stewart Cohen of Pilacek, Egan, Cohen & Williams, Orlando, for appellee/cross-appel-lant.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant-wife appeals a final judgment of dissolution which required her to pay all the mortgage payments, taxes and insurance on the marital residence while she occupies it. Appellee-husband cross-appeals the provision of the judgment which permitted the wife to maintain exclusive possession for five years even if she remarried. The husband also challenges the provision that he be required to maintain a policy of mortgage insurance on the house.

We affirm the trial court except in regard to the provision of the judgment giving the wife the right to exclusive possession after remarriage. See Caldwell v. Caldwell, 400 So.2d 1270 (Fla. 5th DCA 1981). We also construe the provision requiring the husband to maintain a policy of mortgage insurance as an aspect of child support rather than of alimony.

The judgment ordered the husband to continue making the payments on a mortgage insurance policy on the jointly owned residence which was to be occupied by the wife and children during the children’s minority. This court has held that the requirement that a husband carry a life insurance policy for the benefit of his wife is improper as being tantamount to postmortem alimony. Eagan v. Eagan, 392 So.2d 988 (Fla. 5th DCA 1981). However, this court also noted that a husband can be required to maintain life insurance for the benefit of his minor children as security for his obligation to support the children not in his custody. Id. See also Bosem v. Bosem, 279 So.2d 863 (Fla.1973).

Notwithstanding the fact that the requirement was labeled an additional award of alimony, we agree with the wife’s contention that it is actually security for child support. The husband’s obligation to maintain the mortgage insurance is discharged upon termination of the wife’s exclusive use and possession of the marital home. While exclusive possession would terminate upon her remarriage, it also terminates when the children attain their majority; thus, the obligation only exists while the children are residing in the marital home. If there were no mortgage insurance and the husband were to die before the wife achieved financial independence, the wife might not be able to retain the home. That result would conflict with the trial court’s desire to adequately provide for the children. We therefore strike the words “as an additional award of alimony” from the judgment as surplusage.

AFFIRMED as modified and REVERSED in part.

ORFINGER and SHARP, JJ., concur.


author: ORFINGER, Judge. COWART, Judge,

text:
    Diane PEAK, Appellant, v. Ewell A. PEAK, Appellee.
    No. 81-603.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.

      J. Cheney Mason, Orlando, for appellant.
    R. David Ayers, Jr., Winter Park, for appellee.
   ORFINGER, Judge.

In the final judgment dissolving the marriage between the parties, the trial court denied the wife any periodic rehabilitative or permanent alimony (although reserving jurisdiction to make such award in the future), awarded her the husband’s equity in the marital residence as lump sum alimony, gave her custody of the two minor children of the marriage and $25.00 per week per child for support, and denied her request for attorney’s fees. The wife appeals, contending that she was entitled to periodic alimony, either permanent or rehabilitative, that she is entitled to more child support and to her attorney’s fees. We reverse for the reasons set forth.

The marriage of more than ten years produced two minor children, one nine years old and the other nineteen months. The wife had an eighth grade education and was unable to read or write. She had held some menial jobs for brief periods at minimum wage, but was unemployed at the time of the dissolution proceeding and had been unsuccessful in finding employment. She did testify that she was capable of working if she could find something to do, although she had some medical problems. The husband was regularly employed in the fruit business, and had earned in excess of $20,-000 during 1980. The trial court found this to be an exceptional year, and found that the husband’s net earnings, after all deductions would not be more than $252.00 per week.

The jointly owned marital residence had an equity of about $10,000. The court awarded the wife the husband’s equity in the house as lump sum alimony, and announced that because of this he was awarding only $50.00 per week as child support, although the usual guidelines which he followed would normally have produced a larger award.

Appellant first contends that she was entitled to an award of either rehabilitative or permanent periodic alimony. The trial court has broad discretion to use various available remedies to do equity between the parties to a dissolution proceeding. The remedies which may be used to accomplish this purpose include lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, special equity in property and the award of exclusive possession of property. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). These remedies are interrelated and must be reviewed by an appellate court as a part of an overall scheme. When a trial judge fails to apply the proper legal rule, his action is erroneous as a matter of law. However, where a decision is within the judicial discretion of the trial judge, as in determining the amount of alimony or child support, the standard for appellate review is abuse of discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. However, the trial court’s discretion is subject to the test of reasonableness and there must be logic and justification for the result. Canakaris, 382 So.2d at 1203.

