text:
    GORY ASSOCIATED INDUSTRIES and Hartford Insurance Company, Appellants, v. Gene THOMAS, Appellee.
    No. YY-420.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.
    Russell A. Ortmayer of Marlow, Shofi, Ortmayer, Connell & Valerius, Miami, for appellants.
    Louis F. Cohen of George P. Telas, P. A., Miami, for appellee.
   PER CURIAM.

In this appeal from a workers’ compensation order, the employer/carrier challenge the adequacy of the notice of injury, the award of temporary partial disability during the period the claimant Gene Thomas was employed (part-time), and the award of medical expenses. We affirm the order of the deputy commissioner on the first two points because there is competent, substantial evidence to support those determinations. On the issue of medical expenses, however, we reverse and remand for further proceedings for the reasons explained below.

At issue on the question of payment of medical expenses is the failure of the hospital and the attending physician to timely file medical reports. Section 440.13(1), Florida Statutes. The deputy commissioner’s order excuses the failure to timely file the reports based on the fact that the medical treatment was “reasonable and necessary” and “the circumstances involved.” It must be presumed from the context of the order that the phrase “the circumstances involved” refers to the fact that the employer/carrier refused to provide medical services. In Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981), this court held that the refusal to provide medical services is not good cause which excuses the failure to timely submit the required reports, nor is the fact that a claim is being contested sufficient to constitute good cause. See also, St. Francis Hospital v. Feinberg, 192 So.2d 753 (Fla.1966). Furthermore, an excusal based solely on the finding that the medical treatment was “reasonable and necessary” is also insufficient. Broward Industrial Plating, Inc. v. Weiby, supra. Accordingly, we must remand this cause for appropriate findings as to whether there was good cause to excuse the failure to comply with the statutory reporting requirements.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

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


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    ALBERTSON’S SOUTHCO and Diversified Risk Management Services, Appellants, v. Deborah WILLIAMS, Appellee.
    Nos. YY-432, ZZ-378.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.
    John M. Kelley of Pyszke & Kessler, Miami, for appellants.
    Nicholas P. Wellman, Lake Worth, for appellee.
   ERVIN, Judge.

In this workers’ compensation action, the employer/carrier raises four points on appeal, three of which we find unavailing. We agree, however, with appellant’s second point, contending that the deputy commissioner erred in awarding the claimant temporary partial benefits after September 1, 1980, notwithstanding the fact that the claimant made no claim for such benefits either at her hearing or otherwise. In addition to the award of temporary partial benefits, the deputy awarded the claimant temporary total benefits beginning from the date of the accident on December 21, 1979, and continuing until the commencement of the temporary partial benefits. The claimant had filed a claim for temporary total benefits, and at the hearing took the position that she had as yet not reached maximum medical improvement (MMI).

Section 440.19(2)(d), Florida Statutes (1979), requires a claimant to file a claim for all specific benefits due him under Chapter 440. Consequently, the deputy commissioner may only award such benefits which are properly claimed. G. & S. Packing Co. v. Driggers, 382 So.2d 446 (Fla. 1st DCA 1980); Ceco Corporation v. Lavin, IRC Order 2-2975 (June 11, 1976).

We acknowledge that in Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980), and in Sea Ray Boats, Inc. v. Snedeker, IRC Order 2-2860 (October 15, 1971), the respective bodies sustained a deputy’s award of temporary partial disability benefits, even though those benefits had not been claimed. Both Dyrda and Snedeker are, however, distinguishable from the case at bar. In Snedeker, the employer agreed that the claimant was less than temporarily totally disabled and had yet to reach MMI. In Dyrda, the parties apparently stipulated to an MMI date which had occurred subsequent to the date the employer contended that temporary total disability had ceased. Thus the court noted:

[I]t is difficult to imagine that the carrier would not be on notice that the denial of the claimed temporary total disability benefits might well result in an award of temporary partial where there is a gap between the cessation of temporary total disability and the date of maximum medical improvement.

384 So.2d at 270.

Here, however, the employer/carrier defended on the basis that the claimant’s injury was not compensable, or alternatively, that the claimant had reached MMI on January 16,1980, before the bulk of the claimed benefits were due since the employer/carrier had voluntarily paid temporary total benefits until May 17, 1980. Thus, the employer was not resisting the claim in a manner which would either invite a finding of temporary partial disability, or put the employer/carrier on constructive notice of possible but unclaimed benefits, as in Snedeker or Dyrda.

Moreover, the employer/carrier’s contention that it was actually denied due process from the appellee’s failure to make a specific claim for temporary partial disability benefits is well taken. The conceptual basis of recovery for temporary total disability differs from that of temporary partial disability. The former is based on physical impairment, while the latter is based on loss of wage earning capacity. Here, the employer/carrier may have been prejudiced by not having been notified of the unclaimed benefits since it did not have the opportunity to prepare a defense and/or present evidence relevant to the specific issue of the claimant’s wage loss after September 1, 1980.

Accordingly, the deputy’s award of temporary partial benefits is reversed. The order is otherwise affirmed.

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


author: PER CURIAM.

text:
    Willie Dan ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. AC-290.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.

      Willie Dan Roberts, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Roberts appeals the lower court’s denial of his motion brought under Florida Rule of Criminal Procedure 3.850. In his 3.850 motion, he challenged the adequacy of his prior convictions for sexual battery and burglary along with the concomitant judgments and sentences entered thereon contending (1) that he had been denied his Sixth Amendment right to counsel at a pretrial identification procedure; (2) that his Fourth Amendment rights had been violated, and (3) that the appellant had been denied effective assistance of counsel. The appellant had previously appealed his judgments and sentences in which we affirmed the lower court in a per curiam decision without opinion. Roberts v. State, No. NN-100 (Fla. 1st DCA, March 24, 1980) (opinion unpublished). The lower court in its order found all three points to be meritless without referring to any independent hearing conducted on these issues or without attaching any relevant portion of the record which would support its conclusions.

We affirm the trial court as to the first two grounds as those issues should have been raised on direct appeal. See Thomas v. State, 399 So.2d 533 (Fla. 1st DCA 1981).

The third ground concerning the appellant’s denial of effective assistance of counsel could not be raised on direct appeal. See State v. Barber, 301 So.2d 7 (Fla.1974). This allegation, pertaining primarily to the conduct of appellant’s counsel in failing to file a pretrial motion to suppress certain evidence which appellant alleged was illegally seized, was sufficiently detailed, as required by Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

Accordingly, the lower court’s order denying the appellant's 3.850 motion as to that ground is reversed and the cause is remanded for further action. On remand, the lower court shall either (a) attach any portion of the record which refutes the appellant’s allegation, or (b) conduct an evi-dentiary hearing. Fla.R.Crim.P. 3.850. See also Stephens v. State, 399 So.2d 1106 (Fla. 5th DCA, 1981).

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


text:
    Hank ANDERSON, Petitioner, v. Lynwood G. WILLIS, d/b/a Baytree Apartments, Respondent.
    No. AF-152.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.

      Raymond W. Williams, Jacksonville, for petitioner.
    Michael G. Tanner of Mahoney, Hadlow & Adams, Jacksonville, for respondent.
   PER CURIAM.

Petitioner seeks review of an order of the circuit court, sitting in its appellate capacity, dismissing petitioner’s appeal for failure to timely file the initial brief.

The notice of appeal was filed on March 19,1981. Appellant’s brief was due seventy days later on May 28, 1981. However, on April 10, 1981, respondent/appellee moved to dismiss the appeal for appellant’s failure “to designate portions of the transcript for inclusion in the record or alternatively, to prepare a statement of the evidence of the proceedings.” Appellant/petitioner responded to the motion on April 16. On June 2, respondent served an amended motion to dismiss realleging the grounds of the first motion and adding that appellant had failed to timely file his brief. Petitioner responded on June 10, stating that the record was timely prepared and that the motion to dismiss served April 10 tolled the time for service of the initial brief. On June 29, 1981, the circuit court dismissed the appeal due to appellant’s failure to file his initial brief within the time period required by Florida Rule of Appellate Procedure 9.110(f).

Although appellant’s brief was originally due on May 28, the service of the motion to dismiss tolled the time schedule. Fla.R. App.P. 9.300(b). When respondent/appellee served its motion on April 10, petitioner/appellant had forty-eight days remaining in which to serve its brief. When the appeal was dismissed on June 29, 1981, appellant still had forty-eight days remaining in which to serve his brief.

We recognize that the April 10th motion to dismiss was of questionable merit; however, Rule 9.300(b) does not distinguish between meritorious motions and frivolous motions. Unless the motion is listed in subsection (d), service of the motion tolls the time for subsequent acts.

Respondent argues that we should deny certiorari because the record on appeal “... is devoid of any matter upon which the Circuit Court could reverse or modify the March 16 default Final Judgment....” and that “... affirmance of the default Final Judgment is inescapable if this matter proceeded on appeal.” Petitioner’s appeal may very well be without merit; however, that is for the circuit court, sitting in its appellate capacity, to determine. The function of this Court is to determine whether the order of the circuit court violates the essential requirements of law. We find that it does.

The Petition for Writ of Certiorari is granted, the circuit court’s order of June 29, 1981, is quashed, and the appeal is reinstated.

