author: DELL, Judge.

text:
    HICKOK TEACHING SYSTEMS, INC., Appellant, v. EQUITECH TRAINING SYSTEMS, INC., Appellee.
    No. 82-944.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.

      Brian F. Leary of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant.
    Susan W. Wright of Rothfeld & Popkin, Fort Lauderdale, for appellee.
   DELL, Judge.

Hickok Teaching Systems, Inc., an Ohio corporation not registered to do business in the State of Florida, appeals a denial of its motion to dismiss a complaint for lack of personal jurisdiction. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).

The underlying case consists of an action by appellee/seller Equitech Training Systems, Inc., A Florida corporation, to recover the purchase price of goods delivered to the appellant in Massachusetts. The original complaint alleged appellant did business in Florida thus subjecting it to jurisdiction under the Florida Long-arm statute. The trial court found appellant was not doing business in Florida and dismissed the complaint. Appellee then filed an amended complaint, basing personal jurisdiction on appellant’s alleged breach of contract by failing to pay for the goods in Florida. Appellant moved to dismiss the second amended complaint for lack of jurisdiction under Florida Statute 48.193(l)(g) and filed affidavits in support of its contention that it did not breach the contract in Florida. The trial court denied the motion to dismiss and ordered appellant to answer the second amended complaint. This timely appeal followed.

The order denying appellant’s motion to dismiss must be reversed because appellee failed to carry its burden of proof to show that appellant breached the contract by failing to perform acts within the State of Florida.

A plaintiff must plead sufficient material facts to establish a basis for jurisdiction under the Florida Long-arm statute. If a defendant challenges those allegations by affidavit, the plaintiff must then support its jurisdictional allegations by affidavit or other proof. Cosmopolitan Health Spa, Inc. v. Health Industries, Inc., 362 So.2d 367 (Fla. 4th DCA 1978). The only basis for personal jurisdiction alleged in the second amended complaint consisted of appellant’s breach of contract in Florida by failing to pay appellee in the State of Florida. Appellant filed an affidavit stating that while no place of payment had been specified in the contract, in prior contracts payments had been made and accepted in Canada and Ohio. The record is devoid of any subsequent affidavits or other proof offered by appellee to refute appellant’s challenge to the personal jurisdiction allegations. Appellee’s only affidavit contains argument in support of the allegations in the complaint but fails to establish facts necessary for personal jurisdiction over a non-resident. Appellant’s motion to dismiss should have been granted.

Accordingly, we reverse the trial court’s order denying the motion to dismiss and order the second amended complaint dismissed for lack of personal jurisdiction.

REVERSED and REMANDED.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    PETE BUTTS PAINTING and U.S. Fire Ins. Co., Appellants/Cross Appellees, v. Richard E. GOLDEN, Appellee/Cross Appellant.
    No. AJ-500.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1982.
    C. Kenneth Stuart, Jr., of Holland & Knight, Bartow, for appellants/cross appel-lees.
    Thomas Cassidy, of Smith, Cassidy & Platt, P.A., Lakeland, for appellee/cross appellant.
   ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier appeal an order awarding this workers’ compensation claimant six weeks of temporary total disability benefits and finding that he suffered a permanent physical impairment, but denying any permanent wage loss benefits. We affirm the six-week period of temporary benefits. However, since claimant’s doctor had returned him to work during that period, the deputy should have awarded temporary partial wage loss benefits instead of temporary total disability benefits. Section 440.15(4), Fla.Stat. (1979). The monetary result is the same, so we simply modify the award. See Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982).

Apparently to avoid any res judicata application of this order to future wage loss claims, appellants also contest the deputy’s finding that claimant suffered permanent impairment. We agree this finding was erroneous because the medical testimony established that claimant had no ratable impairment of his back, neck or shoulder under the applicable chapter of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. Use of the AMA Guides is mandatory in this case. Paradise Fruit Co. v. Floyd, (Fla. 1st DCA 1982) [1982 FLW 1899]. Since the existence of a permanent impairment under the Guides is the prerequisite to any permanent wage loss award under section 440.-15(3)(b)l, we need not reach the issue on cross-appeal of whether denial of such benefits was error.

Accordingly, the deputy’s order is AFFIRMED in part, as modified, and REVERSED in part.

SHIVERS and THOMPSON, JJ., concur.


author: COWART, Judge.

text:
    Donald Edward HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1374.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1982.
    James B. Gibson, Public Defender, and Leonard R. Ross, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

This is an appeal from a resentencing after appellant’s original two sentences were vacated on appeal.

We have examined the record and find the trial judge adequately extended allocution and did not err in modifying the split sentence to a sentence of confinement only. See Lowery v. State, 418 So.2d 1123 (Fla. 5th DCA 1982) [1982 FLW 1846],

Appellant also complains that while the trial judge specifically gave him credit against the first of the two new sentences for the 126 days he spent in the county jail before his original sentence, as directed by section 921.161(1), Florida Statutes (1981), the trial judge did not give him credit against his new sentences for the time he had spent in prison under the vacated sentences. While we agree that appellant is entitled to credit against the first of his two new sentences for the time he spent in prison under the first of his two old sentences on the same charge and conviction, we do not agree that the burden was on the trial judge to determine the credit for such prison time because that is the proper function of the Department of Corrections, which is charged with the function of discharging a prisoner from its custody at the proper time. The Department of Corrections has and maintains adequate records (§§ 944.17, 944.18, 944.25, Fla.Stat. (1981)), from which it can determine that sentences imposed at resentencing relate to the same crime and charges as did old sentences and calculate the total amount of time properly credited against sentences and commitments. That calculation involves a consideration of the time spent between sentencing and delivery to the actual custody of the Department (see § 921.161(2), Fla.Stat. (1981)) as well as grants and forfeitures of gain time (see § 944.275 and 944.28, Fla. Stat. (1981)), and other matters not available to the trial judge from the files and records of the court and its executive officer, the sheriff.

AFFIRMED.

COBB and SHARP, JJ., concur.

      . See Hampton v. State, 399 So.2d 441 (Fla. 5th DCA 1981).


author: ORFINGER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert KAUFMAN, Appellee.
    No. 81-1408.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Richard S. Rhodes, Orlando, for appellee.
   ORFINGER, Chief Judge.

Because appellee was not brought to trial within sixty (60) days of his filing a demand for speedy trial, his motion for discharge was granted. The State appeals, and we reverse.

Appellee was arrested on May 7, 1981, and on May 22, 1981, an information was filed charging him with the knowing sale, delivery or possession of five kilograms or more of methaqualone. On June 2, 1981, appellee filed his demand for speedy trial. On the same day, he filed a demand for discovery, requesting seventeen separate items of information, and on July 7, 1981, he served notice that he would take the deposition of Ishmus L. Hill, the arresting officer. On October 26, 1981, no trial having been had, the trial court granted appel-lee’s motion for discharge.

Florida Rule of Criminal Procedure 3.191(a)(2) provides that a defendant who files a demand for speedy trial must be brought to trial within sixty days or be discharged from the crime. Before granting discharge, however, the trial court must determine that no time extension was ordered, the delay was not attributable to defendant, and the demand was valid. Fla. R.Cr.P. 3.191(d)(3). No demand for speedy trial may be filed unless the defendant has a bona fide desire to obtain a speedy trial and the defendant must be available for trial, have diligently investigated his ease, and be prepared to go to trial within five days. Fla.R.Cr.P. 3.191(c).

At the hearing on the motion for discharge, the State and the defense agreed that the only issue was whether the demand for speedy trial was bona fide when filed, i.e., had appellee diligently investigated his case and was he prepared or would he be prepared to go to trial within five days of the filing of the demand. Rule 3.191(c). After hearing testimony from appellee that he and his attorney considered the motion for speedy trial their best defense, and hearing from appellee’s counsel that there was no real defense to the charge and that the demand for discovery was filed and the deposition of the arresting officer was taken only to avoid a later claim of ineffective representation, the trial court discharged appellee.

The purpose of Rule 3.191 is to give the court control of its docket, permit proper investigation and preparation of the case and guarantee a defendant his right to a speedy trial. State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971). A defendant cannot control the criminal docket by filing a spurious demand for speedy trial for which he is not, in fact, prepared. If he has not diligently investigated his case and if he is not prepared for trial, the demand should be stricken as null and void. Id. at 130. Neither should a motion for speedy trial be used as a “defense” to a criminal prosecution.

We hold that the test to determine preparedness for trial must be primarily objective. The old adage that actions speak louder than words is quite appropriately applied here. When the record shows continuing investigation and ongoing preparation, it speaks more eloquently than any subjective opinion testimony to the contrary. The filing of a demand for discovery (to which a prosecutor has fifteen days to respond) and the scheduling of discovery depositions is the antithesis of current preparedness for trial. Such actions certainly are not suggestive of the conclusion that a defendant has diligently investigated his case and that he is prepared or will be prepared for trial [within five days]. 253 So.2d at 130. See also Turner v. Pellerin, 272 So.2d 129 (Fla.1973); Furland v. Conkling, 405 So.2d 773 (Fla. 5th DCA 1981). Thus, State v. Embry, 322 So.2d 515 (Fla.1975), is not in point. There, the court held .that the filing of a motion to suppress was not indicative of the lack of a bona fide desire for trial.

