text:
    The STATE of Florida, Appellant, v. Benjamin KIRKLAND, Appellee.
    No. 79-1762.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1981.
    Jim Smith, Atty. Gen., Tallahassee, Janet Reno, State Atty., and Ira N. Loewy, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 24, 1980 (384 So.2d 1328) affirming the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed July 30, 1981, 401 So.2d 1335, and mandate now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 16, 1980 is withdrawn the judgment of this court filed in this cause on June 24, 1980 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed and the cause is remanded to the trial court for proceedings consistent with said opinion. Costs allowed shall be taxed in the trial court (Rule 9.400 b Florida Rules of Appellate Procedure).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Henry MILTON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. TT-415.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    Henry Milton, in pro. per.
    Jim Smith, Atty. Gen., Shirley A. Walker, Asst. Atty. Gen., and Michael Davidson, Gainesville, for appellee.
   PER CURIAM.

AFFIRMED. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), opinion filed May 12, 1981, but revised on motion for rehearing by order filed August 19, 1981.

McCORD, MILLS and THOMPSON, JJ., concur.


text:
    Barbara O. HARRELL, Appellant, v. David E. HARRELL, Appellee.
    No. XX-89.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    Gary C. Pajcic of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant.
    Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellee.
   PER CURIAM.

The wife appeals the order of the trial judge dissolving the marriage of the parties. We affirm on all points except the award of rehabilitative alimony. Based on our opinion in Golden v. Golden, 395 So.2d 1255 (Fla. 1st DCA 1981), we find that the trial judge abused his discretion in failing to award permanent alimony. The parties had been married for eighteen years, the wife had not worked outside the home since the birth of the parties’ second child except to assist in the husband’s business without compensation, and she is presently medically unfit to be employed. The wife took care of the family home and the parties’ children while the husband pursued successful business and political careers. We therefore REVERSE the award of rehabilitative alimony with directions to convert the award of $1,000 per month rehabilitative alimony to an award of $1,000 per month permanent periodic alimony.

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


text:
    CITY OF COCOA; Underwriters Adjusting Co., Appellants, v. Samuel JONES, Appellee.
    No. YY-298.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.

      Ronald S. Webster of Whittaker, Pyle, Stump & Webster, P. A., Orlando, for appellants.
    Jack A. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso, Mosley & Kabboord, P. A., Cocoa Beach, for appellee.
   PER CURIAM.

The employer/carrier appeal from orders of the Deputy Commissioner wherein he failed to rule on the claim for permanent disability benefits. We agree with the employer/carrier that the Deputy should have ruled on the permanent benefits and reverse.

The claimant was injured on July 24, 1979, while attempting to load a small tractor onto a truck. Dr. Kaplan felt that the claimant suffered a 15% permanent physical impairment, while Dr. Gibbons estimated a 5% impairment. Since the date of maximum medical improvement (MMI) was not determined prior to the hearing, counsel for the employer/carrier noted for the record that § 440.25(3)(a), Florida Statutes (1978 Supp.), prohibited maturation of a claim for loss of wage earning capacity until 90 days after a claimant reached MMI. He indicated that since the MMI date was an issue, the statute might or might not apply. The Deputy found that MMI was attained more than 90 days before the hearing, and found a 5% to 15% permanent physical impairment. He reserved jurisdiction to determine the issue of wage loss, although the appropriate standard was loss of wage earning capacity, and thus did not rule on permanent benefits. Counsel for the employer/carrier filed a motion for rehearing, alerting the court that wage loss was the wrong standard, and that the issue of permanent benefits was ripe for adjudication, but the Deputy’s revised order reserved jurisdiction to determine loss of wage earning capacity. When counsel filed a motion to amend the second order, the Deputy entered a third order staying execution of his previous orders.

