text:
    Edward James THOMAS, Appellant, v. STATE of Florida, Appellee.
    Nos. ZZ-3, ZZ-4.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1981.
    Rehearing Denied Dec. 4, 1981.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Thomas appeals judgments and sentences for two incidents of burglary and second degree grand theft. Two informations were filed, one charging appellant with burglary and second degree grand theft with regard to the York residence, the second charging him with burglary and two counts of second degree grand theft with regard to the Whitmore residence. Both incidents occurred November 1, 1979. Two points are raised on appeal: (1) the trial court erred in denying appellant’s motion for discharge under the speedy trial rule; (2) the trial court erred in imposing separate consecutive sentences for theft of property valued at more than $100 but less than $20,000, and theft of a firearm, pursuant to the second information.

Appellant was questioned with regard to these incidents on November 29, 1979, at which time he confessed to the crimes. At the time, he was being held in the Duval County jail on unrelated charges. Appellant was not arrested on the instant charges until September 2, 1980, and the trial took place November 4, 1980. We do not agree that appellant was taken into custody for purposes of the speedy trial rule on November 29, 1979, when he was questioned while being held on completely unrelated charges. The time began to run when he was arrested September 2, 1980, and therefore he was brought to trial within the time period prescribed in the speedy trial rule. Wiggins v. State, 384 So.2d 43 (Fla. 1st DCA 1980), and State v. N. B., 360 So.2d 162 (Fla. 1st DCA 1978), cert. denied, 383 So.2d 1199 (Fla.1980), on which appellant relies, are distinguishable. We affirm on the first point. See State v. Stanley, 399 So.2d 371 (Fla. 3d DCA 1981); Giglio v. Kaplan, 392 So.2d 1004 (Fla. 4th DCA 1981).

The second information charged appellant with two counts of grand theft. One of the counts charged appellant with taking from the Whitmore residence on November 1, 1975, property, specifically fishing equipment, electronic video equipment, a clock, silver coins, and savings bonds, valued at over $100 but less than $20,000, in violation of Section 812.014, Florida Statutes. Another count charged appellant with theft from the same person on the same date, of a firearm, in violation of Section 812.014, Florida Statutes. Appellant was convicted of both counts of grand theft and received five year sentences on each count, to be served consecutively.

Reference to the text of Section 775.-021(4), Florida Statutes, is required in order to place appellant’s second argument in context. That section provides:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

Appellant argues that the consecutive sentences for theft of property valued at over $100 and theft of a firearm were erroneous because all of the items, including the firearm, were taken during a single criminal incident and both crimes are enumerated in the same criminal statute, thus Section 775.021(4) does not authorize separate sentences. Appellant does not argue that 775.-021(4) is inapplicable because one of the offenses is a lesser included offense of the other. The determinative question, therefore, would seem to be whether the mandate of Section 775.021(4) extends to subsections of the same criminal statute.

There are cases which reveal that, under some circumstances, separate sentences have been imposed for violations of different provisions of the same criminal statute. For example, in Portee v. State, 392 So.2d 314 (Fla. 2d DCA 1980), separate sentences for sale and possession of cannabis were approved, since possession was not a lesser included offense of sale in that case. Both sale and possession are proscribed in Section 893.13 Florida Statutes. Section 893.13(l)(a) prohibits the sale of cannabis and Section 893.13(l)(e) prohibits possession of cannabis. In a previous opinion, Fundak v. State, 362 So.2d 295 (Fla. 2d DCA 1978), the Second District observed, in a footnote:

Section 775.021, Fla.Stat. (1977) requires separate sentencing for violation of two or more criminal statutes in the course of one transaction, excluding lesser included offenses. It would apply to the facts in the instant case because possession of marijuana was not a lesser included offense of sale of marijuana based upon the allegations in the information. Additionally, each of the two counts can be considered as arising out of a different statute because § 893.13(l)(a), Fla.Stat. (1977) and § 893.13(l)(e), Fla.Stat. (1977) are not interdependent. Each can be read to stand alone as a separate criminal violation.

Section 893.13(l)(a) and Section 893.13(l)(e) each contain a complete description of the offense, together with the applicable punishment. In contrast, the elements of the offense of theft are enumerated in Section 812.014(1). The subparts of Section 812.-014(2) serve to distinguish certain types of property for the purpose of determining the degree of the offense and the applicable punishment. A reading of Section 812.-014(2)(b)l or Section 812.014(2)(b)3 in isolation would not provide a complete description of the offense. Thus we are dealing with one offense, theft, as opposed to two distinct offenses, possession of cannabis and sale of cannabis. Section 775.021(4) does not apply to this situation to mandate separate sentences. Therefore, we agree with the view expressed by the Fifth District in Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981), and hold that theft of a firearm and other property at the same time constitutes a single theft offense. This result is consistent with the views expressed in Hearn v. State, 55 So.2d 559 (Fla. 1951), and Joiner v. State, 382 So.2d 1357 (Fla. 1st DCA 1980).

The state urges that a recent United States Supreme Court case, Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), should apply to authorize separate sentencing in this case. A careful reading of that case does not lead us to a different conclusion. In Albernaz, consecutive sentences had been given for conspiracy to distribute marijuana in violation of 21 U.S.C. § 846 and conspiracy to import marijuana in violation of 21 U.S.C. § 963. It was important to the decision that there were “separate offenses with separate penalty provisions that are contained in distinct subchapters of the Act.” 67 L.Ed.2d at 280. Unless distinct statutory provisions are involved, it is not appropriate to apply the legislative intent test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1923). The Court in Albernaz did not repudiate the rationale of its decision in Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). On the contrary, it distinguished Braverman from the situation before it because the conspiracy in Braverman, although it had many objectives, violated only one criminal statute. The Braverman court had said:

Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it differs from successive acts which violate a single penal statute and from a single act which violates two statutes. ... The single agreement is the prohibited conspiracy and however diverse its objects it violates but a single statute, § 37 of the Criminal Code. For such a violation, only the single penalty prescribed by the statute can be imposed. (Citations omitted)

On the theory that the theft in this case violated only a single distinct statute, we vacate the consecutive five-year sentence imposed for second degree grand theft of a firearm. Drakes, supra, cf. Williams v. State, 397 So.2d 438 (Fla. 3d DCA 1981). In all other respects the judgments and sentences are

AFFIRMED.

McCORD and SHIVERS, JJ., and LILES, WOODIE A. (Retired) Associate Judge, concur.

      . We do not hold that under no circumstances can a defendant be convicted of more than one offense under Section 812.014(2)(b). The information and proof may show sufficient separation in time, place, and circumstances so that the taking of different items enumerated in that section constitutes separate criminal episodes. See Hearn v. State, 55 So.2d 559 (Fla. 1951).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert C. MALT, individually, Vera Heflin, individually, Robert C. Malt and Company, a Florida corporation, and Reliance Insurance Company, Petitioners, v. Vicki SIMMONS, individually, and Rene Simmons, by and through her mother and best friend, Vicki Simmons, Respondents. Robert C. MALT, individually and Vera Heflin, Petitioners, v. Vicki SIMMONS, et al., Respondents.
    Nos. 81-1187, 81-1192.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    James Joseph Weinert of Paxton, Crow, Taplin & Bragg, P.A., West Palm Beach, for petitioners.
    Thomas E. Kingcade of Levy, Shapiro, Kneen & Kingcade, P.A., Palm Beach, for respondents.
   PER CURIAM.

By petition for writ of certiorari we are asked to review an order of the trial court denying a motion for a protective order as to certain interrogatories propounded by plaintiff/respondents to defendants/petitioners. Certiorari is an appropriate vehicle for testing the correctness of an order governing discovery procedures. Everglades Protective Syndicate v. Makinney, 391 So.2d 262 (Fla. 4th DCA 1980). However, certiorari will be granted only where the order of the trial court is a departure from the essential requirements of law and there would be no adequate remedy by appeal. Everglades Protective Syndicate v. Makinney, supra.

If the interrogatories at issue are relevant to the subject matter involved in the litigation, or if the information sought “appears reasonably calculated to lead to the discovery of admissible evidence,” Rule 1.280(b)(1), Florida Rules of Civil Procedure, then the questions are appropriate and the order is obviously not a departure from the essential requirements of law. On the other hand, if the interrogatories do not meet this test, not only would the order be a departure from the essential requirements of law, but there would be no adequate remedy on appeal since the information would necessarily have been revealed by the time the case is appealed.

In the instant lawsuit, respondents filed a complaint against petitioners for violation of state and federal collection laws and intentional infliction of emotional distress in seeking to collect unpaid rent for a townhouse managed by petitioners.