ROBERT P. SMITH, Jr., C. J., and ERVIN and LARRY G. SMITH, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    MORETH DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. DURTY NELLIE’S, INC., a Florida corporation, George Nagle, et al., Appellees.
    No. 78-1230.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.

      Richard W. Epstein of Forkey & Kirsch, P. A., Fort Lauderdale, for appellant.
    Richard R. Kirsch, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

HURLEY, J., dissents without opinion.

GLICKSTEIN, Judge,

concurring specially with opinion:

This is an appeal from an order dismissing with prejudice appellant’s third amended complaint. We affirm.

Appellant’s third amended complaint alleges that George Nagle, as the controlling shareholder of Durty Nellie’s, Inc., induced appellant to renovate a boat sales office into a pub by agreeing to pay appellant $25,000; to transfer to appellant a nine percent interest in Durty Nellie’s, Inc.; and to obtain a liquor license for Durty Nellie’s, Inc. The pleading further avers that Nagle had the lease put in his name, rather then Durty Nellie’s, Inc., then assigned the lease, and had the liquor license issued to George Nagle Enterprises, Inc., rendering appellant’s nine percent interest in Durty Nellie’s, Inc. worthless. The trial court dismissed the third amended complaint as to George Nagle and George Nagle Enterprises, Inc., with prejudice and upheld the pleading as to Durty Nellie’s, Inc., the latter corporation being the party with which appellant contracted to make the subject improvements.

Appellant maintains that the trial court erred in dismissing its pleading but also recognizes that the third amended complaint could have been improved by alleging Nagle, at the time he made his representations to appellant, had no intention to perform and had an intention not to perform. We think that the trial court properly dismissed the pleading, which deals with promises to do something in the future.

In Home Seekers’ Realty Co. v. Menear, 102 Fla. 7, 9, 135 So. 402, 402-403 (1931), the supreme court said:

[A] promise or promissory representation as to a material matter, made without any intention of performing it, or made with the positive intention not to perform it, and made by the promisor for the purpose of deceiving the promisee and inducing him to act where he otherwise would not have done so, and the promisee does act in reliance thereon to his injury, constitutes a legal fraud.

See also Bernard Marko & Associates, Inc. v. Steele, 230 So.2d 42, 44 (Fla.3d DCA 1970). The pleading in question contained neither of the requisite allegations to state a cause of action for fraud.

Appellant’s second argument is that the third amended complaint should not have been dismissed with prejudice. It relies upon our language in Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197 (Fla. 4th DCA 1967) rev'd on other grounds 216 So.2d 221 (Fla.1968):

This court is committed to the view that leave to amend should be freely given.
******
Granting leave to amend rests in the sound discretion of the trial court but doubts should be resolved in favor of allowing amendment unless and until it appears that the privilege to amend has been abused.

See also Enstrom v. Dixon, 354 So.2d 1251 (Fla. 4th DCA 1978); Hansen v. Central Adjustment Bureau, Inc., 348 So.2d 608, 610 (Fla. 4th DCA 1977); Associated Television and Communications, Inc. v. Dutch Village Mobile Homes of Melbourne, Ltd., 347 So.2d 746 (Fla. 4th DCA 1977). However, appellant is not seeking a second or third opportunity to amend the complaint. Instead, it asks for a fifth opportunity to plead. A refusal to do so on the part of the trial court is not an abuse of discretion.

      . Appellant was the defendant in an action brought by appellee Durty Nellie’s, Inc. What we can surmise from the record on appeal is that appellant’s last pleading was really a third amended counterclaim against appellee Durty Nellie’s, Inc.; and a third amended third-party complaint against appellees George Nagle Enterprises, Inc., and George Nagle. However, for ease of reference we shall refer to the pleading as it was originally labelled.

      . Osborne v. Delta Maintenance and Welding, Inc., 365 So.2d 425 (Fla.2d DCA 1978) held that a fourth amended complaint should have been permitted. That case, however, involved no attack on the allegations of fraud until the third amended complaint was filed.


author: HURLEY, Judge.

text:
    William E. BEAL, d/b/a Beal Sign Service, Appellant, v. STATE of Florida, DEPT. OF TRANSPORTATION, Appellee.
    No. 79-1455.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Naneie G. Severs and Luke S. Brown of Miller & Squire, Chartered, Fort Lauder-dale, for appellant.

      H. Reynolds Sampson, Gen. Counsel and Margaret-Ray Kemper, Appellate Atty., Tallahassee, for appellee.
   HURLEY, Judge.

Appellant contests an order of the Secretary of Transportation requiring the removal of a billboard sign located on State Road 84. We uphold the order.

In 1974, appellant secured a building permit from Broward County to erect an outdoor advertising structure. Although in completing the county permit application appellant had checked the appropriate box for a double-faced sign, only a single-face structure facing west was erected. This structure, located in an unincorporated area of Broward County along a federal-aid primary highway, was also permitted by the Department of Transportation.

In January, 1978, appellant erected the east face of the structure, thereby converting it to a double-faced sign, and then sought a permit from the Department of Transportation for the newly-erected east-face. During the required inspection conducted by the Department prior to the issuance of its permits, it was discovered that the east face is within 292 feet of another sign-structure facing east on the same side of the highway, contrary to the 500-foot requirement of Rule 14-10.06(l)(b)(3), Florida Administrative Code. The Department notified appellant that his sign was in violation of both this Rule and Section 479.025, Florida Statutes (1975).

Following a hearing held on the above-cited violations, Section 479.025 was found to be inapplicable since it had been repealed in 1977. The sign, however, was found to be in violation of the spacing requirements of Rule 14-10.06(l)(b)(3) and its removal was ordered.

On appeal, appellant argues that the Department should be estopped from requiring removal of the sign since the Department had failed to comply with the procedures relevant to the rejection of permits as set out in Rule 14-10.04(1), Florida Administrative Code. The Department points out, however, that at the time appellant applied for the permit, this rule did not contain the procedural requirements cited to by appellant. Thus,, appellant has failed to establish reversible error in conjunction with the processing of its application.

Appellant was found to be in violation of Rule 14 — 10.06( 1)(b)(3), Florida Administrative Code, which provides:

Federal-Aid Primary Highways
No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction.

Appellant argues that this rule is inapplicable and, in support of his argument, cites Rule 14-10.06(l)(b)(l)(b), Florida Administrative Code, which provides as follows:

Signs on a multiple sign structure or structures, to be counted as one sign for spacing purposes, must be physically contiguous, or connected by the same structure or cross-bracing, or located not more than 15 feet apart at their nearest point in the case of back-to-back or “V” type signs.

The structure herein has a cross-bracing and meets the criteria for a “V” type sign. Thus, appellant contends that it should be considered one structure. Moreover, since the original structure was erected in 1974, and administrative regulations may not be used in an ex post facto manner, York v. State ex rel. Schwaid, 152 Fla. 285, 10 So.2d 813 (1943), appellant reasons that it is not subject to the space requirement of Rule 14-10.06(l)(b)(3) which was enacted in 1977.

While the language used in Rules 14-10.-06(l)(b)(l)(b) and 14~10.06(l)(b)(3) is less than cohesive, the Department’s intent is clear and we are unable to agree with appellant’s contention. It is undisputed that the east face of appellant’s structure is located within 292 feet of another structure which also faces east on the same side of the highway. Appellant has failed to convince the court that 14-10.06(l)(b)(l)(b) allows it to circumvent the straightforward provisions of 14 — 10.06{l)(b)(3) by simply attaching an otherwise prohibited structure to one which was previously existing.

Accordingly, the order appealed from is AFFIRMED.

DOWNEY and BERANEK, JJ., concur.

      . We note that within the order now on appeal, the Secretary of the Department of Transportation indicated that appellant’s failure to obtain a permit prior to erecting the east face of the structure would normally not be a problem since it is the practice of the Department to issue permits for previously erected signs where such permit is all that is required for a sign to be legally in place.


text:
    R. C. LINDSEY, Appellant, v. William C. SHERMAN, as Property Appraiser of Okeechobee County, et al., Appellees.
    No. 79-1995.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    R. C. Lindsey, in pro. per.
    Jeffrey C. Fulford of Adams & Hill, Orlando, for appellee Sherman.
   PER CURIAM.

Plaintiff R. C. Lindsey seeks review of an interlocutory order of the trial court striking his demand for jury trial in two consolidated cases. The Florida Rules of Appellate Procedure do not authorize an interlocutory appeal from such an order. See Florida Rule of Appellate Procedure 9.130. Nor should we treat the matter as a petition for writ of certiorari because, even if the order Lindsey seeks to have reviewed constitutes a departure from the essential requirements of law, such error can be rectified by plenary appeal pursuant to Florida Rule of Appellate Procedure 9.110. See, e. g., Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Federal Insurance Company v. Guterma, 379 So.2d 1014 (Fla. 4th DCA 1980).

Accordingly, this appeal is dismissed.

DOWNEY, MOORE and GLICKSTEIN, JJ., concur.


text:
    Robin L. VASWANI, Appellant, v. Richard J. GANOBSEK, Appellee.
    No. 79-2224.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Joseph Rosenkrantz, Miami Beach, for appellant.
    Marc Postelnek, Miami Beach, for appel-lee.
   HURLEY, Judge.

