author: ORFINGER, Judge.

text:
    Richard J. OSTERNDORF and Pauline F. Osterndorf, Appellants, v. John TURNER, etc., et al., Appellees.
    No. 81-864.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.

      Richard J. Osterndorf, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., and Barbara Sta-ros Harmon, Asst. Atty. Gen., Tallahassee, for appellees.
   ORFINGER, Judge.

Appellants appeal from a final order of the trial court upholding the constitutionality of section 196.031(3)(e), Florida Statutes (Supp.1980). This statute grants an enhanced homestead exemption to persons otherwise entitled to the exemption and who have been residents of the state for the five consecutive years prior to claiming the exemption. We affirm.

In October, 1980, Article VII, section 6, of the Florida Constitution was amended by the electorate so as to provide, in pertinent part, as follows:

By general law and subject to conditions specified therein, the exemption shall be increased to a total of the following amounts of assessed value of real estate for each levy other than those of school districts: fifteen thousand dollars with respect to 1980 assessments; twenty thousand dollars with respect to 1981 assessments; twenty-five thousand dollars with respect to assessments for 1982 and each year thereafter, (emphasis supplied).

Conditioned upon the approval and taking effect of the foregoing amendment, the Legislature had adopted section 196.-031(3)(e), which provides:

For every person who is entitled to the exemption provided in subsection (1) and who has been a resident of this state for the 5 consecutive years prior to claiming the exemption under this subsection, the exemption is increased to a total of the following amounts of assessed valuation for levies of taxing authorities other than school districts: $15,000 with respect to 1980 assessments; $20,000 with respect to 1981 assessments and $25,000 with respect to assessments for 1982 and each year thereafter. However, the increase provided in this paragraph shall not apply with respect to the assessment roll of a county unless and until the roll of that county has been approved by the executive director pursuant to section 193.114.

Appellants, who own real property in Volusia County, but who have resided there for less than five years, challenged the five-year residency requirement prerequisite to their eligibility for the $25,000 homestead exemption in the year 1982, contending that it created an arbitrary, capricious and discriminatory classification, thus violative of appellants’ rights of equal protection and due process under both the federal and state constitutions.

After the pleadings were in, both parties moved for summary judgment. The trial court entered final summary judgment for the appellees, holding that the right to receive an increased ad valorem tax exemption is not a fundamental right guaranteed either explicitly or implicitly by the United States Constitution; that an increased ad valorem tax exemption is not a basic necessity of life so that the statute under attack did not penalize the exercise of the constitutional right to travel; that the equal protection test was the “rational basis” test and that the asserted legislative purposes behind the statute include requiring new residents to help offset their immediate fiscal impact upon local government’s capital outlay, while affording long-term residents the increased exemption made possible by their tax dollars.

Appellants’ principal argument is that section 196.031(3)(e), in providing for an increased ad valorem tax exemption unconstitutionally discriminates between homeowners who have been residents of the state for five or more consecutive years and those who have not resided in Florida for at least five years. Appellants submit that the trial court in its equal protection analysis, erred in applying the “rational basis” test and in not applying the “strict scrutiny” test to this legislative classification, arguing that the enactment interferes with the fundamental right to travel and that the state failed to show that the distinction between residents furthers a compelling state interest. In the case of In re Estate of Greenberg, 390 So.2d 40 (Fla.1980), our Supreme Court analyzed the equal protection decisions of the United States Supreme Court and concluded that:

The strict scrutiny analysis requires careful examination of the governmental interest claimed to justify the classification in order to determine whether that interest is substantial and compelling and requires inquiry as to whether the means adopted to achieve the legislative goal are necessarily and precisely drawn. This test, which is almost always fatal in its application, imposes a heavy burden of justification upon the state and applies only when the statute operates to the disadvantage of some suspect class such as race, nationality, or alienage or impinges upon a fundamental right explicitly or implicitly protected by the constitution. Those fundamental rights to which this test applies have been carefully and narrowly defined by the Supreme Court of the United States, [citations omitted].

Id. at 42.

The right to travel has been recognized by the United States Supreme Court as a fundamental right and durational residency requirements, because they disadvantage a class of persons who have recently exercised the right, may in certain circumstances, trigger application of the strict scrutiny test. Hawaii Boating Ass’n v. Water Transportation Facilities, 651 F.2d 661 (9th Cir. 1981). In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), the Court, applying the strict scrutiny test, found a one year durational residency requirement as a condition for receiving welfare benefits to be unconstitutional. In Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), the Court also applied strict scrutiny and held that durational residency requirements which involved deprivations of the right to vote and free indigent medical care were impermissible.

Not every durational residency requirement has invoked application of strict scrutiny. In Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the Court, rejecting strict scrutiny, upheld an Iowa statute which imposed a one year residency requirement as a prerequisite to filing for divorce. In Starns v. Malkerson, 326 F.Supp. 234 (D.C.Minn.1970), aff’d, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), the Court affirmed a district court ruling that permitted the University of Minnesota to condition payment of in-state tuition on a one-year durational residency requirement. In Hawaii Boating, the court approved a statute which imposed higher mooring and docking fees upon boat owners who were residents of the state for less than twelve months.

Synthesizing these cases indicates that the crucial consideration in determining which test applies to a durational residency requirement lies in the nature of the benefit denied by the requirement. Strict scrutiny has been employed where the requirement denies a “basic necessity of life” (Shapiro and Maricopa County) or a “fundamental political right” {Dunn), thus deterring the “fundamental right of travel.” A durational residency requirement which does not operate as a significant penalty on the right to travel will be examined under the rational basis test. Hawaii Boating.

In Hawaii Boating, plaintiffs, who lived in the state for less than twelve months and did not meet the residency requirement argued that the statute violated the equal protection clause of the Fourteenth Amendment because it impaired their fundamental right to travel and that strict scrutiny was the applicable standard.

The Ninth Circuit rejected this contention, finding that the durational residency requirement for preferential rates was not a “significant penalty” on the right to travel. 651 F.2d at 665. The court viewed the case as being more closely akin to the college tuition situation found in Starns v. Malkerson, and in applying the rational basis test, held that the fee structure was valid.

In the instant case, section 196.-031(1) grants a $5,000 homestead exemption to all permanent residents of this state who own real property and reside thereon. Subsection (3)(e) imposes a five-year durational residency requirement on a homeowner’s entitlement to an enhanced ad valorem tax exemption, not on the basic exemption. Certainly the amount of the homestead tax exemption on real property is important to the homeowner, but it cannot be categorized as a “basic necessity of life” as are welfare benefits and free hospital care to indigents. Neither can it be called a fundamental political right. Therefore, since a homeowner’s right to be free from disparate taxation is not, of itself, a fundamental right, and the classification here, for the reasons stated, does not impose a significant penalty on the right to travel, the trial court was correct in reviewing this case under the rational basis test, rather than under “strict scrutiny”.

In Greenberg, the Florida Supreme Court enunciated the applicable considerations in applying the rational basis test:

The rational basis or minimum scrutiny test generally employed in equal protection analysis requires only that a statute bear some reasonable relationship to a legitimate state purpose. That the statute may result incidentally in some inequality or that it is not drawn with mathematical precision will not result in its invalidity. Rather, the statutory classification to be held unconstitutionally viola-tive of the equal protection clause under this test must cause different treatments so disparate as relates to the difference in classification so as to be wholly arbitrary.

390 So.2d at 43.

In the record before us, there was submitted, in support of appellees’ motion for summary judgment, the affidavit of Representative Ralph Haben, outlining legislative concerns in the adoption of the subject legislation. The trial court found that these concerns included the desire that new residents help offset their immediate fiscal impact upon local governments’ capital outlay, while affording long-term residents the increased exemption made possible by their tax dollars. Since the' homestead exemption in question applies to real property taxes, and since such property taxes inure only to the benefit of local government, such would appear to be a rational basis upon which the state could base the dura-tional residence requirement. As was pointed out by the district court in Starns v. Malkerson :

We believe that the State of Minnesota has the right to say that those new residents of the State shall make some contribution, tangible or intangible, towards the State’s welfare for a period of twelve months before becoming entitled to enjoy the same privileges as long term residents possess to attend the University at a reduced resident’s fee.

326 F.Supp. at 241.

Appellants next argue that there is nothing in Article VII, section 6, Florida Constitution, which authorizes creation of the durational residency requirement found in section 196.031(3)(e). They rely on Sparkman v. State, 58 So.2d 431 (Fla.1952), for the proposition that a provision of the state constitution cannot be altered, contracted or enlarged by legislative enactment.