The order discharging appellee is reversed and the case is remanded for further proceedings.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . Testimony at the discharge hearing revealed that the deposition of the arresting officer was far from perfunctory. It lasted approximately tive hours and it revealed the possible existence of a tape recording that appellee’s counsel was not aware of.


text:
    Robert PINDER, Appellant, v. STATE of Florida, Appellee.
    No. 82-283.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1982.
    Nancy Y. Smith of Brinson, Smith, Heller & Smith, P.A., Kissimmee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

In his brief appellant states that he “desires to raise ineffective assistance of counsel on direct appeal” and for relief asks this court to remand this cause to the trial court for an evidentiary hearing on the ineffectiveness of his retained counsel. Appellant then proceeds to “plead the omissions or overt acts upon which the claim of ineffective assistance of counsel is based,” in an effort to comply with Knight v. State, 394 So.2d 997 (Fla.1981). Appellant claims that Vagner v. Wainwright, 398 So.2d 448 (Fla.1981), allows defendants to raise ineffective assistance of retained counsel on appeal.

Vagner.does permit defendants to challenge convictions based on inadequacy or incompetency of retained counsel to the same extent as with appointed counsel. However, the correct procedure is not as appellant’s counsel assumes. State v. Barber, 301 So.2d 7 (Fla.1974), holds that the issue of inadequacy of appointed counsel cannot properly be raised for the first time on direct appeal, since appellate courts on direct appeal review only questions previously ruled upon by the trial judge. Accordingly, ineffectiveness of counsel is correctly first raised by a petition in the trial court under Florida Rule of Criminal Procedure 3.850 and appellate review can be sought only after an adverse ruling. Under that rule, defendant’s need not, and should not, appeal for the purpose of asking the appellate court to remand for an evidentia-ry hearing as the trial court can be directly petitioned for that relief; relief cannot be had by appeal until issues of fact have been first resolved in the trial court.

We have considered the other points presented by appellant and also find them to be without merit. Accordingly, the judgment of conviction is

AFFIRMED.

DAUKSCH, J., and DANIEL, C. WEL-BORN, Associate Judge, concur.


author: PER CURIAM. COWART, Judge,

text:
    David E. BALLARD, Petitioner, v. Honorable Emerson R. THOMPSON, Jr., Circuit Judge, Ninth Judicial Circuit of Florida, Respondent.
    No. 82-1431.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1982.
    Ed Leinster, Orlando, for petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied.

ORFINGER, C.J., and SHARP, J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

In August of 1979, petitioner was arrested and charged with five counts of embezzlement from one individual, all allegedly occurring between March 2 and March 16, 1979. Not having been tried on those charges within 180 days, he moved for a discharge, which was denied by the trial court. This court granted a writ of prohibition and discharged petitioner as to those charges. Ballard v. Kaney, 397 So.2d 1042 (Fla. 5th DCA 1981).

In August of 1981, the State filed a second information alleging five counts of embezzlement allegedly occurring between April 6 and May 4, 1979, and involving property of the same owner or custodian involved in the embezzlement charges filed in August of 1979. Petitioner moved for a speedy trial discharge as to the new information on the theory that the new charges were “but a reiteration” of the first charges, concerning which petitioner had been discharged. The trial court denied petitioner’s motion and the petitioner again seeks a writ of prohibition.

Florida Rule of Criminal Procedure 3.191(h)(1) provides that a speedy trial rule discharge bars prosecution, not only of the crime charged, but also all other crimes which might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense. Petitioner’s best argument seems to be that, since in both informations the State charged a series of embezzlements, which is permitted by Florida Rule of Criminal Procedure 3.150(a) only when the offenses are based on the same act or transaction or connected acts or transaction, the acts alleged in the first information and the acts alleged in the second information should all be considered as but one criminal transaction or episode and the petitioner being discharged as to some is now discharged as to all. The petitioner cites Harper v. State, 141 So.2d 606 (Fla. 2d DCA 1962), and Hearn v. State, 55 So.2d 559 (Fla.1951).

I do not agree with Harper to the extent that case can be read to hold that, if a series of separate acts or thefts from the same person at different times over a long period of time can be said to have resulted from “a single impulse,” then all such acts constitute but one offense. Although not articulated as such, cases such as Harper were influenced by the then extant “single transaction rule,” which was abolished in 1976 by section 775.021(4), Florida Statutes (1975). Correctly speaking, each “taking” at common law and each “obtaining” or “use” under present section 812.014, Florida Statutes, constitutes a separate offense. The second information alleges five separate and distinct illegal acts, one occurring on April 6, one on April 13, one on April 20, one on April 27, and the last on May 4,1979. The only proper limitation on the number of different offenses for which a defendant can be prosecuted is the double jeopardy clauses of the federal and state constitutions. The problem is one of identity of offenses. While the statutory offenses charged in the first information are the same as those charged in the second information (each of the five counts in both informations being alleged violations of section 812.014, Florida Statutes), nevertheless, the factual events upon which each charge is based are necessarily different because the acts which allegedly constitute the unlawfully obtaining or using (embezzlement) between April 6 and May 4,1979, are necessarily different from the acts allegedly constituting the unlawfully obtaining or using between March 2 and 16, 1979, the time frame of the charges in the first information. Obviously, the informations also relate to different funds. Upon trial on the present information, the defendant may adequately limit proof to the dates alleged in the information by motions for statements of particulars. Fla.R.Crim.P. 3.140(n). See generally State v. Katz, 402 So.2d 1184 (Fla.1981).


author: SCHEB, Judge.

text:
    Learnhart RHODEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-246.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1982.

      Jack D. Hoogewind, Ridge Manor, and Lynn Tepper Sestak, Port Richey, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant, Learnhart Rhoden, was initially charged as a juvenile for the offense of discharging a destructive device. He was subsequently tried as an adult and was found guilty as charged. The court sentenced him to a mandatory term of imprisonment of ten years pursuant to section 790.161(3), Florida Statutes (1981). This appeal ensued.

Appellant has raised four arguments on appeal, but we find merit only to his contention that the trial court erred in sentencing him without following the juvenile disposition procedures set out in section 39.111(6), Florida Statutes (1981). Appellant correctly points out that the court failed to make reference to the six criteria as to suitability or nonsuitability of adult sanctions contained in section 39.111(6), and failed to put in writing its decision to imprison appellant.

The state argues that since appellant did not request disposition pursuant to section 39.111(6), and did not object to the trial court’s failure to proceed under that statute, the issue cannot be raised for the first time on appeal. As authority for this argument, the state cites to Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981) and Burley v. State, 402 So.2d 73 (Fla. 5th DCA 1981). Indeed, the cited cases stand for the proposition argued for by the state. However, we disagree with our sister court on this issue.

Section 39.111(6)(d) states that “[a]ny decision to impose adult sanctions shall be in writing, and it shall be in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions.” [Emphasis supplied.] Furthermore, section 39.111(6)(j) states that “[i]t is the intent of the Legislature that the foregoing criteria and guidelines shall be deemed mandatory and that a determination of disposition pursuant to this subsection is subject to the right of the child to appellate review pursuant to s. 39.14.”

In commenting on sentencing a juvenile who, as here, had been transferred for trial as an adult, the Florida Supreme Court in State v. Cain, 381 So.2d 1361, 1367 (Fla.1980), stated that “even when a juvenile is convicted in adult court he is still given special treatment as a juvenile .... The court must follow the procedure provided in subsection 39.111(6) .... ” [Emphasis supplied.]

We hold that the disposition procedures under section 39.111(6) are mandatory and necessitate a reversal regardless of whether appellant raised an objection in the trial court. See Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979). Our decision, of course, expressly conflicts with the Dun-man and Burley cases.

Accordingly, we affirm the trial court’s judgment, but remand for disposition pursuant to the provisions of section 39.111(6). Appellant shall be entitled to be present at the proceedings.

OTT, C.J., and SPICOLA, GUY W., Associate Judge, concur.


text:
    Joseph SELLERS, Appellant, v. STATE of Florida, Appellee.
    No. 82-254.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1982.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was convicted of armed robbery and sentenced to sixty years in prison with the trial judge retaining jurisdiction over the first one-third of appellant’s sentence.

The sole issue before us is whether section 947.16(3), Florida Statutes (1981) is unconstitutional. The statute provides for the entry of an order retaining jurisdiction over the offender for certain enumerated crimes and requires the trial judge to state the justification with individual particularity for retaining jurisdiction. The jurisdiction of the trial judge is limited to the first third of the sentence imposed.

Appellant’s contention that the statute is unconstitutional has been previously addressed and rejected by the Florida Supreme Court in Borden v. State, 402 So.2d 1176 (Fla.1981). See also Arnett v. State, 397 So.2d 330 (Fla. 1st DCA), cert. denied, 408 So.2d 1092 (Fla.1981). Accordingly, we affirm appellant’s conviction and sentence.

GRIMES, A.C.J., and CAMPBELL, J., concur.


author: PER CURIAM.

text:
    Joe DeSHIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 82-617.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1982.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Joe DeShields, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment and sentence is affirmed. However, that portion of the court’s order requiring appellant to pay $2.00 court costs and $10.00 to the Victim’s Crime Compensation Trust Fund is stricken because the appellant was found insolvent by the trial court. Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981).

GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    UNITED STATES FIRE INSURANCE COMPANY, a foreign corporation, Petitioner, v. CLEARWATER OAKS BANK, a Florida banking corporation, Respondent.
    No. 82-1609.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1982.
    Rehearing Denied Dec. 3,1982.
    Leslie King O’Neal of Markel, Scott, McDonough & O’Neal, P.A., Orlando, for petitioner.
    William L. Lyman, Clearwater, for respondent.
   GRIMES, Acting Chief Judge.

This is a petition for writ of certiorari to review a discovery order.

The petitioner (U.S. Fire) issued a blanket bond on behalf of the respondent (bank). The bank subsequently suffered a loss as a result of giving value to a customer for checks issued on a nonexistent bank in the West Indies. The bank made a claim for the loss under the bond. When U.S. Fire refused to pay the claim, the bank brought suit. In its complaint, the bank sought compensatory damages for its loss and punitive damages for U.S. Fire’s “bad faith” in arbitrarily refusing to pay the claim. U.S. Fire’s motion to strike the claim for punitive damages was denied.

The bank sought the production of various records from U.S. Fire. Over objection, the court entered an order compelling the production of records falling generally into two categories: (1) U.S. Fire’s file involving the claim at issue in the lawsuit; and (2) U.S. Fire’s files with respect to claims and lawsuits against U.S. Fire by third parties under similar blanket bonds. We hold that the order requiring the production of these records constituted a departure from the essential requirements of law from which there would be no adequate remedy by appeal. See Manatee County v. Estech General Chemicals Corp., 402 So.2d 75 (Fla. 2d DCA 1981).

In a bad faith suit against an insurance company for failure to settle within the policy limits, the plaintiff may obtain discovery of the original claim file. Stone v. Travelers Insurance Co., 326 So.2d 241 (Fla. 3d DCA 1976). On the other hand, the plaintiff cannot compel disclosure of the carrier’s work product, its claim file, where the cause of action is a first party claim for coverage under the policy. Agri-Business v. Bridges, 397 So.2d 394 (Fla. 1st DCA 1981). The reason for the distinction is that a claim for bad faith will lie when a carrier fails properly to perform its fiduciary obligation to defend, but a claim for bad faith cannot be prosecuted where the parties simply disagree over whether the claim is covered by the policy. In the latter case, the parties occupy a debtor-creditor relationship, and the insurance company does not commit a separate tort by refusing to pay the claim. Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973).

Notwithstanding, the bank points out that U.S. Fire’s motion to strike the claim for punitive damages was denied. Since the propriety of this nonfinal order cannot be reached by appeal at this juncture, the bank asserts that it is entitled to the records because the issue of bad faith is still in the case. The parties were in the same posture in Allstate Insurance Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976). Yet, despite the existence of a pending punitive damage claim for failure to pay a fire insurance loss, the court granted certiorari from an order which compelled discovery of the carrier’s claim file. In the same manner, we do not now pass upon the order which declined to strike the claim for punitive damages; we simply hold that the bank cannot obtain discovery of U.S. Fire’s claim file because the nature of the bank’s claim against U.S. Fire precludes the possibility of recovering punitive damages.

We find U.S. Fire’s resistance to furnishing other claim files equally persuasive. The test is whether the requested discovery appears reasonably calculated to lead to admissible evidence. Everglades Protective Syndicate v. Makinney, 391 So.2d 262 (Fla. 4th DCA 1981). The bank has not shown how details concerning the manner in which U.S. Fire handled third parties’ claims on similar bonds could be remotely relevant to the disposition of the instant claim which must necessarily be decided upon its own peculiar facts.

We grant certiorari and quash the order compelling discovery.

RYDER and CAMPBELL, JJ., concur.


text:
    Dr. William J. MAYERS, Petitioner, v. The BANKERS LIFE COMPANY, Respondent.
    No. 82-1856.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1982.
    Thomas E. Shipp, Jr., of Patterson, Turk & Hudson, P.A., Cape Coral, for petitioner.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for respondent.
   PER CURIAM.

This petition for certiorari comes to us from an order of a three-judge panel of the circuit court which dismissed petitioner’s appeal from county court. It is undisputed that the last day for filing the notice of appeal was November 2, 1981. The circuit judges found that the notice of appeal was filed November 3, 1981, and was thus untimely.

Initially, we note that the notice itself has “November 3 filed” stamped on it. However, there were several affidavits filed below which asserted that the notice of appeal was actually delivered to the clerk’s office on October 30,1981, but was not filed until later because the filing fee did not originally accompany the notice. Williams v. State, 324 So.2d 74 (Fla.1975), holds that timely payment of the filing fee is not jurisdictional. In the order dismissing the appeal, the circuit court made no finding of when the notice of appeal was initially received by the clerk’s office. Therefore, the petition for certiorari is granted and the cause is remanded for proceedings consistent herewith.

CERTIORARI GRANTED.

SCHEB, A.C.J., and RYDER and DAN-AHY, JJ., concur.

      . Another issue, not addressed in the order, is whether the notice of appeal was delivered to the proper court clerk’s office. See LampkinAsam v. District Court of Appeal, 364 So.2d 469 (Fla.1978). However, we note that the notice of appeal has a filed stamp indicating it was filed with Sal Geraci, Clerk of Circuit Court, and two other stamps indicating it was filed in the office of Sal Geraci, Clerk of the County Court, both on November 3, 1981. The county court was the proper court.


author: McCORD, Judge. BOOTH, Judge,

text:
    Parnell JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AE-343.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.

      Parnell Johnson, in pro. per.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This appeal is from an order denying appellant’s motion to vacate his judgment and sentence under Fla.R.Crim.P. 3.850. We affirm in part and reverse in part.

Appellant alleged four grounds for his motion. His second, third and fourth grounds are without merit, and we, therefore, affirm as to them. His first ground— that he was denied effective assistance of counsel — requires further attention. In the trial court’s order denying the motion -without hearing, the court stated that it found on the face of the record that the motion was without merit. As we said in Calhoun v. State, 362 So.2d 726 (Fla. 1st DCA 1978):

Rule 3.850 Fla.R.Crim.P. requires that when the denial of a motion for postcon-viction relief is not based on the legal insufficiency of the motion, “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the [order]” or an evidentiary hearing should be granted.

The trial court did not attach any such portions of the record, and we, therefore, called upon the State to respond to the points raised by appellant on this appeal and allowed the State to supplement this record with portions of the previous record. We have now considered the response in conjunction with appellant’s allegations regarding his claim of ineffective assistance of counsel and find that appellant alleged specific grounds of ineffectiveness which may have merit and which have not been refuted by attachment of portions of the record. We, therefore, reverse as to appellant’s first ground and remand with directions that the trial court hold an eviden-tiary hearing. Compare Meeks v. State, 382 So.2d 673 (Fla.1980).

ROBERT P. SMITH, Jr., C.J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I respectfully dissent.

The trial court’s summary denial of motion for post-conviction relief should be affirmed under Knight v. State, 394 So.2d 997 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980); and Ford v. State, 407 So.2d 907 (Fla.1981).

In the Knight case, supra, the Florida Supreme Court stated the burden on one seeking post-conviction relief based on ineffective assistance of counsel and adopted a four-step process to determine whether “a true miscarriage of justice” had occurred, holding (394 So.2d at 1000-01):

[W]e believe the following four-step process ... provides a means to discover a true miscarriage of justice ....
First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel ....
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact.

Applying the foregoing test in a first degree murder case involving capital punishment, the Florida Supreme Court found that the deficiencies were not errors affecting the outcome and that there was no prima facie showing of prejudice. The Knight case involved ineffective assistance of appellate counsel. The same test was applied in Ford v. State to determine whether trial counsel had afforded reasonably effective assistance, and the court held that (407 So.2d at 909):

To establish prejudice, there must be serious doubt of the defendant’s guilt. Canary v. Bland, 583 F.2d 887, 894 (6th Cir.1978).

In the Knight and Ford cases, supra, there was an evidentiary hearing; whereas, in the instant case, the trial court denied the motion without a hearing. The standard set forth in the Knight case applies, however, in both situations, as held by the Florida Supreme Court in Washington v. State, 397 So.2d 285, 286 (Fla.1981):

Appellant contends that he has made a sufficient showing under rule 3.850 to deserve an evidentiary hearing and that the trial court erred in applying the principles of Knight v. State, 394 So.2d 997 (Fla.1981), to deny his application absent an evidentiary hearing. We disagree. The standards of Knight do apply when assessing the sufficiency of a 3.850 motion predicated upon ineffective counsel, when determining whether the claim warrants an evidentiary hearing. Although we recognize that under both the terms of rule 3.850 and Meeks v. State, 382 So.2d 673 (Fla.1980), the evidentiary hearing can only be denied if it is conclusively shown that appellant’s motion lacks merit, we conclude that when the first three criteria of Knight for establishing ineffective counsel are placed alongside of appellant’s claims, those claims are shown conclusively to be without merit so as to obviate the need for an evidentiary hearing.

In the instant case, petitioner’s contentions are that counsel filed “ostentatious and frivolous” motions for discovery and for a continuance rather than filing a motion for speedy trial and discharge; that counsel failed to consult with petitioner concerning his case; that counsel failed to establish or pursue petitioner’s defense of consent of the victim of the assault; that counsel waived petitioner’s right to a speedy trial in connection with his motions for discovery and continuance and erred in refusing to allow petitioner to take the stand and testify in his own behalf. On the face of the motion, these contentions are contradictory and fail to establish the prima facie showing under the four-step test of Knight v. State. The trial court was correct in its summary determination, and I would affirm.

