author: SHARP, Judge.

text:
    Wayne Anthony MOORE, Appellant, v. STATE of Florida, Appellee.
    No. NN-269/T1-70.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public.Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Moore appeals his conviction of robbery with a firearm. He argues the trial court erred in limiting the cross-examination of two prosecution witnesses, Mainor and Thompson; in denying his presentation of collateral witnesses to impeach the two witnesses’ identification of Moore as a perpetrator of the criminal acts charged; and in curtailing defense counsel’s closing argument to the jury that a police officer pointed Moore out to Mainor and Thompson at a preliminary hearing. We reverse.

The crucial issue in this case was the accuracy of Mainor’s and Thompson’s eyewitness identifications of Moore. There were no fingerprints, stolen property in Moore’s possession, or testimony of other witnesses linking Moore to the crimes. Mainor and Thompson testified that late one evening, three men appeared on Thompson’s front porch. One pulled out a firearm and forced Thompson to let them enter the house. No lights were on in the house or on the porch. The three intruders took Mainor, Thompson's girlfriend, into the bedroom. Mainor testified two of them raped her. They turned on a blue light in the bedroom and searched until they found money Thompson had concealed in his bureau drawer.

Mainor and Thompson first identified Moore and two others, Lewis Williams and Jeremiah Jones, from photographs at the police department. The trial of Williams was severed from the others. Jones • and Moore were tried together three times, each resulting in a mistrial for various reasons. At the time of this (Moore’s fourth) trial, Lewis Williams was deceased, but before he died, the state “nolle-prossed” the charges against him because evidence was discovered which made Mainor’s and Thompson’s identification of Williams highly suspicious. Mainor had identified Lewis Williams as the man who first raped her, spoke to her at length and attempted to kiss her. However, Dr. P. T. Fleuchaus was prepared to testify that he operated on Lewis for a gunshot wound in the face and mandible area, and that on the day prior to the robbery, Lewis had large horizontal silver metal bars on his teeth to hold his jaw bone in place. Lewis could not open his mouth except a small amount, nor could he speak plainly.

At the trial, defense counsel sought to cross-examine Thompson and Mainor about the actions of the two other men during the crime, but the trial court sustained the prosecution’s objections that testimony concerning the actions of other persons who were not party defendants was irrelevant and immaterial. The trial court also excluded the proffered testimony of Dr. Fleu-chaus concerning the physical condition of Lewis Williams on the date of the crime, because it was “outside” or “extemporaneous” to Moore’s trial. Moore sought to show he was in Sanford with relatives on the night of the robbery. He said the first time he saw Mainor was at a preliminary hearing after his arrest. He saw a detective pointing him out to Mainor and Thompson in the courtroom. Defense counsel tried to refer to this testimony in his closing argument, but the state objected. The trial court sustained the objection, saying “I don’t recall any testimony as being incumbent upon his conduct at any time during the course of the trial.”

Taken together, these rulings denied Moore a fair trial. Foster v. Perry, 71 Fla. 155, 70 So. 1007 (1916). Evidence relating to actions of co-perpetrators of a crime are clearly admissible against a defendant. Gilbert v. State, 311 So.2d 384 (Fla.3d DCA 1975); Hennessy v. State, 198 So.2d 37 (Fla.3d DCA 1967). There is no logic in excluding it when the defendant seeks its presentation. Moore sought to attack the accuracy of Mainor’s and Thompson’s identification of him as one of the intruders the night of the robbery. He was entitled to challenge their identification on cross-examination, and by presenting testimony to impeach its accuracy. The mistaken identification of Lewis Williams was neither “collateral” nor “irrelevant,” since it cast doubt on Mainor’s and Thompson’s ability to identify any of the defendants. The state recognized this when it decided not to prosecute Williams. The assistant state attorney said: “. . . subsequent prosecution would not meet the ends of justice, and could endanger the successful prosecution of the other defendants . .” (Emphasis supplied).

Finally, we must reverse because the trial court declared erroneously during defense counsel’s closing argument that certain evidence relating to the eyewitnesses’ identification of Moore had not been presented, when in fact it had been. This cast doubt on the credibility of defense counsel as well as the defendant. Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980); Lassiter v. State, 118 So.2d 81 (Fla. 1st DCA 1960).

REVERSED and REMANDED for new trial.

FRANK D. UPCHURCH, J., and JAMIE-SON, FRANCES A., Associate Judge, concur.

      . Coxwell v. State, 361 So.2d 148 (Fla.1978); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Morrell v. State, 335 So.2d 836 (Fla. 1st DCA 1976).

      . See Johnson v. State, 178 So.2d 724 (Fla.2d DCA 1965); C.A.W. v. State, 295 So.2d 329 (Fla. 1st DCA 1974).


source: Caselaw Access Project

license: Public Domain

text:
    Christine L. STEARNS, formerly Christine L. Szikney, Appellant, v. Gregory SZIKNEY, Appellee.
    No. 79-1340/T4-605.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      James K. Freeland, Orlando, for appellant.
    No appearance for appellee.
   SHARP, Judge.

Christine Stearns, (formerly Christine Szikney) appeals from a judgment refusing to set aside the final judgment of dissolution between herself and Gregory Szikney, and denying her petition to change the award of custody of their child from Gregory to herself. We affirm the circuit court’s determination not to set aside the judgment of dissolution, but we reverse the ruling on custody.

Christine and Gregory married approximately six weeks before Christine gave birth to Jennifer on September 26,1973. In 1976, they separated. They reconciled and resumed living together, but Gregory insisted on a divorce. He hand-drafted pleadings on his employer’s stationery which Christine signed. Both appeared at the final hearing, and the Final Judgment recites, “the wife . was interrogated at length by the Court concerning giving up her child, the division of property of the parties, and other pertinent aspects of this dissolution.”

Christine and Gregory continued living together for approximately two years after the dissolution. Christine and Jennifer then moved into an apartment. Since Jennifer’s birth, Christine had the primary care and responsibility for Jennifer. One afternoon shortly before the petitions were filed in this case, Gregory took Jennifer from her nursery without Christine’s permission, and has since refused to return the child to Christine’s custody.

Christine testified that Gregory forced her to go through with the divorce by intimidation, threats and misrepresentations. He told her his family would disinherit him and Jennifer unless they obtained a divorce, and that he would not resume living with her and Jennifer unless she consented to the proposed judgment giving up the custody of their child. Although we do not look with favor on “do-it-yourself” divorces, judgments long of record are susceptible to challenge, only for the most serious and extreme reasons. The kind of pressure Gregory subjected Christine to was reprehensible, but it does not constitute grounds to set aside the judgment of dissolution. Bare v. Bare, 120 So.2d 186 (Fla.3d DCA 1960); Bailey v. Bailey, 300 So.2d 294 (Fla.4th DCA 1974). Further, the parties’ life-style demonstrates more strongly than words their relative indifference to the “bonds of matrimony,” going in as well as coming out. This misconception was theirs, for which the courts afford no remedy.

The trial court refused to consider Christine’s application for change of custody because it did not find she established a sufficient change of circumstances since the dissolution. We disagree. The judgment awarded custody of Jennifer (then age two) to her father. However, she remained in her mother’s primary care for the next three years. Only shortly before this petition to modify was filed had she ever been in her father’s custody. These facts constitute a substantial change in conditions and circumstances since the custodial decree. Sayward v. Sayward, 43 So.2d 865 (Fla.1949); Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947); Frazier v. Frazier, 109 Fla. 164, 147 So. 464 (1933). Frye v. Frye, 205 So.2d 310 (Fla.4th DCA 1968) is not controlling because the changed circumstances in this case directly relate to the treatment and care the child received from the parties. The “real change” for Jennifer occurred when she was “repossessed” by Gregory from her nursery.

Upon proof of a substantial change in circumstances, the moving party must show that the welfare of the child would be promoted by the changed custody. Sanders v. Sanders, 376 So.2d 880 (Fla.1st DCA 1979); Frye v. Frye, 205 So.2d 310 (Fla.4th DCA 1968). The court ordered a report from the Florida Department of Health and Rehabilitative Services. The report recommended that custody of Jennifer be given to Christine. It said both were “fit” parents, but it favored Christine because Gregory had been adversely influencing the child against her mother, and his strongest motivation to have custody of Jennifer was to keep her away from Christine, and punish or get back at his former wife. Gregory puts Jennifer in a day care center from 8:00 A.M. to 5:30 P.M. His supervision and care of Jennifer was also found to be somewhat casual for a 5 year old child. However Christine planned to work only part-time, if she regained custody of Jennifer. She has had special training in child care and development, and a course in “parent effectiveness training.” The evidence favored Christine as the parent who should have custody, based simply on what is in Jennifer’s best interest. Demasco v. Demasco, 345 So.2d 391 (Fla.3d DCA 1977). Therefore we reverse the lower court’s denial of change of custody, and direct that permanent custody of Jennifer be given to Christine. We remand this matter for the purposes of awarding child support for Jennifer, if appropriate, and reasonable visitation rights for Gregory.

AFFIRMED in part; REVERSED in part and REMANDED.

FRANK D. UPCHURCH, J., and FRANCES ANN JAMIESON, Associate Judge, concur.

      . Gregory paid little attention to Jennifer until she was 2'h years old, and he had not wanted Christine to carry her to term. A subsequent pregnancy was terminated by an abortion at his insistence.