It appears here that the trial court considered that there might be a demonstrable need for some form of periodic alimony because it reserved jurisdiction to award alimony should the wife be unable to find employment which she was seeking and which she felt she was capable of securing. Applying the “abuse of discretion” test, we would hesitate to reverse the judgment were this the only issue on appeal.

Child support, though, is quite another matter here. The trial court may order either or both parties to a dissolution proceeding to pay child support in an amount which is equitable in light of the circumstances of each party and the nature of the case. § 61.13(1), Fla.Stat. (1979). The most dominant and directly related factor to be considered in determining the amount of child support to be paid by the non-custodial parent is the income of that parent. Thompson v. Thompson, 402 So.2d 1220 (Fla. 5th DCA 1981). Determination of the amount of child support rests primarily in the discretion of the trial judge considering factors such as needs of the children, their age, their station in life, and prior standard of living of the parents, relative to the financial status and ability of the non-custodial parent to meet such needs. Bordman v. Bordman, 231 So.2d 543 (Fla. 3d DCA 1970). The ability of the custodial spouse to provide for the needs of the children should also be taken into account. Burnett v. Burnett, 197 So.2d 854 (Fla. 1st DCA 1967).

Until she becomes income producing, the wife’s total income from all sources is the amount of child support awarded by the court of $50.00 per week. Based on the trial court’s findings, the husband’s net income is in excess of $250 per week before child support payments. The wife is now required to make the mortgage payments of $210.00 monthly on the marital home awarded to her, approximately the monthly equivalent of the entire child support award. Obviously the support needs of the children are not met, and just as obviously, the father is in a position to do more. The trial court’s observation that he would have followed his usual guidelines, resulting in a greater support award but for the award to the wife of the husband’s equity in the marital home, is difficult to follow, since this lump sum alimony award is not available to support the children unless the wife sells the house. We find an abuse of the trial court’s discretion in awarding an obviously insufficient amount of child support where, as here, the greater need is demonstrated and the paying parent has the ability to provide an amount more closely related to the needs of the children.

Appellant contends also that the trial court erred in not awarding her attorney’s fees. Where the parties to a dissolution proceeding are equally able to pay attorney’s fees, it is an abuse of the court’s discretion to require one spouse to pay the other’s attorney’s fees. Cummings v. Cummings, 330 So.2d 134 (Fla.1976). However, the purpose of section 61.16, Fla.Stat. (1979), permitting the trial court to award attorney’s fees in a dissolution proceeding, is to insure that both parties will have the same opportunity to secure counsel. Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981). Where one spouse has a superi- or financial ability to secure counsel, it is not necessary that the other spouse be completely unable to pay attorney’s fees. Canakaris, 382 So.2d at 1205. In the instant case, it seems clear that appellant is not at all on an equal footing with appellee in terms of her ability to pay her attorney. In fact, the record is clear that she is completely unable to pay counsel without assistance from the husband. Thus the trial court erred in denying her request for attorney fees.

We cannot set aside the child support award without also setting aside the provisions of the final judgment dealing with alimony, because they are all interrelated. The trial court should be free to consider all available remedies in order to do equity between the parties. We therefore reverse the final judgment in all respects except as to the dissolution of the marriage and except for the award of child custody. The cause is remanded to the trial court for further consideration in a manner consistent with this opinion.

REVERSED and REMANDED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The trial judge awarded $50 per week child support, rather than $66.75, the amount provided by the child support guideline of another experienced domestic relations trial judge, or $75.60, the amount provided by this trial judge’s own usual guideline for setting the amount of child support. In addition, the father was required to maintain health insurance on the children as an element of support. In effect, this award is being reversed because the trial judge deviated from and did not blindly follow or strictly adhere to either formula.