      . Accord, Foster v. State, 400 So.2d 1 (Fla.1981), wherein the Florida Supreme Court affirmed summary denial of 3.850 motion claiming ineffective assistance of counsel and applying the Knight standard in evaluating the legal sufficiency of allegations and record.

      . Petitioner accuses his counsel of failing to adequately prepare and “pursue” his defense; but, on the other hand, complains that counsel sought a continuance and discovery.


author: WIGGINTON, Judge.

text:
    Willie Clifford PITTS, Appellant, v. STATE of Florida, Appellee.
    No. AI-214.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    Michael Allen, Public Defender; and Steven L. Bolotin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., for appellee.
   WIGGINTON, Judge.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we find no reversible error. The trial court did not err in denying appellant’s motions for judgment of acquittal, there being ample evidence to present a jury question. The trial court’s denial of appellant’s motion for continuance did not prejudice appellant, for the alibi witness who threatened not to appear at trial did appear and testify on behalf of appellant. Finally, the trial court did not commit reversible error in not admitting into evidence certain medical documents. The final judgment of conviction and sentence is therefore AFFIRMED.

MILLS and ERVIN, JJ., concur.


text:
    Annsulette GREEN, Appellant, v. Clarence E. HORNE, Jr., Appellee.
    No. AI-455.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.

      Maureen L. McGill, Asst. State Atty., Pensacola, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an action to enforce payment of child support arrearages. The parties agreed below that the husband made only partial payments during the years 1971-1976. They also agreed that the husband and wife reached an agreement that the husband would pay for private school tuition and clothing for the children during the years 1977-1979. Disputed is whether the agreement discharged back payments due before 1977. Since a parent cannot contract away a child’s right to support, Melvin v. Melvin, 391 So.2d 691 (Fla. 1st DCA 1980); Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979), such a discharge could result only if the substitute payments were equal in amount to the husband’s court-ordered child support obligation.

The husband spent $2,255 for tuition and although the parties did not agree as to the amount he spent on clothes, the trial court apparently accepted the husband’s testimony that the figure for clothing and miscellaneous was approximately $2,680. The wife claimed that $5,365 was due as of the September, 1981, hearing: $2,640 for the years 1971-1974, $1,885 for the years 1975-1976, and $840 for the period from 1980 to the date of the hearing. The wife made no additional claim for the years 1977-1979, saying the husband was $625 short but not claiming that amount because the husband bought clothes. The husband resisted additional payment for the years before 1977 on the basis of his understanding of the parties’ agreement.

The trial court found the arrearage to be only $840, the amount owed from 1980 to the date of the hearing, and he ordered the husband to pay that amount as well as current support, finding the equities were with the husband because of the agreement. The wife moved for rehearing, alleging that this finding was tantamount to allowing the wife to waive child support for the years 1971-1976, contrary to Armour v. Allen, supra. In his order denying rehearing, the trial court found that

the evidence indicated that the mother did not contract away the right the child might have to support, but in fact money was paid by the father for the years in question in an amount equal to his court ordered responsibility but this was done in the form of payment for schooling and for clothing with the acquiescence of the mother; that as a matter of equities the father’s responsibility was reasonably discharged.

The record does not appear to support this determination. We accept the court’s finding that for the years in question the husband paid some amount toward his court-ordered responsibility in the form of tuition and clothing. We disagree, however, with the judge’s conclusion that these payments satisfied in toto the accumulated arrearag-es.

Using the figures supplied to the court by the parties, we are unable to arrive at a figure approximating only the $840 arrear-age found by the judge. It would appear that the husband has been given double credit for the tuition payments. In making her claim for arrearages, the wife gave the husband credit for the tuition payments; the court seemingly did not take this fact into account when it allowed the husband to use the tuition payments as an additional offset against accumulated arrearages. However, due to the sparsity of the order, our conclusion is of necessity speculative. It nevertheless appears that the judge’s computations to which we are not privy contain a miscalculation. We therefore reverse and remand for reconsideration and entry of an order containing a numerical basis that will facilitate appellate review.

REVERSED and REMANDED.

LARRY G. SMITH, SHAW and «TOA-NOS, JJ., concur.


text:
    Malcolm Frederick FELL, Appellant, v. Louella F. FELL, Appellee.
    No. AL-42.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    R. John Westberry, of Cohen & Westber-ry, P.A., Pensacola, for appellant.
    Richard E. Seherling, of Levin, Warfield, Middlebrooks, Mabie & Magie, P.A., Pensacola, for appellee.
   PER CURIAM.

We agree with appellant that the trial court erred in awarding his ex-wife his one-half interest in the marital home on the basis of special equity. Smith v. Smith, 418 So.2d 1053 (Fla. 1st DCA 1982); Duncan v. Duncan, 379 So.2d 949 (Fla.1980). Based on our review of the record, however, we find that the award was justified as lump sum alimony “to ensure an equitable distribution of property acquired during the marriage .... ” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). There was justification for distribution of this property to the wife and the husband’s economic status is not substantially endangered by it, given the concurrent award to him of sole ownership of other real property owned jointly by the parties. Canakaris. Since the provision can be upheld on alternative grounds, we see no purpose in returning the case to the trial court for a “change in nomenclature.” Roffe v. Roffe, 404 So.2d 1095, 1097 (Fla. 3d DCA 1981).

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and SHIVERS and THOMPSON, JJ., concur.


author: JOANOS, Judge.

text:
    Leathia Arnell CHRISTON, Appellant, v. STATE of Florida, Appellee.
    No. AL-163.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

In this appeal of a judgment and sentence for second degree murder, the public defender filed a brief according to the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that in her opinion no reversible error had been committed. Appellant was given an opportunity to submit a brief in proper person and did not do so. We have reviewed the record and have found no reversible error.

The judgment and sentence is AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


text:
    Samuel Douglas PITTS, Appellant, v. STATE of Florida, Appellee.
    No. AN-302.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    Samuel Douglas Pitts, pro se, appellant.
    No appearance for appellee.
   JOANOS, Judge.

In a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850, appellant sought to challenge the effectiveness of assistance of counsel and the extent of the inquiry into his sanity. The motion was properly denied summarily as to these issues, because it consisted of mere concluso-ry allegations lacking adequate statements of factual support.

The issue of improper prosecutorial comment, also stated in mere conclusory terms, could have been raised on direct appeal and will not be reviewed in this collateral proceeding. See Adams v. State, 380 So.2d 423 (Fla.1980).

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


text:
    Franklin D. PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. AO-111.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.

      Ronald D. Combs, Gainesville, for appellant.
    No appearance for appellee.
   JOANOS, Judge.

In an appeal from the denial of a motion for post-conviction relief or correction of sentence, appellant complains that the trial court erred in making a recommendation pertaining to parole in an order relating to sentencing. Sentencing judges have traditionally made recommendations as to incarceration and parole. While the recommendation has no binding effect, since the Parole and Probation Commission determines who shall be placed on parole and the time and conditions of parole. Section 947.13, Florida Statutes, no error was committed.

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


author: FERGUSON, Judge.

text:
    Gerald GOULD and Jerome H. Zwickel, Appellants, v. NATIONAL BANK OF FLORIDA, a National Banking corporation, and NBF Mortgage Corporation, Appellees.
    No. 81-502.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.

      Lapidus & Stettin, Miami, for appellants.
    Levine, Reckson, Reed & Geiger, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Gerald Gould and Jerome Zwickel appeal an order setting aside jury verdicts entered in their favor. They raise four points as error, all of which challenge the propriety of granting a new trial. We affirm in part and reverse in part.

Appellees, the Bank and the Mortgage Company (NBF), are wholly owned subsidiaries of the National Banking Corporation which is controlled by Joseph Kanter, the board chairman and principal shareholder. In 1978, Gould approached Kanter to arrange financing for several shopping center projects on the west coast of Florida. At a meeting of July 25, 1978, held at the Bank, Kanter expressed to Gould and Zwickel a desire to participate in the project as a joint venture partner. Kanter instructed Zwiek-el to provide details of the projects for officers of the bank and mortgage company. Gould and Zwickel presented an operating budget to Kanter at this July, 1978 meeting and received from him assurances of a $25,000.00 line of credit for operating expenses, which debt, as appellants contend, was to be later assumed by one of Ranter’s subsidiaries — either the bank or the mortgage company — which would be supplying operating overhead monies as its contribution to the venture. At Kanter’s behest, Gould and Zwickel signed a letter at the time the loan was made agreeing to give the Bank a right of first refusal to make loans to the joint venture.

By October, 1978, Gould and Zwickel had used up the $25,000.00 in administrative and planning efforts. They refused to borrow more money from the Bank until Kanter fulfilled his promise to designate a venture partner and execute a joint venture agreement. In late October, Kanter authorized Park Jones, as President of NBF, to prepare and execute a “General Letter of Agreement” in which NBF would provide operating and equity funds as the joint venture partner.