At issue is the propriety of an order dismissing appellant/plaintiff’s complaint for partition after appellee/defendant filed a motion to dismiss which asserted an affirmative defense of res judicata. We reverse.

Appellant, Robin Vaswani, is the former-wife of appellee, Richard Ganobsek. They were divorced in 1978 in a final judgment of dissolution entered by the Circuit Court for the Sixth Judicial Circuit (Pinellas County). Thereafter, in 1979, appellant filed, in the Circuit Court for the Seventeenth Judicial Circuit (Broward County), the present suit for partition of the former marital home. Appellee filed a motion to dismiss and cited various provisions of the final judgment of dissolution which, he claimed, divested the former-wife of any possessory right to the property. The court denied the motion, but gave the former-husband a specified period of time within which to comply with certain requirements contained in the final judgment of dissolution. After apparently fulfilling these requirements, the former-husband again moved to dismiss the partition action. The trial court found that appellee had complied with its earlier order and, therefore, granted the motion to dismiss with prejudice and, further, ordered appellant to quitclaim the property to appellee. This appeal ensued.

In an effort to expeditiously resolve problems resulting from the final judgment of dissolution, the trial court apparently treated appellant’s complaint for partition as a motion to enforce the final judgment of dissolution or as a motion for post-judgment relief. The desire to expeditiously resolve the litigants’ problems is certainly praiseworthy. But even such a commendable motive cannot justify the court’s actions when they result in the deprivation of basic rights.

Viewing the case as it is framed by the pleadings, the relevant question is whether the court in ruling on a motion to dismiss the complaint could properly consider the affirmative defense of res judicata when the defense did not appear on the face of the complaint. We answered this question in the negative in Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977). The law is well-settled that on a motion to dismiss a trial court must look solely to the allegations of the complaint. Id. If the face of the complaint contains allegations which demonstrate the existence of an affirmative defense, then such defense can be considered on a motion to dismiss. Fla.R.Civ.P. 1.110(d). Otherwise an affirmative defense may not be considered on a motion to dismiss a complaint. Temples v. Florida Industrial Construction Co., Inc., 310 So.2d 326 (Fla.2d DCA 1975).

In the present case, appellant’s complaint does not reveal the existence of the prior adjudication of the parties’ rights in the property. Thus, although appellant’s action for partition may ultimately fail, the trial court acted improperly when it considered matters outside the complaint and granted appellee’s motion to dismiss. There is a necessary distinction between motions to dismiss and motions for summary judgment which must be followed to assure fairness in the disposition of the cause. Accordingly, the order of dismissal is REVERSED and the cause is REMANDED for further proceedings.

DOWNEY, J„ and SHARP, G. KENDALL, Associate Judge, concur.


text:
    Robert P. WHITNEY, Appellant, v. Gladys WHITNEY, Appellee.
    No. 79-2265.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Jeff Tomberg of Law Offices of Tomberg & Tomberg, P. A., Boynton Beach, for appellant.
    Jeffrey B. Stephens, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of dissolution entered October 4, 1979, awarding custody of the parties’ two minor children, Robin, born October 23, 1971, and Bernard, born August 26, 1974, to their mother. We affirm.

Temporary custody had been awarded to the father on December 11, 1978. At final hearing the trial judge concluded that both parties were loving and caring parents. He was concerned, however, with the ability of the wife, residing in Vermont, and the husband, residing in Florida, to supervise and care for the children.

The husband testified that while he had custody of the children he woke them at 5:45 a. m. He drove the children to school and on their return from school a neighbor supervised them until the husband returned at 5:00 or 5:15 p. m. from the job he had at the time of final hearing.

The wife testified that she worked at home, making chimes. Her presence in the home and availability to supervise the children personally were apparently very important factors in the trial court's decision.

As the supreme court said in Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975):

It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child. An appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion.
* * * * * *
Were this Court to sit as a trier of fact and hear all the evidence, we might have reached a conclusion different from that of the trial judge. However, neither this Court nor the District Court can substitute its judgment for that of the trier of fact, absent a finding of an abuse of discretion, which requires a lack of competent substantial evidence to sustain the findings of the trial judge.

The record contains ample support for the trial court’s decision. Accordingly, we affirm.

AFFIRMED.

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


author: MOORE, Judge.

text:
    EMPIRE FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Martin KOVEN and Ruth Koven, Appellees.
    No. 80-10.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Mel Lameias of Lanza, Sevier & Womack, P. A., Coral Gables, for appellant.
    Joe N. Unger of Law Offices of Joe N. Unger, P. A., Miami, and Wolfson & Diamond, P. A., Miami Beach, for appellees.
   MOORE, Judge.

Empire Fire and Marine Insurance Company, excess automobile insurers for the Kovens, appeals from a summary judgment determining that Empire provided uninsured motorist coverage limits of $100,-000/$300,000. We reverse.

Section 627.727, Florida Statutes (1973), effective at the time of the application for the policy in this case, required insurance companies to provide uninsured motorist coverage limits equal to the liability limits unless the insured rejected such coverage. Mr. Koven was the named insured. On the application for insurance, a broker signed Mr. Koven’s name on the rejection of uninsured motorist coverage. The broker forwarded the application to Empire’s managing agent who prepared the policy. The managing agent then sent the policy to Empire, which issued it. The broker had dealt with Mrs. Koven. The testimony at depositions, however, differed as to whether the Kovens had rejected the uninsured motorist coverage. The broker’s testimony indicated that Mrs. Koven had told her to sign their name and to reject the uninsured motorist coverage. Mrs. Koven denied giving such authorization. Mr. Koven said that he informed the broker’s insurance agency that he wanted full coverage and never rejected the uninsured motorist coverage.

Regardless of this conflicting testimony, the fact remains that the insurance application contained a rejection of uninsured motorist coverage by the named insured. Even if the broker improperly placed Mr. Koven’s signature on the application, the insured rather than the insurer bears the risk of such an error according to the general rule that an insurance broker is the agent of the insured rather than of the insurer. Auto Owners Insurance Company v. Yates, 368 So.2d 634 (Fla. 2nd DCA 1979). In Yates, as here, a broker signed the insured’s name on an insurance application. In Yates, the broker requested uninsured motorist coverage in an amount less than the liability coverage. The appellate court noted that the broker had no authority to act for the insurer, that the broker did not hold himself out as having such authority, and that the insurer had no knowledge that the insured did not sign the application. Consequently, the Second District Court of Appeal concluded that the insurer was not to blame if the broker erroneously requested the wrong uninsured motorist limits. The insurer simply issued the policy based upon the application. Accordingly, in Yates, the Court held that because the broker was the agent of the insured, the insured was bound by the agent's actions.

Following the reasoning of Yates, we reverse the summary judgment and find that the Kovens are bound by the rejection of uninsured motorist coverage in their application to Empire. We remand this case for further proceedings consistent with this opinion.

ANSTEAD and BERANEK, JJ., concur.

      . In discussing the status of an insurance broker, 16 Appleman, Insurance Law and Practice § 8726 (1968) states:
      A broker is ordinarily defined as being one who acts as a middleman between the insured and insurer and who solicits insurance from the public under no employment from any special company, but having secured an order either places the insurance with a company selected by the insured, or, in the absence of such selection, with a company selected by the broker. He enjoys no fixed or permanent relationship to an insurer but rather holds himself out for employment by the general public. And a broker is ordinarily employed by a person seeking insurance, and when so employed, is to be distinguished from the ordinary insurance agent who is employed by an insurance company to solicit and write insurance in the company.


text:
    William T. IRWIN, Appellant, v. Kathleen N. IRWIN, Appellee.
    Nos. 80-606, 80-1308.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.

      Allan M. Lerner, of Beyer & Lerner, P.A., Fort Lauderdale, for appellant.
    S. Robert Zimmerman, Pompano Beach, and Harry M. Hipler, of Walden & Walden, Dania, for appellee.
   PER CURIAM.

These are consolidated interlocutory appeals relating to an order on temporary attorneys’ fees entered March 26, 1980, and an order on temporary support entered July 8, 1980. The basic question on the issue of temporary support is whether sufficient evidence was present in the record of the wife’s need and the husband’s ability to pay $2,500 per month on a temporary basis. In addition, the wife had been given custody of the parties’ minor children and use and occupancy of the parties’ marital home.

The trial court referred the matter to a master who conducted three separate hearings. The parties engaged in bitter battles regarding financial discovery and voluminous evidence was submitted. Under all the circumstances, we conclude that there has been no showing of an abuse of discretion by the trial court and the temporary support order is thus affirmed.

We also affirm the order on temporary attorney’s fees of $10,000. Although the procedure on assessment of the fees is questionable, there was no proper objection thereto. The argument on appeal is that there was no evidence of reasonableness of the fee in accordance with Tanner v. Tanner, 391 So.2d 305 (Fla. 4th DCA 1980). There was no objection on this point, and in fact the record shows counsel’s acquiescence to the amount of the fee.

AFFIRMED.

DOWNEY, ANSTEAD, and BERANEK, 33., concur.


text:
    CITY OF SUNRISE, a municipal corporation in Broward County, State of Florida, Appellant, v. TOWN OF DAVIE, a municipal corporation in Broward County, State of Florida, Appellee.
    No. 80-976.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.