Sparkman involved the interpretation of section 7, Article X, of the Constitution of 1885, as amended, which granted a $5,000 homestead exemption to persons residing in this state and making it their permanent home. The section concluded by providing that:

The Legislature may prescribe appropriate and reasonable laws regulating the manner of establishing the right to said exemption.

By statute, the legislature subsequently created a one-year residency requirement as a prerequisite to entitlement to the exemption. The Florida Supreme Court found that the statute in question was invalid because it added a condition not found in the constitution, i.e., the one-year residency requirement.

The circumstances here are clearly distinguishable. The current constitutional provision, Article VII, section 6(d), provides in relevant part:

By general law and subject to conditions specified therein, the exemption shall be increased to a total of the following amounts .... (emphasis added).

This language is much broader than that discussed in Sparkman. It grants to the legislature the authority to make entitlement to the increased exemption conditional upon the satisfaction of certain criteria. Therefore, we do not find that section 196.-031(3)(e) conflicts with the present constitutional language or intent.

The judgment of the trial court is affirmed. Recognizing the impact of the statute and of this decision on all taxpayers and upon the taxing authorities throughout the state, and because the questions presented are of great public importance, we certify the following questions to the Supreme Court of Florida:

1. DOES SECTION 196.031(3)(e), FLORIDA STATUTES (SUPP.1980), VIOLATE THE EQUAL PROTECTION CLAUSE OR THE DUE PROCESS CLAUSE OF EITHER THE STATE OR FEDERAL CONSTITUTION?
1. DOES SECTION 196.031(3)(e), FLORIDA STATUTES (SUPP.1980), VIOLATE THE PROVISIONS OF ARTICLE VII, SECTION 6, OF THE CONSTITUTION OF FLORIDA, AS AMENDED IN 1980?

Judgment AFFIRMED. Questions Certified.

COBB and COWART, JJ., concur.

      . This case does not involve a suspect class, nor is freedom from disparate taxation a federally protected fundamental right. See Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245, 1253 (1937). (“Neither due process nor equal protection imposes upon a state any rigid rule of equality of taxation”). See also Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (In the area of economics, a state does not violate the Equal Protection clause merely because the classifications made by its laws are imperfect.)

      . The Court in Shapiro made it dear that:
      We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right to interstate travel.
      394 U.S. at 639, 89 S.Ct. at 1333.

      . In distinguishing Starns from Shapiro, the district court noted that in Shapiro the Court found that the one-year waiting period had as a special objective the exclusion from the jurisdiction of the poor who needed or may need relief. 326 F.Supp. at 237. Additionally, because the waiting period had the effect of denying a basic necessity of life, the deterring effect on interstate travel was readily apparent. Id. at 238.

      . Affiant was a member of the Florida Legislature and a member of the House Committee on Taxation and Finance during all relevant times. Appellant contends on appeal that the affidavit is hearsay and should not be considered, but no ■ objection to the affidavit was asserted before the trial court, and we will not consider such objection made for the first time on appeal.

      . It is also much broader than the language found in Article VII, section 6(a), Florida Constitution, (the current $5,000 homestead exemption provision), which provides that the exemption shall be granted “upon establishment of right thereto in the manner prescribed by law.”


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    James MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 81-959.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Moore’s counsel timely objected to and apprised the trial court of the state’s use of an expert witness whose name did not appear on the state’s witness list. Without conducting any inquiry as required by Richardson v. State, 246 So.2d 771 (Fla.1971), the trial court overruled the objection and permitted the witness to testify. Because it failed to inquire whether the discovery violation was trivial or substantial, inadvertent or willful, and the effect, if any, it had upon Moore’s ability to prepare for trial, the trial court abused its discretion by permitting the witness to testify. We must therefore reverse the judgment and sentence below and remand for a new trial. Richardson, 246 So.2d at 777; Miller v. State, 403 So.2d 619 (Fla. 5th DCA 1981); McDonnough v. State, 402 So.2d 1233 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


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

text:
    SENTRY INSURANCE, etc., Appellant, v. George D. DUNN and Diane M. Dunn, Appellees.
    No. 81-965.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    Charles D. Hood, Jr. of Cobb & Cole, P.A., Daytona Beach, for appellant.
    Margaret E. Sojourner of Haas, Boehm, Brown & Rigdon, P.A., Orlando, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Sentry Insurance appeals pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B) from a non-final order denying its motion for a preliminary injunction by which it sought to enforce the terms of a non-compete agreement.

Sentry had filed suit against Dunn alleging that Dunn, a former employee, had breached a non-compete clause contained in his employment contract. Sentry sought damages and a preliminary and permanent injunction.

Section 542.33, Florida Statutes (1981), recognizes the validity of a conven-ant not to compete though a prerequisite to the enforceability of such a convenant is that it must be reasonable as to time and place. Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966); Silvers v. Dis Com Securities, Inc., 403 So.2d 1133 (Fla. 4th DCA 1981). Here the period of time (two years) appears to be reasonable. See, e.g., Twenty Four Collection, Inc. v. Keller, 389 So.2d 1062 (Fla. 3d DCA 1980) (wherein the Third District Court of Appeal ordered that a non-compete agreement of two years duration be enforced). No area limitation problem exists since the agreement merely prohibits Dunn from soliciting, quoting rates, etc. for customers he served while at Sentry. Dunn remains free to write insurance and serve any other customers.

The normal remedy in eases involving convenants not to compete is in-junctive relief since it is extremely difficult for a court to determine what damages are caused by the employee’s breach of the agreement. Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974). While a temporary or preliminary injunction is an extraordinary remedy which should be sparingly granted, the establishment of legal rights carries with it the duty to grant an appropriate remedy. Silvers v. Dis Com Securities, 403 So.2d at 1137.

In Silvers, the court held that in order for a party to be entitled to a temporary or preliminary injunction for violation of such a convenant, it is necessary to allege: (a) the contract, (b) the former employee’s intentional direct and material breach thereof, and (c) that no adequate remedy exists except by injunctive relief. The court went on to hold that irreparable injury, while normally required to support an award of a temporary or preliminary injunction, may be presumed in cases involving violation of a covenant not to compete and need not be alleged or proved. Id. at 1136. Contra Uni-Chem Corp. of Florida, Inc. v. Maret, 338 So.2d 885 (Fla. 3d DCA 1976).

Here there is proof in the form of testimony from former customers of Sentry to support its allegations that Dunn has directly contacted and solicited insurance business from them. There is no reason proved or even suggested that would make it unfair or oppressive to enforce the agreement not to compete pending final disposition. Absent such proof it was an abuse of discretion for the trial court to refuse entry of the preliminary order.

REVERSED.

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

      . Sentry alleged that on May 1, 1977, it employed Dunn as a sales representative and that Dunn executed an employment contract which contained in paragraph seven the following non-compete clause:
      The Sales Representative agrees that for two (2) years after the termination of this contract, he will not, for himself, another insurance company and/or agency, directly or indirectly, seek to induce, promote, facilitate, bring about, solicit, quote rates for, receive, write, bind broker, transfer or accept replacement or renewal insurance coverage or services for any insurance policies or service sold or serviced by the Sales Representative for the Companies, or for which the Sales Representative has been or was being compensated by the Companies, during the two (2) years immediately preceding termination of this contract, nor will he induce or seek to induce the discontinuance or lapse of such insurance coverage or service. The Sales Representative agrees that, during the period of his employment hereunder, he will do none of the above acts for any insurer or agency other than the companies.

      . No transcript of the hearing on the motion for a preliminary injunction was made but at the hearing the judge merely reviewed the testimony which had been taken and transcribed on a previous occasion and heard argument of the parties. We feel that the record before us is sufficient upon which to predicate appellate review.


author: PER CURIAM.

text:
    AVIS RENT-A-CAR SYSTEMS, INC., Liberty Mutual Insurance Company, Mi-Ru, Inc., d/b/a Mike Smith’s Texaco and Southeastern Fidelity Insurance Company, Appellants, v. Deputy Robert MATUSICK, Lt. Wayne Allen, Corporal Thomas Mason, Edwin H. Duff, II, and County of Volusia, Florida, Appellees. SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellant, v. AVIS RENT-A-CAR SYSTEMS, INC., Liberty Mutual Insurance Company, Mi-Ru, Inc., d/b/a Mike Smith’s Texaco, Deputy Robert Matusick, Lt. Wayne Allen, Corporal Thomas Mason, Edwin H. Duff, II, and County of Volusia, Florida, Appellees.
    Nos. 81-1112, 81-1171.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    E. Peyton Hodges of Cameron, Marriott, Walsh & Hodges, P.A., Orlando, for appellants.
    Daniel D. Eckert, Asst. County Atty., De-Land, for County of Volusia, Deputy Robert Matusick, Corporal Thomas Mason, and Lieutenant Wayne Allen.
   PER CURIAM.