      . Lawn v. Wasserman, 226 So.2d 261 (Fla.3d DCA 1969); 19 Fla.Jur., Judgments and Decrees § 469 (Supp.1980).


author: PER CURIAM.

text:
    ALPHA ELECTRIC SUPPLY, INC., Appellant, v. F. FEASTER, INC. and United States Fidelity and Guaranty Co., Appellees.
    No. 79-484.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      Lawrence J. Phalin and Scott R. McMil-len, Orlando, for appellant.
    Robert S. Edwards and David H. Galloway, Plant City, for appellees.
   PER CURIAM.

Alpha Electric Supply, Inc., a supplier on a construction project, appeals from an adverse summary judgment entered against it in a suit brought against the general contractor, F. Feaster, Inc., and the bonding company on a payment bond issued pursuant to section 713.23, Florida Statutes (1975). We reverse.

Feaster relied upon an affidavit and waiver of lien dated June 10,1977, executed by Alpha, and its own affidavit alleging the waiver was intended by the parties to extinguish all of Alpha’s lien rights on the project. Alpha filed an affidavit alleging the waiver only extinguished its lien rights on the project for materials it supplied before May 25, 1977; that it was the parties’ practice to execute such monthly lien waivers as the project went along for work done the previous month; and that the suit primarily involved materials furnished by Alpha to the project after the date of the waiver.

The waiver was headed:

Partial Payment (Indicate Partial or Final Payment).

It provided that Alpha acknowledged payment in full “to the date of this affidavit and waiver.” It is dated June 10, 1977 at the top, but it was notarized June 28, 1977.

If we were called upon to construe this document (which we are not) we would read it as a “partial” rather than a “final” lien waiver. As a “final” lien waiver the document is at best ambiguous, and its proper construction will depend upon resolution of disputed issues of fact: the understandings and intent of „the parties; and their practice in handling payment for Alpha’s work on this project. The trial court therefore erred in granting summary judgment for the ap-pellees. Hully v. Cape Kennedy Leasing Corp., 376 So.2d 884 (Fla. 5th DCA 1979).

REVERSED and REMANDED.

FRANK D. UPCHURCH and SHARP, JJ., and JAMIESON, FRANCES ANN, Associate Judge, concur.


text:
    Francis T. CONNOR, Appellant, v. June V. CONNOR, Appellee.
    No. 79-369.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      J. Russell Hornsby, Orlando, for appellant.
    James K. Freeland, Orlando, for appellee.
   SHARP, Judge.

The former husband, Francis T. Connor, appeals a final judgment in a dissolution case awarding the former wife, June V. Connor, his interest in the marital home “in recognition of her special equity in the property.” We reverse this judgment because the award was foreclosed by a prior appeal in this case, and because there is no basis in the record to support a finding of a special equity for the wife in the marital home.

The petition for dissolution was filed on July 14, 1977. The record showed that the parties married in 1952 and three children were born. The wife has worked full-time as a teacher since 1956. The husband worked for the Orlando Utilities Commission until 1972 when he became totally disabled by a mental illness. The wife expended substantial sums for his medical bills and care. Because of the former husband’s condition, the wife has been receiving social security payments for the minor children. The wife added a room to the marital home in 1973. She borrowed the funds to make the addition, and repaid all but $1,900.00. Her earnings were the source of repayment.

In the initial proceeding, the lower court denied the husband’s claim for periodic alimony; found the wife had established an $8,000.00 special equity in the marital home; and awarded the marital home to her as lump-sum alimony and “in recognition of her special equity in the property.” This judgment was appealed to the Fourth District Court of Appeal. The appellate court held that the lower court erred in not awarding the former husband permanent alimony, and in awarding the wife the husband’s half of the marital domicile:

We find that the award of the husband’s interest in the marital domicile was improper under Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976).

372 So.2d at 131.

The lower court’s award of the marital domicile to the wife combined the concept of “lump-sum” alimony and special equity. It declared:

The wife is hereby awarded the sole ownership of the marital home located at 985 Burns Street, Orlando, Florida, as lump-sum alimony, and further in recognition of her special equity in the property.

The appellate court’s reversal of the lump-sum alimony award necessarily also reversed the special equity award, even though it did not expressly deal with the concept of special equity. Were this not so, the appellate court would have affirmed, not reversed, that part of the judgment. That decision is the “law of the case”, and we are not now free to reconsider the merits of the lump-sum alimony question or the special equity question.

Even if we were able to review the propriety of the lower court’s award to the wife of the marital home in recognition of her “special equity” therein, the result in this case would be the same. A spouse who contributes funds earned during the marriage to tenancy by the entirety property ordinarily does not acquire a special equity interest in the property because of the contribution. Ball v. Ball, 335 So.2d 5 (Fla. 1976); Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979). It makes no difference whether the working spouse is the wife or the husband. In this case the husband was not performing household chores and rearing the children, but he had contributed his earnings towards the home and support of the family until 1971 when he became ill, and because of his prior earnings, the wife received social security payments for the children. A marriage vow is taken “for better or for worse,” and “in sickness and in health.” As the popular song goes “I never promised you a rose garden.” The illness and misfortune of a spouse should not create a special equity for the healthy spouse in jointly-owned property.

We reverse and remand this matter. However, the lower court shall not be foreclosed from revisiting the amount of periodic alimony awarded to the husband in view of this decision; considering the appropriateness of awarding the wife sole occupancy of the house at least until the minor children attain their majority; entering appropriate orders concerning duties of the parties to pay their share of any loan or mortgage payment, insurance, or other similar expenses on the marital home; and allowing the wife credit on sale for any payments she made after separation of the parties, or ones she may make, in excess of her one-half share.

REVERSED and REMANDED.

ORFINGER, J., and BAKER, JOSEPH P., Associate Judge, concur.

      . Connor v. Connor, 372 So.2d 130 (Fla. 4th DCA 1979).

      . Airvac, Inc. v. Ranger Ins. Co., 330 So.2d 467 (Fla. 1976); Dade County Classroom Teachers’ Assoc. v. Rubin, 238 So.2d 284 (Fla. 1970), cert. denied 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 623 (1971).

      . There shall be no distinction between married women and married men in the holding, control, disposition or encumbering of their property, both real and personal. Fla.Const. Art. X § 5.

        . Bredin v. Bredin, 103 So.2d 879 (Fla. 1958); Smith v. Smith, 118 So.2d 204 (Fla. 1960).

      . McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976), cert. denied 345 So.2d 424 (Fla. 1977); Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979); Evans v. Evans, 337 So.2d 998 (Fla. 4th DCA 1976).

      . Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979); Buckley v. Buckley, 336 So.2d 708 (Fla. 4th DCA 1976).


author: COBB, Judge.

text:
    Doyall TOMPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 79-343.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      James B. Gibson, Public Defender, and Terrence M. White, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

After trial by jury, appellant was convicted of sexual battery with threat to use force or violence likely to cause serious personal injury and was sentenced to thirty years consecutive to any sentence presently being served. Appellant appeals from the judgment and sentence, and from the trial court’s granting the state’s motion for the court to retain jurisdiction for the first one-third of the current sentence.

While an inmate at Sumter Correctional Institution (SCI), appellant committed a sexual battery upon another inmate. Appellant raises four points on appeal based on the following occurrences. Prior to trial, the trial judge granted defendant’s motion in limine requesting that defendant, all inmates, and all correctional officers wear civilian clothing, but denied defendant’s motion that the state not be allowed to place defendant’s character in issue, either directly or indirectly by virtue of the defendant’s being in prison or convicted of any other crime. During the course of voir dire, the trial court made several references to the defendant’s being an inmate at SCI due to being a convicted felon. The trial court’s references to defendant’s inmate status reflected a concern that the defendant be afforded a fair trial and were similar in substance to the following:

As an inmate, he is by virtue of his being in the institute, he is a convicted felon, now, there [are] two concepts of law that you must accept to be able to properly serve as a juror in this, or any other criminal case. One is that all defendants are clothed with the presumption of innocence. Now, can you give this defendant the same presumption of innocence that he would be entitled to under any other circumstances? Do you understand the question, in other words, a defendant in all cases must be proved guilty beyond and to the exclusion of every reasonable doubt. The fact that he is an inmate of Sumter Correctional Institute and has been charged with this criminal offense, would this make any difference to you, or would you give him the same presumption of innocence that you would give to anyone who — anyone else?

During the course of trial, defendant made a number of motions for mistrial based upon prosecution witnesses testifying in prisoner clothing, which were denied. The state argued at trial that the Department of Corrections did not have adequate time to secure civilian attire for the state’s witnesses in the three days between the motion in limine and trial. However, defendant did appear in civilian clothing. Finally, after defendant objected to an SCI investigator introducing a diagram of the kitchen area where the crime occurred, on the grounds that the diagram was not drawn to scale and should not have been introduced since it would be misleading, the state made a motion that the jury be allowed to view the area where the crime occurred. The court granted the state’s request for a jury view over defense counsel’s objection.

First, we find appellant’s contention that his right to a fair trial was prejudiced by the trial court’s permitting state’s witnesses to appear in prison attire is without merit. If there was any prejudice, it was against the state, since the fact of the state’s witnesses’ inmate status would affect the credibility of their testimony against the defendant.