Since MMI was reached more than 90 days prior to the hearing, the Deputy had no authority to reserve jurisdiction to determine loss of wage earning capacity which postponed ruling on permanent benefits, an issue which was ready for adjudication. Poole & Kent Co. v. Asbell, 394 So.2d 1112 (Fla. 1st DCA 1981).

Appellants argue that this court should order the Deputy to limit a permanent benefits award to between 5% and 15% because the claimant did not conduct a work search to enable the Deputy to find a greater percentage of disability based on loss of wage earning capacity. This issue is appealed prematurely because the Deputy has not addressed the amount of permanency, and this court should not restrict his decision beforehand.

This case is reversed and remanded for action consistent with this opinion.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    William Russell HILL, Appellant, v. STATE of Florida, Appellee.
    No. AB-70.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    William Russell Hill, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of the denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. We find that appellant’s motion is facially inadequate and we affirm the order appealed.

Appellant’s motion requests that his guilty plea be set aside and the judgment and sentence vacated, alleging that he entered a negotiated plea and that the trial judge had knowledge, prior to sentencing, of the plea negotiation. These circumstances are in accordance with approved practice and do not warrant post-conviction relief. See Fla.R.Crim.P. 3.171; Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974). Appellant has not alleged that the conditions of his negotiated plea were violated.

The order appealed is affirmed.

SHAW and THOMPSON, JJ., concur.


text:
    Henry B. JORDAN, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. AE-62.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.

      Henry B. Jordan, in pro per.
    No Appearance for respondent.
   PER CURIAM.

Petitioner requests this Court to review his presumptive parole release date by way of the discretionary writ of mandamus more than six months after the Florida Parole and Probation Commission found no cause to modify his presumptive parole release date. We find that petitioner has unreasonably delayed in filing this petition and we deny the writ.

Commissioner Howard wrote petitioner a letter dated November 20, 1980, stating that pursuant to his review request the Commission had reviewed his presumptive parole release date (PPRD) and found no cause to modify the date. See § 947.173, Fla.Stat. (1979). It appears from the petition that petitioner did not seek any form of judicial review of this final Commission action until he filed this petition for writ of mandamus on June 12, 1981.

Considering the nature of the PPRD we are of the opinion that the significance of the Commission’s decision with respect to an inmate’s PPRD diminishes with the passage of time, so that the necessity for and advisability of judicial intervention in the establishment of a PPRD also subsides with the passage of time. The PPRD is “presumptive” only; it does not indicate the effective parole release date. Compare Fla.Admin.Code Rule 23-16.01(13) with Fla.Admin.Code Rule 23.16.01(14). We see no reason for extending unduly the time in which alleged administrative errors relating to the determination of an inmate’s PPRD may become the subject of judicial review.

Furthermore, judicial review of final Commission action establishing a PPRD is properly triggered by a timely appeal, not by a petition for writ of mandamus. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981) opinion filed May 12, 1981, but revised on motion for rehearing by order filed August 19, 1981. Prior to Daniels, judicial review of such final Commission action was often entertained as a petition for writ of mandamus and therefore was not subject to a rigid 30-day time limit. Therefore, in order to assure that inmates are on notice of the proper method of review the Court has entertained such petitions for writ of mandamus for a 30-day period following Daniels even though not filed within 30 days of the final Commission action. Additionally, this 30-day “grace” period has allowed inmates with a pre-Daniels final Commission order an opportunity to seek judicial review of same.

Petitioner did not file a timely appeal from the Commission action. Petitioner did not file a petition for writ of mandamus soon after Daniels. Instead, petitioner chose to wait more than six months after the final Commission action and more than 30 days after Daniels. Accordingly, we find that petitioner’s application for review of his PPRD was delayed for an unreasonable amount of time. Since it has long been the rule in Florida that there must not be an unreasonable delay in seeking a writ of mandamus, we exercise our discretion and deny the writ. See State ex rel. Haft v. Adams, 238 So.2d 843 (Fla.1970); Pippin v. State ex rel. Town of Blountstown, 73 Fla. 363, 74 So. 653 (1917).