Because this case is virtually indistinguishable from the related case of Sintros v. LaValle, 406 So.2d 483 (Fla. 5th DCA 1981), we reverse. See also State Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981); Beard v. Hambrick, 396 So.2d 708 (Fla.1981).

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    ATLANTIC COMMERCIAL DEVELOPMENT CORP., Ruby Mountain Construction and Development Corp., and Meadow Valley Ranchos, Inc., Appellants, v. NORTEK, INC., Appellee.
    No. 81-1120.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    Jeffrey S. Goldman of Rice, O’Dell & Goldman, P.A., Orlando, for appellants.
    Valerie J. Hall of Hall & Hall, P. A., Gainesville, for appellee.
   PER CURIAM.

The trial court herein entered an order dated August 3,1981, striking the pleadings and motions of three defendants herein— Atlantic Commercial Development Corp., Ruby Mountain Construction and Development Corp., and Meadow Valley Ranchos, Inc. — on grounds they “failed to comply with discovery rules and procedure, and also (the trial court’s) order on motion for substitution of counsel. ...” Based upon our prior opinion in Atlantic Commercial Development Corp. v. Nortek, Inc., 403 So.2d 624 (Fla. 5th DCA 1981), we quash the aforesaid order of the trial court, and remand this cause for further proceedings consistent with this, and our prior, opinion.

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    FLORIDA PEACH CORPORATION OF AMERICA, INTERNATIONAL DIVISION, S.A., a Panamanian corporation, derivatively by its shareholder, Ansgar Plate, Petitioner, v. Robert LURIE, as trustee; Elizabeth Ann Manning; AG Industries Limited, a Bahamian corporation; International Food Corporation of America, S.A., a Panamanian corporation; Anstalt Blessing Uebersee, a Liechtenstein Anstalt; Florida Peach Corporation of America, International Division, S.A., as Trustee, a Panamanian corporation; Rogers, Towers, Bailey, Jones & Gay, P.A., a Florida professional association; Maxwell W. Wells, Jr., as trustee; James E. Thomas, C.P.A., as trustee; Bank of Belleview, a Florida corporation; Florida Peach Corporation, a Florida corporation; and other persons unknown, claiming any right, title, estate, lien or interest in the real property described in the complaint, adverse to true ownership, or any cloud on title thereto, or any other service agreements, leases or contracts in any manner affecting the true rights of ownership, possession and use of that real property, Respondents.
    No. 82-91.
    District Court of Appeal of Florida, Fifth District.
    March 24, 1982.
    Angel Castillo, Jr., and Karl V. Hart, P.A., of Shutts & Bowen, Miami, and Kenneth H. MacKay, Jr., of MacKay & Ranew, Ocala, for petitioner.
    John C. Moore of Bishop & Behnke, P.A., Ocala, for respondents.
   COBB, Judge.

The issue presented here is whether the lower court departed from the essential requirements of the law in conditioning the continuance of a lis pendens on the posting of an indemnity bond. We hold it did and quash the order below.

Petitioner, Florida Peach Corporation of America, International Division, S.A. (FPCA), plaintiff below, instituted an action against respondents, Robert Lurie, trustee, et al. (Lurie), in the Circuit Court of the Fifth Judicial Circuit seeking a declaratory judgment and to quiet title to lands held by FPCA. The action was brought in the form of a shareholder derivative suit in the name of FPCA, claiming that the company president (Lurie) had wrongly encumbered and transferred certain corporate properties.

Petitioner filed a notice of lis pendens in the court below on December 3, 1981. Respondents moved to dissolve the notice or in the alternative to require the posting of an indemnity bond. This motion was granted by the circuit court on January 8, 1982. Petitioner then filed for an emergency stay of the lower court order and for a writ of common law certiorari with this court on January 18, 1982, requesting that the lower court ruling as to the lis pendens be quashed. An emergency stay was granted on January 19, 1982. Petitioner additionally filed a motion on January 20, 1982, to hold in abeyance this court’s proceedings until a final order was entered by the circuit court. This motion was denied and the lower court proceedings were subsequently suspended pending final order of this court.

The court may control and discharge a notice of lis pendens as it may grant and dissolve injunctions if the initial pleading does not show the action is founded on a duly recorded instrument. § 48.23(3), Fla. Stat. (1981). If a lis pendens is based on a duly recorded instrument, the court has no authority for imposing the condition of an indemnity bond in order to maintain the action. Chapman v. L & N Grove, Inc., 244 So.2d 154 (Fla. 2d DCA 1971). In such a situation, the lis pendens is not viewed as an injunction, with additional requirements, nor is it the equivalent of one. Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA) pet. dismissed, 402 So.2d 608 (Fla.1981).

In the instant case, the quiet title action is founded upon the asserted superiority of the record title of FPCA, as shown by the deraignment of title attached to the complaint. That asserted superiority rests upon the allegation that the FPCA president improperly executed, filed and delivered various documents (deeds, mortgages, liens, etc.) encumbering FPCA’s record title. The relief sought is a cancellation of these latter instruments, and a court declaration of clear title to the concerned properties in FPCA.

The initial pleading herein shows that the action is founded upon a duly recorded chain of title and, therefore, petitioner is entitled to the maintenance of the lis pen-dens as a matter of right. Cf. Boca Raton Land Dev., Inc. v. Sparling, 397 So.2d 1053 (Fla. 4th DCA 1981).

Since the lis pendens is based on duly recorded instruments, the trial court departed from the essential requirements of the law by conditioning the continuance of the lis pendens on a bond. This action would cause material injury to the petitioner which could not be remedied by a later appeal; therefore, the petition for certio-rari is granted and the lower court order is

QUASHED.

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

      . The court gave petitioner ten days to post a $1,080,000 bond or the lis pendens would be dissolved. This was later modified to allow for 20 days until hearing.

      . Section 48.23(3), Florida Statutes (1981), provides:
      When the initial pleading does not show the action is founded on a duly recorded instrument, or on a mechanics lien, the court may control and discharge the notice of lis pen-dens as the court may grant and dissolve injunctions.

        .City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980); Colonial Penn Insurance Co. v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980).


text:
    STATE of Florida, Appellant, v. Steven William EMERY, Appellee.
    No. 81-115.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Defendant Emery was not subjected to a sham or pretextual arrest. Moreover, it is legally certain that the arresting officer had probable cause to arrest the defendant for a misdemeanor committed in his presence before he removed certain items protruding from the defendant’s pocket. Consequently, it is irrelevant that the officer did not announce his intent to arrest until after he removed the items. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981); State v. Forbes, 353 So.2d 638 (Fla. 3d DCA 1977); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977).

Accordingly, we reverse the trial court’s order suppressing evidence and remand the cause for further proceedings consistent with this opinion.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.

      . § 877.03, Fla.Stat. (1979).


text:
    Sammie R. GILLION, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-257.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, IVest Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Appellant, indicted for first degree murder, was tried by a jury and convicted of third degree murder. We affirm the judgment on the holding that (1) the hearsay testimony to which appellant objected was admissible as an excited utterance under Section 90.803(2), Florida Statutes (1981), and (2) the instruction on third degree murder, to which appellant made no objection, was mandated by Brown v. State, 206 So.2d 377 (Fla.1968) and was not error. See Thomas v. State, 406 So.2d 538 (Fla. 4th DCA 1981).

At the time of sentencing, appellant’s request for classification as a youthful offender was denied. It would appear that in denying the motion the trial court construed Section 958.04(2), Florida Statutes as being directory rather than mandatory in the classification of a defendant as a youthful offender. At that time the trial court did not have the benefit of this court’s opinion in Barnhill v. State, 393 So.2d 557 (Fla.1980) nor the Supreme Court’s opinion in State v. Goodson, 403 So.2d 1337 (Fla.1981). On this appeal appellee concedes that appellant appears to qualify for youthful offender classification. His sentence is vacated and this cause remanded for the purpose of the court resentencing appellant in light of the foregoing authorities.

Judgment affirmed; sentence vacated and this cause remanded for resentencing.

HERSEY and GLICKSTEIN, JJ., concur.


author: DELL, Judge.

text:
    Leona A. SAVINO, Appellant, v. John Joseph SAVINO, Appellee.
    No. 81-893.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.

      Bruce G. Shaffner of Shaffner & Shaff-ner, P. A., Fort Lauderdale, for appellant.
    Linwood Cabot of Cabot, Wenkstern & Casteel, Fort Lauderdale, for appellee.
   DELL, Judge.