Next, the appellant argues the trial court erred in conducting his inquiry on voir dire and alleges prejudice from the trial court and prosecution references to the fact that defendant was an inmate and convicted felon. The state argues that the trial judge’s inquiry was necessary to insure the defendant an impartial jury and a fair trial. Although as a general rule evidence of a conviction for another crime committed by a defendant is inadmissible, there are a number of exceptions, one of which is that such evidence is admissible “where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime.” Wilson v. State, 134 Fla. 199, 183 So. 748, 751 (1938). There is no Florida authority directly on point, while other states which have addressed similar issues have reached opposite results. See Annot., 43 A.L.R.3d 1081 (1972). We note, however, that the fact and place of perpetration are ingredients of a crime and are germane to proof required for conviction. In the present case, the nature of the prior conviction was not revealed. We hold that no reversible error was committed by the trial court, since references to this defendant’s conviction and inmate status were inevitable due to the fact that the crime was committed in a prison, and since the nature of the trial judge’s inquiry was to insure that the jurors would not hold his inmate status against the defendant. The references to defendant’s inmate status are analogous to cases where a defendant appeared in prison garb. Even the rule that an accused cannot be forced to stand trial in prison garb over objection is not a per se rule. In United States ex rel. Stahl v. Henderson, 472 F.2d 556 (5th Cir.), cert. denied, 411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694 (1973), the court declined to overturn a conviction where the defendant was tried in jail clothes when he had been charged with having murdered another inmate while in prison. The circuit court noted that the jury would necessarily know that he was an inmate and stated, “No prejudice can result from seeing that which is already known.” 427 F.2d at 557. United States ex rel. Stahl v. Henderson was cited with approval in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).

Next, we find no abuse of the trial court’s discretion in granting a view of the scene. Cf. Rankin v. State, 143 So.2d 193 (Fla.1962).

Finally, concerning the trial court’s retention of jurisdiction over the first one-third of defendant’s sentence, the controlling statute, section 947.16(3), Florida Statutes (1979), reads:

Persons who have become eligible for parole and who may, according to the objective parole guidelines of the commission, be granted parole shall be placed on parole in accordance with the provisions of this law; except that, in any case of a person convicted of . sexual battery ... at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order. This jurisdiction of the trial court judge is limited to the first third of the maximum imposed.
(a) In retaining jurisdiction for the purposes of this act, the trial court judge shall state the justification with individual particularity, and said justification shall be made a part of the court record. (emphasis added).

Appellant argues that the trial court’s retention of jurisdiction should be stricken for failure to meet the requirements of the foregoing statute. We hold that remand to the trial court to make the record findings required by statute is the appropriate remedy, as is done in habitual offender cases where the trial court fails to make required findings. See Chukes v. State, 334 So.2d 289 (Fla.4th DCA 1976); but see McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978).

Accordingly, the judgment and sentence are affirmed, but the order of retention of jurisdiction over the first third of the sentence is vacated and the cause remanded with directions that if upon further hearing the trial court determines that appellant is to be sentenced in accordance with section 947.16(3)(a), then the trial court shall make findings of fact as required by the statute. In addition, the phrase “at hard labor” is hereby stricken from the sentence as sur-plusage. Manning v. State, 384 So.2d 46 (Fla.5th DCA May 28, 1980); Edwards v. State, 373 So.2d 388 (Fla.4th DCA 1979).

Judgment and sentence AFFIRMED; Order of Retention VACATED; and case REMANDED with directions.

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


text:
    Helen Powell OLSEN, as Personal Representative of the Estate of Johnnie B. Olsen, Appellant, v. STATE FARM AUTOMOBILE INSURANCE CO., etc., Appellee.
    No. 78-2753/T4-345.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      Ferrell & Jacobus, Melbourne, and Edna L. Caruso, West Palm Beach, for appellant.
    Thomas G. Kane of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee.
   COBB, Judge.

In 1976, Johnnie Olsen was killed in an automobile accident in Illinois. At that time, he was a resident of Florida and insured by an automobile insurance policy issued in Florida by State Farm. The personal representative of his estate filed a demand for arbitration of any uninsured motorist benefits due under the policy, and asked that the arbitration be governed by the substantive law of Florida. State Farm then filed a suit for declaratory judgment in which it asked that any claim for uninsured motorist coverage be governed by the substantive law of Illinois. The reason for the difference in choice of laws is that Florida has adopted comparative negligence while Illinois has not.

State Farm filed a motion for summary judgment on the ground that Florida adheres to the doctrine of lex loci delicti. The trial court granted that motion and entered a final summary judgment in which it stated, “The law of the State of Illinois is controlling in determining the liability of the uninsured motorist in any arbitration which may be commenced in this action.” The personal representative of Johnnie Olsen’s estate has appealed that order.

In the past Florida has adhered to the doctrine of lex loci delicti. Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743 (Fla. 1967); Bishop v. Florida Specialty Paint Co., 377 So.2d 767 (Fla. 1st DCA 1979). Under the doctrine of lex loci delicti, a forum state applies the law of the situs of the tort unless that law is contrary to the public policy of the forum state.

In Hoffman v. Jones our Florida Supreme Court abandoned the traditional concept of contributory negligence as a bar to recovery and adopted comparative negligence. That opinion described the discarded doctrine as “unjust and inequitable.” Subsequent to the Hoffman decision, the Florida Legislature incorporated the concept of allocation of fault into its Contribution Among Tortfeasors Act. Sec. 768.-31(3)(a), Fla.Stat. (Supp.1976).

We believe that the findings by the Florida Supreme Court in Hoffman and the subsequent recognition and implementation of that decision by the Florida Legislature clearly imply that the concept of contributory negligence as a bar to recovery is contrary to the public policy of this state. (As such, that concept should not be applied by the courts of this state under the doctrine of lex loci delicti.)

We, therefore, reverse the final summary judgment.

We deem this to be a matter of great public importance and therefore certify this case with the following question to the Florida Supreme Court:

In a personal injury suit filed in Florida for a tort alleged to have occurred outside of Florida, can the contributory negligence defense bar recovery?

REVERSED and REMANDED.

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

      . The Florida Supreme Court has granted cer-tiorari and heard oral arguments in the Bishop case, but has not rendered a decision as of this time.

      . 280 So.2d 431 (Fla.1973).


author: ORFINGER, Judge.

text:
    Henry NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. NN-283/T1-73.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    David F. Vedder of Law Firm of Jerry B. Wells, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant bondsman appeals a judgment based upon a bail bond estreature.

Bond had been posted by appellant for a criminal defendant who did not appear in court after notification of his appearance date. Because of the non-appearance, the trial judge estreated the bond on January 2, 1979. Written notice of the estreature was mailed to appellant on January 4, 1979 and received by him January 8, 1979. He contends that the judgment based on the es-treature is invalid because he did not receive notice thereof within 72 hours of the forfeiture, and that the trial judge erred in refusing to set aside the judgment, relying on section 903.26(2), Florida Statutes (1977).

The case of Ryan v. State, 380 So.2d 539 (Fla. 5th DCA 1980) is dispositive of this appeal. In Ryan, it was held that the complete absence of a post-forfeiture notice did not invalidate the forfeiture. Here, the post-forfeiture notice was sent within 72 hours of the forfeiture, so the fact that the bondsman did not receive the notice until after the 72 hour period does not affect the result. As did Ryan, we point out that we are discussing only the post-forfeiture notice mentioned in subsection (2) of the statute and not the pre-forfeiture notice of subsection (l)(a).

Finding no error, the judgment is

AFFIRMED.

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

      . § 903.26(2), Fla.Stat. (1977): If there is a breach of the bond, the court shall declare the bond and any bonds or money deposited as bail forfeited and shall notify the surety agent and surety company within 72 hours of said forfeiture. The forfeiture shall be paid within 30 days.


author: EVANS, VERNON W., Jr., Associate Judge.

text:
    Jung O. KANG, Appellant, v. Sandra Grace KANG, Appellee.
    No. 80-41.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      Kenneth M. Beane, Casselberry, for appellant.
    Lawrence L. Lidfeldt, Maitland, for ap-pellee.
   EVANS, VERNON W., Jr., Associate Judge.

Appellant challenges an order of the trial court awarding to appellee’s attorney a reasonable attorney’s fee for time expended in the preparation and trial of issues concerning the custody, visitation rights, and support of the parties’ minor children.

The parties were married in 1965 and were divorced in 1969 in Missouri. Two children were born to the parties, one prior to the 1969 divorce, and one thereafter. In 1977 the wife filed a petition for dissolution of the marriage in Seminole County, Florida, alleging that the Missouri divorce was a nullity due to the fraud of the husband. The trial court found that the wife had not overcome the presumption of the validity of the Missouri divorce and then went on to provide for the custody, visitation and support of the children. The court retained jurisdiction to determine the issue of allowance of attorney’s fees. On July 17, 1978, the trial court awarded the wife’s attorney a reasonable attorney’s fee. The court subsequently determined a reasonable fee for the service to be $3,593.85.

The issue is whether attorney’s fees can be awarded for time spent preparing and trying issues of child custody and support raised in a petition for dissolution of marriage when the parents are not married.

Chapter 61 of Florida Statutes entitled “Dissolution of Marriage,” Section 61.16 authorizing an award of attorney’s fees in dissolution proceedings clearly does not apply in the absence of the marriage relationship unless the matter before the court is one pertaining to enforcement or modification of a Florida judgment. The Missouri judgment was not subject to modification or enforcement in the court below because it had never been made a Florida judgment.

There is then no support in the statutory law of this state for the award of an attorney’s fee under the circumstances shown in this record. For a similar case see Kittel v. Kittel, 210 So.2d 1 (Fla.1968).

Accordingly, that portion of the final judgment here appealed by which attorney’s fees were fixed and awarded to appel-lee is reversed.

DAUKSCH, C. J., and ORFINGER, J., concur.


author: SHARP, G. KENDALL, Associate Judge.

text:
    James Richard EICHHORN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2188/T4-241.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Richard L. Jorandby, Public Defender, Jon May, Asst. Public Defender, Lorrie Robinson, Legal Intern, and Tatjana Osta-poff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Michael W. Strickland, Legal Intern, and Marc E. Kirk, West Palm Beach, for appellee.
   SHARP, G. KENDALL, Associate Judge.