The document signed by the parties provided in pertinent parts:

GENERAL LETTER OF AGREEMENT
This agreement shall serve the purpose of effecting an understanding between the following parties: Jerome H. Zwickel, Gerald H. Gould, and NBF Mortgage Corporation. The principal business engaged in will be the construction and operation (rental) of shopping centers.
The functions of the above parties are as follows:
J. Zwickel, assisted by G. Gould will select and contract for the sites, secure tenants, contract for the construction, and permanent financing which will be required in connection with the development of the shopping centers anywhere within the State of Florida.
NBF Mortgage Corporation in exchange for forty (40%) percent of the profits, shall either provide, arrange for, or “broker” the required development, construction monies for permanent financing at the then current market interest rate and fees. In the event NBF Mortgage Corporation is not able to obtain financing for any particular project, Zwickel and Gould can obtain financing elsewhere, but NBF Mortgage Corporation will still retain forty (40%) percent interest in the project.
NBF Mortgage Corporation shall provide one hundred (100%) percent of any equity and operating monies necessary; however, operation shall be limited to a total of $50,000.00 (total outstanding at any one time).
Refundable deposits will be advanced by NBF Mortgage Corporation and shall not be considered a part of operating capital. Any non-refundable deposits will only be advanced by NBF Mortgage Corporation upon their return approval.
Equity money provided is to be repaid before any profit is distributed.
This General Letter of Agreement will serve as our working understanding until NBF Mortgage Corporation attorneys compile an acceptable agreement which will comply with Federal Regulations which are applicable and acceptable to the Chairman of the Board of the National Bank of Florida who is the Chairman of the National Banking Corporation of Florida, Inc.
Agreed to and accepted this 26th day of October, 1978.
/s/_ Gerald H. Gould
M._ Jerome H. Zwickel
/s/_ Park T. Jones, Jr.
President
NBF Mortgage Corporation

The General letter of Agreement was executed by Gould and Zwickel contemporaneously with a new $40,000.00 note to the bank which represented a renewal of the earlier $25,000.00 note and an additional advance of $15,000.00 for venture overhead capital. Zwickel returned to work on the projects and was ready to begin construction in late 1978 having been assured by Park Jones that funding was available.

During this same period Zwickel and Gould proposed to Ranter another business opportunity aside from the joint venture— the construction and long-term lease of a free standing restaurant in Tampa called “Dino’s”. Appellants made a $5,000.00 deposit toward purchase of the vacant land and allegedly received a verbal commitment from NBF, through Ranter, to advance $62,500.00 cash for the transaction. On the day before the scheduled closing NBF informed Gould and Zwickel that it would not provide the funds for the land purchase but instead produced an individual named Sil-verman to take NBF’s position. After Sil-verman was unsuccessful in securing a loan to obtain the necessary $62,500.00, Gould personally borrowed that amount from Metropolitan Bank of Tampa and closed the land purchase deal. Gould contends that he personally borrowed the monies only after two conditions were met, (1) Silverman agreed to guarantee repayment of the monies borrowed by Gould within ninety days of the closing if a construction loan had not been funded, and (2) NBF agreed .to assume Silverman’s responsibilities if Silverman failed to perform. Silverman allegedly failed to perform and NBF refused to buy out Gould’s interest. When this trial commenced two (2) years later, Gould, as owner of the land, had paid $18,000.00 in interest and still owed $62,500.00 to Metropolitan Bank.

Near the end of 1978 with the venture still in need of capital, appellee-Bank refused to advance more money for operating expenses unless Gould and Zwickel would acknowledge that they were personally liable for repayment; they refused.

In June, 1979, the Bank filed suit against Gould and Zwickel alleging that they failed to pay the balance of $38,234.58 remaining on the renewed note of October 25, 1978. Appellants by answer generally denied the allegations of the complaint. As affirmative defenses, Gould alleged estoppel and Zwickel alleged fraud in the making and obtaining of the promissory note. Simultaneously, appellants filed a third-party complaint against appellee NBF alleging that the General Letter of Agreement was a memorialization of Ranter’s promise that the partnership would be responsible for up to $50,000.00 for operating expenses and that appellants would not be personally liable on the note. Appellants also claim in the third-party complaint that NBF breached an oral agreement, confirmed by telegram, to provide equity capital in the amount of $62,500.00 to purchase the parcel of land in Tampa. NBF answered the third-party complaint alleging that the intent of the General Letter of Agreement was to give the Bank a right of first refusal to finance development of projects to be selected by appellants, as to those projects which the Bank decided to finance, and since the Bank had decided not to finance any of the projects presented to it by appellants — the condition precedent to its commitment — there was no obligation to provide monies to the venture. As to the third-party claim based on a failure of NBF to provide capital for purchase of land in Tampa, NBF alleges again that the telegram establishes a condition precedent to any responsibility on its part to repay any of the sums borrowed by Gould from Metropolitan Bank of Tampa and the “complaint is absent any allegations of the occurrence of such conditions precedent”.

The case was tried by a jury for a week. At the commencement of the trial the Bank moved in limine to preclude Gould and Zwickel as defendants from offering parol evidence of any verbal agreement made at or before the execution of the note, and NBF moved in limine to preclude appellants from offering evidence of alleged misrepresentations as to the Tampa land purchase on grounds that that transaction was outside the scope of the joint venture agreement. The court did not expressly rule on the motions. Though appellants were permitted, over objection, to offer evidence of lost future profits, NBF’s motion for directed verdict on that claim was granted and the jury was so instructed. At the close of appellant’s case their motion to conform the pleadings to their proof with respect to the Tampa land purchase was granted over objection. A motion by NBF for a directed verdict on the fraud count of the third-party complaint and a motion by the Bank for a directed verdict as to its claim on the note were both denied. The case was submitted to the jury on all three claims: (1) the Bank’s claim on the promissory note, (2) Gould and Zwickel’s claim against NBF for breach of contract, (3) Gould and Zwickel’s claim against NBF for fraud. A jury returned a general verdict in favor of Gould and Zwickel in the Bank’s suit on the note, a $110,000.00 verdict in favor of Gould and Zwickel on their breach of contract claim against NBF Mortgage, and a finding of no fraud by NBF on the third-party complaint.

By order dated February 17, 1981 the court granted motions of the plaintiff Bank and third-party defendant NBF for a New Trial unless appellants agreed to reduce the verdict on their third-party complaint from $110,000.00 to $25,000.00.

First we examine the argument that the verdicts are inconsistent. By its verdict, which is buttressed by questions asked of the court, the jury found no fraud on the part of NBF. From the general verdict entered in favor of appellants and against the Bank it cannot be determined which of the appellants’ affirmative defenses were accepted by the jury — estoppel or fraud. Although the order appealed blurs any distinction that might exist as to the two affirmative defenses, they were pled separately. There is the possibility of inconsistency in the verdicts only if fraud is an essential element of estoppel, but the settled law is quite to the contrary. A fraudulent or willful intent to deceive is not essential to estoppel although in the absence of fraud there must be proof of misrepresentation or other affirmative deception. See Rinker Materials Corp. v. The Palmer First National Bank and Trust Company of Sarasota, 361 So.2d 156 (Fla.1978); Hagen v. Florida Drug, Inc., 402 So.2d 57 (Fla. 4th DCA 1981); Armetta v. Clevetrust Realty Investors, 384 So.2d 55 (Fla. 4th DCA 1980). Obviously then the jury could have found the Bank estopped to collect on the promissory note because of a misrepresentation or other affirmative deception without fraud, which verdict would be quite consistent with the verdict on the third-party complaint finding a breach of contract but no fraud. Since there is a theory of law, supported by the evidence, upon which a jury could have rendered consistent verdicts a new trial should not have been granted. Kaplan v. Ciavarella, 349 So.2d 700 (Fla. 4th DCA 1977). A verdict is clothed with a presumption of regularity and is not to be disturbed if supported by the evidence. Rupp v. Pickford, 175 So.2d 72 (Fla. 3d DCA 1965). Further, any possible inconsistencies were obvious when the verdicts were returned, and could have been corrected or preserved for review by additional instructions and a special verdict form. Appellee’s failure to object to the verdict — on issues not of a constitutional or fundamental character — constituted a waiver of defects contained therein. Robbins v. Graham, 404 So.2d 769 (Fla. 4th DCA 1981). The granting of a new trial on the Bank’s claim must be reversed and, to the extent that inconsistency of verdicts is a basis for granting a new trial on appellants’ breach of contract claim against NBF, it too must be reversed. We thus continue the examination to determine whether there is any other basis for granting a new trial on the third-party complaint.

The next two reasons stated as grounds for granting a new trial are inadmissible evidence as to profits and exces-siveness of the damage award. It is also settled law that the function of a remittitur is to correct an improper verdict as to damages, Aronson v. Siquier, 318 So.2d 452 (Fla. 3d DCA 1975), and where the error is only that the damages awarded are excessive it is not proper to retry the issue of liability: remittitur or new trial on damages is the remedy. Ellis v. Golconda Corporation, 352 So.2d 1221 (Fla. 1st DCA 1977); Parks v. Ralston Construction Co., 338 So.2d 65 (Fla. 3d DCA 1976); Aronson, 318 So.2d at 454; Dura Corporation v. Wallace, 297 So.2d 619 (Fla. 3d DCA 1974).