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


text:
    William R. FLOYD, Appellant, v. UNITED STATES SUGAR CORPORATION and Gallagher Bassett Insurance Service, Appellees.
    No. VV-332.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.
    Charles L. Rowe and Michael A. Edwards, West Palm Beach, for appellant.
    F. Shields McManus of McManus, Stewart & Ferraro, Stuart, for appellees.
   PER CURIAM.

The claimant presents the following points in this workers’ compensation appeal: (1) that the deputy commissioner erred in denying claimant’s motion for production of defense surveillance films; (2) that the deputy commissioner erred by failing to make a finding regarding the date of claimant’s maximum medical improvement, and thus implicitly denying the claim for TTD benefits, interest, and attorney’s fees; (3) that the deputy erred in failing to make a finding of fact regarding claimant’s average weekly wage; and (4) that the deputy erred in failing to find that claimant has suffered a loss of wage-earning capacity.

Inasmuch as the deputy’s pre-trial order specifically lists as issues the date of MMI, whether claimant is entitled to additional TTD benefits, interest, and attorney’s fees, and claimant’s average weekly wage, we must remand this cause for a determination of these issues. See Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973).

We find no merit in claimant’s remaining issues on appeal nor in the employer/carrier’s cross-appeal.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

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


author: SHIVERS, Judge.

text:
    James A. POOLEY, Sr., Appellant, v. STATE of Florida, Appellee.
    No. YY-66.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1981.

      Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

We affirm appellant’s judgments of conviction for attempted robbery with a firearm and possession of a firearm by a convicted felony. However, we reverse appellant’s life sentence for attempted robbery with a firearm.

On September 5, 1980, the trial court sentenced appellant to five years in prison for attempted robbery with a firearm and to a consecutive five year term for possession of a firearm by a convicted felon, and committed him to the custody of the sheriff. Later that day, the trial court, on its own motion called appellant back before the court and announced that it had mistakenly thought that appellant was to have been sentenced for a third degree felony on the attempted robbery conviction at the previous sentencing. The court then stated it intended to resentence appellant to life in prison, explaining that attempted robbery with a firearm was a first degree felony and that life in prison was the maximum punishment for a first degree felony. However, because appellant’s chief trial counsel was unavailable, the court set aside defendant’s attempted robbery sentence and granted a motion for continuance until September 12, 1980. At the resentencing hearing, the trial court sentenced defendant to life in prison for attempted robbery with a firearm over objections that the new sentence was excessive and violated the double jeopardy prohibition.

Contrary to the trial court’s interpretation, Section 812.13(2)(a) and Section 777.04(4)(b), Florida Statutes (1979), classifies attempted robbery with a firearm as a second degree felony for which the maximum punishment is fifteen years in prison. Section 775.082(3)(c), Florida Statutes (1979); Lee v. State, 400 So.2d 1238 (Fla. 1st DCA June 1, 1981); Arthur v. State, 391 So.2d 338 (Fla. 4th DCA 1980); Whidden v. State, 374 So.2d 543 (Fla.2d DCA 1979). The enhanced penalty statute, Section 775-087, Florida Statutes (1979), does not apply when the use of a firearm is an essential element of the offense. Crook v. State, 385 So.2d 1136, 1138 (Fla. 1st DCA 1980). Consequently, appellant’s current life sentence for attempted robbery with a firearm is illegal.

The trial court further erred in initially sentencing appellant to five years for attempted robbery with a firearm and then, after appellant began serving his sentence, setting aside the five year sentence and imposing a life sentence. Once a sentence has been imposed by the court and the defendant has begun serving that sentence, it is a violation of the defendant’s constitutional guaranty against being twice placed into jeopardy for the court to resentence the defendant to an increased period of incarceration. Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977); Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978). The trial court was therefore without authority to set aside appellant’s prior sentence and impose a new, increased sentence.