We fail to see how the interrogatories are relevant to the subject matter of the litigation or are reasonably calculated to lead to the discovery of admissible evidence. We have further determined that the information sought is of a confidential nature and that its production might result in damage that would be irreparable. Accordingly, we grant the writ, quash the trial court’s order and direct the trial court to strike the objectionable interrogatories and to expunge them from the record.

MOORE and HERSEY, JJ., concur.

ANSTEAD, J., dissents without opinion.


text:
    NORTH AMERICAN MARKETING CORPORATION, INC., Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 81-175.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Rehearing Denied Nov. 25, 1981.

      Paul Morris, Miami, for appellant.
    Joseph A. McGowan, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, and JORGENSON, JJ.
   PER CURIAM.

We reverse the final judgment for Travelers Insurance Company upon a holding (1) where North American Marketing Corporation, Inc., in a non-jury trial of its third-party claim against Travelers, presented a prima facie case of “unidentifiable employee dishonesty” resulting in loss for which it was insured by Travelers, the trial court erred in granting Travelers’ motion for involuntary dismissal at the conclusion of North American’s case; and (2) Travelers’ unproved claim that the extent of the loss was diminished by other facts was not a matter which was properly considered on Travelers’ Rule 1.420(b), Florida Rules of Civil Procedure, motion, such claim being no part of whether North American established a prima facie case. Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Murphy v. Community Centers Corporation, 393 So.2d 623 (Fla. 1st DCA 1981); Buchanan Construction, Inc. v. City of Tallahassee, 308 So.2d 613 (Fla. 1st DCA 1975); accord, Preisner v. Cropf, 278 So.2d 295 (Fla. 4th DCA 1973).

Reversed and remanded for a new trial.


author: SCHWARTZ, Judge.

text:
    Hardy L. PASCHAL, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY and Metropolitan Dade County, Appellees.
    No. 81-1304.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Rehearing Denied Dec. 4, 1981.
    Hardy L. Paschal, in pro. per.
    Robert A. Ginsburg, County Atty., and Susan E. Trench, Asst. County Atty., James
    R. Parks, Tallahassee, for appellees.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

Paschal seeks review of a determination of the Unemployment Appeals Commission that he was disqualified from unemployment compensation benefits because he “voluntarily left his employment without good cause attributable to his employer.” Section 443.06(l)(a), Florida Statutes (1979). This conclusion was based upon the finding of the appeals referee that the appellant was terminated from his job with the Dade County Welfare Department, which required the use of a privately owned vehicle, after his automobile was repossessed and he did not secure another. We hold that these facts fully justify the determination rendered below. See Echols v. Michigan Employment Security Commission, 380 Mich. 87, 155 N.W.2d 824 (1968) (cab driver laid off because of driver’s license suspension left employment voluntarily without good cause attributable to employer); Donahue v. Catherwood, 33 App.Div.2d 848, 305 N.Y. S.2d 827 (1969) (same).

Affirmed.

      . The appeals referee rendered a conclusion of law that the appellant was disqualified because of “misconduct connected with his work.” Sec. 443.06(l)(b), Fla.Stat. (1979). The appeals commission acted within the authority conferred by Sec. 120.57(l)(b) 9, Fla.Stat. (1979) by reaching a different, legally justified conclusion of law on the basis of the facts found by the referee and supported by the evidence.


text:
    Howard Luce PARKER, husband, Appellant, v. Teri Almonts PARKER, wife, Appellee.
    No. 80-2197.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Rehearing Denied Nov. 25, 1981.
    J. Marshall Gifford, Key West, for appellant.
    Halpern & McClelland P. A., and Michael Halpern, Key West, for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

This is an appeal by the husband from a final judgment of dissolution awarding the wife the marital domicile as lump sum alimony.

The parties were married on December 19, 1975. The marital domicile was purchased twenty-three months later with funds that came exclusively from an inheritance of the husband. After only two months, the wife went to Tampa, Florida. She returned four months later and, by virtue of a temporary order, was granted exclusive possession of the marital domicile. It is undisputed that since that time she has improved the property and made the mortgage payments.

A lump sum award in a marriage of this duration and under these facts is wholly inappropriate. Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Ball v. Ball, 335 So.2d 5 (Fla.1976); Hessinger v. Hessinger, 378 So.2d 322 (Fla. 2d DCA 1980).

The order of the trial court is reversed and remanded with directions to restore to the husband his interest in the jointly-held property. On remand, wife will be entitled to a set-off for mortgage payments and improvements made by her. Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976); Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975).

Since wife has now remarried, there is no issue of rehabilitative alimony presented.

Reversed and remanded with directions.


author: PER CURIAM. SCHWARTZ, Judge

text:
    Evelyn DAWSON, Appellant, v. C. E. SHEPPARD ROOFING, INC., a Florida Corporation, Appellee.
    No. 81-370.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1981.
    Rehearing Denied Nov. 25, 1981.
    Tobin, Bayer & Jacobson and Theodore R. Bayer, Miami, for appellant.
    Frank Cosgrove, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed.

SCHWARTZ, Judge

(dissenting).

Because I believe that the amount awarded the appellant in attorney’s fees under Section 713.29, Florida Statutes (1979) was unreasonably low, see March v. March, 395 So.2d 200 (Fla. 3d DCA 1981), I would reverse the order under review.


author: COBB, Judge.

text:
    Daniel L. MOORES and Linda G. Moores, individually and as parents and natural guardians of Justin Daniel Moores, Appellants, v. Charles S. LUCAS, M.D.; Carl J. Brunoehler, M.D.; Raymond Bernstein, M.D.; Charles R. Frans, M.D.; Brunoehler, Franz, Lucas & Bernstein, M.D., P.A.; and Florida Physicians Insurance Reciprocal, Appellees.
    Nos. 80-1360, 81-117.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 1981.
    Rehearing Denied Nov. 23, 1981.

      Anne C. Conway of Wells, Gattis, Hol-lowes, Holbrook & Conway, Orlando, for appellants.
    William B. Wilson, of Maguire, Voorhis & Wells, P.A., Orlando, for appellees.
   COBB, Judge.

This case raises questions concerning Florida’s recognition of causes of action for wrongful life and wrongful birth, and appropriate damages for such actions.

Appellants/plaintiffs Daniel and Linda Moores, as parents and natural guardians of Justin Daniel Moores, filed suit against various defendant physicians specializing in obstetrics and gynecology, their professional association, and their insurance carrier. Their complaint alleged that Linda suffers from a genetic malady known as “Larsen’s Syndrome,” which has caused her physical problems, mental suffering, and substantial expenses for medical care since birth. Linda and Daniel decided to have a child and sought the medical advice of the defendants as to whether or not Linda’s condition was inheritable. If they had been advised that the condition was inheritable, they would have avoided having a child. The complaint further alleged that the defendants had negligently failed to advise the plaintiffs that the condition was inheritable, and consequently Justin was conceived and he was bom with Larsen’s Syndrome.

The damages which Daniel and Linda Moores sought to recover are: (1) past and future medical expenses for the extraordinary care involved in the treatment of Justin Daniel Moores’ physical abnormalities related to Larsen’s Syndrome; (2) past and future emotional pain and suffering of the plaintiffs resulting from the birth of their afflicted son; (3) physical pain and suffering and mental anguish of Linda Moores caused by becoming pregnant, carrying to term, and giving birth to her son; and (4) costs of bringing the action.

The appellees/defendants moved to dismiss or strike the claim of Justin Daniel Moores for wrongful life on the ground that such a cause of action was not recognized in Florida. The trial court granted the motion and dismissed the claim for wrongful life with prejudice. Additionally, the defendants moved to dismiss the claim of the parents for wrongful birth or alternatively to strike the damages sought on that claim. The defendants argued that the allegations of the complaint showed that Linda Moores wanted to become pregnant and bear a child; that the pregnancy and delivery in connection with Justin were no more painful or difficult than if he had been normal; that costs of bringing an action are not a recognizable basis for stating a claim; and that there was no basis for the claim to damages for pain, suffering, and mental anguish due to Florida’s “impact doctrine.” The trial court granted the motion and both dismissed the claim of the parents for wrongful birth and struck the various claims for damages. The case is before this court on the consolidated appeals of those two orders.

I. THE CLAIM OF THE CHILD

The wrongful life cases that have been brought on behalf of children have fallen into three major categories: (1) actions brought by illegitimates; (2) actions brought by unwanted children who were born as the result of a failed sterilization or abortion; and (3) actions brought by a child was was born deformed as a result of a failure to diagnose and/or inform his parents of an inheritable disease.

There is no cause of action for wrongful life by illegitimates: Pinkney v. Pinkney, 198 So.2d 52 (Fla. 1st DCA 1967), overruled on other grounds, Brown v. Brown, 300 So.2d 668 (Fla.1974); Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976); Zepeda v. Zepeda, 41 IIl.App.2d 240, 190 N.E.2d 849 (1963), cert. denied, 379 U.S. 945, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964); Williams v. State, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343 (1966); Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974).