      Arthur B. Parkhurst of Parkhurst, Pickford, Ayers & Carlson, Fort Lauderdale, for appellant.
    Barry Webber, Town Atty., Davie, and Grover G. Herring of Herring & Fulton, West Palm Beach, for appellee-Town of Davie.
   HURLEY, Judge.

Appellant, the City of Sunrise, brings this appeal pursuant to Rule 9.130(a)(3)(B), Fla. R.App.P., to challenge the issuance of a temporary injunction. The record reveals that the appellee, the Town of Davie, failed to establish a likelihood of irreparable injury and the unavailability of an adequate remedy at law. Therefore, we quash the temporary injunction.

The underlying cause of action involves an effort by the Town of Davie to permanently enjoin the City of Sunrise from enacting an ordinance to annex certain property. The propriety of this action, i. e., whether it is permissible for Davie to seek such permanent injunctive relief, is not before us and we refrain from expressing an opinion on that issue. We deal only with the narrow question of whether the trial court abused its discretion by issuing a temporary injunction.

The prerequisites for a temporary injunction were set forth in Department of Business Regulation v. Provende, Inc., 399 So.2d 1038 (Fla.3d DCA 1981):

In deciding whether it may exercise the constitutional grant of jurisdiction to issue temporary injunctive relief, the court must decide whether the petitioner has established the elements which the courts have found necessary to the granting of injunctive relief: (a) the likelihood of irreparable harm, and the unavailability of an adequate remedy at law, (b) the substantial likelihood of success on the merits, (e) that the threatened injury to petitioner outweighs any possible harm to the respondent and, (d) that the granting of preliminary injunction will not deceive the public interest. Id. at 1041 (emphasis supplied).

We have carefully reviewed the evidence which Davie presented to support the motion and cannot discern anything that would substantiate a finding of a likelihood of irreparable harm. In particular, Davie failed to establish the unavailability of an adequate remedy at law. Our Supreme Court in Orange County v. City of Orlando, 327 So.2d 7 (Fla.1976), indicated that quo warranto, a proceeding at law, is the proper method for testing municipal annexation. The court, however, noted the following exception:

In the event quo warranto is not available, i. e., the Attorney General refuses to allow quo warranto to proceed, then an action for injunctive and declaratory relief would be proper. Id. at 8.

Since Davie failed to plead and prove that quo warranto is unavailable, it did not meet an essential requirement for injunctive relief. Therefore, we are compelled to hold that the trial court abused its discretion and that the temporary injunction must be QUASHED.

ANSTEAD and HERSEY, JJ., concur.


text:
    Robert HAAKENSTAD, Appellant, v. Joseph A. OSBORNE, Appellee.
    No. 80-1269.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Robert A. Brown and Richard L. Polin, Fort Lauderdale, for appellant.
    Andrew L. Siegel of Schlichte, Carbo & Platt, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final judgment dismissing appellant’s suit with prejudice. We reverse.

Appellant brought an action in 1979 against appellee for damages arising out of the non-payment of a promissory note. Trial was set for February 5, 1980, but apparently neither appellant nor his attorney appeared when the case was called. The parties agree that the trial court did not enter an order on February 5, 1980, and that the only record of what transpired is a notation by the court clerk that the trial court announced: “a dismissal of instant cause for lack of prosecution.” Thereafter, appellant filed an amended motion to reinstate cause and set final hearing. Appellee filed a motion to dismiss with prejudice based upon appellant’s failure to appear at trial. Both motions were noticed for hearing at the same time. After the hearing the trial court denied appellant’s motion, but did not rule upon appellee’s motion.

In March 1980, appellant filed an identical action for damages and the case was assigned to a different trial judge. Appel-lee moved to dismiss with prejudice on the ground of res judicata. The trial judge agreed with appellee and entered a final order of dismissal with prejudice. This appeal of that order followed.

We reverse on the ground that no final order has been entered in the first case. The clerk’s notation in the action commenced in 1979 was certainly not an order and the trial court’s subsequent order in that case did not dismiss the action with or without prejudice. Until such time as a final order is entered in the first case and a determination is made of the nature of dismissal, res judicata does not attach.

REVERSED.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    JOBEAR, INC., Appellant/Cross-Appellee, v. DEWIND MACHINERY COMPANY, Appellee/Cross-Appellant.
    No. 80-1785.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Carroll S. Barco, Orlando, for appellant/cross-appellee.
    Nick B. Kanelidis of Mark S. Schecter, P.A., Fort Lauderdale, for appellee/cross-appellant.
   GLICKSTEIN, Judge.

This is an appeal and cross-appeal from a final judgment awarding $2,704 plus costs to appellee for a debt arising from machinery rental. We affirm the award but remand for entry of an amended final judgment to provide for interest.

Appellee brought an action against appellant in February, 1980 to collect two separate debts. One was for one month’s equipment rental, the other was for several invoices for parts and labor. In July, 1980, while the action was pending, an office secretary employed by appellant prepared and sent to appellee a check in the amount due for parts and labor. The following restrictive endorsement appeared on the back of the check:

Endorsement of this check or retention of the proceeds of this check constitutes and acknowledges payment in full to DE-WIND MACHINERY COMPANY for all labor, materials, supplies or services rendered by DEWIND MACHINERY COMPANY and shall further constitute a full and complete release of JOBEAR, INC.

The office secretary testified that just prior to sending the check she had not been in communication with any of appellee’s representatives and she had not asked any of appellee’s representatives if a check for the debt owed for parts and labor would constitute a settlement. There was no testimony that any letter of explanation accompanied the check.

An officer of appellee testified that ap-pellee’s receptionist opens the mail, stamps any checks that are received, and prepares a bank deposit slip. There was no testimony that any officer of appellee saw the check when it was received.

Appellant first contends that appellee’s acceptance of the check which expressly said that its endorsement would constitute a full and complete release of appellant acted as an accord and satisfaction as to all claims of appellee against appellant. It relies on McGebee v. Mata, 330 So.2d 248 (Fla.3d DCA 1976); Pino v. Lopez, 361 So.2d 192 (Fla.3d DCA), cert. dismissed 365 So.2d 714 (Fla.1978); and Yelen v. Cindy’s, Inc., 386 So.2d 1234 (Fla.3d DCA), pet. for rev. dismissed 394 So.2d 1154 (Fla.1980).

The trial judge’s remarks to the attorneys following their arguments on this point show that he saw in their case, as do we, a substantial difference factually from the cases cited above. In each of those cases it was perfectly clear what the debtor intended. In McGebee, supra, the check was sent with a cover letter, reciting that it was sent in accordance with the parties’ agreement and containing specific requirements. In Pino, supra, the check was issued in “Full and final payment for all goods, services and claims to date.” In Yelen, supra, a letter accompanied the check, reciting that the check was in “full satisfaction of the current controversy.”

Contrary to the cases relied upon by appellant, sub judice there were two separate and distinct claims—one for rent and the other for parts and labor. The claims were pled in separate counts; the check in question says nothing of the rental indebtedness; and the language of the restrictive endorsement sustains the interpretation that the release applied to the indebtedness for parts and labor. We therefore conclude that appellant’s argument fails.

Appellant next argues as to the claim for rental that a novation occurred when its representatives asked appellee’s salesman to terminate the equipment rental and the salesman replied that he would see about it. The trial court correctly observed that the salesman did not excuse appellant from its obligation for the rent and that no further communication took place on the subject. Therefore, a novation could not have resulted.

Appellee has filed a cross-appeal, alleging that it was entitled to interest on the unpaid rent. The equipment lease agreement executed by the parties makes express provision for a late charge. Accordingly, we agree with the final judgment except for its failure to provide for interest, and remand for entry of an amended judgment which incorporates such a provision in compliance with the agreement.

AFFIRMED in part; REVERSED in part, and REMANDED.

ANSTEAD and HURLEY, JJ., concur.

      . It cannot be determined from the short opinion in Pino whether that court decided the case on the merits or because of a procedural defect.


author: HERSEY, Judge.

text:
    B. Steve BIAS, Appellant, v. Arthur TROLLINGER; Florida Police Benevolent Association, a nonprofit corporation; Broward County Police Benevolent Association, a nonprofit corporation; Charles J. McDonald, Gilbert J. Frazier and Thomas F. Panza, Appellees.
    No. 80-1940.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.

      Robert J. O’Toole, Fort Lauderdale, for appellant.
    Borden R. Hallowes and Joel H. Feldman of Lavalle, Wochna, Rutherford & Trues-dell, P. A., Boca Raton, for appellee-Arthur Trollinger.
   HERSEY, Judge.

This appeal raises the question of the propriety of an order assessing attorney’s fee^ and costs against appellant as a sanction for his failure to appear for deposition after notice.

It is clear that assessment of costs and attorneys’ fees against a party who fails to appear for the taking of his deposition after being served with a proper notice is appropriate “unless the court finds that the failure was justified....”, Fla.R.Civ.P. 1.380(d).

Whether justification is shown by the facts of this case is the issue on appeal.