Appellant seeks review of a final judgment dissolving a marriage of 52 years duration. The former husband, appellee, is 78 years old. Appellant, former wife, is 68 years old and the victim of a stroke which has left her partially paralyzed. She is not capable of employment outside the home. In its final judgment, the trial court approved the parties’ property settlement agreement and denied appellant permanent periodic alimony and attorneys fees. We affirm.

However, we note that because of the wife’s physical limitations, it is highly improbable that she will be capable of future employment. Therefore, the trial court abused its discretion in failing to retain jurisdiction to award alimony in the future. Moore v. Moore, 401 So.2d 841 (Fla. 5th DCA 1981); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Accordingly, we remand this case with instructions to the trial court to amend the final judgment to retain jurisdiction to award alimony in the future.

AFFIRMED IN PART; REVERSED IN PART.

ANSTEAD and HURLEY, JJ., concur.


text:
    BOCA DEVELOPMENT ASSOCIATES, LTD., Appellant, v. HOLIDAY CITY CIVIC ASSOCIATION, INC., and Boca Grande Property Owners Association, Appellees.
    No. 81-955.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Rehearing Denied April 15, 1982.
    Tracy R. Sharpe of Farish, Farish & Ro-mani, West Palm Beach, for appellant.
    John P. Kelly of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee-Boca Grande Property Owners Ass’n, Inc.
    Billie Tarnove, Lauderdale-By-The-Sea, for appellee-Holiday City Civic Ass’n, Inc.
   OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

Appellant seeks review of its motion for leave to intervene, filed after entry of final judgment. We affirm on the authority of Regency Highland Condominium Assoc., Inc., 405 So.2d 788 (Fla. 4th DCA 1981) and Maryland Casualty Company v. Hanson Dredging, Inc., 393 So.2d 595 (Fla. 4th DCA 1981). Apropos to our disposition of this appeal is the following statement in Maryland Casualty Company v. Hanson Dredging, Inc., supra, at page 596.

As to denial of the motion to intervene filed by Westinghouse, we begin our consideration with the following statement of law.

[Intervention involves an exercise of the chancellor’s discretion and his determination will not be disturbed unless error is clearly made to appear. (Citations omitted.)
Wogisch v. Tiger, 193 So.2d 187 (Fla. 4th DCA 1966). With particular reference to attempts to intervene in the latter stages of litigation, the Supreme Court of Florida has adopted the almost universal rule that intervention will not be allowed after final judgment. Dickinson v. Segal, 219 So.2d 435 (Fla.1969). The court referred to Wags Transportation System v. City of Miami Beach, 88 So.2d 751 (Fla.1956), a case establishing an exception where intervention was “in the interests of justice,” but declined “to extend it beyond the facts involved there.” Dickinson v. Segal, supra at 438.
More recently the Third District Court of Appeal has applied the general rule and refused to extend the exception. Wong v. von Wersebe, 365 So.2d 429 (Fla. 3rd DCA 1978).
We are strongly inclined to the view that adherence to the rule rather than the exception will produce the best result in the great majority of cases.

Our review of the record does not clearly demonstrate an abuse of discretion.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Clifton KING, Petitioner, v. C. L. NORVELL, Sheriff, St. Lucie County, Florida, Respondent.
    No. 82-292.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Thomas A. Burford of Burford & Still, P. A., West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

We grant the writ of habeas corpus and make it returnable before the circuit court of the Nineteenth Judicial Circuit, in and for St. Lucie County so that a new determination may be made as to a reasonable amount of bail, taking into account the factors which we held appropriate in Good v. Wilie, 382 So.2d 408 (Fla.4th DCA 1980).

Petitioner shall be given the opportunity to present evidence and to otherwise be heard as on a motion for bond reduction.

Such hearing shall be held forthwith.

We make no determination as to the ex-cessiveness of the present bail amount.

IT IS SO ORDERED.

HERSEY and DELL, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

The petitioner is charged with perjury and he has been directed to post a bail bond in the amount of $50,000.00 to secure his pretrial release. The amount of this bond was set without hearing.

I agree that the petitioner is entitled to an immediate hearing on his application for reduction in bail. However, I also believe that on the face of the present record, which includes a court ordered “Bond Reduction” report from the probation officer, the present amount of the bail bond is excessive.


text:
    Donald CRONCE, Appellant, v. STATE of Florida, Appellee.
    No. 82-398.
    District Court of Appeal of Florida, Fourth District.
    March 24, 1982.
    Donald Cronce in pro. per.
    No appearance required for appellee.
   PER CURIAM.

This is an appeal (see Florida Appellate Rule 9.140(g)) from an order summarily denying Cronce’s motion for post conviction relief filed in the circuit court pursuant to Florida Rule of Criminal Procedure 3.850.

Cronce’s motion to vacate asserted that Cronce had been adjudicated guilty of two counts of burglary and sentenced to three years imprisonment to be followed by two years probation and that such a split sentence was unlawful.

The trial court, in its order denying Cronce’s motion without a hearing, found that Villery v. Florida Parole & Probation Com’n, 396 So.2d 1107 (Fla.1981), did not “apply to ‘split’ sentences under Section 948.01(4) such as the one imposed on [Cronce].”

We recognize that the Supreme Court in Villery specifically held:

“that incarceration, pursuant to the split sentence alternatives found in sections 948.01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies ... to incarceration followed by a specified period of probation.” 396 So.2d at 1111. ■

We therefore conclude that the circuit court erred in entering the above quoted finding and in denying Cronce’s motion to vacate.

Accordingly, we reverse the order of denial with directions that the circuit court grant Cronce’s motion to vacate and to correct the split sentence it imposed upon Cronce. See Villery, supra, at 1111-1112.

REVERSED AND REMANDED with directions.

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


author: BOARDMAN, Judge.

text:
    James William JOHNSON and Duff Crothers, Appellants, v. STATE of Florida, Appellee.
    No. 80-701.
    District Court of Appeal of Florida, Second District.
    March 24, 1982.
    Michael S. Hacker of Hacker & Matters, Miami, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

James William Johnson and Duff Croth-ers appeal judgments and sentences for trafficking in cannabis. We reverse.

The parties stipulated and the trial court in effect found that since there was no search warrant, appellants had made a pri-ma facie showing of the illegality of the search, yet the court went on to nevertheless leave the burden of proof on appellants. Under Bicking v. State, 293 So.2d 385 (Fla. 1st DCA 1974), and Mann v. State, 292 So.2d 432 (Fla.2d DCA 1974), this was error compelling reversal.

Accordingly, appellants’ judgments and sentences are REVERSED and the cause REMANDED for discharge of appellants.

HOBSON, A. C. J., and SCHOONOVER, J., concur.

      . Unfortunately this case has been pending here for nearly two years, through no fault of ours. This deplorable delay was due in part to delay (presumably unavoidable) in transcription of the record and in part to delay on the part of counsel for appellants in filing numerous motions and in failing to provide this court at the outset with a record sufficient to enable this court to properly dispose of this case.

      . Of the other points raised by appellants, the challenge of the statute’s constitutionality is without merit, State v. Benitez, 395 So.2d 514 (Fla.1981), and the other is moot in view of our disposition of this case.


text:
    Vernon JAMES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-558.
    District Court of Appeal of Florida, Second District.
    March 24, 1982.
    Jerry Hill, Public Defender, and Richard N. Staten, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The issue which appellant reserved for appeal at the time he made his plea of nolo contendere is not dispositive of the case. Therefore, his appeal is dismissed. Brown v. State, 376 So.2d 382 (Fla.1979). We note in passing that appellant’s sentence appears to be illegal under the rationale of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980). If appellant wishes to raise this issue, he may do so by filing in the trial court a motion for post-conviction relief.

GRIMES, A.C.J., and RYDER and SCHOONOVER, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, on Behalf of Shirley Bennett WALKER, now Shirley Bennett Moeller, Appellant, v. Wayne M. WALKER, Appellee.
    No. 81-1290.
    District Court of Appeal of Florida, Second District.
    March 24, 1982.

      Geraldyne H. Carlton and Charles Carlton of Carlton & Carlton, Lakeland, and Joe D. Lovelace, Asst. State Atty., St. Peters-burg, for appellant.
    James A. Helinger, Jr., and Yvonne May, Clearwater, for appellee.
   BOARDMAN, Acting Chief Judge.

HRS, on behalf of Shirley Bennett Moel-ler (the wife), appeals an order denying its petition for child support from appel-lee/respondent Wayne M. Walker (the husband). We reverse.