It has also been held that there is no cause of action for wrongful life by an unwanted healthy child born as the result of a failed sterilization or abortion: Coleman v. Garrison, 349 A.2d 8 (Del.1975); Sala v. Tomlinson, 73 App.Div.2d 724, 422 N.Y.S.2d 506 (1979); Clegg v. Chase, 89 Misc.2d 510, 391 N.Y.S.2d 966 (1977). Nor is there a cause of action for wrongful life by an unwanted deformed child born as the result of a failed sterilization or abortion: LaPoint v. Shirley, 409 F.Supp. 118 (W.D.Tex. 1976); Elliott v. Brown, 361 So.2d 546 (Ala.1978); Stribling v. DeQuevedo, - Pa.Super. -, 432 A.2d 239 (1980).

The following eases have held there is no cause of action for wrongful life by a deformed child born as the result of the failure to diagnose and/or inform his parents regarding an inheritable disease: Gildiner v. Thomas Jefferson University Hospital, 461 F.Supp. 692 (E.D.Pa. 1978); Smith v. United States, 892 F.Supp. 654 (N.D.Ohio 1975); Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979); Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 22 A.L.R.3d 1411 (1967), overruled on other grounds, Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979); Becker v. Schwartz/Park v. Chessin, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Karlsons v. Guerinot, 57 App.Div.2d 73, 394 N.Y.S.2d 933 (1977); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979); Stewart v. Long Island College Hospital, 35 App.Div.2d 531, 313 N.Y.S.2d 502 (1970), affirmed, 30 N.Y.2d 695, 332 N.Y.S.2d 640, 283 N.E.2d 616 (1972); Speck v. Finegold, 268 Pa.Super. 342, 408 A.2d 496 (1979); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372, 83 A.L.R.3d 1 (1975). Only one case has been cited to us by appellants which lends support to the novel theory underlying an action for wrongful life by a deformed child born as the result of the failure to diagnose and/or warn his parents of an inheritable disease: Curlender v. Bio-Science Laboratories, 106 Cal.App.3d 811, 165 Cal.Rptr. 477 (1980).

We are invited by the appellants, in support of such an action, to pass beyond the horizon of the known world of law, however imperfect it may be, into a labyrinth of imponderabilities. We concur with the analysis of the Pennsylvania court in Speck v. Finegold, which wrote:

In the instant case, we deny Francine’s claim to be made whole. When we examine Francine’s claim, we find regardless of whether her claim is based on “wrongful life” or otherwise, there is a failure to state a legally cognizable cause of action even though, admittedly, the defendants’ actions of negligence were the proximate cause of her defective birth. Her claims to be whole have two fatal weaknesses. First, there is no precedent in appellate judicial pronouncements that holds a child has a fundamental right to be born as a whole, functional human being. Whether it is better to have never been born at all rather than to have been born with serious mental defects is a mystery more properly left to the philosophers and theologians, a mystery which would lead us into the field of metaphysics, beyond the realm of our understanding or ability to solve. The law cannot assert a knowledge which can resolve this inscrutable and enigmatic issue. Second, it is not a matter of taking into consideration the various and convoluted degrees of the imperfection of life. It is rather the improbability of placing the child in a position she would have occupied if the defendants had not been negligent when to do so would make her nonexistent. The remedy afforded an injured party in negligence is intended to place the injured party in the position he would have occupied but for the negligence of the defendant. Thus, a cause of action brought on behalf of an infant seeking recovery for a “wrongful life” on grounds she should not have been born demands a calculation of damages dependent on a comparison between Hobson’s choice of life in an impaired state and non-existence. This the law is incapable of doing.
Finally, we hold that the impossibility of this suit as to Francine comes not so much from the difficulty in measuring the alleged damages as from the fact, unfortunately, that this is not an action cognizable in law. Thus, the recognized principle, not peculiar to traditional tort law alone, that it would be a denial of justice to deny all relief where a wrong is of such a nature as to preclude certain ascertained damages, is inapposite and inapplicable here. Accordingly, plaintiffs’ complaint insofar as Francine’s claim for damages for “wrongful life” is concerned, does not present a legally cognizable action at law.

408 A.2d at 508.

We, therefore, affirm the trial court’s action in dismissing with prejudice the claim by Justin Moores for “wrongful life.”

II. THE CLAIM OF THE PARENTS

The cases dealing with wrongful birth fall into two major categories: (1) those cases arising from a failed sterilization or abortion; and (2) those cases arising from the failure to diagnose and/or warn of an inheritable disease.

Florida’s courts have recognized a cause of action arising from a failed sterilization or abortion. Public Health Trust v. Brown, 388 So.2d 1084 (Fla.3d DCA 1980); The Ladies’ Center of Clearwater, Inc. v. Reno, 341 So.2d 543 (Fla. 2d DCA 1977); Aronoff v. Snider, 292 So.2d 418 (Fla. 2d DCA 1974); Jackson v. Anderson, 230 So.2d 503 (Fla. 2d DCA 1970). There is no Florida decision addressing the issue of whether or not this state recognizes a claim for wrongful birth in a case arising from the failure to diagnose and/or warn of an inheritable disease.

We hold that there is a cause of action for the failure of a physician to diagnose and/or warn of an inheritable disease which results in the birth of a deformed child. Accord, Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979); Becker v. Schwartz/Park v. Chessin, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975).

On the issue of damages, we agree with the defendants that the claim for physical pain and suffering and mental anguish of Linda Moores arising from her pregnancy and giving birth was properly stricken, since Linda Moores wanted to become pregnant and bear a child, and the pregnancy and delivery in connection with Justin were no more difficult or painful than if he had been normal. The claim for past and future emotional pain and suffering resulting from the birth of Justin were properly stricken on the basis of the impact doctrine. Gilliam v. Stewart, 291 So.2d 593 (Fla. 1974); Herlong Aviation, Inc. v. Johnson, 291 So.2d 603 (Fla. 1974); Pazo v. Upjohn Co., 310 So.2d 30 (Fla. 2d DCA 1975). The claim for costs was properly stricken, since there was no statute or contract allowing for the recovery of costs. See 12 Fla.Jur.2d Costs § 3 (1979), and cases cited therein.

On the other hand, we agree with the plaintiffs that the trial court erred in striking their claim for past and future medical expenses for the extraordinary care involved in the treatment of Justin Daniel Moores’ physical abnormalities related to Larsen’s Syndrome. In Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975), an action was brought against a physician who failed to diagnose rubella during pregnancy, resulting in defects in the major organs of the child. The parents claimed they would have terminated the pregnancy had the doctor informed them of the rubella. The damages sought were medical expenses for treatment and care of the child and for the emotional suffering of the parents. The Texas Supreme Court, reversing the trial court, held that a cause of action was pleaded. After assuming that the mother would have legally terminated the pregnancy as she claimed, the Texas court reviewed cases in other states and observed the difficulties inherent in awarding damages “based upon speculation as to the quality of life and as to the pluses and minuses of parental mind and emotion.” After denying the recovery of emotional damages by the parents, the court then stated:

The economic burden related solely to the physical defects of the child is a different matter which is free from the above objection. These expenses lie within the methods of proof by which the courts are accustomed to determine awards in personal injury cases. No public policy obstacle should be interposed to that recovery. It is impossible for us to justify a policy which at once deprives the parents of information by which they could elect to terminate the pregnancy likely to produce a child with a defective body, a policy which in effect requires that the deficient embryo be carried to full gestation until the deficient child is bom, and which policy then denies recovery from the tortfeasor of costs of treating and caring for the defects of the child.

In conclusion, the Texas court held:

The plaintiffs George and Dortha Jacobs have stated a cause of action against Dr. Theimer. The suit for recovery of expenses reasonably necessary for the care and treatment of their child’s physical impairment, due to Mrs. Jacobs having contracted rubella, is not barred by considerations of public policy. This will be the limit of recovery allowable to plaintiffs. .. .

In a similar case arising in Wisconsin, Dumer v. St. Michael’s Hospital, 233 N.W.2d 372 (Wis. 1975), it was held that the parents of such a child, born with defects caused by rubella during pregnancy which was not diagnosed by the treating physician, were entitled to claim damages sustained because of the deformity and defects of the child. The Wisconsin court stated:

Their damages must be limited to those expenses which they have reasonably and necessarily suffered, and will to a reasonable medical certainty suffer in the future by reason of the additional medical, hospital and supportive expenses occasioned by the deformities of the child as contrasted to a normal, healthy child.