Appellant, a party to this litigation, lived in North Carolina. Appellees obtained an order dated September 12, 1980, appointing a commissioner to take appellant’s deposition in Charlotte, North Carolina. On September 16, 1980, appellees mailed to all counsel of record a notice indicating that appellant’s deposition was to be taken on October 3, Í980. Thereafter appellees appeared ex parte before the court and obtained an order dated September 18, 1980, requiring appellant to appear for the taking of his deposition “at a time reasonably agreed upon by counsel.”

According to a recital in appellees’ Motion to Compel and Impose Sanctions:

This court previously entered an order requiring him to appear in his home county at a reasonable time; the plaintiff’s attorney, along with several other attorneys, travelled from South Florida to Charlotte, North Carolina at the appointed and scheduled time, and Mr. Bias failed to appear.

The court, after hearing, entered an order which included the following:

1. The Notice to Impose Sanctions as to attorney’s fees and costs re the aborted deposition of defendant, Steve Bias, is granted to the extent that each party making an appearance at said scheduled deposition shall recover one-half of attorneys fees and costs incurred as a result of making the appearance.

Implicit in the court’s holding is a finding that counsel were equally at fault.

Appellant’s position is that the order of September 18, 1980, established that the deposition would be taken only after agreement of counsel, thereby superceding the prior notice setting a date, time and place. We agree. Appellant was entitled to rely on the court order and to consider the earlier notice cancelled. Under the circumstances it was an abuse of discretion to impose sanctions. We therefore vacate that portion of the order doing so and remand the cause for further proceedings.

REVERSED AND REMANDED.

DOWNEY and MOORE, JJ., concur.


text:
    Barbara McM. BATHURST, Appellant, v. William DeF. BATHURST, Appellee.
    No. 80-1972.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Paula S. Gold of Baskin & Sears, Boca Raton, for appellant.
    Maxine V. E. Reynolds of Reynolds & Reynolds, Boca Raton, for appellee.
   PER CURIAM.

We affirm the trial court’s combined award of lump sum and periodic rehabilitative alimony only because appellant/wife, who has a marketable skill, retains the ability to seek a continuation of rehabilitative alimony, or to seek conversion to permanent alimony, if she is later able to demonstrate an inability to become self-supporting.

DOWNEY, HERSEY and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Steven SMITH, Appellee.
    No. 81-10.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Rehearing Denied Sept. 24, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Bruce E. Wagner, Fort Lauderdale, for appellee.
   PER CURIAM.

The trial court's order of December 19, 1980, which declared Section 893.135, Florida Statutes (1979) to be unconstitutional and, thereupon, dismissed the information, is reversed upon the authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

REVERSED and REMANDED for further proceedings.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. James Monroe ANDERSON, Charles Joseph Busby, Billy Wayne Dale and George Stuart, Appellees.
    No. 81-274.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No brief filed for appellees.
   PER CURIAM.

The trial court’s order of January 28, 1981, nunc pro tunc January 26,1981, which declared Section 893.135, Florida Statutes (1979), to be unconstitutional and, thereupon, dismissed the information, is reversed upon the authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

REVERSED and REMANDED.

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


text:
    N. V. HULMAN CORPORATION, Petitioner, v. TOWN OF PALM BEACH, Respondent.
    No. 81-957.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Lewis, Vegosen & Rosenbach, Palm Beach, and Larry Klein and Jane Kreusler-Walsh, West Palm Beach, for petitioner.
    John C. Randolph of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the trial court is hereby directed to permit the petitioner to attempt to state a proper claim for relief by petition for writ of certiorari. See Pridgen v. Board of County Commissioners of Orange County, 389 So.2d 259 (Fla.5th DCA 1980).

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


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY and Publix Supermarkets, Inc., Petitioners, v. Bonita Marie McGANN and Brian John McGann, her husband, Respondents.
    No. 81-1161.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.

      Kent S. Pratt for Richard H. Gaunt, Jr., of the Law Offices of Frank G. Cibula, Jr., West Palm Beach, for petitioners.
    N. Richard Schopp, Port Lucie, for respondents.
   PER CURIAM.

Petitioners seek review by certiorari of a discovery order entered by the trial court in a personal injury case arising out of a slip and fall in a super market.

Respondents filed a complaint alleging that Bonita Marie McGann was injured in a super market owned by Publix Supermarkets, Inc., when she slipped and fell as a result of the negligence of the owner. Respondents filed a request to produce, in which, among other things, they sought production of “a copy of all statements taken by the employees or agents of Publix Supermarkets, Inc., concerning Bonita Marie McGann’s accident on July 11, 1980.” Petitioners’ objection to said request on the grounds that the alleged statements were “work product” was overruled by the trial court.

The request to produce is authorized by Florida Rule of Civil Procedure 1.350. It is to be noted via the Committee Note that this rule no longer contains the good cause requirement of the former rule. Thus, if no objection is made, production is had without a court order. If objection is made necessitating a court hearing, then in the case of a party objecting on grounds of the work product privilege, that party has the burden, first of showing the privilege. Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975); Hospital Corporation of America v. Dixon, 330 So.2d 737 (Fla. 1st DCA 1976). At that point it would be incumbent upon the moving party to demonstrate the necessity for the production as required in Rule 1.280(b)(2), i. e., that he has a need of the materials in the preparation of his case and that he is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.

It seems to us that petitioners failed to demonstrate that the statements were privileged and thus they cannot contend in this court that respondents failed to show the necessity required by Rule 1.280(b)(2). Hospital Corporation of America v. Dixon, supra.

Accordingly, the petition for writ of cer-tiorari is denied.

LETTS, C. J., and DOWNEY and HERSEY, JJ., concur.


text:
    Larry Keith JACKSON, Petitioner, v. Honorable Lawrence L. KORDA, Circuit Court Judge, Seventeenth Judicial Circuit, Respondent.
    No. 81-1362.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.

      Alan H. Schreiber, Public Defender, Michael J. Hittleman and Steven Michaelson, Asst. Public Defenders, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

Larry Keith Jackson filed, in the trial court, a motion for disqualification of Respondent as the presiding judge in two criminal cases in which Jackson was defendant. The motion was denied and Jackson petitioned this Court for a Writ of Mandamus requiring respondent to disqualify himself. The appropriate remedy is by way of Prohibition. Bundy v. Rudd, 366 So.2d 440 (Fla.1978). Accordingly, we treated the petition as one for a Writ of Prohibition and issued an order to show cause why Prohibition should not be granted. In response, respondent stated that Jackson’s motion for disqualification was denied because it was legally insufficient, citing Section 38.10, Florida Statutes (1979). Respondent further stated that, were a legally sufficient motion presented, it would be granted.

Jackson’s motion for disqualification, grounded on prejudice, contained specific factual allegations and a certification that the motion was made in good faith. Filed along with the motion were two affidavits supporting the factual basis for the motion. The affiants were Jackson and his attorney.

Section 38.10 requires the affidavits “of at least two reputable citizens of the county, not of kin to defendant or counsel for the defendant....” Thus, if this statutory provision were controlling, Jackson’s motion would indeed be legally insufficient. However, the procedures for disqualification of a judge in a criminal case are now governed by Rule 3.230, Florida Rules of Criminal Procedure. See State ex rel. Aguiar v. Chappell, 344 So.2d 925 (Fla. 3d DCA 1977); Author’s Comment to Fla.R.Crim.P. 3.230.

Pursuant to Rule 3.230(b) “[ejvery motion to disqualify shall be in writing and shall be accompanied by two or more affidavits setting forth facts relied upon to show grounds for disqualification, and a certificate of counsel of record that the motion is made in good faith.” Jackson’s motion meets these requirements, and therefore is a legally sufficient motion.

Accordingly, we grant the petition but find it unnecessary to issue the writ. Rather, we relinquish jurisdiction for respondent to grant Jackson’s motion for disqualification in accordance with the representations of the Response.

BERANEK and HURLEY, JJ., concur.


text:
    Ronald Roger GOLD, Appellant, v. STATE of Florida, Appellee.
    No. 81-216.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 1981.
    H. Michael Evans of Mosley & Evans, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We find no error in the trial court’s denial of appellant’s motion to suppress and therefore affirm the judgment adjudicating him guilty of possession of marijuana and methaqualone. However, the single sentence of three years on both counts is an illegal general sentence and violates section 775.021, Florida Statutes (1979). Fundak v. State, 362 So.2d 295 (Fla.2d DCA 1978); Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975); Darden v. State, 330 So.2d 750 (Fla.2d DCA 1976). Accordingly, the sentence is vacated and the cause remanded for resentencing.

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


author: PER CURIAM. JOANOS, Judge,

text:
    Cleveland ROBERTS and Ivey Davis, Appellants, v. STATE of Florida, Appellee.
    No. VV-117.
    District Court of Appeal of Florida, First District.
    Sept. 4, 1981.
    Armondo Garcia of Levine & Garcia, Tallahassee, for appellants.
    Cleveland Robert, in pro. per.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Roberts and Davis appeal their convictions for burglary. Roberts, who was sentenced as an habitual felon pursuant to Section 775.084 Florida Statutes (1979), also appeals his sentence. We affirm their convictions but reverse Roberts’ sentence and remand for resentencing.