Accordingly, appellant’s judgments of conviction and his five year sentence for possession of a firearm by a convicted felon are affirmed. Appellant’s life sentence for attempted robbery with a firearm is vacated and the cause remanded to the trial court with directions to impose a sentence of five years with credit for 183 days jail time.

AFFIRMED in part, REVERSED in part, and REMANDED.

McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Deborah CHITTICK, Appellant, v. EASTERN AIR LINES, INC. and American Motorists Insurance Company, Appellees.
    No. YY-99.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1981.

      L. Barry Keyfetz of Keyfetz & Poses, P.A., Miami, for appellant.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellees.
   SHIVERS, Judge.

Claimant appeals from a workers’ compensation order dismissing the claim for her failure to permit the employer/carrier to take her deposition in the forum where the claim was pending as previously ordered. We affirm.

Claimant was injured on December 15, 1978, while working for the employer in Dade County. At the time she filed a workers’ compensation claim on October 17, 1979, she was living in California. The employer/carrier sought to take her deposition in Miami on July 29, 1980, but she informed the employer/carrier that she would not attend the deposition unless the employer/carrier paid her travel expenses from California to Florida. The employer/carrier then filed a motion to compel discovery which was granted by the deputy commissioner on September 16, 1980. The deputy commissioner ordered claimant to appear in Dade County, at her own expense, to permit the employer/carrier to take her deposition at a date and time to be set by the employer/carrier, but allowed claimant ten days to show by competent, substantial evidence that she was so destitute she could not present herself at the deposition.

Claimant made no attempt to present evidence of her financial situation and on October 15, 1980, she notified the deputy commissioner through her attorney that she would not appear in Dade County for the deposition as ordered unless the employer/carrier paid for her transportation. As a result of claimant’s refusal to attend the deposition, the deputy commissioner dismissed her claim.

It was clearly within the deputy commissioner’s discretion to dismiss the claim for claimant’s failure to attend her deposition after being ordered to do so and after her failure to show that she was so destitute that she should not be required to attend at her own expense. Section 440.30, Florida Statutes (1977), provides that depositions of

. . . parties, residing within or without the state, may be taken . . . either upon order of the deputy commissioner or at the instance of any party . . . for the same purposes, including the purposes of discovery, and subject to the same rules; all as now or hereafter prescribed by law or by rules of court governing the taking and use of such depositions in civil actions at law in the Circuit Courts of this state.

Rule 9, Workers’ Compensation Rules of Procedure, states that depositions of parties residing within or without the state shall be taken in the same manner and for the same purpose as provided in the Florida Rules of Civil Procedure. Rule 1.380(b)(2)(C) and (D), Florida Rules of Civil Procedure, provides that if a party either fails to attend his deposition after being served with proper notice or fails to obey an order compelling discovery, the court in which the action is pending may dismiss the action or proceeding.

A deputy commissioner has the authority to dismiss a claim if the claimant does not appear for his duly scheduled deposition. John Gaul Construction Company v. Harbin, 247 So.2d 33 (Fla.1971). Harbin, supra, provides especially strong support for the appealed order because, unlike the present case, no prior order had been entered by the deputy commissioner compelling the claimant to attend his deposition. Accord, International Brotherhood of Electrical Workers, Local 349 v. Albury, 299 So.2d 581 (Fla.1974), and Howard Johnson, Inc. of Florida v. Escobedo, 299 So.2d 582 (Fla.1974), reaffirming Harbin, supra, provided the claimant is afforded procedural due process rights such as notice and a hearing prior to the dismissal of a claim.

Additionally, contrary to claimant’s argument, the deputy commissioner was correct in requiring claimant to travel to Dade County for her deposition in the absence of evidence of a financial inability to do so. A plaintiff is required to give his deposition in the forum where the action is pending absent a showing of good cause as to why he should not be required to give the deposition in the forum in which the action was instituted. Ormond Beach First National Bank v. Montgomery Roof Company, 189 So.2d 239 (Fla. 1st DCA 1966).