We concur with the reasoning and the results of the Texas and Wisconsin Supreme Courts in Jacobs and Dumer. In the instant case, Daniel and Linda Moores have pleaded a cause of action for the recovery of medical expenses for the extraordinary care involved in the treatment of Justin Daniel Moores’ physical abnormalities related to Larsen’s Syndrome, which is in excess of the cost of raising a normal child. Accordingly, we reversed the dismissal with prejudice of their complaint and reverse the striking by the trial court of that element of claimed damage; the striking of the other elements of claimed damage is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

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


author: HURLEY, Judge.

text:
    Ann Stell McDANIEL, as the Personal Representative of the Estate of I. Granger McDaniel, Appellant, v. Helen Hamill BERHALTER, Appellee. Helen Hamill BERHALTER, Appellant, v. Ann Stell McDANIEL, as the Personal Representative of the Estate of I. Granger McDaniel, Appellee.
    Nos. 79-2401, 79-2509.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.
    Rehearing Denied Dec. 3, 1981.

      Steven J. Gutter of Bofshever, Redlich & Gutter, Fort Lauderdale, for Ann Stell McDaniel.
    Philip Jansen of Jansen & DeGance, P. A., Fort Lauderdale, for Helen Hamill Ber-halter.
   HURLEY, Judge.

We are presented with cross-appeals from a judgment confirming an arbitrator’s award and foreclosing a mechanic’s lien based on that award. This appeal concerns the question of whether a party can shift the burden of attorney’s fees in arbitration by instituting a mechanic’s lien foreclosure action. The second issue on appeal is whether the trial court could add arbitration costs and pre-award interest to an arbitration award in rendering a final judgment based on the arbitration award. We affirm in part and reverse in part, and remand the case for further proceedings.

McDaniel, an architect, contracted with Berhalter to provide architectural services in connection with the construction of a residence. McDaniel supplied the contract form which contained a provision whereby the parties agreed to submit disputes to mandatory arbitration.

A dispute arose between the parties concerning the amount due under the contract. McDaniel filed a claim of mechanic’s lien and then instituted an action to foreclose the lien pursuant to Sections 713.01-37, Florida Statutes (1979). Berhalter responded by filing a motion to compel arbitration pursuant to the Florida Arbitration Code, Section 682.03, Florida Statutes (1979). The trial court granted the motion, ordered the parties to submit to arbitration, and abated the judicial proceeding pending arbitration.

The arbitrator heard evidence and entered an award in favor of McDaniel. The award specified that it was in full settlement of all claims.

About two months after issuance of the award, McDaniel filed a motion in the trial court requesting entry of final judgment based upon the arbitration award. He also requested taxation of fees and costs. At the hearing, Berhalter tendered the amount of the award but failed to tender the interest that had accrued from the time of the arbitrator’s award. The court entered a final judgment in favor of McDaniel for the amount of the arbitrator’s award, plus costs including the costs of the arbitration, plus interest including interest for a period predating the arbitrator’s award. The court also imposed a mechanic’s lien on Berhal-ter’s property, and ordered the property sold if the lien were not satisfied within a specified period. No attorney’s fees were awarded.

McDaniel appeals claiming that the court improperly denied his request for attorney’s fees both for the arbitration and for the foreclosure action. Berhalter appeals claiming that the court erroneously awarded the arbitration costs and interest predating the arbitration award.

This case concerns the interaction of two complex and confusing statutes: The Florida Mechanic’s Lien Statute, Sections 713.-01-.37, Florida Statutes (1979), and the Florida Arbitration Code, Sections 682.-01-22, Florida Statutes (1979). In Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973), we addressed one aspect of their interaction. In that case, the plaintiff had filed a motion to foreclose a mechanic’s lien. The defendant moved to dismiss the suit claiming that the parties had a contractual agreement to submit disputes to arbitration. We held that although a plaintiff may be required to arbitrate the issue of its entitlement to payment and the amount thereof, the plaintiff still retains the right to enforce an arbitration award by means of a mechanic’s lien. Id. at 839. We also set-out the proper procedure to be followed when a controversy subject to an agreement to arbitrate is before a trial court and a party makes an application to the court pursuant to Section 682.03(2) for an order to compel arbitration. We said:

Normally such an application should be granted. The order for arbitration should stay the judicial proceedings pending a determination of the controversy submitted to arbitration (see Section 682.-03(3)). Once the arbitration is completed, the trial court may on motion of either party dissolve the stay order and proceed to confirm, vacate or modify the award in accordance with Sections 682.12-682.14, F.S. 1971, F.S.A., and to enter a judgment in accordance with Section 682.15, F.S. 1971, F.S.A. Contemporaneously therewith, the court may adjudicate the right of the plaintiff to a mechanic’s lien for the purpose of enforcing such judgment as plaintiff may obtain.

Id. at 838-839. Mills, however, did not hold that the mere institution of a mechanics lien foreclosure action would operate to change a party’s rights under the Arbitration Code.

Attorney’s Fees

McDaniel claims that institution of a mechanic’s lien action should operate to entitle the prevailing party to attorney’s fees, including those incurred during arbitration. McDaniel relies on Section 713.29, Florida Statutes (1979), of the Mechanic’s Lien Statute which provides that:

In any action brought to enforce a lien under part I [the mechanic’s lien part], the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.

However, the general rule in Florida is that attorney’s fees associated with arbitration proceedings are recoverable only by statute or by a specific agreement between the parties. Beach Resorts International, Inc. v. Clarmac Marine Construction Co., 339 So.2d 689, 690 (Fla. 2d DCA 1976). The Florida Arbitration Code does not authorize attorney’s fees. Id. at 691. Therefore, fees incurred in contractual arbitration proceedings can only be recovered pursuant to an agreement between the parties. See Loxahatchee River Environmental Control District v. Guy Villa & Sons, Inc., 371 So.2d 111, 112 (Fla. 4th DCA 1979), cert. denied 378 So.2d 346 (Fla.1979). There is no claim in this case that any such agreement exists.

In Oakdale Park Ltd. v. Byrd, 346 So.2d 648 (Fla. 1st DCA 1977), and Beach Resorts International, Inc. v. Clarmac Marine Construction Co., 339 So.2d 689 (Fla. 2d DCA 1976), our sister courts addressed the question whether attorney’s fees incurred in the course of arbitration were recoverable because the party claiming entitlement to the fees had previously filed a suit to foreclose a mechanic’s lien and then prevailed in arbitration. Both courts held that the mere institution of an action to enforce a mechanic’s lien does not alter the parties rights under the arbitration provision in their contract. Accordingly, we hold that McDaniel had no right to recover attorney’s fees for services rendered in the course of arbitration.

An issue remains whether McDaniel had a right to recover any attorney’s fees pursuant to the Mechanic’s Lien Statute. In Beach Resorts, our sister court said that it would be improper to impose a lien unless the defendant refused to comply with the arbitration award. Id. at 691. In the present action, Berhalter tendered the amount of the arbitration award at the hearing to confirm that award. But Ber-halter did not tender the interest which had accrued from the entry of the arbitrator’s award (approximately two months). Since the tender was not the full amount due, it was not a good tender. Stager v. Florida East Coast Railway Co., 189 So.2d 192, 194 (Fla. 3d DCA 1966). Thus, the trial court was correct in imposing a lien on Berhal-ter’s property and McDaniel is entitled to recover attorney’s fees for those services directly related to enforcing the arbitration award.

Interest

The arbitrator’s award stated that it was in full settlement of “all claims.” Any claim McDaniel may have had to interest predating the award was extinguished by the award and, therefore, the final judgment’s award of interest should have been limited to that which accrued after the date of the arbitration award.

McDaniel argues that we should construe the court’s interest award as a permissible modification of the arbitrator’s award pursuant to Section 682.14(l)(a) or (c), Florida Statutes (1979). Such a construction would require us to ignore either the facts of this case or the language of Section 682.14. First, the record reveals no indication that the parties or the trial court considered that McDaniel was seeking a modification of the arbitrator’s award pursuant to Section 682.-14. Second, after reviewing the record we have found no facts that would support a modification pursuant to Section 682.14 which provides in pertinent part (emphasis added):

(1) Upon application made within 90 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award when:
(a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award.
(c) The award is imperfect as a matter of form, not affecting the merits of the controversy.

We are not convinced that the arbitrator’s failure to award interest explicitly and separately constitutes “an evident miscalculation of figures” or is “an evident mistake in . . . description.” Similarly, we are not convinced that any failure of the arbitrator to award interest is a mere “matter of form.” Thus, on the facts of this case, Section 682.14 did not authorize the trial court to modify the arbitrator’s award by adding interest for the period predating the award.