Before the trial court may sentence a party as an habitual felon, the court must find the extended sentence necessary for the protection of the public from further criminal activity. This finding must include “the underlying facts and circumstances which the trial judge relied on in making that finding.” Adams v. State, 376 So.2d 47, 58 (Fla. 1st DCA 1979). Neither the trial court’s order nor the transcript of the sentencing proceeding specify the facts on which the trial court relied. Accordingly, we reverse the sentence and remand for resentencing in accordance with this opinion.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur.

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

JOANOS, Judge,

concurring in part and dissenting in part.

I concur in the majority’s opinion in their affirming the convictions of appellants but dissent in their reversing of Roberts’ sentence.

The situation involved in this matter is essentially the same as that involved in McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978). As in this case, the trial judge in McClain made the finding that an enhanced sentence as provided under § 775.-084, Florida Statutes, was necessary for the protection of the public but did not articulate the facts supporting that conclusion. In reviewing the enhanced sentence, that Court said:

Turning to the instant case, we note that the judge made conclusionary findings by tracking the statutory language. It would have been helpful if he had outlined specific reasons for concluding that the sentencing of the appellant to an extended term was necessary for the protection of the public. However, the record in this case amply supports the ultimate conclusion, because the evidence concerning appellant’s prior criminal record reflects that he has been engaged in a lifetime of crime. Since the findings required by the statute are fully supported in this record, the judge was at liberty to impose the extended sentence. 356 So.2d at 1257.

The same situation is set forth in the case before us, “... the record in this case amply supports the ultimate conclusion .... ” The record reflects inter alia that Roberts was three times previously convicted of a felony and that he was on parole at the time he committed the crime in this case. That alone is sufficient to support the enhanced sentence permitted under the statute.

Adams v. State, 376 So.2d 47, 58 (Fla. 1st DCA 1979) is relied upon by the majority. That case is not applicable here for the reason that in Adams the record reflected that the trial judge in ordering the enhanced sentence may have relied upon hearsay evidence which was disputed. No such question is involved here.

The orders appealed from should be AFFIRMED in total.


author: THOMPSON, Judge.

text:
    Evelyn MILLER and Howard Miller, Appellants, v. COLONIAL BAKING COMPANY OF ALABAMA and American Motorists Insurance Company, Appellees.
    No. XX-459.
    District Court of Appeal of Florida, First District.
    Sept. 4, 1981.

      Glen R. Peterson, Panama City, for appellants.
    James B. Fensom of Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellees.
   THOMPSON, Judge.

This is an appeal from an Order awarding attorney’s fees and costs to the appellees. We reverse.

A jury was selected to try a personal injury action brought by the appellants (“the plaintiffs”) against the appellees (“the defendants”). The trial began and later a recess was taken for lunch. After this recess, the defendants’ counsel moved for a mistrial on the basis that two of the secretaries from his office had just seen the plaintiffs’ attorney, and the plaintiffs’ expert witness, having lunch with two female jurors. The court asked the plaintiffs’ attorney to respond, and he did so by acknowledging that he and his expert witness did have lunch with two jurors, due to crowded restaurant conditions. However, he said that they did not discuss the case at all. The trial court then properly granted the motion for mistrial, in view of the improper and unethical conduct of the plaintiffs’ attorney.

Before a new trial began, the defendants’ counsel filed a motion to assess costs and attorney’s fees against the plaintiffs and/or their attorney, based on the preceding facts. A hearing was held and the motion was granted insofar as costs and attorney’s fees were to be borne only by the plaintiffs’ attorney.

Generally, “[i]t is well established that costs are not awarded except where authorized by statute or agreement of the parties and that such costs are taxable only pursuant to statute or rule.” Sears, Roebuck & Co. v. Richardson, 343 So.2d 678, 679 (Fla. 1st DCA 1977). In the present case, we can find no statutory authority for the award of costs. Additionally, the taxation of costs provided for in § 57.021, Fla. Stat. (1979), may not take place after a mistrial. See Richardson, 343 So.2d at 679-80. Instead, costs may be taxed only after the final determination of a cause. Id.; Brinker v. Ludlow, 379 So.2d 999, 1001-02 (Fla.3d DCA 1980).

As for attorney’s fees, “[i]t is an elemental principle of law in this State that attorney’s fees may be awarded ... only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.” Kittel v. Kittel, 210 So.2d 1, 3 (Fla.1968). Circumstances (1) and (3) are obviously not present, and we can find no statutory authority for the award of attorney’s fees herein.

Although the court might have been authorized, through appropriate proceedings, to impose a fine or sanctions against the plaintiffs’ attorney for indirect contempt of court, it was not authorized to assess costs and attorney’s fees against him for his actions which resulted in the mistrial. We are therefore compelled to reverse the trial court’s Order, without prejudice to the institution of contempt proceedings and without prejudice to the defendants to move, at the conclusion of this case, to assess against the plaintiffs those costs occasioned by the mistrial. See Richardson, 343 So.2d at 679-80.

REVERSED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.

       Of course, there are “exceptions” to the rule stated in Kittel. However, none of those “exceptions” are present. See Sheridan v. Greenberg, 391 So.2d 234, 235, 237-38 (Fla.3d DCA 1980) (generally discussing the recovery of attorney’s fees as an element of damages in various cases and circumstances). In this same respect, see Glusman v. Lieberman, 285 So.2d 29, 31-32 (Fla. 4th DCA 1973). Additionally, attorney’s fees may be taxed as costs if so authorized by contract or statute. See Codomo v. Emanuel, 91 So.2d 653, 655 (Fla.1956). See also Allen v. Estate of Dutton, 384 So.2d 171, 174 (Fla. 5th DCA 1980), rev. den. 392 So.2d 1373 (Fla.1980). Lastly, attorney’s fees may be allowed where a partner is forced to bring suit for dissolution of the partnership and an accounting, A. J. Richey Corp. v. Garvey, 132 Fla. 874, 182 So. 216, 219 (1938), or where a trustee defends a trust. Smith v. Massachusetts Mut. Life Ins. Co., 116 Fla. 390, 156 So. 498, 509 (1934). Again, none of these “exceptions” are present.


text:
    Ruth W. JENNINGS, Appellant/Cross-Appellee, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee/Cross-Appellant, v. CAPITAL CITY FIRST NATIONAL BANK, Appellee/Cross-Appellee.
    No. AB-50.
    District Court of Appeal of Florida, First District.
    Sept. 4, 1981.

      Julius F. Parker of Madigan, Parker, Gat-lin, Swedmark & Skelding, Tallahassee, for appellant/cross-appellee Ruth W. Jennings.
    John D. Buchanan, Jr. of Henry, Buchanan, Mick & English, P. A., Tallahassee, for appellee/cross-appellant.
    C. Gary Williams and Michael J. Glazer of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee/cross-ap-pellee.
   THOMPSON, Judge.

This is an appeal from an order dismissing with prejudice the complaint of the appellant Ruth Jennings (“Jennings”) against Prudential Insurance Company of America (“Prudential”) and Capital City First National Bank (“Bank”) and a cross-appeal from the same order by Prudential from the dismissal of the interpleader action filed by it. We find no error in the final order of the trial court and affirm.

In 1966, Prudential issued a life insurance policy to Jennings’ husband. This policy designated her as the beneficiary. In 1967, and again in 1969, the husband assigned this policy to the Bank as collateral for several loans he had obtained. He filed for bankruptcy in 1972 and in 1974 his “Discharge of Bankrupt” was issued.

Jennings’ husband died in 1979 and a claim was made on her behalf, as beneficiary, for the proceeds of the policy. She was advised by Prudential that there had been an assignment of the policy to the Bank and that the Bank claimed the entire death benefits. Efforts to resolve the differences between the Bank and Jennings were unsuccessful. Jennings filed a complaint against Prudential and the Bank seeking a declaration from the court that she was entitled to the death benefits of the policy and that the Bank had no claim whatsoever to the proceeds of the policy. Jennings alleged in her complaint that any cause of action by the Bank against her husband accrued no later than 1974 when he was discharged in bankruptcy and, therefore, the Bank’s claim was barred by the five-year statute of limitations. Jennings also alleged that no claim was filed in the probate proceedings and that the time for filing such a claim had expired.

The bank moved to dismiss the complaint for failure to state a cause of action. Prudential cross-claimed against the Bank and counter-claimed against Jennings with an interpleader action. After a hearing on both motions, the court granted with prejudice the Bank’s motion to dismiss and dismissed the interpleader action with prejudice as having been rendered moot.

The assignment from Jennings’ husband to the Bank vested the legal title of the policy in the Bank, subject to the right of the insured to redeem the policy by the payment of the debt for which the policy was pledged as collateral. Travelers Insurance Company v. Tallahassee Bank & Trust Company, 133 So.2d 463 (Fla. 1st DCA 1961). The discharge of the bankrupt insured discharged his personal liability. Although the Bank can no longer collect from Jennings’ husband, the discharge does not prevent the Bank from collecting its lien on the proceeds of the policy assigned to it as collateral for a debt, to the extent of the unpaid balance of the debt.