In 1977, the husband filed a petition for dissolution of his marriage to the wife, alleging that the wife had a child, Rodney Howard Walker, but that Rodney was not his, and seeking a determination that he was not responsible for supporting Rodney. The wife filed a response and counterpetition denying the husband’s allegation con-

cerning Rodney, alleging that Rodney had been born of the marriage, and seeking custody and child support.

The husband and the wife subsequently entered into a property settlement agreement, which provided as follows concerning Rodney:

WHEREAS, the parties hereto were married on the 17th day of October, 1970, and there has been one child born of the parties, to wit: Rodney Howard Walker
NOW, THEREFORE, in consideration of the premises and of the mutual promises and undertakings herein contained and for other good and valuable considerations, the parties hereto agree as follows:
1. The terms of the Agreement shall be made a part of any Final Judgment of Dissolution of Marriage entered in the above-styled proceeding, .. .:
4. The Husband hereby covenants and agrees that the Wife shall have the care and custody of the aforementioned minor child, to wit: Rodney Howard Walker.
5. Husband agrees to pay to the Wife, through the registry of the Court, as child support the sum of $20.00 per week for the maintenance and support of the minor child, which such support payments shall commence on the 22nd day of July, 1977, and continue weekly thereafter until the said minor child reaches the age of eighteen years or majority (whichever shall first occur) dies, marries or becomes self-supporting, or until such time as the Wife herein shall be remarried, whichever shall first occur.

(Emphasis supplied.) The final judgment of dissolution, entered on August 3, 1977, provided:

This cause having come on to be heard upon the Petition for Dissolution of Marriage filed herein, the Response and Property Settlement Agreement executed by the parties, the Court having reviewed the Court file and having reviewed and accepted the Property Settlement Agreement ... it is thereupon
ORDERED AND ADJUDJED [sic] that the marriage between the parties Wayne M. Walker and Shirley Bennett Walker of October 17, 1970, be and same is hereby dissolved. It is further
ORDERED AND ADJUDGED that the Petitioner, Wayne M. Walker, shall pay to the Respondent, Shirley Bennett Walker, the sum of $20.00 per week as child support for the minor child, Rodney Howard Walker. It is further
ORDERED AND ADJUDGED that custody, care and control of the minor child, Rodney Howard Walker, be and is granted to the Respondent, Shirley Bennett Walker. It is further
ORDERED AND ADJUDGED that the parties hereto shall comply with the terms and conditions of the Property Settlement Agreement filed in this entitled cause. It is further
ORDERED AND ADJUDGED that this Court maintains jurisdiction of the subject matter and the parties hereto for future orders as may be necessary for the welfare of the minor child herein.

On December 29, 1980, HRS filed a petition for child support from the husband, alleging that the wife had remarried, that the wife was receiving public assistance from the state of Florida for Rodney’s benefit, and that Rodney was dependent and entitled to support from the husband because the agreement to terminate child support on the wife’s remarriage was contrary to public policy.

After hearing, the trial court entered the following order:

1. The Final Judgment of Dissolution was entered on August 3, 1977. The terms of said Final Judgment incorporated a Property Settlement Agreement between the parties dated July 19, 1977.
2. There is no question regarding the jurisdiction of the Court over the parties at that time.
3. Both parties were represented in the Dissolution by competent counsel.
4. The Property Settlement Agreement contained an unusual support provision which terminated husband’s obligation for child support upon the wife’s remarriage.
5. The wife’s attorney was provided with a copy of the Final Judgment.
6. It is not uncommon for Property Settlement Agreements to contain provisions that act as a compromise on matters that normally would be addressed by the Court hearing the Dissolution.
7. Assuming, arguendo, Respondent’s arguments presented at this hearing, that Petitioner was having relations with other men and that Respondent had nó sexual relations with Petitioner during the time critical to conception of the child are true, the wife agreed to the terms of the Property Settlement Agreement to avoid bastardization of the child.
8. Again, assuming Respondent’s arguments are true, Respondent agreed to the terms regarding child support to limit his liability and to avoid harm to an innocent third party; ie, [sic] the child.
9. The Final Judgment refers to the Property Settlement Agreement and establishes child support by that reference.
10. The Final Judgment makes a judicial determination of paternity.
11. Respondent at this time has no procedural avenue to challenge the issue of paternity.
12. This Court has continuing jurisdiction regarding support, custody and other matters relating to the child’s welfare.
13. Petitioner is now the recipient of public assistance from the State of Florida, and the State is prosecuting this case pursuant to Chapter 409, Florida Statutes, seeking Respondent’s contribution to child support.
14. The State is subject to the same defenses presented by Respondent as would be Petitioner, SHIRLEY BENNETT MOELLER, in an action initiated solely by her.
15. Inasmuch as the Court which ordered the Dissolution had jurisdiction and both parties were represented by competent counsel, this Court must conclude that the child support provision was an attempt at compromise.
16. There has been a substantial passage of time since the execution of the Property Settlement Agreement and rendition of the Final Judgment of Dissolution.
17. Both Petitioner and Respondent herein have remarried.
18. Both parties have had the opportunity to have the Final Judgment reviewed to alleviate any conflicts or ambiguities but neither party did so.
19. Petitioner is estopped, and the State is therefore estopped through sub-rogation, to seek child support from the Respondent.
IT IS THEREFORE ORDERED AND ADJUDGED that the Petition for Support is denied.

This appeal followed timely.

It is well settled that the obligation of support is for the benefit of the child, and a child’s right to support cannot be contracted away by its mother. Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Shinall v. Pergeorelis, 325 So.2d 431 (Fla. 1st DCA 1975); Walker v. Walker, 266 So.2d 385 (Fla. 1st DCA 1972).

The appellee husband, however, relies on Eaton v. Eaton, 238 So.2d 166 (Fla. 4th DCA 1970), in which the divorced wife filed a motion seeking child support after having previously entered into a separation agreement with the husband which provided, inter alia, that she would have exclusive custody of the parties’ son and was thereby expressly relinquishing any right she had at that time or in the future to receive child support from the husband. The final divorce decree approved the separation agreement and made it a part of the decree by reference. After hearing on the wife’s motion, the trial court ruled that the portion of the decree concerning child support was void; the trial court then went on to award token child support of $10 per month. The Eaton court reversed, stating:

Although a father does have the legal duty to support his minor children to the extent that his means reasonably permit, it is not unusual for parents who become involved in a divorce suit to enter into an agreement pertaining to the custody and support of the minor child or children. Of course, such an agreement would not be effective to oust an equity court of either its inherent powers or its expressly granted statutory powers to control, protect and provide for infants. However, once such an agreement is approved by the court and by reference expressly made a part of the final decree of divorce, the provisions relating to custody and support of the minor child or children are no longer merely in the status of an agreement of the parties, but become elevated to the dignity and effect of a court decree.

Id. at 168. (Citations omitted.) In denying the wife’s motion for child support, the court held that while the father could not by contract abrogate his obligation to support his minor child, it was the final decree, not the agreement, which established the nature and extent of the father’s obligation on the basis of the circumstances as they existed at the time of the entry of the final decree.

The husband overlooks the fact, however, that Eaton went on to note that court decrees regarding child support have always been subject to modification. In Eaton, the trial court found and the evidence showed no change in circumstances which would justify a modification of the final decree, and the appellate court stated: “Any substantial change in the father’s ability to provide or the child’s need for support would justify a modification of the support provisions, notwithstanding the provisions of the Marital Separation Agreement or the fact that the final decree which established child support approved the agreement.” Id. at 168. (Emphasis added, citations omitted.)

The settlement agreement was approved in the judgment of dissolution and when that judgment became final, it was res judicata. However, all child support provisions in judgments of dissolution are subject to modification upon a showing of changed circumstances. § 61.14, Fla.Stat. (1981). ■ Presumably, the provision which called for the termination of child support upon the remarriage of the wife contemplated that by virtue of having acquired a new husband she would no longer be in need of child support payments. The fact that she is now receiving welfare to support the child suggests that this expectation may not have been fulfilled and serves as a sufficient allegation of a change of circumstances to justify a hearing on the issue.

There is no doubt that HRS has standing to seek modification of the dissolution judgment pursuant to Section 409.2561, Florida Statutes (1981). Moreover, the husband may not now deny the paternity which he admitted in the property settlement agreement that was accepted by the court. Johnson v. Johnson, 395 So.2d 640 (Fla. 2d DCA 1981). The wife’s conduct cannot act as an estoppel to preclude a claim on behalf of the child. Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946).