Costs

The trial court improperly increased the arbitrator’s award by adding the costs of the arbitration to the final judgment which confirmed the award. The Florida Arbitration Code provides:

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.

Section 682.11, Florida Statutes (1979) (emphasis added). Since the arbitrator could have awarded costs, the lump sum arbitration award bars McDaniel from seeking arbitration costs in addition to the award.

By contrast, McDaniel could recover the costs incurred in the proceeding brought to seek a judicial confirmation of the arbitration award. Section 682.15, Florida Statutes (1979), provides that the “[cjosts of the application [for confirmation of the arbitration award] and of the proceedings subsequent thereto, and disbursements may be awarded by the court.” We note that although McDaniel’s motion was styled a “Motion for Final Judgment,” the motion was essentially an application for confirmation of the arbitrator’s award and for a judgment in conformity therewith pursuant to Sections 682.12 and 682.15, Florida Statutes (1979).

Accordingly, we affirm in part and reverse in part and remand the cause with instructions to determine and award the appropriate amount of interest, costs and attorney’s fees.

DOWNEY and ANSTEAD, JJ., concur.

      . We find it unnecessary to reach Berhalter’s third ground for appeal.

      . The arbitration provision provided, in part, that:
      All claims, disputes and other matters in question between the parties to this Agreement, arising out of, or relating to this Agreement or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. ...
      The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

      . Fla.Stat. § 682.12:
      Upon application of a party to the arbitration, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 682.13 and 682.14.

      . Fla.Stat. § 682.15:
      Upon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements may be awarded by the court.


text:
    Frederick Eugene GAINES, Appellant, v. STATE of Florida, Appellee.
    No. AB-427.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.
    Rehearing Denied Dec. 10, 1981.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Gaines appeals judgments of guilty and sentences on three counts of an indictment on the grounds that he should have been treated as a youthful offender. We affirm appellant’s treatment as an adult on the counts of burglary of a dwelling and sexual battery.

However, we reverse the robbery conviction on the authority of King v. State, Case No. 80-1208 (Fla. 4th DCA July 1, 1981) [6 FLW 1569], Since robbery without a firearm, deadly weapon, or other weapon, is a second degree felony and not a crime punishable by death or life imprisonment, the charge should have been made by a delinquency petition rather than by indictment, Section 39.02(5)(c), Florida Statutes (1979). Therefore, we reverse appellant’s robbery conviction and direct the trial court to enter an order dismissing the robbery charge from the indictment without prejudice to the state attorney to proceed pursuant to Chapter 39.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Phillip PEZZELLA, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1427.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 4, 1981.
    Bennett H. Brummer, Public Defender, and James P. Ryan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

We reverse appellant’s conviction for possession of a controlled substance on the ground that the comment by a prosecution witness on the accused’s right to remain silent, to which defense counsel objected and moved for a mistrial, impermissibly prejudiced appellant’s right to a fair trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Clark v. State, 363 So.2d 331 (Fla.1978); Willinsky v. State, 360 So.2d 760 (Fla.1978); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Marshall v. State, 393 So.2d 584 (Fla. 1st DCA 1981); Harris v. State, 381 So.2d 260 (Fla. 5th DCA 1980); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979). Our ruling makes it unnecessary to consider the other grounds for reversal raised by appellant.

Reversed and remanded for new trial.


text:
    Jack MENDELSOHN and Bertha Mendelsohn, Appellants, v. CALDER RACE COURSE, INC. and St. Paul Fire and Marine Insurance Company, Appellees.
    No. 80-2248.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Nov. 25, 1981.

      Kelner & Kelner and Milton Kelner, Miami, for appellants.
    Talburt, Kubieki & Bradley and Betsey E. Hartley, Miami, for appellees.
    Before DANIEL S. PEARSON and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Hilgenhurst v. Knight-Ridder Newspaper, Inc., 400 So.2d 523 (Fla. 3d DCA 1981); Nance v. James Archer Smith Hospital, Inc., 329 So.2d 377 (Fla. 3d DCA 1976), cert. denied, 339 So.2d 1171 (Fla. 1976); Seaboard Air Line Railroad Company v. Ellis, 143 So.2d 550 (Fla. 3d DCA 1962).


text:
    Harold C. VANSCYOC, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2185.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Rehearing Denied Dec. 4, 1981.
    Sheryl Lowenthal Javits, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

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

Affirmed.


author: BERANEK, Judge.

text:
    Gwenn SCHEMER and Michael Schemer, Appellants, v. Sydney PECK, M.D., and Peck & Glazer, P.A., Appellees.
    No. 80-2182.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 10, 1981.

      Sharon L. Wolfe, Joan M. Bolotin, Marc Cooper and Robyn Greene of Greene & Cooper, P.A., and Arturo Alvarez of Alvarez & Gamba, P.A., Miami, for appellants.
    Frederick E. Hasty, III, of Thornton & Herndon, Miami, for appellees.
   BERANEK, Judge.

Plaintiff appeals a final dismissal with prejudice of her complaint for failure to comply with a discovery order. We reverse. The facts are not disputed. An agreed order was entered in this medical malpractice case on June 9, 1980, giving plaintiff twenty (20) days to respond to certain interrogatories and a request for production. Plaintiff did not respond and defense counsel filed a motion to dismiss for failure to comply with the order. There was no contact between counsel and at the hearing plaintiff’s counsel indicated he had sustained two knee injuries and an episode with influenza which was responsible for his inability to comply with the discovery order. At the time of the hearing he had the answers to interrogatories in handwritten form and was prepared to file them the following day. Under these circumstances we conclude the sanction of dismissal of the case with prejudice was too severe and constituted an abuse of discretion by the trial court. Plaintiff’s counsel agreed to an order imposing costs and attorneys’ fees and further advised that the delay was due to his own fault rather than his client’s . Under these circumstances we reverse and remand for further proceedings which should include consideration of imposition of costs and attorneys’ fees. See Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971); Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971); and Hurley v. Werly, 203 So.2d 530 (Fla. 2d DCA 1967).

REVERSE AND REMAND.

GLICKSTEIN, J., concurs.

MOORE, J., dissents without opinion.


author: HERSEY, Judge.

text:
    Vernon STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 80-894.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Vernon Stephens appeals his conviction of first degree burglary and robbery.

Other than the erroneous assessment of costs to an indigent defendant, only one of appellant’s points on appeal requires analysis. There is no merit in the attack on identification procedures and identification testimony nor in appellant’s contention that his conviction on both of the two crimes charged constitutes double jeopardy.

Appellant requested a jury instruction on the crime of assault as a lesser included offense of the charge that appellant did “unlawfully enter or remain in a conveyance, to wit: a 1978 Datsun, property of Frances Evelyn Wood, with intent to commit the offense of Robbery therein, and in the course thereof did make an assault upon Frances Evelyn Wood.” The instruction was also requested on the basis that “assault is mentioned in the main charge.” The court denied appellant’s request, but gave the standard jury instruction on simple burglary followed by a charge on the aggravating circumstances of committing an assault while in the premises. However, the court never defined assault. This was error.

If assault was only a lesser included offense of the crime charged, the error would be harmless since the jury was instructed as to the next immediate lesser included offense, simple burglary, but chose to convict appellant as charged. State v. Abreau, 363 So.2d 1063 (Fla.1978). Assault, however, is more than a lesser included offense here; it is an essential element of “burglary of a premises and while therein committing an assault.” See Florida Standard Jury Instructions in Criminal Cases, 1981 Edition. Therefore, a definition of the term “assault” is a necessary part of the jury instruction concerning the crime with which appellant was charged. Failure to give such an instruction was reversible error.

Accordingly, appellant’s conviction is reversed and the cause remanded for a new trial.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    R. Mark HUNTER, Petitioner, v. The Honorable Arthur J. FRANZA as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.
    No. 81-1330.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 9, 1981.

      William B. Seidel, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied. Involved here is a denial by the trial court of petitioner’s motion for discharge. Petitioner was initially returned to Florida pursuant to a request for custody made through the provisions of the Interstate Agreement on Detainers Act, Sections 941.45 to 941.50, Florida Statutes (1979). Under Section 941.45(4)(c) petitioner was entitled to be tried within 120 days of his arrival in Florida. This is in the nature of a speedy trial requirement. As a result of certain intervening federal court actions and a continuance granted to petitioner because of a change of counsel, trial did not take place within the prescribed period. Petitioner takes the position that expiration of the speedy trial time ousted the circuit court of its jurisdiction so that prohibition is the appropriate remedy.

We decided this issue adverse to petitioner’s position in Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA 1981). Subsequently our sister court, the Fifth District, in Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981), felt compelled by Supreme Court precedents to decline to follow Sherrod although the dissent points out, as we have held, that a violation of the procedural rule could not be jurisdictional. The majority in that case relies specifically on Dickoff v. Dewell, 152 Fla. 240, 9 So.2d 804 (1942) and Feger v. Fish, 106 Fla. 564, 143 So. 605 (1932).