Such conclusion is premised upon the theory that having selected the forum in which to institute his action, the plaintiff must be prepared to appear in that forum and give his deposition if properly served with notice to do so by the defendant in the case. This is so, whether the choice of forum in which action is instituted is optional or compulsory.
Ormond Beach, supra at 243.

Here, claimant was injured in Dade County and therefore Dade County was the forum for her workers’ compensation claim. Section 440.25(3)(b), Florida Statutes (1979).

Claimant’s contention that it is unconstitutional to require a workers’ compensation claimant to return to the forum where the accident occurred in order to prosecute a claim and to preclude a claimant from filing a negligence action against the employer in a more convenient forum is completely without merit. The choice of venue for workers’ compensation hearings is a matter of legislative decision and there is no constitutional impediment to requiring a claim to be heard in the county where the accident occurred. Rollins v. Southern Bell, 384 So.2d 650 (Fla.1980). As to claimant’s constitutional attack on Section 440.11, Florida Statutes (1978), providing that liability of an employer to an injured employee “shall be exclusive and in place of all other liability” to the employee, the immunity provision has been held to be constitutional. Seaboard Coastline Railroad Company v. Smith, 359 So.2d 427 (Fla.1978); Favre v. Capeletti Brothers, 381 So.2d 1356 (Fla.1980); Carroll v. Zurich, 286 So.2d 21 (Fla. 1st DCA 1973); Gross v. Rudy’s Stone Company, 179 So.2d 603 (Fla.App.1965).

Accordingly, the appealed order is AFFIRMED.

McCORD, J., and WOODIE A LILES (Ret.), Associate Judge, concur.


author: PER CURIAM. WENTWORTH,

text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. STARDUST ACRES and Florida Farm Bureau Insurance Company, Appellees.
    No. YY-311.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1981.
    Nancy L. Cavey and Robert M. Mack, Tallahassee, for appellant.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellees.
   PER CURIAM.

AFFIRMED.

BOOTH and SHAW, JJ., concur.

WENTWORTH, J., concurs with opinion.

WENTWORTH,

Judge, concurring.

I find adequate record support for the award of Fund reimbursement on the ground that claimant’s preexisting impairment contributed medically to the need for remedial care and temporary benefits here in question. § 440.49(2)(e), Florida Statutes. The alternative finding of circumstantial contribution is in my opinion an appropriate acknowledgment that the medical contribution was indirect (as opposed to medical treatment of the prior condition directly), based on testimony that the prior impairment, even if not brought to attention of the treating doctor, prolonged the period of treatment for and recuperation from the new injury. Although the statutory reference to medical or circumstantial contribution is alternative, and may well refer also to circumstantial causation or contribution other than medical as appellant argues with reference to the “but for” merger principle of § 440.49(2)(b)2a, Florida Statutes, the statutory terms do not preclude the reasoning reflected by the deputy’s order.


text:
    Louis MATIRE, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent.
    No. TT-259.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1981.
    Mark R. Baer, Miami, for petitioner.
    Malcolm S. Greenfield, Tallahassee, for respondent.
   ON PETITION FOR REHEARING GRANTED

WENTWORTH, Judge.

Our original opinion in this cause was predicated upon the complete absence of any objective record information in support of the challenged commission action. The commission has now supplemented the record by filing various documents which it possessed at the time of, and which are a satisfactory predicate for, the challenged action. Among these documents are a post-sentence investigation report and various psychological profiles indicating that petitioner is a poor parole risk.

Our original opinion is hereby withdrawn and the petition for a writ of mandamus, or habeas corpus, is denied.