Accordingly, the trial court’s order denying HRS’s petition for child support is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

GRIMES and RYDER, JJ., concur.


author: CAMPBELL, Judge.

text:
    William E. LINDH, individually and d/b/a William Lindh & Associates, Consulting Engineers, Appellant/Cross-appellee, v. CITY OF VENICE, Appellee/Cross-appellant.
    No. 81-1765.
    District Court of Appeal of Florida, Second District.
    March 24, 1982.
    Charles J. Cheves of Cheves & Rapkin, Venice, for appellant/cross-appellee.
    Michael R. Karp of Wood, Whitesell, Karp, Wellbaum, Miller & Seitl, P. A., Sarasota, for appellee/cross-appellee.
   CAMPBELL, Judge.

Appellant Lindh requests that this court reverse the trial court’s denial of attorney’s fees under section 57.105, Florida Statutes (1981), for lack of a justiciable issue of either law or fact. We find this issue is without merit. The appellee City of Venice objects to the lower court’s order awarding costs to appellant. Insofar as the City of Venice was required to pay the travel expenses incurred by Lindh in taking depositions and the costs of copies of depositions, the order as to costs is reversed. See Professional Computer Management, Inc. v. Tampa Wholesale Liquor Co., 374 So.2d 626 (Fla. 2d DCA 1979) (costs do not include travel to obtain depositions); Ryan v. Beucher, 360 So.2d 15 (Fla. 2d DCA 1978) (costs improper for copies of depositions). But see State Farm Mutual Automobile Insurance Co. v. Sampaio, 374 So.2d 617 (Fla. 4th DCA 1979) (copies of deposition taxable if served useful purpose).

RYDER, A. C. J., and SCHOONOVER, J., concur.


text:
    James LOWE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AE-209.
    District Court of Appeal of Florida, First District.
    March 25, 1982.
    James Lowe, in pro. per., for appellant.
    Malcolm S. Greenfield, Gen. Counsel, and Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   PER CURIAM.

On appeal from a determination by the Parole and Probation Commission setting petitioner James Lowe’s presumptive parole release date (PPRD), he raises a number of points which merit consideration with regard to the manner in which the date has been calculated.

Petitioner was convicted of “attempted robbery” (Case No. 79-18326), and in a separate case, he was convicted of “attempted robbery with a deadly weapon” and other charges (Case No. 79-19701).

In determining Lowe’s PPRD, the Commission correctly assigned him a salient factor score of seven due to various considerations, including a very lengthy past record. Based on his salient factor score, he was placed in a high matrix time range, receiving thirty-nine months because of the “attempted robbery” conviction (Case No. 79-18326). When a salient factor score of seven is involved, a matrix time range of 18 to 33 months would normally be assigned for “attempted robbery” , but in this case the Commission apparently took note of a pre-sentence investigation report that indicated Lowe had been armed while committing the attempted robbery (Case No. 79-18326). Therefore, the Commission assigned Lowe to the proper severity offense characteristic for “attempted armed robbery.” See Rules 23-19.01(6); 23-19.05 IV, Fla.Admin.Code. The Commission then added 18 months outside the matrix time frame, because of the aggravating factor that, as shown in a pre-sentence investigation report, although only convicted of “attempted robbery,” Lowe had actually consummated the robbery.

Although we affirm the salient factor score determination, we find that the PPRD was based on the wrong severity offense characteristic and use of an improper aggravating circumstance outside the matrix time frame. The severity offense characteristic must reflect the offense for which Lowe was convicted. McKahn v. Florida Parole and Probation Commission, 399 So.2d 476, 478 (Fla. 1st DCA 1981); Rule 23-19.-01(1), Fla.Admin.Code. The written judgment in the record indicates that Lowe was convicted of “attempted robbery,” not “attempted robbery (armed),” as reflected by the Commission’s action form. Consequently, the Commission is required by its own rules to assign the severity offense characteristic for “attempted [unarmed] robbery.” Rule 23-19.05 III, Fla.Admin.Code. Pursuant to Rule 23-19.01(6), Florida Administrative Code, however, the Commission was justified in placing Lowe in the offense severity characteristic for unarmed robbery, since he had actually consummated the offense.

The Commission’s error herein was in taking notice of the armed nature of the attempted robbery in determining the severity offense characteristic and in thereafter aggravating for consummation of the offense. The consummation of the underlying offense in cases wherein the prisoner has been convicted of an attempt is an improper aggravating factor since it has already been considered, pursuant to Rule 23-19.01(6), in setting the severity offense characteristic. Jacobson v. Florida Parole and Probation Commission, 407 So.2d 611 (Fla. 1st DCA 1981); § 947.165(1), Fla.Stat. (1979).

Although it was improper for the Commission to consider the armed nature of the attempted robbery in setting the matrix time range, the Commission does have the discretion in certain instances to set a presumptive parole release date outside the matrix time frame based on an aggravating circumstance in which a dangerous weapon has been used in the commission of a crime. Rule 23-19.03(l)(a)l, Fla.Admin.Code.

Lowe further complains that the Commission’s action form, a typewritten document, notes that this is Lowe’s third attempted armed robbery. In fact, Lowe asserts that he has been convicted of only two attempted armed robberies. However, the Commission argues that there was merely a transcriber’s error made in transcribing information from the handwritten Commission voting sheet to the formal action form; that the handwritten voting sheet indicates that the assignment of 39 months was based on the fact that this was petitioner’s second attempted armed robbery and that the Commission will correct the transcription error on remand, if so ordered.

We have considered the other points raised by appellant and find them to be without merit.

AFFIRMED in part and REVERSED in part with directions to establish appellant’s PPRD consistent with this opinion.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Rule 23-19.05 IV. 10., Florida Administrative Code, specifies a matrix time range of 24 to 39 months for an individual with a salient factor of 7 for conviction of unarmed robbery. Lowe, having been convicted of attempted robbery, would be placed in the next lowest offense characteristic as noted in Rule 23-19.05 III, Florida Administrative Code, because Rule 23-19.01(6), Florida Administrative Code, requires attempts to be scored one severity offense characteristic lower than the underlying offense.


text:
    Fred CAREY, Appellant, v. PLESA STABLES and Liberty Mutual Insurance Co., Appellees.
    No. AF-166.
    District Court of Appeal of Florida, First District.
    March 25, 1982.

      Stuart F. Suskin, of Abrams & Suskin, North Miami Beach, for appellant.
    Jere N. Chait, Miami, for appellees.
   PER CURIAM.

The deputy’s order in this worker’s compensation case erroneously recites that claimant did not conduct a work search since the prior order denying modification. In fact, as the record shows, some evidence of a work search was submitted. The deputy, misconceiving the record, therefore erroneously failed to consider whether claimant had grounds for modification under section 440.28, Florida Statutes, based on an increase in loss of wage earning capacity beyond the previous 55 percent rating. The order is REVERSED and REMANDED for further consideration in accord with Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982)..

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


author: GRIMES, Acting Chief Judge.

text:
    John Clark HUDGENS, Jr., Appellant, v. Noel P. HUDGENS, Appellee.
    No. 81-790.
    District Court of Appeal of Florida, Second District.
    March 26, 1982.

      John S. Wagstaff of Phillips, McFarland, Gould & Wagstaff, P. A., Clearwater, for appellant.
    Stephen W. Sessums and Carole A. Taylor of Albritton, Sessums & McCall, Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The Hudgens’ marriage was dissolved in 1972 pursuant to a judgment which incorporated a property settlement agreement that provided for the payment of lump sum and permanent alimony to the wife. Recently, upon petition and counterpetition of the parties, the court entered an order which denied the husband’s petition for termination of permanent alimony and the wife’s petition for an increase in alimony. The order also granted in part the wife’s petition for a determination of arrearages in alimony payments and awarded attorney’s fees to the wife for the services of her attorney in collecting the arrearages. The husband appeals the denial of his petition to terminate alimony. The wife cross-appeals the denial of her petition to increase alimony, the determination of certain credits which the court applied against the husband’s arrearages, and the failure of the court to award attorney’s fees for the balance of her attorney’s services in this proceeding.

After reviewing the record, we have concluded that the court acted properly within its discretion in denying the husband’s petition to terminate alimony and in refusing to grant the wife’s petition to increase the alimony. The testimony and documents pertaining to the credit against the arrearages were complicated and conflicting. However, because there was an evidentiary basis for the amount of credit as determined by the court, this must not be disturbed. This leaves only the issue of attorney’s fees.