The fourth and final grounds given in support of granting a new trial on liability are mere conclusory statements. A trial court must give express reasons which will support its finding that the verdict is either against the manifest weight of the evidence or was influenced by consideration of matters outside the record. Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980). The purpose of the requirement is to facilitate intelligent review of the order granting a new trial where the appellate court is called upon to determine whether a trial judge has abused his discretion. Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978); White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978). Ordinarily the sound, broad discretion accorded trial judges in the granting of new trials should not be disturbed in the absence of a clear showing that it has been abused, Cloud v. Fallis, 110 So.2d 669 (Fla.1959), but as is clear from all the cases, that discretion is subject to appellate scrutiny, Florida East Coast Railway Company v. Hanson, 355 So.2d 431 (Fla.1978); Chicken Unlimited, Inc. v. Bockover, 374 So.2d 96 (Fla. 2d DCA 1979), exercise of which must find support in the record. Russo v. Clark, 147 So.2d 1 (Fla.1962); White v. Martinez, 359 So.2d at 8. In this case we have reviewed the record and find that it fails to affirmatively demonstrate an impropriety of the verdicts or that the jury was improperly influenced by considerations outside the record. Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979).

In granting a remittitur or new trial the court concluded that the award of damages was excessive for the reason that the jury improperly included as elements of damage specific nonrecoverable sums. That finding will support a new trial on damages. Appellants have failed to make a clear showing that the court abused its discretion in this regard; thus the ruling will not be disturbed. Hodge v. Jacksonville Terminal Company, 234 So.2d 645 (Fla.1970).

Insofar as the order appealed from grants a new trial on the Bank’s suit on the promissory note, and a new trial as to liability on appellants third-party complaint for breach of contract, the order is REVERSED; as to a new trial on damages on the third-party complaint, the order is AFFIRMED.

Affirmed in part, reversed in part and remanded for further consistent proceedings.

      .NBF’s telegram of December 18, 1978:
      Gerald Gould
      219 Mariner
      Tampa, FI. 33609
      This is a confirmation copy of a previously phone-delivered telegram.
      Pursuant to our agreement of today in the event G. Silverman fails to perform in accordance with the terms of his telegram to you on December 15, 1978 NBF Mortgage Corporation will assume the responsibilities of Silverman related to the transaction.
      Park T. Jones Jr. President
      Silverman had earlier acknowledged his obligation in a telegram of December 15, 1978:
      Gerald Gould
      219 Mariner
      Tampa, FI. 33609
      This is a confirmation copy of a previously phone-delivered telegram.
      We understand you are putting up the equity funds of $62,528.76. This money is being put up for the purchase of a certain parcel of land in Tampa Florida which I understand has been leased to Dino’s. This is to confirm our understanding that this money is being put up in lieu of my own check and we will guarantee this money to you if this deal falls. If at the end of 90 days a construction loan is not funded we will return the money to you.
      Silverman Investment Inc.

      . Silverman did offer construction financing to Gould on terms which required a loan of $150,-000.00 at either 15% interest and 11 points, or 15% interest and 50% of the equity in the deal. The offer was rejected by Gould as being no more than an excuse for nonperformance by Silverman.

      . The court’s stated reasons for granting a new trial are:
      (1) The verdicts of the Jury on the Claim of National Bank of Florida against Mr. Gould and Mr. Zwickel and the claim of Mr. Gould and Mr. Zwickel against NBF Mortgage Corporation were inconsistent with one another, in that the jury implicitly found that there was no fraud by NBF Mortgage Corporation and yet denied recovery to National Bank of Florida based upon fraud, or estoppel grounded in fraud, although the acts and conduct complained of and the persons involved were the same in both instances.
      (2) The Jury was permitted to hear and was improperly influenced by inadmissible evidence of profits claimed to have been lost by Mr. Gould and Mr. Zwickel, and by evidence of other damages claimed, which evidence consisted of approximations and guess work.
      (3) In viewing the evidence in a light most favorable to Mr. Gould and Mr. Zwickel, and considering the substantial justice of the case, it is clear that the $110,000.00 verdict in favor of Mr. Gould and Mr. Zwickel against NBF Mortgage Corporation exceeds by at least $85,000.00 the maximum amount recoverable under the proof adduced at trial. The amount of the verdict on the third party claim could only have been arrived at by the improper inclusion of punitive damages and the sum borrowed by Mr. Gould and Mr. Zwickel to buy the Dino’s property, or other non-recoverable sums.
      (4) The verdicts of the Jury evince passion, prejudice, or gross mistake, that the Jury was misled or deceived as to the force or creditbility [sic] of the evidence, that the jury was influenced by considerations outside the record, or that the Jury was otherwise improperly influenced. The verdicts are contrary to the manifest weight of the evidence and the substantial justice of the case.

      . In the course of their deliberations, the jury submitted to the court two questions: (1) who owned the Dino’s property and (2) whether punitive damages could be assessed if no fraud were found. To the first question the jurors were instructed to rely on their collective memory. As to the second question they were instructed that no punitive damages could be assessed in the absence of fraud.

      . Appellees argue that the decision to grant a new trial could also be based on an error committed by the trial court in admitting parol evidence to contradict the written terms of the promissory note, citing Airlift International, Inc. v. Boyd, 280 So.2d 57 (Fla. 3d DCA 1973) and Jonat Properties, Inc. v. Gateman, 226 So.2d 703 (Fla. 3d DCA 1969). The argument and authorities are inapplicable. In this case parol evidence was properly admitted to connect two written instruments and show that they were parts of a single transaction. Saco Development, Inc. v. Joseph Bucheck Construction Corporation, 373 So.2d 419 (Fla. 1st DCA 1979); Northwestern Bank v. Cortner, 275 So.2d 317 (Fla. 2d DCA 1973).


text:
    James R. GRANDIN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-868, 81-1012.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John F. Ro-benalt and Penny Hershoff, Asst. Attys. Gen., for appellee.
    Before HUBBART, C.J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

By these consolidated appeals, we have for review an order revoking probation and a series of prison sentences imposed thereafter. For the reasons which follow, we reverse and remand for a new probation hearing.

It is undisputed on this record that the defendant Grandin was unrepresented by counsel at his probation revocation hearing and his sentencing hearing after unsuccessfully attempting to secure private counsel. It is also undisputed that the trial court did not advise the defendant of his right to appointed counsel in these proceedings and made no inquiry concerning his financial ability to retain counsel. We must decide whether the defendant had a right to appointed counsel in these proceedings which was denied to him below; plainly, no waiver of counsel appears in this record.

The law is well-settled that an indigent defendant in a felony case has an absolute right to appointed counsel at a sentencing hearing, absent a proper waiver, because sentencing is a critical stage of a criminal prosecution. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Houston v. Ellis, 252 F.2d 186 (5th Cir.1958); Ellis v. Ellisor, 239 F.2d 175 (5th Cir.1956); Martin v. United States, 182 F.2d 225 (5th Cir.), cert. denied, 340 U.S. 892, 71 S.Ct. 200, 95 L.Ed. 647 (1950); Van Cleaf v. State, 328 So.2d 568 (Fla. 2d DCA 1976); Simmons v. State, 298 So.2d 206 (Fla. 2d DCA 1974); Wingard v. State, 200 So.2d 630 (Fla. 2d DCA 1967); Bryant v. State, 194 So.2d 21 (Fla. 3d DCA 1967); Langlois v. State, 191 So.2d 284 (Fla. 3d DCA 1966); Perkins v. State, 165 So.2d 248 (Fla. 2d DCA 1964); Evans v. State, 163 So.2d 520 (Fla. 2d DCA 1964). The same defendant, however, does not have a right to appointed counsel at a probation revocation proceeding — unless special circumstances appear which require the appointment of counsel as a matter of fundamental fairness. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Turning to the instant case, we conclude that the defendant Grandin had a right to appointed counsel at his sentencing hearing which was denied below; plainly, he was sentenced in a felony case without counsel below and did not waive his right to counsel. We also conclude that the defendant Grandin had a right to appointed counsel at his probation revocation hearing which was denied below; special circumstances appear in this record which required the appointment of counsel at this proceeding as a matter of fundamental fairness, which right was never waived below. Thompson v. State, 413 So.2d 1301 (Fla. 4th DCA 1982). The record reveals that (a) the defendant Grandin denied violating his probation, (b) the probation revocation hearing was unusually complex with a number of witnesses testifying to various substantive offenses which comprised the alleged violations of probation herein, and (c) the defendant Grandin himself showed some confusion at the hearing concerning his probationary status. This case differs, we think, from Woodard v. State, 351 So.2d 1096 (Fla. 3d DCA 1977), in that the violations herein were not plain on the record, were disputed by the defendant, and were complex in nature.

We reject the state’s argument that the defendant Grandin waived his right to counsel below by failing to request the court below to appoint counsel for him. A waiver of counsel in critical criminal proceedings can never be presumed on a silent record. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Moreover, we do not read Mempa v. Rhay, supra, or Gagnon v. Scarpelli, supra, to reach a contrary result as the state contends; indeed, both cases indicate that where the right to counsel attaches in probation revocation and sentencing hearings, the defendant must be specifically so advised. Without dispute, the defendant was never advised of his right to appointed counsel below; his failure to request counsel in the absence of such advice cannot constitute a waiver of the right to counsel.

The order revoking probation and sentences imposed thereupon are reversed and the cause is remanded to the trial court with directions to conduct a new probation hearing and, if necessary, a new sentencing hearing wherein the defendant’s right to appointed counsel is properly protected in accordance with the views set forth in this opinion.

Reversed and remanded.


text:
    Michael FERGUSON, Appellant, v. ELNA ELECTRIC, INC., Appellee.
    No. 82-132.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.