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


text:
    Richard Earl LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2294.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1981.
    Bennett H. Brummer, Public Defender and Beth Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on September 18, 1979 (375 So.2d 344) reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment dated July 23, 1981, 401 So.2d 1319, now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause on November 2, 1979 is withdrawn and the judgment of this court filed September 18, 1979 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order under review is affirmed based on the authority of State v. Segarra, 388 So.2d 1017 (Fla.1980). Costs allowed shall be taxed in the criminal court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    Rodrigo JARAMILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-652.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1981.
    Bennett H. Brummer, Public Defender and Harold T. Fields, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Appellant was charged in Count I with conspiracy to sell, deliver, or possess with intent to sell or deliver controlled substances, to-wit cannabis, methaqualone and hashish. In Counts II, III and IV he was charged with importation of cannabis, methaqualone and hashish, respectively.

He was tried, non-jury, and convicted of the charges in Counts I, II and III. Count IV was dismissed. The trial court placed the defendant on probation for six months to run concurrently with a federal probation. This appeal followed.

It is appellant’s contention that the trial court erred in denying his motion for judgment of acquittal on the charge of conspiracy to sell or deliver or to possess with the intent to sell or deliver controlled substances as alleged in Count I, since the evidence did not prove a prima facie case of guilt against him and was insufficient as a matter of law.

We have carefully considered appellant’s contentions in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated.

Therefore, the judgment and sentence appealed should be affirmed.

Affirmed.


text:
    William F. HOBBS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-943.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 1981.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Affirmed. There is no evidence that any pending investigation of the witness went to the heart of appellant’s defense or arose out of the same criminal episode giving rise to the charges against appellant. Fulton v. State, 335 So.2d 280 (Fla.1976); Chavers v. State, 380 So.2d 1180 (Fla. 5th DCA 1980), cert. denied, 388 So.2d 1118 (Fla.1980). We find the cases cited by appellant inapplicable to the facts of this case as the witness had not been acting as an undercover officer in the defendant’s home, Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979), or as paid informant, Blanco v. State, 353 So.2d 602 (Fla. 3d DCA 1977); Crespo v. State, 344 So.2d 601 (Fla. 3d DCA 1977); and there is no issue of entrapment or attempted bribery of the witness, Stripling v. State, 349 So.2d 187 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978).


author: HURLEY, Judge.

text:
    FINANCIAL INDEMNITY COMPANY, Appellant/Cross-Appellee, v. STEELE & SONS, INC., Charles E. Hobbs and Barbara L. Hobbs, jointly and severally, and W. W. Arnold Construction Company, Inc., Appellees/Cross-Appellants, v. SAFECO INSURANCE COMPANY, Appellee.
    No. 79-1047.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.

      R. Lee Bennett of Lowndes, Drosdick & Doster, Orlando, for appellant/cross-appel-lee.
    Larry Klein, West Palm Beach and William J. Stewart of McKinnon & Stewart, Vero Beach, for appellee/cross-appellant W. W. Arnold Const. Co.
    Ronald W. Sikes of Welbaum, Zook, Jones & Williams, Orlando, for appellee, Safeco Ins. Co.
   HURLEY, Judge.

This appeal challenges a final judgment obtained by a general contractor’s surety against a sub-contractor’s surety. We affirm.

River Club of Martin County, Inc., (River Club), an owner/developer, entered into a contract with W. W. Arnold Construction Company, Inc., (Arnold), to construct a condominium project. The contract required Arnold to obtain a labor and material payment bond to safeguard River Club. Accordingly, Arnold procured a bond from the Safeco Insurance Companies, (Safeco), which provided that, if Arnold or one of its sub-contractors failed to pay for labor and material supplied by a sub-contractor or a sub-sub-contractor, Safeco would satisfy the claim. At the same time it purchased the bond, Arnold signed a general agreement of indemnity wherein it agreed to indemnify Safeco for any monies that Safeco might have to pay out under the labor and material bond.