In Dickoff, the Supreme Court directly refers to “safeguarding the constitutional rights of the individual” as a predicate for granting prohibition. In Fish the court held:

When a court by its affirmative action denies to the accused the rights guaranteed to him under section 11 of the Declaration of Rights, such action on the part of the Court is in excess of its jurisdiction and, therefore, may be reached by prohibition. 143 So.2d 605, 606.

Whether or not the Supreme Court, if it were today confronted with the question of whether a violation of an individual’s constitutional speedy trial rights ousts the circuit court of its jurisdiction, would follow these early cases and respond affirmatively is problematical. What seems reasonably fair to state, however, is that the Supreme Court has not determined that a violation of the procedural rule which simply implements the constitutional right affects the jurisdiction of the offending court.

There can be no question that the constitutional right and the procedural right are not coextensive. The former is measured by the test of reasonableness; the latter by stated periods of time. The constitutional right to a speedy trial displaces the rule when speedy trial as provided by the rule is waived and in certain other circumstances. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). Thus even if a violation of an individual’s constitutional right to a speedy trial ousts the trial court of jurisdiction, which we tend to doubt, it seems reasonably certain that a mere violation of the procedural speedy trial rule does not have that drastic effect. We therefore respectfully create conflict with the Bates court.

Having concluded that the statute involved here is in effect a speedy trial rule, at least for the purpose of a determination of the propriety of prohibition, we hold that that extraordinary remedy is not available and therefore deny the writ.

PROHIBITION DENIED.

BERANEK and HERSEY, JJ., concur.

ANSTEAD, J., concurs in conclusion only.


text:
    Donald Dale BIJOLLE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2225.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Simmons v. State, 287 So.2d 720 (Fla.3d DCA 1974), cert. discharged, 305 So.2d 178 (Fla.1974); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Randolph v. State, 292 So.2d 374 (Fla.3d DCA 1974), cert. denied, 300 So.2d 901 (Fla.1974).


author: BASKIN, Judge.

text:
    Mickey SAUNDERS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-874.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Bennett H. Brummer, Public Defender, and Stuart H. Gitlitz, Sp. Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   BASKIN, Judge.

Because we discern no fundamental error in the trial court’s instructions to the jury, we affirm defendant Saunders’ convictions for burglary of a structure and battery. The information alleged that during the burglary Saunders assaulted Neil Chris-tiansen by “striking him about the head and body.” Initially, and without objection by defense counsel, the court gave no instruction on the element of assault, but subsequently, in response to a request by the jury, the court defined assault in dictionary terms. In so doing, the court imposed a greater burden upon the state than that encompassed in the legal definition of assault, but in view of the wording of the information, the court’s instruction was not inappropriate.

We find error in the court’s sentence for battery imposed in Count II. According to section 784.08(2), Florida Statutes (1979), battery is a misdemeanor of the first degree. The punishment for a misdemeanor of the first degree is a term of imprisonment not exceeding one year. § 775.-082(4Xa), Fla.Stat. (1979). The sentence of four years imprisonment followed by two years in a community control program with a mandatory minimum of one year imprisonment, imposed in accordance with the youthful offender statute, section 958.05, Florida Statutes (1979), exceeds the lawful maximum for the crime of battery. Rejecting as without merit the state’s argument that because defendant “reaped the benefit” of a lawful sentence in Count I, he should not be allowed to complain about an unlawful sentence in Count II, we reduce the sentence for Count II to one year imprisonment concurrent with Count I and vacate the mandatory minimum imposed in Count II.

Affirmed as modified.

      . The court defined assault as “a violent onset or attack or onslaught literally as by means of blows, weapons, et cetera.”

      . An assault is an intentional unlawful threat by word or act to do violence to the person of another coupled with an apparent ability to do so and doing some act which creates a well-founded fear in such other person that such violence is imminent.
      Fla.Std.Jury Instr. (Crim.) 2.06 (in effect at the time of the trial). This definition tracks the language of section 784.011, Florida Statutes (1979).


text:
    Kurt L. JENKINS, Appellant, v. Esther T. VENTURA, Appellee.
    No. 80-1912.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Javits & Karp and David B. Javits, Miami, for appellant.
    Walton & Garrick and Wallace I. Garrick, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (1948); Home Ins. Co. of New York v. Handley, 120 Fla. 226, 162 So. 516 (1935); Southern Express Co. v. VanMeter, 17 Fla. 783 (1880).


text:
    Rodger SHEETS, Appellant, v. Patricia E. SHEETS, Appellee.
    No. 80-2064.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    John A. Finn, Miami, for appellant.
    Maurice J. Kutner, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Robert E. SCHUR, Appellant, v. Laura A. SCHUR, Appellee.
    Nos. 80-2142, 80-2424 and 81-312.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Dec. 4, 1981.
    Bailey & Dawes and Jesse C. Jones, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, A.. J. Barranco, Jr., and Steven Kellough, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Affirmed on authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Barry SEINFELD, Appellant, v. COMMERCIAL BANK & TRUST COMPANY, a Florida banking corporation, Appellee.
    No. 80-2433.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.

      Lyons & Farrar and Marsha L. Lyons, Miami, for appellant.
    Levine, Reckson, Reed & Geiger and Robert S. Geiger, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

In unjustified reliance on the representations of a lady friend named Rachel Wolfson that they would not be negotiated, Barry Seinfeld gave her three checks, to-talling $160,000, payable to the order of Wolfson’s corporation, Yahalomit, Inc. Predictably enough, Wolfson almost immediately deposited the checks to the corporate account at the Commercial Bank & Trust Co., the present appellee. Although that account was then in an overdraft position of some $57,000, Wolfson requested that the cheeks be given immediate clearance. This was granted at once, notwithstanding that Commercial had no prior acquaintance with Seinfeld, and did not ask Seinfeld’s bank, Great American, the status of the account upon which the checks were drawn, an inquiry which would have revealed a balance of about $2,000. Commercial then credited the overdrawn balance and permitted Wolfson to make additional withdrawals against the checks in the total sum of $157,402.09. When the checks were dishonored by Great American for insufficient funds, Commercial sued Seinfeld for that amount plus interest, alleging that it had become a holder in due course of the instruments. Seinfeld’s amended answer denied this and asserted his non-liability on the checks essentially on the ground of fraud in the inducement. This appeal is from a summary final judgment entered in the bank’s favor. We reverse on a holding that the bank did not carry its required statutory and procedural burden conclusively to establish its status as a holder in due course with the consequent right to recover on the checks as a matter of law.

When the summary judgment was entered the trial court had before it Seinfeld’s affidavit and deposition which basically described the circumstances under which he wrote the checks and the status of his bank account. On the other side, the bank supported its motion with a single affidavit, that of Robert Singleton, the vice-president in charge of operations at the branch office where Wolfson’s account was located. The affidavit recounted the series of events concerning the presentation, immediate clearance and crediting of the checks which has been described. As to the bank’s knowledge of the surrounding circumstances and its own role in the transactions, Singleton, who was not shown to have met with Wolf son or otherwise to have personally participated in the decision-making process, stated only,

Affiant, upon personal knowledge, as well as information and belief states that between June 18, 1980 and June 19, 1980, the Bank had no knowledge, nor was it put on notice by any third party that the subject checks would not be honored upon presentment; that any person, including the maker, had any defense or claim against the payee effecting the validity or enforceability of the subject instruments; and the Bank at all times acted and intended to act honestly and in good faith with respect to the instruments in question.

This portion of the affidavit was obviously an attempt to track the statutory requisites of a holder in due course that he take the instrument “in good faith,” Section 673.-302(l)(b), Florida Statutes (1979) — which is in turn defined as “honesty in fact in the conduct or transaction concerned,” Section 671.201(19) — and “without notice ... of any defense against or claim to it on the part of any person.” Section 673.302(1)(c).

As the party claiming that it was a holder in due course, the bank had the burden affirmatively to establish that this was the case. Section 673.307(3), Florida Statutes (1979). In moving for summary judgment on that issue, moreover, it was required conclusively to establish the nonexistence of a genuine issue of material fact, Holl v. Talcott, 191 So.2d 40 (Fla.1966), concerning its good faith in paying on the instruments and lack of notice of Seinfeld’s defenses to them. It is clear that the general statements in the affidavit, which are framed in terms only of conclusions of law, do not satisfy that burden. See Falls Poultry Distributing’ Co. v. Canner, 372 So.2d 129 (Fla.3d DCA 1979) and cases collected; Freeman v. Equilease Corp., 346 So.2d 619 (Fla.3d DCA 1977). In addition, since as the bank correctly contends, the issue of both “good faith,” see Baraban v. Manatee National Bank of Bradenton, 212 So.2d 341 (Fla.2d DCA 1968); Frantz v. First National Bank of Anchorage, 584 P.2d 1125 (Alaska 1978), and lack of notice, Section 671.-201(25) Florida Statutes (1979) are based upon the bank’s subjective knowledge and state of mind, the failure to submit the testimony of those employees who actually dealt with Wolf son concerning these facts made it impossible, on the face of the matter, for the movant to sustain its position on these questions. See also, Campbell v. Salman, 384 So.2d 1331, 1333 (Fla.3d DCA 1980).