Appellant, James Eichhorn, was convicted of possession of more than 5 grams of cannabis, and the trial court sentenced him as an habitual felony offender.

At the sentencing hearing the court determined that due to prior felony convictions within five years of his present adjudication, the defendant would be exposed to the enhanced punishment provision, section 775.084, Florida Statutes (1979). The defendant made a lengthy mitigating statement. Prior to the court imposing sentence, the prosecuting attorney correctly summarized cases in which courts considered imposing the enhanced penalty. The record must reflect the basis for the enhanced penalty, and it must appear by a preponderance of the evidence that the enhanced sentence is necessary to protect the public from the criminal activity of the defendant. Jones v. State, 384 So.2d 956 (Fla.5th DCA June 18, 1980); Bell v. State, 382 So.2d 107 (Fla.5th DCA 1980). However, the trial judge did not state in the record why he was sentencing the defendant to the greater term. Section 775.084, Florida Statutes (1979) subsection (3) provides:

In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) .

He only stated that there were aggravating circumstances in the case at bar and that the defendant would be sentenced under the enhanced penalty statute to ten years with probation after serving four.

In Chukes v. State, 334 So.2d 289 (Fla.4th DCA 1976), the court stated:

It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 775.084 F.S. 1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with § 775.084. Such findings must be based upon some evidence. Without such evidence in the record to justify the court’s findings, a defendant’s right to appellate review would be effectively stifled.

Id. at 290. See McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978); King v. State, 369 So.2d 1031 (Fla.4th DCA 1979).

The trial judge can consider a defendant’s prior record alone so long as the conviction record is reflected in open court and is sufficient to satisfy the judge by a preponderance of evidence that the defendant should be sentenced under section 775.-084, Florida Statutes (1979), for the protection of the public.

Because the reasons were not given by the trial judge in this case why section 775.084, Florida Statutes (1979), was being invoked, we reverse the sentence and remand for resentencing.

Sentence REVERSED and REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    Robert BARTOSZEWICZ, Appellant, v. TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-469.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Ronald J. Langa of Maher, Overchuck & Langa, Orlando, for appellant.
    Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellee.
   COBB, Judge.

This is a timely appeal and cross-appeal from a summary final judgment in favor of defendant Travelers Insurance Company. The plaintiff/appellant, Bartoszewicz, filed a complaint alleging that he was injured in a motor vehicle accident on March 16,1979, and that the defendant insurance company had wrongfully refused to pay personal injury protection (PIP) benefits to the plaintiff. Bartoszewicz was the driver and operator of a 1978 Mercury Zephyr owned by Vaughn Printers, Inc. Travelers answered and alleged that there was in full force and effect a business owner’s policy of insurance wherein the named insured was Vaughn Printers, Inc. and William Drew Vaughn, which provided for automobile insurance coverage of the Zephyr, including PIP benefits. Travelers alleged that Bartoszewicz was excluded and filed a copy of the original policy containing the pertinent exclusion.

The declaration portion of the policy lists only “Vaughn Printers, Inc. & William Drew Vaughn” as “named insured.” The PIP endorsement portion of the policy indicates that Travelers will pay PIP benefits in accordance with the Florida Automobile Reparations Reform Act where the bodily injury is sustained by:

(1) The named insured or any relative while occupying a motor vehicle or, while a pedestrian through being struck by a motor vehicle; or
(2) Any other person while occupying the insured motor vehicle or, while a pedestrian, through being struck by the insured motor vehicle.

The policy then lists exclusions and states:

This insurance does not apply:

(f) to any person, other than the named insured, if such person is the owner of a motor vehicle with respect to which security is required under the Florida Automobile Reparations Act, as amended.

The phrase “named insured” is defined as follows:

“Named insured” means the person or organization named in the declarations of the policy and if an individual, shall include the spouse if a resident of the same household.

Pursuant to a request for admissions, the plaintiff admitted that he was the owner and registrant of a motor vehicle which was registered and licensed in the State of Florida. Travelers moved for summary judgment on the grounds of the above-quoted policy exclusion and on the ground that the Florida Automobile Reparations Act excludes coverage because the plaintiff was the owner of a motor vehicle with respect to which security is required under the No-Fault Act. Plaintiff filed a cross-motion for summary judgment. The trial court granted Travelers’ motion for summary judgment and denied plaintiff’s cross-motion for summary judgment. Traveler’s motion to tax attorney’s fees pursuant to section 57.105, Florida Statutes (1979), was denied. Plaintiff Bartoszewicz appeals from the order of the trial court granting summary final judgment in favor of defendant, and the defendant cross-appeals that portion of the order denying its motion to tax attorney’s fees.

The primary argument of the appellant is that the designation of the corporation as the “named insured” encompasses within that classification an employee operating the car within the course and scope of his employment, since a corporation is an incorporeal legal entity that can act (and receive personal injuries) only through its authorized agents. The policy does not purport to limit its PIP coverage for a named insured to any specific officers, directors or agents of the corporation. Therefore, contends the appellant, the purported availability of PIP benefits to a corporation as the named insured is meaningless unless construed to include individuals through whom it acts— and drives automobiles. If Bartoszewicz was a named insured as of March 16, 1979, then exclusion (f) is inapplicable and he is entitled to recover PIP benefits from Travelers.

Travelers argues the general rule that corporations are legal entities separate and distinct from the persons composing them. See, e. g., Hanish v. Clark, 200 So.2d 601 (Fla. 3d DCA 1967). It also contends that the PIP coverage is meaningful for employees of the corporation, since it is afforded to them as occupants of the insured vehicle provided there is no applicable exclusion, such as provision (f).

Equivocal contracts of insurance are strictly construed against the insurer and liberally construed in favor of the insured so as to effectuate the dominant purpose of indemnifying the insured. See 18 Fla.Jur. Insurance § 407 (1971) and cases cited therein. In the instant case, we believe the inclusion of a corporate entity as the named insured in a policy providing personal injury benefits to the named insured, without qualifying or limiting the persons acting for the corporation who are afforded coverage, is equivocal. Cf. Ohio Casualty Ins. Co. v. Fike, 304 So.2d 136 (Fla. 4th DCA 1975). If the insurer had intended to limit such coverage to certain identified corporate officers or agents, it could have done so explicitly in the policy.

Accordingly, we affirm the denial by the trial court of the defendant’s motion to tax attorney’s fees, reverse the entry of summary judgment for defendant, reverse the denial of the cross-motion for summary judgment by the plaintiff, and remand to the trial court for entry of a judgment consistent with this opinion.

REVERSED and REMANDED.

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


text:
    Donald WITHROW, Darnell Withrow and Cavalier Insurance Company, Appellants, v. Doris T. WOODS, and Government Employees Insurance Company, Appellees.
    No. 79-1081/T4-556.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      Cliff B. Gosney, Jr., and A. Craig Cameron of Gosney, Cameron, Parsons & Marriott, P.A., Daytona Beach, for appellants.
    Ronald L. Harrop of Gurney, Gurney & Handley, P.A., Orlando, for appellees.
   ORFINGER, Judge.

Vicki Woods, a minor, was injured in an automobile accident while riding as a passenger in a car driven by her mother, Doris T. Woods, and insured by Government Employees Insurance Company (GEICO). Through her mother and next friend, she filed suit against Darnell Withrow, as operator, Donald Withrow, as owner, and Cavalier Insurance Company (Cavalier) as insurer of the other vehicle involved in the collision. Withrow and Cavalier filed a counterclaim against Doris T. Woods and GEI-CO alleging that Doris negligently caused the collision, and sought contribution.

During the proceedings, Cavalier paid Vicki $10,000, the full limits of the policy, and secured a release for itself and its insureds. Relying on section 768.31(2)(d), Florida Statutes (1979) , Woods and GEICO moved for a summary judgment because the settlement and consequent release had not extinguished their liability as required by that statute. The trial court agreed and entered a summary final judgment which is here appealed. We reverse.

Appellee defends the correctness of the trial court’s ruling based on either of two positions: (1) Since there is no common liability between the tort feasors, there can be no right of contribution, and (2) Since the release given to Withrow and Cavalier did not release Woods, the requirement that the obligation of the joint tort feasor be discharged has not been complied with.

Under the doctrine of family or interspousal immunity, a minor child may not sue a parent nor may one spouse sue the other spouse for tort. Orefice v. Albert, 237 So.2d 142 (Fla.1970). Interspousal immunity has now been held to provide no bar to an action for contribution against the spouse joint tort feasor. Shor v. Paoli, 353 So.2d 825 (Fla.1977). There is no logical reason not to extend the application of this principal to parent/child situations because the entire family immunity doctrine arises out of the same principles of public policy. Orefice v. Albert, supra. The holding in Shor, did not affect the continuing vitality of the family immunity doctrine. Raisen v. Raisen, 379 So.2d 352 (Fla.1979). We realize that one of our sister courts has refused to extend the Shor doctrine to a parent/child situation, 3-M Electric Corporation v. Vigoa, 369 So.2d 405 (Fla.3d DCA 1979), but we respectfully disagree with the conclusion in that case. It is impossible for us to say that the application of the family immunity doctrine depends on which members of the family are involved.

In the light of the continued vitality of the family immunity doctrine, there was no need for appellants to extinguish the claim of Vicki Woods against her mother, because Vicki could not sue her mother for that tort, so a release would have been meaningless and superfluous. Consequently, the summary final judgment was erroneously entered and it is hereby reversed and the cause is remanded for further proceedings consistent herewith.