We agree with the wife that the court should not have limited the award of attorney’s fees to those services connected with the collection of the arrearages. At the outset, we cannot see why if the wife was entitled to attorney’s fees for the collection of the husband’s back alimony, she was not also entitled to attorney’s fees for successfully defending against the husband’s petition to terminate the alimony. In the final analysis, however, the award of attorney’s fees in a dissolution proceeding depends not upon who wins but rather upon the relative financial circumstances of the parties. § 61.16, Fla.Stat. (1981); Johnson v. Johnson, 403 So.2d 1388 (Fla. 2d DCA 1981); Gray v. Gray, 362 So.2d 294 (Fla. 2d DCA 1978).

Since the wife’s claim for modification was not spurious, the fact that she lost on this issue does not mean that she could not be a candidate to receive attorney’s fees. The husband has earned over $100,000 a year as a doctor for the last several years, while the wife’s annual salary has averaged about $14,000. The husband’s net worth is more than four times the wife’s net worth of $100,000. Admittedly, the wife could pay the balance of her attorney’s fees by dipping into her savings, but law does not require this. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Because of the husband’s superior financial position, he should pay all of the wife’s reasonable attorney’s fees in this proceeding.

We affirm the judgment with the exception of the attorney’s fees question and remand the case for a determination of reasonable attorney’s fees to be paid by the husband to the wife for all the services of her attorney on both the trial and appellate levels.

OTT and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    RUSSELL’S CUSTOM HOME REPAIR, INC., Petitioner, v. O’DONNELLS AUTO SERVICE, Respondent.
    No. 81-1805.
    District Court of Appeal of Florida, Second District.
    March 26, 1982.
    John F. Hooley, Marco Island, for petitioner.
    Guión T. DeLoach, Naples, for respondent.
   OTT, Judge.

The sole question on this petition is whether it is necessary for a contractor to file a counterclaim for the unpaid balance of the contract price in order for it to be considered as an offset in an action by the homeowner to recover the cost of completing the work. We hold that it is not and therefore grant the petition for certiorari.

Petitioner was engaged by respondent to perform certain improvements to respondent’s residence. Petitioner billed respondent for the construction work in the total sum of $2,070.14, covering $777.64 for materials and $1,292.50 for labor. Respondent paid petitioner the $777.64 for materials but refused to pay the $1,292.50 on the ground that the work was not completed to its satisfaction.

Respondent filed suit in the county court for $1,500.00, the sum required to satisfactorily complete the work.

After taking testimony, the trial court found that the cost to respondent to complete the work was $1,200.00. The trial court further found that there was a legitimate unpaid balance of $1,292.50 due petitioner for the work it had done. The trial court concluded, however, that this unpaid balance could not be considered in the absence of a counterclaim therefor by the petitioner. It therefore entered judgment for respondent for $1,200.00.

On appeal, the circuit court affirmed the judgment of the county court.

We reverse. It was improper for the court to find that O’Donnells showed damages in the amount of $1,200.00, because in so doing it failed to offset the unpaid contract price against the property owner’s award. The balance due on a contract should ordinarily be deducted from an owner’s damages for defective work. Lynch v. Florida Mining and Materials Corp., 384 So.2d 325 (Fla. 2d DCA 1980), and Dynamic Builders, Inc. v. Tull, 365 So.2d 1032 (Fla. 3d DCA 1979).

O’Donnells never paid the $1,292.50 invoice. It retained that amount to complete the construction job, which the trial court found would cost $1,200.00. Therefore, it benefited to the extent of $92.50 and suffered no actual damages.

In a situation where a building contractor breaches his contract, and the owner completes the work at less than the contract price, the contractor is entitled to be paid for the work completed, so long as the total amount spent by the owner does not exceed the original contract price. Cheezem Development Corp. v. Intracoastal Sales, Inc., 336 So.2d 1210 (Fla. 2d DCA 1976).

The rule of law runs to the damages recoverable by respondent and does not require a counterclaim for its application. The failure of petitioner to file a compulsory counterclaim pursuant to Florida Rule of Summary Procedure 7.100(a) bars his recovery of any differential remaining in the respondent’s hands ($92.50 in this case) in this or any subsequent action.

Since the respondent’s damages as found by the trial court did not exceed the unpaid balance found to be due petitioner, the judgment for the respondent should have been for zero dollars.

The Petition for Writ of Certiorari is GRANTED, the decision of the circuit court QUASHED, and the cause REMANDED to the circuit court for entry of a decision consistent with this opinion.

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


text:
    Jose Miguel ECHEVERRIA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-252.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Diller, Sehmukler & Asness and Martin Schmukler, New York City, for appellant.
    Janet Reno, State Atty., and Tom Robertson, Asst. State Atty., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN, (Ret.), Associate Judge.
   Order Denying Application for Bail Pending Review

PER CURIAM.

We join with the Court of Appeal for the Fourth District and embrace its decision of Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981) holding that Section 903.133, Florida Statutes (1980 Supp.) is constitutional. For that reason, Echeverria’s application for bail pending review is denied.


author: FERGUSON, Judge.

text:
    CENTRAL NATIONAL BANK OF MIAMI, Appellant, v. CENTRAL BANCORP., INC., a Florida corporation, Central Bank and Trust Company, a Florida State Banking Institution, and Central Bank of North Dade, a Florida State Bank Institution, Appellees.
    No. 81-958.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellant.
    Gars, Dixon & Shapiro, Bruce Rogow, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   ON REHEARING

FERGUSON, Judge.

Central National Bank of Miami, defendant below, appeals from a final judgment ordering specific performance of an alleged oral agreement with appellee, Central Ban-corp, Inc., that appellant would not use the word “Central” in its business name. The oral agreement also provided for compromise of certain debts owed to appellee by appellant and permitted appellant to prematurely terminate a pre-existing agreement between the parties.

As its first point on appeal, appellant claims that the trial court lacks subject-matter jurisdiction because 12 U.S.C.A. § 30 preempted the relief sought by Central Bancorp, Inc., or, alternatively, fundamental error occurred when the trial court entered a final judgment containing terms directly in conflict with the requirements of federal law. Although appellant does not draw the distinction, we understand these alternative arguments to be based on the difference between exclusive federal jurisdiction and federal preemption. The New York district court in Billy Jack for Her, Inc. v. New York Coat, Suit, Dress, Rainwear and Allied Workers’ Union, 511 F.Supp. 1180 (S.D.N.Y.1981) provides an excellent discussion of this difference. We borrow from the conclusions of that court as follows. Preemption occurs if state law has been supplanted by substantive federal law so that federal law must be applied to determine the merits of a plaintiff’s claim. Preemption is essentially a conflict-of laws question. Exclusive federal jurisdiction occurs when only certain specified federal in-strumentalities have jurisdiction to hear the case. Federal preemption, by itself, in no way determines the court in which an action may be brought, but only prescribes the law that is to be applied to the claim. Exclusive federal jurisdiction, by itself, does not govern the applicable law, but only the forum empowered to hear the action. See generally 1A Moore’s Federal Practice, § 0.160 at 189 (2d ed. 1981). In the absence of an express directive, the state courts have jurisdiction over federal-question cases concurrently with the federal courts. 13 C. Wright, A. Miller and E. Cooper, Federal Practice & Procedure, § 3527 at 124 (1975).

We find no provision in 12 U.S.C.A. § 30 or any other section of the National Banking Act — and appellant points us to none — that expressly directs that cases involving name change in a national bank be heard exclusively in the federal courts. Cf. 12 U.S.C.A. § 94 (venue in either federal or state court). The issue, it appears to us, is one of preemption. Compare First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir. 1980) (court lacked power to remove to federal court because Section 30 of the National Bank Act did not preempt the common law of unfair competition insofar as it applied to name changes not yet approved by Comptroller) with State of North Dakota v. Merchants National Bank and Trust Co., 634 F.2d 368 (8th Cir. 1980) (Section 30 preempts state fair-competition laws after name change has been approved).

The test for determining whether the federal law has preempted the state law is (a) whether there is actual conflict between the federal and state law, or (b) whether the state law interferes with the purpose for which the National Banks were created or impairs the efficiency of the federal agencies. State of North Dakota v. Merchants National Bank and Trust Co., supra at 378, citing Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98 S.Ct. 988, 994, 55 L.Ed.2d 179, 188 (1978). The provision of 12 U.S.C.A. § 30 that any name change of a national bank is to be submitted to the Comptroller of the Currency for approval after recommendation of change by vote of shareholders owning two-thirds of the stock of that association was clearly intended to preempt any state law to the contrary. In order to prevent conflict between 12 U.S.C.A. § 30 and orders of state courts applying the remedy of specific performance, we must review the specific order with respect to these provisions. In this case, the trial court correctly applied the federal law directing appellant to submit proposed names to the Comptroller’s office for approval. Appellant also argues that the order of specific performance is invalid as conflicting with the requirement that vote of shareholders owning two-thirds of the stock must vote for name change. We find this argument without merit because (a) the vote required is that of shareholders owning two-thirds of all stock, (b) the record contains evidence that shareholders owning two-thirds of the stock agreed to and intended to change the bank name, therefore, a vote would merely formally record this fact, and (c) the court’s directive that, “Within (30) days from the date hereof, Defendant [appellant] shall file all applications, documents, resolutions, etc., necessary for Defendant to obtain formal approval from all appropriate authorities of the proposed name change...” encompasses the required evidence of approval by vote of the name change by shareholders owning two-thirds of the stock.