Furthermore, while we might agree with the bank that, standing alone, neither its indulgence of a chronically overdrawn depositor, St. Cloud National Bank & Trust Co. v. Sobania Construction Co., Inc., 302 Minn. 71, 224 N.W.2d 746 (1974) nor its failure to observe the normal commercial practices of waiting for the checks to clear and determining the balance in Seinfeld’s account before paying on them might not have been sufficient evidence of “bad faith,” see Frantz v. First National Bank of Anchorage, supra; Exchange National Bank of Winter Haven v. Beshara, 236 So.2d 198 (Fla.2d DCA 1970), the coexistence of all these factors raises at least a reasonable inference that the bank acted as precipitately and “foolishly” as it did in order to attempt to shift to Seinfeld its own probable loss from Wolfson’s machinations—an intent and motivation which demonstrate the antithesis of good faith. Community Bank v. Ell, 278 Or. 417, 564 P.2d 685, 691-92 (1977), rehearing denied, 279 Or. 245, 566 P.2d 903 (1977). It is true that the Florida version of the holder in due course provision of the U.C.C. does seem to protect the objectively stupid so long as he is subjectively pure of heart. See Frantz v. First National Bank of Anchorage, supra; J. White & R. Summers, Uniform Commercial Code § 14-6 (2d ed. 1980); compare, Potter Bank & Trust Co. v. Massey, 11 Misc.2d 523, 171 N.Y.S.2d 27 (Sup.Ct.1958) (applying original U.C.C. § 3-302(1)(b) requirement of “good faith including observance of the reasonable commercial standards of any business in which the holder may be engaged.”) But playing dumb is not the same as being dumb. A mere protestation of one’s own innocence is not enough conclusively to demonstrate that this is really true when the trier of fact could find from the admitted circumstances that something more than simplemindedness lay behind the conduct in question.

Surely, the “circumstances of the holder’s taking the checks were [not] free of all doubt” so as to permit the summary disposition rendered below. Northside Bank of Tampa v. Investors Acceptance Corp., 278 F.Supp. 191, 192 (W.D.Pa.1968); see also, duPont v. County National Bank of North Miami Beach, 369 So.2d 443 (Fla.3d DCA 1979); Travelco of Florida, Inc. v. Burnett, 338 So.2d 50 (Fla.3d DCA 1976), cert. denied. 345 So.2d 421 (Fla.1977); A. B. G. Investment, Inc. v. Selden, 336 So.2d 444 (Fla.4th DCA 1976); Vernon v. Yanks, 303 So.2d 375 (Fla.3d DCA 1974). It is therefore reversed and the cause remanded for further consistent proceedings.

Reversed.

      . It is clear that fraud in the inducement is a personal defense of the maker which is not available against a holder in due course. Section 673.305, Florida Statutes (1979); Citizens National Bank of Englewood v. Fort Lee Savings and Loan Association, 89 N.J.Super. 43, 213 A.2d 315 (1965); Citizens National Bank of Quitman v. Brazil, 141 Ga.App. 388, 233 S.E.2d 482 (1977); see Bank of America v. Dade Federal Savings & Loan Association of Miami, 154 So.2d 191 (Fla.3d DCA 1963) (pre-U.C.C. law.)

      . Section 673.302(1) provides in its entirety 673.302 Holder in due course.—
      (1) A holder in due course is a holder who takes the instrument:
      (a) For value; and
      (b) In good faith; and
      (c) Without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.

      . The third requirement, that a holder take the instrument “for value,” Section 673.302(1)(a), was clearly satisfied by the bank’s payments and credits upon the checks, even though they were initially taken for collection. Sections 674.208(1)(a), 674.209, Florida Statutes (1979); Exchange National Bank of Winter Haven v. Beshara, 236 So.2d 198 (Fla.2d DCA 1970).

      . The notion of a bank as Parsifal may strike one as the quintessential paradox.


text:
    EASTERN ELEVATOR SERVICE CORPORATION, Appellant, v. CHESTNUT HILL CONDO APARTMENTS, Appellee.
    No. 80-2526.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Jeanne Heyward, Ligman, Martin, Shiley & McGee, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Charles Poe Masonry v. Spring Lock Scaffold, 374 So.2d 487, 489 (Fla. 1979); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507, 511 (Fla. 1973).


text:
    CITY OF MIAMI, et al., Appellants, v. William FARRINGTON, Appellee. CITY OF MIAMI, etc., Appellant, v. Donald R. JOYCE, Appellee.
    Nos. 81-46, 81-505.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for City of Miami.
    Pelzner, Schwedock, Finkelstein & Klaus-ner and Robert D. Klausner, Miami, for William Farrington.
    Korner & O’Brien and Robert D. Korner, Coral Gables, for Donald R. Joyce.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Yates v. Rezeau, 62 So.2d 726 (Fla. 1952); § 295.14(2), Fla.Stat. (1980); § 295.09, Fla.Stat. (1978).


text:
    J. D. PRICE, Appellant, v. E. R. SCHARPS, Appellee.
    No. 81-342.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Colodny & Fass and James H. Greason, North Miami, for appellant.
    Mark W. Kay, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

The appellee Scharps, the owner of a thoroughbred mare named Miss Vertex, agreed to pay a $5000 stud fee to Farns-worth Farms for the services of its stallion, Diplomat Way. The sum was payable upon the birth of a live foal. After Miss Vertex became in foal, Scharps sold her to Breezy-hill Farms, with the agreement that he would remain liable for the $5000. Breezy-hill then conveyed the mare to the appellant Price. Although Miss Vertex in fact subsequently delivered a foal, Scharps did not pay the stud fee to Farnsworth. Price, however, did and thereafter brought this action to recover the $5000 from Scharps. His second amended complaint was dismissed with prejudice and he appeals.

We reverse because the complaint stated a cause of action on the theory that Price was subrogated to Farnsworth’s claim against Scharps. Equitable subrogation affords relief in essentially every situation in which a non-volunteer pays a debt or discharges an obligation which in good conscience should have been met by another. Trueman Fertilizer Co. v. Allison, 81 So.2d 734 (Fla.1955); Rebozo v. Royal Indemnity Co., 369 So.2d 644 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1979), and cases cited. The principle has clear application to this situation. Scharps had the primary, indeed the exclusive obligation for the stud fee, and gained personal benefit from those services in the form of a presumably increased price for the sale of Miss Vertex while in foal. It is therefore obviously fair and equitable that he should remain responsible for the $5000 fee.

On the other hand, Price was plainly not a “mere volunteer” in making the payment himself. By virtue of Section 713.70, Florida Statutes (1979), Farnsworth held a lien for the stud fee on both Miss Vertex and the foal, which Price, as their owner, had a direct interest in discharging. It is well settled that

[a] purchaser of property on which there is an encumbrance is not a volunteer in discharging the encumbrance, and, where he is not primarily obligated to pay the encumbrance, and justice and equity require it, he may be subrogated to the rights of the holder of the encumbrance.

83 C.J.S. Subrogation § 32 (1953). This principle applies both to realty, McDermott v. Steck Co., 138 S.W.2d 1106 (Tex.Civ.App. 1940) and, as here, to chattels. Hunter v. Jennings, 216 Ark. 886, 227 S.W.2d 946 (1950) (purchaser of truck subrogated to bank’s rights after payment of prior owner’s note); Ellis-Jones Drug Co. v. Coker, 156 Miss. 775, 125 So. 826 (1930) (purchaser of stock of goods not a volunteer and entitled to subrogation for payment of mortgage). It requires reversal of the order below.

Reversed.

      . We agree that the counts based on assignment, amount stated, and open account were properly dismissed.

      . Scharps relies on the possibility that Price may have paid Farnsworth before the foal was actually bom and therefore before the appellee was obliged to make payment. Since the foal was in fact born, however, this circumstance, even if true, would have no effect upon Scharps’ liability to Price, as the one who paid a debt for which he was primarily liable.


author: DANIEL S. PEARSON, Judge.

text:
    Richard H. WISKEMAN, III, Appellant, v. FIRST BANK OF HOLLYWOOD BEACH, a Florida banking association, Appellee.
    No. 81-639.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.