Pursuant to Rule 9.030(a)(2)(A)(vi), Florida Rules of Appellate Procedure, March 27, 1980, we hereby certify this decision to be in direct conflict with the decision in S-M Electric Corporation v. Vigoa, supra.

REVERSED and REMANDED.

FRANK D. UPCHURCH and SHARP, JJ., concur.

      . § 768.31(2), Fla.Stat. (1979):
      * * * * * *
      (d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.

      . Both parties have cited as supplementary authority the case of Quest v. Joseph, Case No. 78-2090 (Fla.3d DCA, May 20, 1980) which appears to recede from the Vigoa decision, but we have determined that the opinion is not yet final.


text:
    Claude TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 79-963/T4-528.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Richard L. Jorandby, Public Defender, Jorge Labarga, Legal Intern, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence entered by the circuit court of Brevard County, Florida. The public defender filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 15,1980, this court gave the appellant 30 days within which to file a brief in his own behalf. No such brief has been filed. This court has reviewed the Anders brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is granted, and the judgment is affirmed.

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Johnny Ray RHODES, Appellant, v. STATE of Florida, Appellee.
    No. 79-754/T4-483.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence entered by the Circuit Court of Orange County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On December 6, 1979, this court gave appellant 30 days within which to file a brief in his own behalf. No such brief has been filed. We have reviewed the brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is granted, and the judgment is affirmed.

AFFIRMED.

COBB, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: HERSEY, Judge.

text:
    Camille Ann JOHNSON, Appellant, v. Olen JOHNSON, Appellee.
    No. 79-1192.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1980.
    James Fox Miller of Miller & Schwartz, P.A., Hollywood, for appellant.
    Shane A. Durkin of Law Office of Ches-ley V. Morton, Fort Lauderdale, for appel-lee.
   HERSEY, Judge.

This appeal questions the validity of an order terminating the husband’s obligation to pay alimony and indirectly requiring sale of real property occupied by the wife and owned jointly by the parties as tenants in common.

After twenty-seven years of marriage the husband successfully petitioned for dissolution in 1973. No minor children were involved. The wife was given exclusive possession of the marital domicile until March of 1975 and was awarded alimony of $200 per month, gradually reducing to $100 per month over a stated period. The husband was directed to make mortgage payments, which amounted to approximately $193 per month.

In 1975, after a hearing on wife’s petition for modification and several motions filed by husband, an order was entered extending wife’s exclusive possession for five years and increasing the amount of alimony to $225 per month. The court made various findings of fact including the following which are pertinent here:

The Wife, who is aged 62, does not have the ability to earn any income, which inability is due primarily to a severe deterioration of her physical health since the entry of a Final Judgment, the Wife’s age, and the economic circumstances which presently exist.
The Husband who is aged 54, is employed on a full time basis with General Mills and his financial circumstances have not deteriorated since the entry of the Final Judgment Of Dissolution Of Marriage and have in fact permitted the Husband to purchase acreage in North Carolina as well as to purchase a marital home with his new wife.
The Court finds that the present support being paid by the Husband to the Wife is greatly inadequate for her support; and the Court further finds that the Husband has the ability to increase his support to the Wife, and that it is in the best interests of the Wife’s physical and mental well being that the Wife be permitted to continue to occupy the subject real property.
The Wife’s financial needs have substantially increased since the entry of the Final Judgment Of Dissolution Of Marriage due in substantial part to the increased cost of living and the Wife’s inability to contribute to her own support by virtue of her age and physical disabilities. These factors have placed the Wife in a position where she had inadequate funds for the very basic needs such as food and hot water.

Then, in 1978, the husband filed a motion to terminate alimony and to partition realty. Wife responded and counter-petitioned for an increase in alimony. Following an evidentiary hearing, the court (not the same judge who entered the 1975 order) entered the order now before us on appeal. That order contained no finding that there had been a change in circumstances. The court characterized the wife’s petition to obtain an increase in alimony as “an attempt . to punish” the husband as opposed to an attempt to meet the wife’s, needs. The order contained findings that the wife made no effort to adjust her living conditions or to become self-sufficient, that the real property had been allowed to deteriorate, that the husband had exhausted his resources and accumulated obligations, and that the wife owned a one-half interest in real property in North Carolina. The court ordered alimony terminated and the marital home either to be sold by agreement of the parties or to be partitioned pursuant to the husband’s motion for partition.

We are called upon to determine whether this order constitutes an abuse of discretion. The test for such a determination is whether there was a change in circumstances since the 1975 order and if so, whether that change is legally sufficient to support the terms of the subject order. In addition, error is suggested as to the husband’s standing to partition.

Record evidence of the circumstances of the parties then and now reveals the following.

The wife, at the time of the hearing, was 65 years of age. She was not entitled to social security. At one time she was qualified to teach school and was an excellent seamstress. This was at least thirty years ago. She has a medical history of rather severe edema in her right leg with other complications. Her ability to find employment at her age or her physical ability to perform satisfactorily are seriously suspect. She has not been to a doctor or dentist or had her glasses checked for several years. She is unable to afford anything other than minor emergency repairs to the house. During the summer the air conditioning runs for one hour each morning and one hour each afternoon to save the cost of electricity. Often she goes without eating for two days a week and she has meat only once a week. Most of the time she mows the lawn herself and keeps up the grounds in addition to keeping house. Her income consists solely of the alimony of $225 a month, which is fully taxable to her. She must also pay income tax on that portion of the mortgage payments made by the husband which is treated, for tax purposes, as additional alimony to her.

By contrast, the husband, now 57 years of age, had taxable income at the time of the 1975 hearing of approximately $17,000. This had increased by the time of the most recent hearing to something between $25,-000 and $80,000. His present wife is also employed. They own a home valued at more than the home in controversy here. His financial affidavit shows that he spends more for food and entertainment alone ($240) than appellant has to live on ($225). The only adverse change of circumstances even hinted at by this record is that the husband has several new charge account payments and a large mortgage payment to make. This is not the change of circumstances contemplated by law upon which modification may be based. If it were, the shops would be full of ex-spouses running up charge accounts and taking out loans in order to support a financial statement that would warrant modification.

We do not, however, conclude that there is no equity on the husband’s side. We can appreciate the frustration occasioned by the wife’s total failure to accommodate herself to the necessity of becoming as self-sufficient as may reasonably be expected of a woman of her age, with her medical problems and with her education and expertise. The record shows that she has made little effort to help herself. We do not condone her attitude in that respect. On the other hand, we cannot ignore the very real and most likely alternative to alimony. The possibility of any rehabilitation is slight if not non-existent. If alimony terminates, then welfare seems the almost certain eventual consequence. That is an unacceptable alternative. We can fully appreciate the difficult task which faced the trial judge in balancing these equities and policy considerations. We are nonetheless forced to conclude that he fell into error. Our conclusions follow.

The husband is in arrears of alimony in the amount of $112.50 for March of 1975. An order shall be entered requiring immediate payment of this arrearage.

The husband had no right to immediate possession of the real property when he sought to partition. The order is erroneous in suggesting that the husband’s motion would conditionally be granted. He had no standing sufficient to support an application for partition. Pollack v. Pollack, 31 So.2d 253 (Fla.1947).

The wife’s application for costs and attorneys’ fees was denied. The wife is entitled to costs and reasonable attorneys’ fees. Cummings v. Cummings, 330 So.2d 134 (Fla.1976).

The husband has failed to pay attorneys’ fees in the amount of $2,500 required by a previous court order. An order requiring him to pay that arrearage promptly shall be entered.

Finally, the record simply does not evidence that change of circumstances which would support a modification of the 1975 order. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We reverse the order appealed from in its entirety and reinstate the order of 1975 in all respects, appropriately modified to conform with our conclusions. The husband shall be required to reimburse the wife for any mortgage payments made by her pursuant to the order, his obligation to make mortgage payments shall be reinstated and he shall be required to pay within a reasonable time any arrearages of alimony accrued since the filing of the petition for modification. Appellant’s motion for attorneys’ fees on appeal is granted, the amount to be determined on remand. Appellee’s motion for attorneys’ fees is denied.

We reverse and remand for further appropriate proceedings.

REVERSED and REMANDED.

MOORE and GLICKSTEIN, JJ., concur.


author: FRANK D. UPCHURCH, Judge.

text:
    Helen Sapp HANCOCK, Petitioner, v. STATE of Florida, Respondent.
    No. 80-777.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    J. Russell Hornsby, Orlando, for petitioner.
    No appearance for respondent.
   WRIT OF HABEAS CORPUS

FRANK D. UPCHURCH, Judge.

Petitioner, Helen Sapp Hancock, seeks writ of habeas corpus, or in the alternative, moves this court to set bail pending completion of the pre-sentence investigation and appeal.

The state was directed to show cause why the petition should not be granted. The state, instead, moved to dismiss alleging that the state was not a proper party because petitioner was not in its custody but was in the custody of Rollin W. Zimmerman, Sheriff of Brevard County, Florida.

As a general rule, the person holding custody and in a position to produce the petitioner, physically, is the proper person to be named respondent in a habeas corpus action. Lantz v. State ex rel. Edes, 293 So.2d 118 (Fla. 3d DCA 1974); Clark v. State, 122 So.2d 807 (Fla. 3d DCA 1960). In Woods v. Cochran, 131 So.2d 5 (Fla.1961), the petition improperly designated a circuit judge as respondent. The petition was treated as though the proper respondent, the director of corrections, was named. The court stated:

[Bjecause of the fundamental nature of the rights involved in a petition for writ of habeas corpus this court will treat the petition as though it had properly named as respondent the person having custody of the petitioner.