      Horton, Perse & Ginsberg, William Hug-gett and Arnold Ginsberg, Miami, for appellant.
    Pyszka & Kessler and William G. Edwards, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the summary judgment solely for the reason that appellant, having demanded and been paid worker’s compensation benefits, was estopped to deny that he was injured while in the course and scope of his employment. Matthews v. G.S.P. Corporation, 354 So.2d 1243 (Fla. 1st DCA 1978). We specifically do not decide, because it is unnecessary, whether appellee was in fact engaged in a special errand for his employer when he was injured.

Affirmed.


author: HENDRY, Judge.

text:
    Alvance DESHOMMES, Appellant, v. Calmita BAZIN, Appellee.
    No. 82-158.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Martin Roth, Miami, for appellant.
    Marks, Aronovitz & Leinoff and Tod Aro-novitz, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

The final judgment of partition under appeal is affirmed in all respects except for the provision therein for attorneys’ fees and costs. By the terms of the final judgment the plaintiff/appellee was awarded the sum of $28,415.00 and the defendant/appellant was awarded the sum of $19,085.00, to be paid from the agreed upon $50,000.00 sales price of the partitioned real estate in which the parties’ equity was valued at $42,500.00. It was additionally ordered that the defendant pay to counsel for the plaintiff the sum of $5,500.00 for attorneys’ fees and court costs, “the Court having determined that the Plaintiff was forced to abandon the real property at issue on or about February, 1980 and the Defendant having the exclusive, quiet enjoyment of the rental property since the date and counsel for Plaintiff having to file numerous Motions to compel discovery and to compel the prosecution of this cause.... ”

The amount of attorneys’ fees to be awarded in a partition action is within the discretion of the trial court, Hasle v. Maasbrock, 120 So.2d 794 (Fla. 3d DCA 1960). Criteria upon which the fee award is properly determined include “[t]he service performed, the responsibility incurred, the nature of the service, the skill required, the circumstances under which it was rendered, the customary charges for like service, the amount involved, and the ability of litigants to respond.” Adler v. Schekter, 197 So.2d 46, 49 (Fla. 3d DCA 1967). Once the amounts of the attorneys’ fees have been established, the provisions of Section 64.081, Florida Statutes (1981), come into play:

“Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to his interest....”

This “apportionment” under the statute has been interpreted to mean that the majority interest should bear the greater proportion of the fees awarded to his own attorney, as well as to the attorney for the minority interest, and the minority interest similarly should bear a share of fees in proportion to his interest. Adler v. Schekter, supra.

In the instant case, the record and the order appealed reflect that the trial court (a) did not apply all of the relevant criteria in arriving at the award of attorneys’ fees to the plaintiff’s counsel; (b) did not make a determination as to the amount of attorneys’ fees earned by counsel for the defendant; and (c) failed to apportion such fees between the parties in accordance with their respective interests in the partitioned property. For these reasons, the final judgment under appeal is reversed in part and remanded with directions to determine proper and reasonable attorneys’ fees and the respective liabilities of the parties therefor, in conformity with the principles expressed herein.

Affirmed in part, and reversed and remanded in part, with directions.


author: BASKIN, Judge.

text:
    Sylvan PAWLIGER and Max Pawliger, Appellants, v. Harriett L. FREER, Appellee.
    No. 82-482.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Robert A. Glassman, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, J. Arthur Hawkesworth, Jr., Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Because we do not discern a gross abuse of discretion by the trial court, Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980); see B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981), we affirm the denial of the Motion, on Behalf of Sylvan Pawliger, to Set Aside Default Judgment.

We reverse as to Max Pawliger, however, in accordance with the concession by counsel for appellee that proper service was not effected.

Affirmed as to Sylvan Pawliger; reversed as to Max Pawliger, with directions to vacate the default entered against him; and remanded for further proceedings.


text:
    James WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-504.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The State concedes that it was error for the trial court to deny the defendant an opportunity to present lay testimony on the issue of his sanity at the time of the alleged violation of probation. Butler v. State, 261 So.2d 508 (Fla. 1st DCA 1972). The State’s argument that a proffer of the testimony is required is without merit. Brown v. State, 362 So.2d 437 (Fla. 4th DCA 1978).

Reversed and remanded for further proceedings.


text:
    Inalbis DE LA TORRE, as the next friend and natural guardian of Juan De La Torre, a minor, and Juan De La Torre, Inalbis De La Torre, and the Estate of Diego De La Torre, deceased, individually, Appellants, v. The SCHOOL BOARD OF DADE COUNTY, Florida, Appellee.
    No. 82-610.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Michael Lechtman, North Miami Beach, for appellants.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Donna S. Catoe, Miami, for appellee.

      Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Rupp v. Bryant, 417 So.2d 658, 666-70 (Fla.1982).


text:
    Anthony DE LOACH, Appellant. v. The STATE of Florida, Appellee.
    No. 82-1996.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Anthony De Loach, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Appellant, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    Billy Dwight CONEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-2208.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Billy Dwight Coney, in pro. per.
    Jim Smith, Atty. Gen., for respondent.
    Before HUBBART, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

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


text:
    Michael John SHOCKEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-2255.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Michael John Shockey, pro se.
    Jim Smith, Atty. Gen., for respondent.

      Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

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


text:
    Cheynee Dexter WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 80-923.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Richard L. Jorandby, Public Defender, West Palm Beach, and J. Craig Williams, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED upon authority of State v. Phoenix, Fourth District Court of Appeal Opinion filed November 10, 1982.

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    Lloyd L. McDOWELL and Trailer Ranch, Inc., a Florida Corporation, Appellants, v. Lucinda GUINTA, Appellee.
    No. 81-1134.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    George E. Gleason of Sullivan, Ranaghan, Bailey & Gleason, P.A., Pompano Beach, for appellants.
    Robert W. Sidweber of Toothaker & Sid-weber, Fort Lauderdale, for appellee.
   PER CURIAM.

Although appellants have demonstrated procedural error, they have failed to establish that they were prejudiced thereby. The record reflects several technical procedural errors by the trial court in allowing the appellee to proceed on pleadings that would usually merit dismissal with an opportunity to replead. Notwithstanding these errors the substance of the appellee’s claims were properly before the court, and the appellants were sufficiently apprised of those claims to bar the necessity of a retrial. This was, in essence, the view of the trial court in allowing the appellee to present her claims to the jury. Obligated as we are not to place form over substance, the trial court’s decision should be affirmed.

AFFIRMED.

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


author: HERSEY, Judge.

text:
    In re ESTATE OF Robert P. McLARTY, Deceased. PAN AMERICAN BANK OF ORLANDO, ORLANDO, N.A., Appellant, v. Nancy J. McLARTY, Individually and as Administrator Ad Litem of the Estate of Robert P. McLarty, Deceased, Appellee.
    No. 81-1760.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    John Robertson and Hubert W. Williams of Robertson, Williams, Duane, Lewis & Ranson, Orlando, for appellant.
    William S. Belcher of Belcher & Fleece P.A., St. Petersburg, and H. Rex Owen of Owen & McCrory, St. Petersburg, for appel-lee.
   HERSEY, Judge.

On the basis of newly discovered evidence, appellant, by motion under Rule 1.540, Florida Rules of Civil Procedure, or in the alternative by petition for a common law writ of error coram nobis, unsuccessfully sought relief in the probate division from an order entered some months earlier by that court. This appeal followed.

The record discloses that the “newly discovered evidence” reposed in a file in the possession of counsel for appellant for some five months prior to the initial hearing and, as far as we can tell, at all pertinent times thereafter. The order in the original action was entered on October 2, 1980. The petition for relief was filed nine months later.

The order of October 2,1980 arose out of a probate proceeding on a petition to remove the personal representative of the estate. Rule 1.540, specifically, and the Florida Rules of Civil Procedure, generally, apply in probate proceedings only as provided in the Probate and Guardianship Rules. Fla.R.P. & G.P. 5.010. Pursuant to Rule 5.025(b)(2), the Rules of Civil Procedure are applicable in probate and guardianship matters only in adversary proceedings. Action to remove the personal representative of an estate is not an adversary proceeding to which the Rules of Civil Procedure are made applicable nor did the lower tribunal enter an order determining the matter to be an adversary proceeding. Fla.R.P. & G.P. 5.025. Accordingly relief was not available under Rule 1.540, Florida Rules of Civil Procedure.

The office of the writ of error coram nobis is to bring to the attention of the court, for correction, an error of fact— one not appearing on the face of the record, unknown to the court or the party affected, and which, if known in season, would have prevented the rendition of the judgment challenged.

Lamb v. State, 91 Fla. 396, 107 So. 535, 538 (1926). See also State v. Woods, 400 So.2d 456 (Fla.1981). To establish the sufficiency of an application for a writ of error coram nobis the alleged facts must be of such a vital nature that had they been known to the trial court, they conclusively would have prevented entry of the judgment. Id. Further, it must be shown that the party seeking relief (and his counsel) exercised ordinary and reasonable care and diligence to discover all facts pertinent to the issue tried but could not have known of or ascertained the “new” facts before judgment was rendered or a motion for new trial made. Lamb, 107 So. at 535. Appellant’s petition falls far short of these requirements. Accordingly, we need not and therefore do not determine whether a writ of error coram nobis, abolished by Rule 1.540, Florida Rules of Civil Procedure, remains a viable vehicle for review in probate proceedings to which the civil rules do not apply.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    PALM BEACH PLAZA CENTER CORP., Appellant, v. CARTER CONTROLS, INC., Appellee.
    No. 81-2094.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.