      Britton, Cohen, Kaufman, Benson & Schantz and John T. Kinsey, Miami, for appellant.
    No appearance for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the summary final judgment entered against Wiskeman upon a holding that the trial court erred in refusing to consider Wiskeman’s affidavit and deposition testimony filed with his timely motion for rehearing of the judgment, Hatmaker v. Advance Mortgage Corporation, 351 So.2d 728 (Fla. 4th DCA 1977); Berrol v. Concord Florida, Inc., 305 So.2d 310 (Fla.3d DCA 1975); National Properties, Inc. v. Ballenger Corporation, 277 So.2d 29 (Fla.3d DCA 1973); Fernandez v. Cunningham, 268 So.2d 166 (Fla.3d DCA 1972); see Holl v. Talcott, 191 So.2d 40 (Fla.1966); but see Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980); Gulewicz v. Cziesla, 366 So.2d 507 (Fla.2d DCA 1979); Willis v. L. W. Foster Sportswear Co., Inc., 352 So.2d 922 (Fla.2d DCA 1977) (all holding that the trial court should reject affidavit filed on rehearing of summary judgment unless exigent circumstances exist to excuse the late filing), which affidavit and depositions supported Wiske-man’s appropriate affirmative defenses that he was not liable on his personal guaranty of a corporation’s loan obligation because (a) he had revoked the guaranty, see Miami National Bank v. First International Realty Investment Corporation, 364 So.2d 873 (Fla.3d DCA 1978); and (b) the bank had abandoned its reliance on the guaranty, see Burt v. Community National Bank of Bal Harbour, 142 So.2d 118 (Fla.3d DCA 1962), and raised issues of material fact precluding summary judgment for the bank, Johnson & Kirby, Inc. v. Citizens National Bank of Fort Lauderdale, 338 So.2d 905 (Fla.3d DCA 1976); Emile v. First National Bank of Miami, 126 So.2d 305 (Fla.3d DCA 1961).

Reversed and remanded.


text:
    Joella BOZE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-713.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.

      Bennett H. Brummer, Public Defender, and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Hegstrom, 401 So.2d 1343 (Fla. 1981).


text:
    Paul FUSILLO, Appellant, v. GORAL ENTERPRISES, INC., a Florida Corporation, d/b/a Goral Plumbing, Appellee.
    No. 81-917.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Leib, Martinez & Mark and Lawrence R. Davidson, Coral Gables, and Pam Scott, for appellant.
    Anthony J. Scremin, Miami, for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1980).


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

text:
    Peter L. NILES, Appellant, v. The COUNTY OF VOLUSIA, a political subdivision of the State of Florida, Appellee. Velta A. BULTA and Richard F. Morgan and Jean W. Morgan, his wife, Appellants, v. The COUNTY OF VOLUSIA, a political subdivision of the State of Florida, Appellee.
    Nos. 81-1064, 81-1102.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.
    On Motion to Correct Order.
    On Motion to Dismiss Dec. 16, 1981.

      William L. Coalson of Greene & Greene, P.A., Jacksonville, for appellant Niles.
    Charles Tindell, PA. of Daytona Beach, for appellants Bulta and Morgan.
    David A. Monaco of Cobb & Cole, P.A., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

ON MOTION TO DISMISS

Appellee Volusia County has moved to dismiss the appeals of Peter L. Niles and Velta A. Bulta, Richard F. Morgan and Jean W. Morgan, which have been consolidated for review. These cases arose from condemnation suits to take lands of appellants for use in the construction of a civic center. The order appealed is the “Order of Taking” entered July 29, 1981. Sums representing the “good faith” estimates of value were deposited into the registry of the court as required by the order of taking. These sums were withdrawn by appellants.

Volusia County contends that the cases should be dismissed because appellants withdrew the deposits from the court’s registry. Its argument is based on the general rule that one may not accept the benefits under a judgment and then appeal from it when the effect of the appeal would be to amend the judgment as a whole. See, e. g., Erwin v. Brooks, 297 So.2d 314 (Fla.2d DCA 1974); State Road Dept. v. Hartsfield, 216 So.2d 61 (Fla. 1st DCA 1968). The County also refers to section 73.131, Florida Statutes (1979), which provides that if a condemnee appeals the final judgment, withdrawal of the amount due him results in an automatic dismissal of the appeal. While acknowledging that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) treats the order of taking as a non-final order, the County argues that the order of taking possesses all the attributes of a final order, see Spafford v. Brevard County, 92 Fla. 617, 110 So. 451 (1926), and hence should be treated as a final order or judgment for purposes of the “acceptance of benefits” rule.

Appellants argue that the order of taking is clearly a non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) and hence the “acceptance of benefits” rule does not apply. Appellants also direct us to several cases in which appeals were taken after the landowners had withdrawn the good faith estimate of value. See Hatch v. Minot, 369 So.2d 974 (Fla. 2d DCA 1979); Griffin v. City of Jacksonville, 299 So.2d 90 (Fla. 1st DCA 1974).

The order of taking in the present case is a non-final order. Florida Rule of Appellate Procedure 9.130(a)(3) provides that review of non-final orders of lower, tribunals is limited to those which: “(C) determine: (ii) right to immediate possession of property.” The 1977 Advisory Committee and Court’s Commentary to the foregoing rule states:

Item (C)(ii) is intended to apply whether the property involved is real or personal. It applies to such cases as condemnation suits where a condemnor is permitted to take possession and title to real property in advance of final judgment.

The order of taking here recites that Volusia County is entitled to take possession of and fee simple title to the properties involved and hence falls within the purview of Rule 9.130(a)(3)(C)(ii). See also Cement Products Corp. v. Division of Admin., etc., 363 So.2d 866 (Fla. 2d DCA 1978) (an order of taking entered in an eminent domain proceeding pursuant to chapter 74 is not final but rather interlocutory in nature).

The cases cited by Volusia County reflect that the “acceptance of benefits” rule applies only to a final adjudication on the merits. See Erwin v. Brooks, 297 So.2d 314 (Fla. 2d DCA 1974) (judgment in a partition proceeding); State Road Dept. v. Hartsfield, 216 So.2d 61 (Fla. 1st DCA 1968) (judgment in eminent domain proceedings). Likewise, the “acceptance of benefits” provision of chapter 73 (“Slow-Take” Proceedings) provides in part as follows:

If, at any time after entry of the judgment, a defendant shall take out of the court the amount due him, any pending appeal taken by him shall be dismissed by the appellate court upon the filing of a certificate by the clerk of the circuit court stating that the defendant taking the appeal has withdrawn the amount due him. (Emphasis added)

§ 73.131, Fla.Stat. (1979).

As was noted above, chapter 73 proceedings are commonly referred to as “slow-take” proceedings. Chapter 74 proceedings are commonly referred to as “quick-takings” because certain entities are permitted to take possession and title to property before entry of the final judgment. See § 74.021, Fla.Stat. (1979). Chapter 74 does not contain an automatic dismissal provision comparable to the one found in chapter 73. The County has cited no authority for the proposition that the Legislature intended to broaden the scope of the automatic dismissal provision in chapter 73 to include the withdrawal of the good faith estimate prior to entry of final judgment. In fact, the omission of such a provision in chapter 74 supports the position that the “acceptance of benefits” rule in eminent domain proceedings was intended to apply only after entry of final judgment.

Therefore, Volusia County’s motion to dismiss is denied.

DAUKSCH, C. J., and COWART, J., concur.

ON MOTION TO CORRECT ORDER ON MOTION TO DISMISS

FRANK D. UPCHURCH, Jr., Judge.

Velta Bulta and Richard and Jean Morgan have petitioned this court to correct an error contained in the opinion issued November 11,1981. The statement that Volu-sia County moved to dismiss the appeals of Peter Niles and Velta Bulta, Richard Morgan and Jean Morgan is incorrect. Volusia County moved to dismiss the appeal of Peter Niles but did not move to dismiss the appeal of Velta Bulta and the Morgans. Our opinion also incorrectly reflects that Velta Bulta and the Morgans withdrew the good faith estimate of value deposited into the court’s registry by Volusia County. The opinion of November 11,1981, is hereby amended to reflect these corrections.

DAUKSCH, C.J. and COWART, J., concur.

      . This is also the conclusion reached in the Florida Eminent Domain Practice and Procedure Manual (3rd ed. 1977). Section 5.12 entitled “Withdrawal of Good Faith Estimate” reads in part:
      It is important to note that a withdrawal of the fair estimate before entry of the final judgment is not a waiver of the right to contest the taking. Withdrawal after the final judgment does constitute a waiver, however.