This principle is applicable here and the petition will be treated as though Rollin W. Zimmerman, Sheriff of Brevard County had been properly named.

Petitioner posted bond resulting in her release after her arrest. After trial and a guilty verdict, the court ordered a pre-sen-tence investigation and remanded her to the custody of the sheriff. There has been no adjudication of guilt and judgment has not been entered. Petitioner asserts that she has no prior criminal record. The trial court denied petitioner’s motion for bond pending pre-sentence investigation.

Article I, section 14 of the Florida Constitution, provides that until adjudged guilty, all persons charged with a crime are entitled to release on reasonable bail unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great. Therefore, the right to bail prior to trial of one accused of a non-capital crime is absolute. Taylor v. State, 388 So.2d 576 (Fla. 5th DCA 1980); Matera v. Buchanan, 192 So.2d 18 (Fla. 3d DCA 1966).

This constitutional right to bail may be forfeited where a defendant’s conduct evinces a flagrant disregard of the court’s authority or effort to evade its processes. See Ex Parte McDaniel, 86 Fla. 145, 97 So. 317 (1923). The use of the writ of habeas corpus to speedily determine whether an accused is entitled to bail before trial and conviction is proper to effectuate the right to bail provided in the constitution. McDaniel.

The constitution clearly states that the right to bail applies only prior to adjudication of guilt. Wells v. Wainwright, 260 So.2d 196 (Fla.1972). Until one has been adjudicated guilty, however, his right to be released on bail continues even after verdict, in all respects as before verdict. Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA 1975). Where one is denied bail solely because of a jury verdict of guilty, he is unlawfully deprived of his liberty when taken into custody. Id. In Andress, defendant was released on bail prior to trial and was subsequently found guilty following a jury trial. The trial judge withheld adjudication of guilt but ordered defendant be taken into custody under the authority of Rule 3.550, Florida Rules of Criminal Procedure, which provides:

If a verdict of guilty is rendered the defendant shall, if in custody, be remanded; if he is at large on bail he may be taken into custody and committed to the proper official, or remain at liberty on the same or additional bail as the court may direct.

The Andress court held that while the rule might be read as conflicting with article I, section 14, Florida Constitution, it could be saved by construing it to apply to situations where adjudication has also taken place, so that “pre-adjudication bail” is actually guaranteed by the constitution. See also State ex rel. Lickert v. Roberts, 331 So.2d 394 (Fla. 2d DCA 1976) (treat petitioner’s status for purposes of bail as pre-conviction until adjudication of guilt). After adjudication, bail becomes discretionary with the court, though guidelines exist circumscribing this discretion. See Younghans v. State, 90 So.2d 308 (Fla.1956).

Therefore, writ of habeas corpus is issued and Rollin W. Zimmerman, Sheriff of Bre-vard County, is directed to deliver Helen Sapp Hancock, petitioner herein, before Circuit Judge Roger F. Dykes, or his alternate, Eighteenth Judicial Circuit, to set reasonable bail pending sentencing.

DAUKSCH, C. J., concurs.

      . See also Rule 3.130(a), Florida Rules of Criminal Procedure:
      All persons in custody for the commission of an offense unless it is a capital offense . . shall be entitled as of right to be admitted to bail before conviction. After conviction, bail may be granted in the discretion of either the trial or appellate court.


author: MILLS, Chief Judge.

text:
    SAN MARCO CONTRACTING COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. MM-156.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.

      A. G. Condon, Jr. and Philip A. Bates of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    Margaret Ray Kemper, Ella Jane P. Davis, and H. Reynolds Sampson, Tallahassee, for appellee.
   MILLS, Chief Judge.

This is an appeal from an order dismissing San Marco’s third amended third party complaint against the Department of Transportation (D.O.T.) on the ground that San Marco failed to allege with specificity that San Marco had filed a claim pursuant to Section 5-14.1 of the Florida State Road Department’s Standard Specifications for Road and Bridge Construction (1966), a condition precedent to bringing the third-party complaint against D.O.T. We reverse.

Noonan Construction Company (Noonan) brought suit against San Marco alleging that San Marco breached its contract with Noonan by failing to keep a reasonable schedule in the performance of the contract and that due to the alleged unreasonable and lengthy delay, Noonan suffered increased costs. San Marco denied the allegations of Noonan’s complaint and impleaded D.O.T., claiming that D.O.T. was responsible for the delays, if any, and that D.O.T. had materially breached its contract with San Marco for the amounts found to be due Noonan. The third party complaint was dismissed with leave to amend.

The amended third party complaint was dismissed on numerous grounds, including the ground that San Marco had failed to submit a claim as required by Section 5-14.-1.

A second amended third party complaint was filed and again D.O.T. moved to dismiss, urging as one of the grounds that the complaint failed to allege that San Marco had submitted a claim pursuant to Section 5-14.1. The trial court granted D.O.T.’s motion to dismiss despite the general allegation by San Marco that it had complied with all conditions precedent, necessary, and proper to the bringing of the third party action. San Marco was given leave to file a third amended third party complaint alleging with specificity that it had submitted a claim to D.O.T.

San Marco filed its third amended third party complaint alleging that San Marco had complied with all conditions precedent, necessary, and proper to the bringing of its action against D.O.T. The trial court granted D.O.T.’s motion to dismiss with prejudice on the ground that San Marco failed to allege with specificity that it had filed a claim pursuant to Section 5-14.1.

The issue before us is whether Section 5-14.1 is a contract term rather than an administrative remedy which must be exhausted or a legal prerequisite to the institution of a third party claim for indemnity against D.O.T.

The Florida State Road Department’s Standard Specifications for Road and Bridge Construction were incorporated by reference in the contract between San Marco and D.O.T. Section 5-14.1 provides as follows:

Submission of Claims: Claims arising from conditions not under control of the Department shall be presented in writing to the Engineer within one week from the beginning of such condition. Claims arising from plans changes, engineering errors or other conditions under department control shall be presented in writing to the Engineer before work starts under the changed condition. In case of emergency, the notice of such claim may be given to the Engineer by telephone, but must be confirmed in writing within one week.

Conditions precedent to an action may be alleged generally by saying that they have been performed or have occurred. If the responding party denies that they have been performed or have occurred, that denial must specify what conditions precedent were not performed or did not occur. Florida Rule of Civil Procedure 1.120(c).

Generally, the rule is different, however, if the condition is,a prerequisite to a party’s right to institute legal proceedings for a particular cause of action. It is the general rule that if the cause of action is created by a statute, the pleader, relying upon the statutory cause of action, must allege compliance with its prerequisites. Wooten v. Collins, 327 So.2d 795 (Fla. 3d DCA 1976); Moore v. Crum, 68 So.2d 379 (Fla.1953). Also, where administrative remedies exist, a pleader should allege that those remedies have been exhausted since exhaustion of administrative remedies is generally required before a court will entertain the action. 1 Fla.Jur.2d, Administrative Law, Section 148 (1978).

The question before us is whether the requirement of Section 5-14.1 as incorporated into the contract between San Marco and D.O.T. is a contractual condition precedent or a legal prerequisite to the accrual of the cause of action. If it is a contractual condition precedent, the provisions of Rule 1.120(c) apply. If it is the latter, compliance with the condition precedent must be pled.

Section 5-14.1 is merely a term of the contract between San Marco and the D.O.T. There is no statute requiring that the subject contract term be complied with before a cause of action will exist or before a claimant will have the right to institute an action in the circuit court for indemnification. Further, the rule regarding exhaustion of administrative remedies is inapplicable because no administrative rule, remedy, or procedure is involved. The Florida legislature has provided by statute that the D.O.T. may be sued on any claim under contract for work done by a person or entities contracting with the D.O.T. Section 337.19, Florida Statutes (1977).

In State Road Department v. Cone Brothers Contracting Co,, 207 So.2d 489 (Fla. 1st DCA 1968), the State Road Department filed a motion to dismiss the contractor’s complaint urging that the contractor was required to file a claim with the department and proceed administratively. The court rejected the State Road Department’s argument, holding that Section 337.19 was enacted by the legislature to govern disputes which may arise between contractors and the State Road Department under road-building contracts entered into between them.

In Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978), this court noted that its decision was not contrary to the Cone Brothers decision, pointing out that in Cone Brothers the legislature had provided a remedy in the circuit court.

Section 120.73, Florida Statutes (1977), states that nothing in the APA shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing.

Since the legislature has not enacted a statute establishing the provisions of Section 5-14.1 as a prerequisite to the accrual of a cause of action for indemnity, and since that section is not an administrative rule, remedy, or procedure, it follows that Section 5-14.1 is merely a term of the contract between the parties. It is a condition precedent relevant to this action, and the pleader need only plead generally that it has complied with all conditions precedent. This San Marco has done and dismissing the third party complaint for failure to allege with specificity the compliance with Section 5-14.1 was error.

We REVERSE and REMAND to the trial court for further proceedings consistent with this opinion.