      Brian B. Joslyn, of DeSantis, Cook, Gas-kill & Silverman, P.A., North Palm Beach, for appellant.
    F. Gregory Barnhardt and Warren E. Avis, Jr. of Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment requiring the appellant landlord to approve an assignment of a lease from one tenant in appellant’s office building to another tenant, the appellee herein. We believe the evidence is sufficient to support the trial court’s ruling and accordingly reject the appellant’s challenge as to the sufficiency of evidence. We also find that although the trial court’s exclusion of certain evidence tendered by the appellant was error, such error was harmless under the circumstances of this case. Our examination of the record reflects that the trial court actually received the same evidence now asserted to have been excluded, albeit that evidence was received in a different form and at a different time during the trial. The record further reflects that such evidence was relied on by the, appellant in its final arguments to the trial court and in its petition for rehearing. No claim was made at those times that the trial court was handicapped because it had rejected the receipt of similar evidence earlier in the trial proceedings. We do not believe the appellant has demonstrated reversible error on this issue. Our ruling, however, is without prejudice to the appellant to rely on such evidence again when the issue of the appellee’s entitlement to attorney’s fees is considered.

Accordingly, the judgment of the trial court is affirmed. •

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


text:
    Alan P. CAMPBELL and Barbara Ann Campbell, Appellants, v. LANDMARK FIRST NATIONAL BANK OF FT. LAUDERDALE, Appellee.
    No. 81-2117.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.

      Bruce E. Wagner and Barry G. Roder-man, Fort Lauderdale, for appellants.
    . Linda A. Conahan, of English, McCau-ghan & O’Bryan, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

This is an appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) from an order denying appellants’ motion to quash constructive service upon them. It is apparent from our examination of the transcript of the hearing that, in denying appellants’ motion, the trial court was permitting appellee to proceed on the basis of constructive service of process solely upon Count I of its complaint. That count alleged a quasi in rem action to have the court impose a constructive trust, appoint a receiver and require an accounting. We affirm the order. See section 49.011, Florida Statutes (1979), and Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734 (1942). Appellants’ motion to discharge lis pendens did not submit appellants to the jurisdiction of the court as to the remaining counts in personam. See Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966), and Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976).

BERANEK, GLICKSTEIN and WALDEN, JJ., concur.


text:
    BROWARD COUNTY, Appellant, v. John and Catherine MITTEN, Appellees.
    No. 81-2266.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Harry A. Stewart, Gen. Counsel, and Alexander Cocalis, Deputy Gen. Counsel, Fort Lauderdale, for appellant.
    Angelo Marino, Jr., Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from an order granting a new trial which was signed by one circuit judge after a hearing on the motion therefor had been conducted by another circuit judge. The latter judge had presided over the jury trial involving the parties; and following the hearing on the post-trial motion, apparently informed both counsel that he intended to order a new trial. Prior to entering such order he was transferred to a different division of the court but remains available as an active circuit judge.

Under the circumstances it is necessary to reverse and remand with direction that the judge who presided over the trial and conducted the hearing enter such order as he considers proper on the motion for new trial. See Kirkham v. Kirkham, 385 So.2d 733 (Fla. 2d DCA 1980). If necessary, a de novo hearing may be conducted.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.

      . Accordingly, we are not faced with the situation presented in Anders v. Anders, 376 So.2d 439 (Fla. 1st DCA 1979) in which the trial judge who considered the motion for rehearing announced that he was going to grant the motion but left office without having reduced his decision to writing. Our sister court ordered the successor judge to conduct a de novo hearing.


text:
    Kenneth M. JONES, Appellant, v. Jeanne G. JONES, Appellee.
    No. 81-2400.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Steve E. Moody and Kenneth M. Jones, of Moody & Jones, Fort Lauderdale, for appellant.
    Douglas S. Lambeth, Fort Lauderdale, for appellee.
   WILLIAM C. OWEN, Jr., Retired, (Associate Judge).

The final judgment in this action for dissolution of marriage included the following provision in reference to support of the parties’ son, now five years old: “Further, as additional child support, providing the child has the inclination and ability, and the Husband is able to afford, the Husband shall provided (sic) the child with a college education to the extent of the fees and costs of a state university education.” We construe this provision for additional support as one which, like any other provision for parental support of a minor, terminates upon the child reaching the age of eighteen years, unless at that time the child is determined to be a dependent child. Genoe v. Genoe, 373 So.2d 940 (Fla. 4th DCA 1974); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978); Krogen v. Krogen, 320 So.2d 483 (Fla.3d DCA 1975). For a contrary view under different factual circumstances see Nicolay v. Nicolay, 387 So.2d 500 (Fla.2d DCA 1980).

As thus construed, the judgment is affirmed, the remaining points on appeal being found to be without merit.

AFFIRMED.

BERANEK and WALDEN, JJ., concur.


author: BERANEK, Judge.

text:
    Mark Stephen PERDUE, Appellant, v. STATE of Florida, Appellee.
    No. 82-233.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant seeks review of his conviction and sentence for burglary contending that the trial court erred in denying his request for a jury instruction on circumstantial evidence. We affirm.

On April 16, 1981, the Supreme Court issued an opinion, In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, No. 57,734 (Fla. April 16, 1981), which eliminated the instruction on circumstantial evidence. We publish the pertinent portions of this opinion:

Criminal Instructions Generally
We have considered all comments and have determined the revised instructions submitted by the committee should be adopted as finally proposed, with some minor modifications.
We recognize that there was a dispute within the committee concerning the instruction on reasonable doubt; we approve the instruction as proposed.
We note that the Criminal Law Section of The Florida Bar approved the instructions as proposed except for the elimination of the instruction on circumstantial evidence. We find that the circumstantial evidence instruction is unnecessary. The special treatment afforded circumstantial evidence has previously been eliminated in our civil standard jury instructions and in the federal courts. Holland v. United States, 348 U.S. 121 [75 S.Ct. 127, 99 L.Ed. 150] (1954). The Criminal Law Section’s criticism of this deletion rests upon the assumption that an instruction on reasonable doubt is inadequate and that an accompanying instruction on circumstantial evidence is necessary. The United States Supreme Court has not only rejected this view but has gone even further, stating:
“[T]he better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect .... ”
Id. at 139-40 [75 S.Ct. at 139-140] (1954). The elimination of the current standard instruction on circumstantial evidence does not totally prohibit such an instruction if a trial judge, in his or her discretion, feels that such is necessary under the peculiar facts of a specific case. However, the giving of the proposed instructions on reasonable doubt and burden of proof, in our opinion, renders an instruction on circumstantial evidence unnecessary.

Based on the above opinion, we find no error in the trial court’s denial of an instruction on circumstantial evidence.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Mary HALL, Appellant, v. Eleanore Florence BYINGTON and Rinker Materials Corporation, Appellees.
    No. 82-564.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Larry M. Mesches of Altman, Colin & Friedland, Lake Worth, for appellant.
    Jerry Oxner, West Palm Beach, for appel-lee, Byington.
   GLICKSTEIN, Judge.

This is an appeal from an order which set aside a default final judgment. We reverse and remand.

We start with the premise that in order to vacate the default judgment, it was incumbent upon appellee to establish both excusable neglect by her lawyer and a meritorious defense to appellant’s complaint. Bags By Ande, Inc. v. Schilling, 406 So.2d 536 (Fla. 4th DCA 1981).

The former must be established by a sworn pleading which states a legal excuse for failure to comply with the rules of procedure or by testimony under oath in support of an unsworn motion. Flynt v. Flynt, 336 So.2d 690 (Fla. 4th DCA 1976); Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1980), Hersey, J. concurring specially; B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981). The latter must be established by ultimate facts alleged most appropriately in a proposed answer, Tremblay v. Marck, 378 So.2d 855 (Fla. 4th DCA 1979) cert. denied, 389 So.2d 1116 (Fla.1980), but may also be done by affidavit. Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981).

The alleged excusable neglect in this case was the placing by the attorney on his diary of the incorrect date for the filing of the answer to the original complaint, there also having been filed an interpleader complaint to be answered on a later date. A lawyer’s failure to note a date properly on his calendar has been recognized as excusable neglect. Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977); English v. Hecht, 189 So.2d 366 (Fla. 3d DCA 1966). However, there is neither a sworn motion in the record nor any testimony of the lawyer in this case attesting to that fact. The trial judge mistakenly believed the motion to be sworn, but on close examination of the lawyer’s oath, one sees the allegations were “true and correct to the best of his knowledge and belief.” Such a statement was insufficient because it is qualified, not positive. Hahn v. Frederick, 66 So.2d 823 (Fla.1953); P & T Electric Co. v. Spadea, 227 So.2d 234 (Fla. 4th DCA 1969); United Bonding Insurance Co. v. DuraStress, Inc., 243 So.2d 244 (Fla. 2d DCA 1971).

As for the meritorious defense, although appellant has not favored us with a copy of the belated answer and cross-claim, appellee’s affidavit shows that she and appellant are both claiming to be the wife of the deceased and, therefore, the proper person to receive the funds originated by the decedent in the interpleader’s profit-sharing retirement plan. Thus, a meritorious defense has apparently been alleged.

Because of the trial judge’s mistaken belief that the lawyer’s deficient motion was sworn, the deficiency in this case was not corrected at the trial level. On remand, the lawyer should be required to establish his excusable neglect under oath to the satisfaction of the trial judge.

BERANEK and WALDEN, JJ„ concur.