The Bank’s rights to the proceeds of the policy are not barred by the statute of limitations. Jennings’ husband defaulted in the payment of the premiums on the policy in 1973, and Prudential continued the policy as extended insurance under the non-forfeiture provisions of the policy. The Bank had no cause of action when Jennings’ husband defaulted on his debt to the Bank or even when he was discharged as a bankrupt. The Bank did not have a cause of action on the policy until the death of Jennings’ husband, and the statute of limitations did not begin to run until then.

As the Bank held the legal title to the policy, it had no duty to file a claim against the insured’s estate. Neither the estate nor the beneficiary has any right to or interest in the death benefits of the assigned policy except to the extent that these proceeds exceed the debt owed. The record reflects that the debt in this case exceeded the amount of death benefits payable under the policy.

The trial court properly dismissed Jennings’ complaint. This dismissal rendered the interpleader action moot and the trial judge correctly dismissed the interpleader action filed by Prudential.

The motion for attorney’s fees filed by Prudential is denied. The Bank made no recovery on the policy assigned to it in this action and its motion for attorney’s fees is denied. See § 627.428, Fla.Stat. (1979).

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.


text:
    AMERICAN FUNDING, LIMITED, a New Jersey Limited Partnership, Petitioner, v. Ira HILL, Jr., Lynn K. Hill, Ira Hill, Sr., Elma Hill, Roy M. Lister, Bill R. Hutto, Nick C. Mason, William B. Guy, Individuals, Hill Properties of Florida, Inc., Rayner & Associates, and the Wewahitchka State Bank, Respondents.
    No. AF-447.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1981.

      George L. Hudspeth and Michael G. Tanner of Mahoney Hadlow & Adams, Jacksonville, for petitioner.
    Wilfred C. Varn, Tallahassee, Jack G. Williams, William E. Harris, John D. O’Brien, Panama City, and David G. Gaskin, Wewahitchka, for respondents.
   PER CURIAM.

American Funding, Limited, seeks review by certiorari of an order of the trial court granting Respondent Hutto’s motion to compel production of certain documents.

On June 15, 1981, Hutto requested that certain documents be produced for inspection and copying on July 20. On July 30, Hutto moved to compel production of the documents stating that American Funding had not responded to the request for production. On August 4, American Funding served its response to the request, agreeing to provide certain material, objecting to some material on the grounds of relevance, and objecting to other materials on the grounds of work product and the attorney-client privilege. On August 6, the trial court granted the motion to compel, noting that the response was not timely, and on August 20, denied petitioner’s motions for reconsideration and for protective orders.

The issue raised by this petition is whether the trial court violated the essential requirements of law by ordering production of the documents without considering the untimely objections raised by American Funding.

Florida Rule of Civil Procedure 1.350(b) provides that a response to a request to production must be served within thirty days after service of the request. For each item requested, the response shall state that the materials will be produced as requested unless there is an objection, in which event, the reasons for the objection shall be stated.

Objections to a request for production can be made either because the items requested are not within the permissible scope of discovery or on any ground that would support an application for protective order under Rule 1.280(c). 8 Wright and Miller, Federal Practice and Procedure: Civil, § 2213. Rule 1.350 does not distinguish between the two types of objections and there is nothing in the rule indicating that a party can fail to respond to a request to produce if the materials sought are outside the scope of discovery. Instead, the rule requires that a party respond to a request and that any objections be specifically stated. If a party does not respond, Rule 1.380 provides a remedy.

Florida Rule of Civil Procedure 1.380(a)(2) provides that “... if a party in response to a request for inspection submitted under Rule 1.350 fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for ... an order compelling inspection in accordance with the request.” Florida Rule of Civil Procedure 1.380(d) states:

If a party or an officer, director, or managing agent of a party ... fails ... (3) to serve a written response to a request for inspection submitted under Rule 1.350 after proper service of the request, the court in which the action is pending may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule%Y((4)27 The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 1.280(c).

In the case before us, American Funding did not respond to the request for production and Hutto moved to compel production. The trial court chose not to impose the sanctions authorized by Rule 1.380(d) but granted Hutto’s motion to compel since no timely objections to the request for production had been made.

The trial court is given wide discretion in dealing with discovery matters, and unless there has been a clear abuse of discretion, the trial court’s order will not be disturbed by the appellate court. See Burroughs Corporation v. White Lumber Sales, Inc., 372 So.2d 122 (Fla. 4 DC A 1979). In the instant case, we cannot hold that the trial court abused its discretion by granting Hutto’s motion to compel after American Funding failed to respond to Hutto’s request for production within the time limits imposed by Rule 1.350(b).

We have considered the opinion of the Fifth District Court of Appeal in Insurance Co. of N. America v. Noya, 398 So.2d 836 (Fla. 5 DCA 1981). The court held that the failure to timely object to a subpoena duces tecum, move for a protective order, or move to quash would waive any objections to the discovery of materials otherwise within the scope of discovery but would not “... bar a party from asserting a privilege or exemption for matters outside the scope of permissible discovery.” The Noya opinion is distinguishable from the instant case. In Noya, the court was not addressing a party’s failure to respond to a request for production and did not have to consider Rule 1.380(d) which states that the failure to respond “... may not be excused on the ground that the discovery sought is objectionable .... ”

The petition for writ of certiorari is denied.

MILLS, LARRY G. SMITH and WENT-WORTH, JJ., concur.


text:
    John CURRAN, Appellant, v. SMITH, KORACH, JAYET, HAYNIE, etc. Cedars of Lebanon Hospital Corp., Cedars of Lebanon Towers, Cedars of Lebanon Hospital Care Center, Inc., Appellees.
    No. 80-2457.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Horton, Perse & Ginsberg, Dunn & Johnson, Miami, for appellant.
    James J. Belcher and John R. Banister, Pompano Beach, Vernis Bowling, West, Montalto & Goodman and Richard N. Blank, Fort Lauderdale, for appellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The plaintiff in a construction site accident case has appealed from a summary judgment entered in favor of two sets of defendants below. The appellant’s brief specifically abandons his challenge to the judgment for the architect-engineers. The remaining appellees, who were the alleged owners of the project, having confessed error in the summary judgment in their favor. In accordance with these reciprocally and commendably candid representations of counsel, and our own review of the record and brief, the judgment under review is affirmed as to The Smith, Korach, Jayet, Haynie Partnership, and reversed as to the Cedars of Lebanon Hospital Corp., Cedars of Lebanon Towers, and Cedars of Lebanon Hospital Care Center, Inc.


author: ORFINGER, Judge.

text:
    Reginald L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-904.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 1981.
    Thomas E. Bevis of Bevis & Disney, De-Land, for appellant.
    Jim Smith, Atty. Gen., Tallahasse, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION TO DISMISS

ORFINGER, Judge.

The State moves to dismiss this appeal contending that the issues on appeal were not preserved for appellate review because the sentence is not appealed, only the adjudication of guilt.

The notice of appeal was filed after the jury verdict of guilty, but before the entry of the judgment, but it appealed “the final judgment adjudicating guilt.” Thus, cases such as Smith v. State, 395 So.2d 575 (Fla. 5th DCA 1981), where only the verdict was appealed, are inapposite. The State concedes that under Williams v. State, 324 So.2d 74 (Fla.1975), the notice of appeal remains in a state of limbo until the judgment is rendered, at which time the notice of appeal matures and vests jurisdiction in the appellate court. Id. at 79. However, the State asserts that a notice of appeal is only effective to raise matters which occur prior to the time the notice is filed (or here, prior to its becoming effective), Velickovich v. Ricci, 391 So.2d 258 (Fla. 4th DCA 1980), and sentencing occurs after the judgment of guilt is entered. Therefore, says the State, alleged sentencing errors cannot be raised here without a new or amended notice of appeal specifically addressed to the sentence.

In Noble v. State, 353 So.2d 819 (Fla.1977), the Supreme Court addressed this same issue and held that an appeal from an adjudication of guilt permitted the appellate court to consider alleged sentencing errors despite the absence of any language in the notice of appeal indicating that the appellant intended to appeal the sentence, where the issue was clearly raised in the appellate proceedings and no prejudice was shown by the State. The State’s response here alleges no prejudice but relies simply on the fact that the notice of appeal does not refer to the sentence. Under Noble, we are compelled to disagree. See Abraham v. State, 382 So.2d 382 (Fla.3d DCA 1980).

The motion to dismiss is DENIED.

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

      . The Supreme Court found conflict between the decision of Noble v. State, 338 So.2d 904 (Fla. 1st DCA 1976) and State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967).


text:
    I. P. J., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. UU-445, UU-446.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1981.
    Michael Allen, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr. and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Two petitions for delinquency were filed against appellant, one charging appellant with prowling and the second alleging appellant had violated his community control by (1) being arrested for prowling, and (2) failing to make restitution as required. The juvenile division of the circuit court found the charges to be true and adjudicated appellant delinquent. We reverse.

The State established only that appellant was on a city sidewalk in a commercial area of Jacksonville at two o’clock in the morning. This evidence fails to meet the standards set forth for a prowling conviction in State v. Ecker, 311 So.2d 104 (Fla.1975), or the lesser standard of the greater weight of the evidence necessary to support a probation violation based on the prowling arrest. Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977). The violation of probation cannot be affirmed on the failure of appellant to make restitution, as the State failed to produce any evidence showing that appellant had the financial ability to make the payments. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979).