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


text:
    Daniel Michael PRIORI, Appellant, v. STATE of Florida, Appellee.
    No. MM-346.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1980.
    Norman J. Abood, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Priori appeals his judgment of conviction for possession of marijuana entered upon his plea of nolo contendere, reserving his right to appeal the trial court’s denial of his motion to suppress. Priori presents two grounds for reversal; that the search and seizure of the marijuana was tainted by a priof illegal search occurring earlier the same day; and that Priori’s consent to the second search and seizure was invalid. Appellant also complains the trial court erred in refusing to require the prosecutor, Whitley, to testify at the suppression hearing regarding the consent he obtained from Pri-ori at the scene. We decline to rule on the merits of the case at this time because it is doubtful whether Priori has standing to challenge any of the police activity. Priori failed to demonstrate a legitimate expectation of privacy in any of the items or areas searched or seized. Rather, Priori appears to have relied upon the automatic standing concept of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Subsequent to the filing of the briefs in this cause, Jones was overruled in United States v. Salvucci, — U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). See also Rawlings v. Commonwealth of Kentucky, - U.S. -, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Although the tenor of the proceedings below indicates that Priori will not be able to demonstrate the requisite “legitimate expectation of privacy” in the areas where the marijuana was searched and seized, in an abundance of caution, we think it is appropriate to remand so that Priori will have an opportunity to demonstrate, if he can, that his own Fourth Amendment rights were violated. See United States v. Salvucci, supra; Combs v. United States, 408 U.S. 224 (1972). Reversed and remanded for further proceedings consistent with this opinion.

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


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Percy Edward ROLLINS, Appellee.
    No. 79-1440.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Janet Reno, State’s Atty. and Arthur Joel Berger, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

In the second appearance of this matter before this court, the state appeals an order discharging the defendant for speedy trial violations. We reverse.

Defendant Percy Rollins first appealed his conviction for second degree murder and sentence of life imprisonment. Rollins raised two points in that appeal: first, that he was entitled to discharge under the speedy trial rule, and second, that the trial court erred in failing to instruct the jury on lesser degrees of the offense charged.

In disposing of the question concerning speedy trial, this court stated:

The first point we discuss is defendant’s contention that he was entitled to discharge pursuant to the speedy trial rule upon his motion filed January 17, 1977. Appellant’s brief lists eleven continuances in the trial of this cause. He admits that many were at his request and others with his agreement. The defendant has not furnished us with the record of the proceedings at some of these continuances. At the time that the trial judge denied the motion for discharge, he cautioned the defendant that his ruling was based upon waiver of the rule and requested on the record that in the event of appeal of his ruling, the defendant should bring to this court the record of all continuances. This was not done. Accordingly, we find no error under this point upon this record. Cf. Montalvo v. State, 323 So.2d 674 (Fla. 3d DCA 1975).

Rollins v. State, 369 So.2d 950 (Fla. 3d DCA 1978). [Footnote omitted]

Although this court found no error in the denial of the motion for discharge, it determined that the trial court committed reversible error in failing to instruct the jury on the lesser included offense of third degree murder. The judgment and sentence imposed upon Rollins were reversed and the cause was remanded with directions to grant a new trial. Rollins v. State, supra.

On remand, defendant presented the trial court with a complete record of the proceedings containing the various continuances granted prior to the first trial and again moved the trial court for a discharge. The state, stressing the fact that Rollins was complaining of the same violations of the speedy trial rule that had been raised before, argued that the question had been considered and decided by the appellate court and was no longer open for consideration. The trial court, however, concluded that the appellate court had not reached the' merits of the question because the record was insufficient. We disagree.

The prior decision of this court affirmed the trial court’s denial of the defendant’s motion for discharge. This court did not abstain from considering the question, nor did it remand the speedy trial issue to the trial court for further consideration. Cf. Vargas v. State, 252 So.2d 586 (Fla. 2d DCA 1971) (where the appellate court remanded for a full consideration of the speedy trial claim and noted that a new trial may or may not follow depending on the disposition of the speedy trial claim.)

Because this court adjudicated the propriety of the denial of the motion to discharge, the opinion of this court must be treated as the law of the case on the speedy trial issue. Haddock v. State, 141 Fla. 132, 192 So. 802 (1940); State v. Thompson, 357 So.2d 428 (Fla. 4th DCA 1978); and State v. Biesendorfer, 244 So.2d 147 (Fla. 4th DCA 1971). An affirmance predicated upon the presumption of correctness afforded a judgment of the trial court is no less a disposition of the cause because no record was presented in rebuttal. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Since this court had already decided the speedy trial question on the record before it and had issued its mandate, the trial court erred in reconsidering the issue without permission of this court. Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So.2d 232 (Fla. 3d DCA 1979). Without leave of this court, the trial court had no power to vacate or set aside a prior judgment of this court. Joyner v. Ettinger, 382 So.2d 31 (Fla. 1st DCA 1980); State v. Thompson, supra.

Therefore, the order of the trial court is reversed and the cause is remanded for proceedings not inconsistent with this opinion.

      . Rollins v. State, 369 So.2d 950 (Fla. 3d DCA 1978) was decided under the 1962 Florida Appellate Rules. Compare Rule 9.200(f)(2), Florida Rules of Appellate Procedure, which provides:
      If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given.
      The committee notes to this rule make it clear that “[al failure to supplement the record after notice by the court may be held against the party at fault.” (Emphasis added)

      . This case does not fall within the exception to the doctrine of the law of the case based upon a different factual posture on remand. Cape Coral Bank v. Kinney, 321 So.2d 597 (Fla. 2d DCA 1975) and Walker v. Atlantic Coastline Railroad Co., 121 So.2d 713 (Fla. 1st DCA 1960). Here, the facts remained unchanged; they were simply presented to the court in the proper manner.


text:
    Marvin I. WIENER and Sidney Bodzin, as Trustees, Appellants, v. COUNTY OF DADE, a political subdivision of the State of Florida et al., Appellees.
    No. 79-1462.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Myers, Kaplan, Levinson, Kenin & Richards and Thomas R. Spencer, Jr., Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., Miami, for appellees.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Appellant Wiener appeals a decision of the circuit court which affirmed the decision of the Dade County Commission to rezone certain property from IU-2 (Industry-Heavy) to AU (Agricultural) use. We have jurisdiction. United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979).

In this case, the question of whether the resolution serves the health, safety, morals, or general welfare of the public is “fairly debatable,” and therefore, the resolution should not be disturbed by the court. Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979) and Dade County v. Inversiones Rafamar, S.A., 360 So.2d 1130 (Fla. 3d DCA 1978).

Accordingly, the order of affirmance of the circuit court is hereby affirmed.


text:
    HART PROPERTIES, INC., Appellant, v. Leon GARFIELD et al., Appellees.
    No. 79-1691.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Jeanne Heyward, George & Thompson and Charles K. George, Miami, for appellant.

      Walton, Lantaff, Schroeder & Carson, Floyd, Pearson, Stewart, Richman, Greer & Weil and James B. Tilgman, Jr., William Snow Frates, Podhurst, Orseck & Parks and Joel D. Eaton and Walter H. Beckman, Jr., Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellees.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. City of Pensacola v. Owens, 369 So.2d 328 (Fla. 1979); Goldstein v. Sabella, 88 So.2d 910 (Fla. 1956); Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931); Duncan v. Germaine, 330 So.2d 479 (Fla. 4th DCA 1976).


text:
    Willie E. LELAND, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-2101, 79-2206.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Bennett H. Brummer, Public Defender and Peter Raben and Edward M. Koch, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order revoking the defendant’s probation, which is under review by this appeal, is reversed and the cause is remanded to the trial court with directions to restore the defendant to the probationary term previously imposed upon a holding that: (a) a person does not commit the misdemeanor offense of obstruction by a disguised person [§ 843.03, Fla.Stat. (1979)], by the sole act of giving, as here, a false name to a police officer upon being stopped by said officer, and (b) a person’s probation may not be revoked for violating the above statute, as here, based on such conduct. D. G. v. State, 375 So.2d 868 (Fla.2d DCA 1979); Hartley v. State, 372 So.2d 1180 (Fla.2d DCA 1979).

Reversed and remanded.


text:
    Sig M. GLUKSTAD d/b/a Miami International Forwarders, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 79-2383.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Sandler & Sandler and Martin L. Sandler, Miami, for appellant.
    Batchelor, Brodnax, Guthrie & Primm and Alvaro L. Mejer and Timothy J. Armstrong, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Reversed on the authority of, and remanded for further proceedings consistent with Sig M. Glukstad, Inc. v. Lineas Aereas Paraguayas, 619 F.2d 457 (5th Cir. 1980).

      . The trial judge appropriately relied on the federal district court decision in the cited case, which was reversed while this one was on appeal.


text:
    The STATE of Florida, Appellant, v. Michael Keith JACOBS, Appellee.
    No. 80-10.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


text:
    Rosalind MILSTEIN, Appellant, v. Stanley M. KAYLIN, as Personal Representative of the Estate of Charlotte Kaylin, Deceased, and Massachusetts Mutual Life Insurance Company, Appellees.
    No. 80-458.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1980.
    Joseph Rosenkrantz and John A. O’Con-nor, Miami Beach, for appellant.
    Goodwin, Ryskamp, Welcher, Carrier & Donoff, Miami, for appellees.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. See Sorkin v. Rovin, 227 So.2d 492 (Fla. 3d DCA 1969); Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla. 2d DCA 1968); Romans v. Warm Mineral Springs, Inc., 155 So.2d 183 (Fla. 2d DCA 1963); Fla.R.Civ.P. 1.110(b)(2).


author: MOORE, Judge.

text:
    Lemar HASELDEN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1686.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant seeks reversal of convictions on three counts of aggravated battery and contends the court erred because the information failed to allege the essential elements of battery in each of the counts. He agrees that he did not raise this issue in the trial court but argues that the information was fatally defective because it did not state a crime under the laws of Florida. We disagree and affirm.