As the second point on appeal, the appellant claims that Central Bancorp, Inc. failed to prove a prima facie case, or alternatively failed to prove this case by clear, definite and certain evidence entitling them to a decree of specific performance. We find the record evidence with respect to the intent and agreement of the board of directors to a name change, and with respect to the authority of Mr. Revilla to enter the agreement sufficient to support the finding of the trial court that there was a binding oral agreement with Central National Bank of Miami. We also find no error in the granting of specific performance. Evidence was presented to the trial court to prove the existence of the contract, including evidence that on the day after the alleged oral contract was entered, the defendant filed with the Regional Administrator of National Banks an application for a change in corporate title, applying for permission to change appellant’s name to American National Bank of Miami, and that after the Comptroller denied approval of this name, the new president of the appellant bank represented to appellees that Central National Bank was going to reapply for a different name, but later decided not to because it would cost too much money. There was also evidence that appellants complied with the alleged agreement by paying appellees the compromised amount of expenses. Appellant contends that it cannot be bound to an oral agreement entered into by its unauthorized agent on a theory of estoppel or ratification because these theories of recovery were neither pled nor argued. We find inapposite the cases relied upon by appellant — Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA 1980), pet. for rev. denied, 392 So.2d 1373 (Fla. 1980) and Cortina v. Cortina, 98 So.2d 334 (Fla.1957) — where judgments were reversed because the issues were never tried by express or implied consent. Here the main issue was whether there was an oral agreement between the parties. That issue was thoroughly litigated. It is of no import, and certainly not unusual, that the theory upon which the trial court correctly tried and resolved the question was expressly identified for the first time in written final judgment.

As the third point on appeal, appellant claims that appellees’ original action was barred by the statute of frauds, Section 725.01, Florida Statutes (1979). We reject the argument that because appellant was permanently enjoined from using its existing name as long as it remained in business, the agreement was within the statute of frauds. Under the terms of the agreement, the act required to be performed by appellant, is to change its name so as to delete the word “Central.” The parties contemplated that the change in name would be effected within one year.

Intent of the parties is generally the determining factor as to whether all the terms of a contract are to be performed within a year. When no definite time is fixed by the parties for performance of the agreement, and there is nothing in its terms to show that it cannot be performed within a year according to the intent and understanding of the parties, it will not be construed as being within the statute of frauds. Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937). In this case, Central Bank of Miami and Central Bancorp not only contemplated a single act of name change to be performed within one year, but there was nothing in the terms of the agreement evidencing that it could not be performed within the year.

The cases cited by appellant, Weinsier v. Softer, 358 So.2d 61 (Fla. 3d DCA 1978), cert. denied, 365 So.2d 714 (Fla.1978); Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975); Food Fair Stores, Inc. v. Vanguard Investments Co. Ltd., 298 So.2d 515 (Fla. 3d DCA 1974), cert. denied, 305 So.2d 209 (Fla.1974); Rattan and Bamboo Shop, Inc. v. Rutter, 147 So.2d 11 (Fla. 3d DCA 1962), are easily distinguished in that the oral agreements in each of those cases contemplated additional affirmative activity to take place after more than one year.

As the fourth point on appeal, appellant claims that appellees’ original action was barred by the statute of limitations. Section 95.11(5)(a), Florida Statutes (1979) requires that an action for specific performance of a contract be brought within one year. Consistent with Florida law, this means that the statute of limitations begins to run on the date the contract is breached. Cf. Kilbreath v. State Farm Mutual Automobile Insurance Co., 401 So.2d 846 (Fla. 5th DCA 1981); Airport Sign Corp. v. Dade County, 400 So.2d 828 (Fla. 3d DCA 1981). Here, appellant did apply for a name change prior to the sixth-month period. When this name change was denied by the Comptroller in January of 1978, appellant reassured appellees it would reapply. Under the circumstances, we find no error in the conclusion of the trial court that the breach occurred only after appellant informed appellees it was not going to reapply for a name change, sometime in August of 1978. This suit was filed on March 29, 1979, within a year of that breach.

As the fifth point on appeal, appellant claims that the original action was barred by the April 14, 1978 accord and satisfaction. We find no reversible error in the finding of the trial court that the letter of April 14, 1978 did not constitute an accord and satisfaction as to the name change. That letter, written upon the request of appellant, and according to appel-lee agreed to only after it was assured that appellant would proceed with the name change, acknowledged that receipt of checks from appellant constituted a complete satisfaction of outstanding expenses previously billed. The letter was silent as to any obligation to change appellant’s name. See, e.g., Rudick v. Rudick, 403 So.2d 1091 (Fla. 3d DCA 1981); Hannah v. James A. Ryder Corp., 380 So.2d 507 (Fla. 3d DCA 1980).

Affirmed.

      . 12 U.S.C.A. § 30 provides:
      Any national banking association, with the approval of the Comptroller of the Currency, may change its name or change the location of the main office of such association within the limits of the city, town or village in which it is situated. Any national banking association, with the approval of the Comptroller of the Currency, may change the location of the main office of such association to any other location outside the limits of the city, town, or village in which it is located, but not more than thirty miles distant, by the vote of shareholders owning two-thirds of the stock of such association. A duly authenticated notice of the vote and of the new name or location selected shall be sent to the Comptroller of the Currency; but no change of name or location shall be valid until the Comptroller shall have issued his certificate of approval of the same.


text:
    Jessie SHEPARD, Appellant, v. STATE of Florida, Appellee.
    No. 78-347.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Mark Wilensky, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The order revoking defendant’s probation is reversed and the cause is remanded for a new revocation hearing. See Cuciak v. State, 410 So.2d 916 (Fla.1982).

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


text:
    Samuel SAPP, Appellant, v. STATE of Florida, Appellee.
    No. 80-16.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

Before the trial court, appellant took the position that the giving of instructions to the jury on the maximum and minimum penalties for the offense charged was discretionary. Counsel argued:

I am aware of the case where the Supreme Court indicated the rule in criminal procedure which indicates that the Court shall read this particular instruction.
The Florida Supreme Court has made it discretionary, saying that shall means may. I would request that the Court follow that Supreme Court ruling, that it is within its discretion to read a particular instruction, and that it read the instruction on the maximum and minimum penalty.

This was undoubtedly a reference to Johnson v. State, 308 So.2d 38 (Fla.1974) which held that Rule 3.390(a) as it pertained to penalties was directory only and not mandatory.

In 1977 this rule was changed by substituting the word “shall” for the word “must”, with other minor changes. The rule now (and at the time of appellant’s trial) reads:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.
The Florida Bar (Re Florida Rules of Criminal Procedure), 343 So.2d 1247, 1261 (Fla.1977).

On appeal appellant takes the position that this change of language rendered the rule regarding penalties mandatory rather than directory. This position is obviously well taken. Tascano v. State, 393 So.2d 540 (Fla.1980).

The difficulty is that Tascano affords relief only to “others who have preserved this point on appeal.” Id. at 541. Here not only did appellant fail to apprise the trial court of his view (newly taken on appeal) that the rule was mandatory after this change; he in fact affirmatively stated that it was merely directory. A clearer example of invited error would be difficult to envision. See, e.g., Clark v. State, 363 So.2d 331 (Fla.1978).

One may not tender a position to the trial court on one ground and successfully offer a different basis for that position on appeal. Black v. State, 367 So.2d 656 (Fla. 3d DCA cert. denied 378 So.2d 342 (Fla.1979).

Finally, as we pointed out in Austin v. State, 406 So.2d 1128 (Fla. 4th DCA 1981) it is incumbent upon an appellant to bring to this court a record that clearly demonstrates that the trial court was explicitly put on notice of the precise (and ultimately determined by this court to be the correct) grounds upon which objection was made.

For the foregoing reasons, we affirm.

Our opinion of January 20, 1982, is super-ceded by this opinion on rehearing and is therefore withdrawn.

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