In the absence of standards based on explicit objective factors to be uniformly weighed from case to case, the trial judge can make only a subjective decision as to a proper amount of child support and appellate courts can but subjectively react to the trial court’s result. The words “reasonableness” and “abuse of discretion” are totally insufficient to state a standard. Without a rule of law in the form of a guideline or formula, neither the original fixing nor appellate review can be made with that equality of treatment under a rule of law to which all citizens are entitled under our form of government. The bench and bar and public need, and are entitled to, a delineation of the factors which will not only produce reasonably uniform results on similar facts but which will also produce a narrow normal or medium range of child support that would be presumptively “reasonable” and subject to reversal only for an unarticulated and unjustified deviation. Until there is a recognition of the need and value of more definiteness and uniformity in this area and approval of such a guideline as a visible, practical rule of law, I cannot conscientiously reverse trial judge’s decisions which are based on many, varying unknown factors weighed in different and unknown ways. Until then, I would liberally apply the Canakaris rule of reasonableness: “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

In this case the trial court denied a present award of alimony because it found the wife able to work. The majority finds the child support insufficient in amount because, if the wife does not work, she will be required to make her monthly mortgage payments of $210 by using all of the child support award and there will not be child support money left over for the children’s other needs and, besides, “the father is in a position to do more.” Under this reasoning the ex-wife can continue to not work and to use the child support payments to pay her own needs and she will need more child support until both her needs and the children’s needs are provided for in full by the appellant. If this reasoning prevails, a trial court cannot effectively award child support without also allowing alimony because of this condoning of the wife’s use for her own needs of the support required to be provided by the father for his children. The trial court made it clear that he gave the wife the husband’s equity in the house, “. . . a measure it would not ordinarily have done,” not because of her need or any special equity or any other entitlement to it, but because “the parties had a stormy relationship and needed to be separated as much as possible.” The trial court reasoned and stated that if it had not given the husband’s interest in the home to the wife, she

would have gotten the use of the house during the minority of the children and the husband’s portion of shelter in this house would have been considered child support. [But bjecause the parties needed to be cleanly divided the court, therefore, took the portion of the shelter that the husband would have been providing and gave it to the wife as the lump sum alimony and equitably reduced the amount somewhat of the child support the husband would have to pay, bearing in mind that times are going to be tough in the citrus labor business.

I take this explanation to mean that the judge’s guideline amount for child support included a factor for shelter but that, since the trial judge had given the husband’s interest in the family shelter to the wife and thereby deprived the father of an opportunity to reduce the amount of his monetary child support payments by providing the shelter factor in kind, the judge felt that it was only fair in this case to give the father the same equitable reduction in the guideline monetary child support payment equal, in his opinion, to the shelter factor in the guideline. This thinking is not unreasonable. Also, this court does not know if the trial judge’s guideline contained a factor for medical expense to cover the child’s sicknesses and accidents or to what extent that expense, here required to be provided by insurance, justified a reduction of the guideline amount.

The amount of child support awarded here for two children is below my impression of normalcy, as based on the concept of awarding a dependent child support equal to a fair share of its parent’s disposable income, and the father’s indicated net income in this case; that does not mean this trial court’s determination is unreasonable as a matter of law, as apparently the majority holds.

I do agree that if the trial judge is to be reversed for setting an amount of child support that the award of lump sum alimony should likewise be reversed.

      . Such a guide is set out on page 4 of Vol. IV, No. 3, of the May 1979 issue of the Newsletter of Family Law Section of The Florida Bar.

      . On remand, the trial judge may conclude that, with the constraint of this opinion, it will be better not to give the appellant ex-wife the lump sum alimony award of the husband’s half interest in the home, but to let the father maintain his one-half ownership interest in the home and provide it to the children as child support by way of shelter in kind and then expressly use that fact to justify a reduction from usual guideline monetary amount of child support, which includes a factor for the children’s shelter. Then the husband, not the wife, would be required to pay the note, mortgage, taxes and insurance attributable to his one-half interest in the home and that half interest would be preserved to the husband as an investment. Under those circumstances, the wife clearly would not be entitled to use any of the monetary portion of the child support to pay her one-half of the mortgage payment which represents her own shelter and ownership expense.