The information alleged in pertinent part that the appellant “did, unlawfully commit a battery upon (named person) and in commission of said battery did use a deadly weapon, to-wit: a 20 gauge shotgun, contrary to Florida Statute 784.045(l)(b)”. Each of the other counts was in similar language, and each failed to allege the essential elements of a battery. This failure would ordinarily cause the information to be quashed if a timely objection is raised. Ferrell v. State, 358 So.2d 843 (Fla. 3rd DCA 1978).

The failure to timely raise a defect in an information constitutes a waiver of the defect unless the information wholly fails to charge a crime. State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973); Tracey v. State, 130 So.2d 605 (Fla.1961). The failure to allege one ingredient of an offense does not render an information invalid as wholly failing to state a crime. Id. at 611. Although the information here is defective, it does not wholly fail to state a crime, and the appellant’s failure to raise the defect in the trial court constituted a waiver of the defect.

We have considered appellant’s contention that the evidence was insufficient to support the convictions and find it to be without merit.

AFFIRMED.

BERANEK and HURLEY, JJ., concur.


author: RIVKIND, LEONARD, Associate Judge.

text:
    Donald J. KOSCHMEDER and Allstate Insurance Company, Appellants, v. Tommie Mae GRIFFIN, as Personal Representative of the Estate of Robert Lee Griffin, Deceased, Appellee.
    No. 79-777.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.
    Michael B. Davis, of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    Michael Jeffries, of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appel-lee.
   RIVKIND, LEONARD, Associate Judge.

This is an appeal from a dismissal with prejudice of a second amended third party complaint for contribution by defendants/appellants, Donald J. Koschmeder and Allstate Insurance Company. The appellee is the third party defendant, Tommie Mae Griffin, personal representative of the Estate of Robert Lee Griffin, deceased. The second amended third party complaint alleges that on August 14,1976, an automobile accident occurred in Indian River County between a vehicle operated by Robert Lee Griffin in which Jane G. Stephens, Bessie Bell Griffin and Grade Lee Griffin were passengers, and a vehicle operated by Donald J. Koschmeder. Robert Lee Griffin, Bessie Bell Griffin and Gracie Lee Griffin subsequently died.

A probate proceeding was commenced in St. Lucie County for the estate of Robert Lee Griffin, and Tommie Mae Griffin was appointed personal representative. On November 16,1977, a Notice of Administration was published by the personal representative, providing the period for filing of claims against the estate would terminate on February 16, 1978.

On August 14,1978, appellants, Donald J. Koschmeder and Allstate Insurance Company, his liability carrier, were served with process in three actions: one brought by Jane Stephens individually, and two brought by Jane Stephens as the personal representative of the estates of Gracie Lee Griffin and Bessie Bell Griffin. On August 23, 1978, appellants served third party complaints upon the Estate of Robert Lee Griffin, seeking contribution in each of the three cases. On September 15, 1978, appellants filed statements of claim in the Estate.

The trial court dismissed the second amended third party complaint for failure to file the “claims within the time prescribed by F.S. 733.702 (1977).”

The issue presented on appeal is whether an alleged tortfeasor is entitled to contribution under F.S. 768.31 (1977) from the estate of a joint tortfeasor notwithstanding that the notice of claim was not filed within the time prescribed by the non-claim statute.

Section 733.702, Florida Statutes (1977), provides:

Limitation on presentation of claims.— (1) No claim or demand against the decedent’s estate that arose before the death of the decedent, including claims of the state and any of its subdivisions, whether due or not, direct or contingent, liquidated or unliquidated, and no claim for personal property in the possession of the personal representative or for damages, including, but not limited to, actions founded on fraud or other wrongful act or omission of the decedent, shall be binding on the estate, on the personal representative, or on any beneficiary, unless presented:
(a) Within 3 months from the time of the first publication of the notice of administration . . . (Emphasis added)

Appellants argue forcefully that no contingent claim for contribution exists until an injured party files suit for damages and reduces the claim to judgment. Appellants further argue that a party to an automobile accident may not believe he was at fault, may not believe there were any injuries, or (as in the case of an automobile manufacturer) may not even know that there was an accident. The requirement of filing a claim in the probate proceeding, appellants argue, pre-supposes awareness of a claim, which awareness may not reasonably exist. Appellants urge us to interpret the non-claim statute so that there would be no requirement for the presentation of a claim for contribution against the estate of a decedent until the underlying tort obligation is either claimed (by filing suit) or established (by judgment).

In Simpson v. First National Bank & Trust Company of Lake Worth, 318 So.2d 209, 210 (Fla. 4th DCA 1975), a widow sought a determination of her rights to contribution from her late husband’s estate, arising out of the fact that they had jointly signed a promissory note, then due. This court decided that, albeit the note had not been reduced to judgment and the widow had not made actual payment, she properly sought to have her claim for contribution from her husband’s estate recognized within the time period prescribed in the non-claim statute, which allows for the filing of contingent claims. The court held:

Appellant is possessed of a contingent claim, based upon her paying the monies due on the promissory note. By the very words of the statute that type of claim must be filed and recognized within the non-claim statute time limit of four months, or be rendered void .

Appellants argue that Simpson is distinguishable because it involved contribution between co-debtors, “co-signatories on an underlying obligation which was existent, determined and known by all parties at the time of decedent’s death.” Appellants contend that contribution between joint or several tortfeasors differs for the reasons previously stated.

We do not quarrel with appellants concerning the distinguishable factual situation presented in Simpson. That case does not control the disposition of the instant case. What does control, we believe, is the public policy for the non-claim statute. In re Browns Estate, 117 So.2d 478, 480 (Fla. 1960), the Supreme Court stated:

Public policy requires that estates of decedents be speedily and finally determined. It is pursuant to this policy that statutes of non-claim have been enacted by the legislature. It is not the purpose of the Probate Act to unreasonably restrict the rights of creditors, but the object of the Act is to expedite and facilitate the settlement of estates in the interest of the public welfare and for the benefits of those interested in decedent’s estates.

We conclude that appellants were possessed of a contingent claim which arose upon the happening of the accident. It was, therefore, incumbent upon appellants to file a claim in the estate within three months from the first publication to creditors. There will undoubtedly be occasions, such as the one here, where the statute will cause a harsh result. However, to hold otherwise would defeat the public policy considerations which resulted in the enactment of the statute.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.

      . Failure to file a claim or civil action within the three-month period when insurance exists does not bar a civil action but it does bar the right to enforce any personal liability of the decedent against the estate except to the extent of the insurance. F.S. 733.702(3)(b). We are told the decedent in the case sub judice was uninsured.


text:
    Patton ROBERTS, Appellant, v. CITY OF HOLLYWOOD, a Municipal Corporation of the State of Florida, and the Civil Service Board, Appellees.
    No. 79-1982.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.
    Sheldon M. Schapiro of Stone, Schapiro & Dell, P.A., Hollywood, for appellant.
    Sherman Bennett Mayor, City Atty., and Leonard Lubart, Asst. City Atty., Hollywood, for appellees.
   PER CURIAM.

This matter was filed as an appeal seeking to review an order of the Circuit Court acting in its appellate review capacity. We consider the matter as a petition for common law certiorari. Certiorari is denied on the grounds that the petitioner has failed to demonstrate that the Circuit Court departed from the essential requirements of law.

CERTIORARI DENIED.

LETTS, C. J., BERANEK, J., and WES-SEL, JOHN D., Associate Judge, concur.


author: BERANEK, Judge.

text:
    Nadine MENDEL, Appellant, v. Norman MENDEL, Appellee.
    No. 78-953.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1980.

      Michael B. Small of Small, Oakes, Vosko & Clark, Palm Beach, for appellant.
    Joel M. Weissman and James R. Rich of Christiansen, Jacknin & Meyers, Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by the wife from a final judgment dissolving the marriage between the parties. The wife seeks review of both the character and amount of alimony and the denial of costs. We reverse.

Although numerous issues are asserted on appeal, we limit our decision to the issue of the trial court’s exclusion of evidence offered by the wife on the issue of the husband’s extramarital affair as relating to his substantial expenditures of money during the marriage.

At trial the wife contended the financial circumstances of the parties were greatly depleted by the husband’s spending large amounts of money on an extramarital affair. The husband asserted the admitted financial collapse of the marriage was due to extravagant spending by the wife. The husband presented evidence in support of his theory of extravagancy by the wife but the trial court excluded cross examination of husband on the issue of whether he spent extravagant amounts on his extramarital activities. Because this evidence related to the financial condition of the parties during, the marriage, we find it relevant, since we conclude the trial court erred in failing to allow the admission of this evidence, we must reverse for consideration of adultery as it relates to the husband’s expenditures of funds and the relationship of those expenditures to the economic situation in which the parties stand before the court. Williamson v. Williamson, 367 So.2d 1016 (Fla.1979). After hearing this evidence, the trial judge should reconsider the issue of alimony and the wife’s entitlement thereto, both as to character and amount.

The appellant also seeks review of the trial court’s denial of court costs totaling $716. Although the trial court awarded the wife attorneys’ fees, costs were denied. This issue should also be reconsidered on remand.

The judgment appealed from is reversed and the cause is remanded for further proceedings with reference to the admission of evidence pertaining to appellee’s alleged conduct regarding the expenditure of funds and the effect that evidence may have upon the award of alimony, and for the purpose of considering appellant’s application for allowance of costs. Since this remand may result in a readjustment of alimony which may influence other financial matters between the parties we vacate the judgment in its entirety except as it relates to dissolution and child custody. Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976).

REVERSED AND REMANDED WITH DIRECTIONS.

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