The order is REVERSED.

McCORD, SHIVERS and BOOTH, JJ., concur.


text:
    BESSA TRADING ORGANIZATION INTERNATIONAL, INC. and Hussein A. El Touni, Appellants, v. ALEXANDRIA SHIPPING AND NAVAGATION COMPANY, Seafood Center, Inc., Comibassal, Thionville Surveying Company, Inc., and Eller & Company, Inc., Appellees.
    No. XX-284.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1981.

      Russell W. LaPeer of Wahl & Gabel, Jacksonville, for appellants.
    Gary A. Bubb of Toole, Taylor, Mosley & Joyner, Jacksonville, for appellee, Alexandria Shipping and Navagation Company.
    Joseph P. Milton and Michael S. O’Neal of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellee, Thionville Surveying Company, Inc.
    Keith E. Hope of Smathers & Thompson, Miami, for appellee, Eller & Company, Inc.
   PER CURIAM.

We affirm the trial court’s order dismissing with prejudice appellants’ amended third party complaint. Our affirmance is without prejudice to the right of appellants to file an independent action against appel-lees. See Mandala v. Sarrow, 234 So.2d 14 (Fla. 4th DCA 1970). AFFIRMED.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    Reginald W. GARRETT and Elizabeth W. Garrett, Appellants, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Triangle Grove Service, Inc., and Charlie Lewis, Appellees.
    No. 80-1432.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1981.
    William M. Holland, Jr., of William M. Holland, Jr., P. A., Tampa, for appellants.
    Karen K. Kinkennon of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellees.
   PER CURIAM.

We interpret the final judgment to mean that the appellants are entitled to receive $65,824.40 from appellees and that the remaining $6,675.60 of the settlement shall be paid to the Home Indemnity Insurance Company for reimbursement of PIP benefits. As so interpreted, the judgment is

AFFIRMED.

HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    STATE of Florida, Appellant, v. Dennis Patrick HOGAN, Dr. Robert Agnew, William Frederick Reinholt and John Dolence, Appellees.
    No. 80-703.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Sheldon Yavitz, Miami, for appellee Hogan.
    Eddie Kay, Fort Lauderdale, for appellee Agnew.

      Kenneth Delegal, Fort Lauderdale, for appellees Reinholt and Dolence.
   PER CURIAM.

Reversed. See, State v. Benitez, 395 So.2d 514 (Fla.1981).

DOWNEY, MOORE and BERANEK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Ronald Peter COYLE and Bernard Wilson, Appellees.
    No. 80-716.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Philip Carlton, Jr. of Law Offices of Philip Carlton, Jr., Miami, for appellees.
   PER CURIAM.

The trial court’s order of April 10, 1980, which declared Section 893.135, Florida Statutes (1979) to be unconstitutional and, thereupon, dismissed Count (1) of the information, is reversed upon the authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

REVERSED and REMANDED for further proceedings.

^EY, JJ., concur LETTS, C. J., and HERSEY and HUR-


text:
    The STATE of Florida, Appellant, v. Anthony Lynn FULTZ, Appellee.
    No. 81-259.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1981.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Harold T. Fields, Jr., Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The appellee having confessed error in the trial court’s granting of his sworn motion to dismiss, and such error clearly appearing, see, State v. Thompson, 399 So.2d 4851 (Fla.3d DCA 1981); State v. Horne, 399 So.2d 49 (Fla.3d DCA 1981); State v. Johnson, 398 So.2d 500 (Fla.3d DCA 1981), the order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Aaron JONES v. STATE.
    6 Div. 148.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Thomas L. Rountree, Oneonta, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, 403 So.2d 154 (Ala.1981), 403 So.2d 158 (Ala.Cr.App.1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All Judges concur.


text:
    TED ALLEN McGINNIS, Jr. v. STATE.
    6 Div. 644.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    J. Massey Relfe, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   PER CURIAM.

The order of the circuit court is reversed and the cause remanded with directions to grant a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981), and Ritter v. State, 403 So.2d 154 (Ala.1981).

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur, except BOOK-OUT, J., who dissents for reasons stated in Cook v. State (Ala.Cr.App.1981) [6 Div. 561, Ms. June 23, 1981].


text:
    Michael AINSLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1840.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    Rehearing Denied Sept. 21, 1981.
    Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See: Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975).


text:
    Lillian Goldston KOUCHEL, Appellant, v. Bernard KOUCHEL and Elaine Kouchel, Appellees.
    No. 81-1143.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 21, 1981.
    Ivan S. Benjamin, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Gary Gerrard, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

AFFIRMED. Estate of Roberts, 388 So.2d 216 (Fla.1980); Section 732.702(2), Florida Statutes (1976); Rule 1.100(a), Fla.R.Civ.P.


text:
    DIVISION OF RETIREMENT, Appellant, v. Edwin OLSEN, Appellee.
    No. AB-217.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.
    Stanley M. Danek, Asst. Div. Atty., Tallahassee, for appellant.
    Richard Sicking of Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal & DeCastro, and Joseph C. Segor, Miami, for appellee.
   PER CURIAM.

AFFIRMED. Kennedy v. Wiggins, 368 So.2d 454 (Fla. 1st DCA 1979).

McCORD and SHIVERS, JJ., and MASON, ERNEST E. (Retired), Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Phillip Walker TABB, Appellee.
    No. AB-292.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1981.
    Rehearing Denied Sept. 29, 1981.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellant.
    William R. Slaughter, II, of Slaughter & Slaughter, Live Oak, for appellee.
   PER CURIAM.

Reversed on the authority of De Montmorency v. State, 401 So.2d 858 (Fla. 1st DCA 1981).

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


author: DAUKSCH, Chief Judge.

text:
    Joe YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 80-1292.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

The conviction in this case is reversed on the authority of Rozier v. State, No. 80-1277, 402 So.2d 539 (Fla. 5th DCA 1981).

REVERSED.

COBB and COWART, JJ., concur.


text:
    STATE of Florida, Appellant, v. Pamela Susan BROMBEREK, Appellee.
    No. 80-1762.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Reversed. See, State v. Benitez, 395 So.2d 514 (Fla. 1981).

MOORE, BERANEK and GLICKSTEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Bland Ricky ROBERTS, Appellee.
    No. 80-2201.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance required by appellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981), and remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, BERANEK, and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michael Edward BUTLER, Appellee.
    No. 80-2228.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Jeffery A. Smith, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981) and remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Ronald H. RUIS, as Trustee, Appellant, v. BROADMOOR OF DURHAM, etc., et al., Appellees.
    No. 80-1289.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 1981.
    George C. McLarry, Orlando, for appellant.
    Burton L. Bruggeman of Rowland, Thomas & Bruggeman, Orlando, for appellee Broadmoor of Durham.
   PER CURIAM.

DISMISSED.

See Casto v. Casto, 404 So.2d 1046 (Fla.1981).

ORFINGER, FRANK D. UPCHURCH and COWART, JJ., concur.


text:
    Steven DAKESIAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1100.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Richard L. Jorandby, Public Defender and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed with directions that appellant be granted a new trial in accordance with Tascano v. State, 393 So.2d 540 (Fla.1981.)

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


text:
    STATE of Florida, Appellant, v. Dave Arlen KRANTZ, Appellee.
    No. 80-735.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alexander M. Siegel of Siegel & Siegel, P. A., Margate, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla. 1981) and remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Vincent TORTORA, Appellant, v. STATE of Florida, Appellee.
    No. 80-985.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Robert C. Stone of Stone, Dell & Schae-fer, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The order revoking appellant’s probation is hereby reversed with directions that a new probation hearing be conducted in accord with the opinion of this court in Ray v. State, 387 So.2d 995 (Fla. 4th DCA 1980).

LETTS, C. J., and ANSTEAD and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michael Barry GLISERMAN, Appellee.
    No. 80-1572.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981), and remanded for further proceedings.

REVERSED AND REMANDED.

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Martin G. VENER, Appellee.
    No. 80-1590.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    David R. Damore of Damore & Gelety, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed for further proceedings in accordance with the decision in State v. Benitez, 395 So.2d 514 (Fla.1981).

LETTS, C. J., and ANSTEAD and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Louis Rene VILLA and Terry Michael Wilson, Appellees.
    No. 80-1952.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance required for appellees.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981), and remanded for further proceedings.

REVERSED AND REMANDED.

LETTS, C. J., and BERANEK and HURLEY, JJ., concur.


text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. Daniel L. CAMPBELL, and Unemployment Appeals Commission, State of Florida, Appellees.
    No. 81-213.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Martha J. Cook, Tallahassee, for appellant.
    James R. Parks, Tallahassee, for appellee Unemployment Appeals Com’n.
   PER CURIAM.

AFFIRMED upon authority of National Airlines v. Div. of Emp. Sec., etc., 379 So.2d 1033 (Fla. 3rd DCA 1980).

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    C. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-230.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen. and Joseph Corey, Legal Intern, for appellee.
    Before HUBBART, C.J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

Affirmed. Doerr v. State, 383 So.2d 905 (Fla.1980); T.B. v. State, 306 So.2d 183 (Fla.2d DCA 1975).