Next, Arnold entered into a contract with Steele and Sons Mechanical Contractors, Inc., (Steele), for plumbing work on the condominium project. Clause 14 of their contract required Steele to furnish a bond, payable to Arnold, in the sum of $80,580.00. In compliance with this provision, Steele purchased a “subcontract bond” from the Financial Indemnity Company (Financial) which provided that Financial would safeguard Arnold, the general contractor, from “all loss or damage which . . . [Arnold] may sustain by reason of . . . [Steele’s] failure ... to pay claims for labor, services or materials, furnished and used ... in connection with the performance of . .. [the] Sub-contract. . . . ”

Construction on the project was halted before its completion. Sometime later, Arnold learned that although Steele had certified otherwise, three of Steele’s suppliers had not been fully paid. The suppliers instituted legal proceedings to recover the monies owed and, since each supplier qualified as a “claimant” under the Safeco labor and material bond, Safeco satisfied each claim and instituted the present suit against Financial. The trial court ruled in favor of Safeco and this appeal ensued.

Whether Steele defaulted on its contract with Arnold by failing to pay its suppliers, and the calculation of the exact sum due to each supplier, were factual issues for the trial court’s resolution. Since the record contains competent, substantial evidence to support the court’s findings, we cannot substitute our judgment for that of the trial court. Bowles v. Mitchell Investments, Inc., 363 So.2d 1106 (Fla.3d DCA 1978). Consequently, we are left with Financial’s major contention that since its bond with Steele explicitly indicates that it “is one of indemnity only and does not inure to the benefit of or confer any right of action upon any person other than .. . Arnold,” Financial can never be liable to anyone but Arnold. We disagree. In our view, the facts of the case at bar are sufficiently analogous to those in Argonaut Insurance Co. v. Commercial Standard Insurance Co., 380 So.2d 1066 (Fla.2d DCA), review denied, 389 So.2d 1108 (Fla.1980), to hold that Argonaut is applicable to and dispositive of the present case. It provides ample justification for the trial court’s decision that Safeco is entitled to recover from Financial.

Second, Financial contends that since its bond is silent on the issue of attorney’s fees, in no event can Safeeo’s award include a sum for attorney’s fees. We disagree. Section 627.428, Florida Statutes (1979) provides in part:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Additionally, Section 624.03, Florida Statutes (1979), defines an “insurer” to include “every person engaged as [an] indemnitor, [or] surety. ...” Section 624.606(2), Florida Statutes (1979), defines “surety insurance” as, inter alia, “[insurance guaranteeing the performance of contracts, . . . and guaranteeing and executing bonds, undertakings, and contracts of suretyship.”

In our view, Financial qualifies as an insurer within the meaning of Section 627.-428 and, consequently, it is liable for Safe-eo’s attorney’s fees. See First National Bank of Miami v. Insurance Co. of North America, 535 F.2d 284 (5th Cir. 1976).

We have carefully reviewed appellant’s other contentions and find that it has not established reversible error. Therefore, the judgment is AFFIRMED.

MOORE and BERANEK, JJ., concur.


text:
    AMC/JEEP OF VERO BEACH, INC., and Roy Chapin, III, Appellants, v. James E. FUNSTON and Clark & Funston, Inc., a Florida Corporation, Appellees.
    No. 79-1452.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.

      Michael O’Haire and Thomas Thatcher of Smith, O’Haire, Thatcher & Quinn, Vero Beach, for appellants.
    Samuel A. Block of Vocelle, Gallagher & Block, Vero Beach, for appellees.
   HURLEY, Judge.

This appeal concerns the failure of a recently acquired auto dealership. Joseph Clark and James Funston purchased the assets of AMC/Jeep of Vero Beach, Inc. They, in turn, formed Clark & Funston, Inc. and operated the AMC/Jeep dealership for approximately eight to ten months. When the business failed, they instituted suit against the corporate seller, AMC/Jeep of Vero Beach, Inc., and its president/majority stockholder, Roy Chapin, III. A bench trial resulted in a verdict against both defendants in the sum of $36,000. We affirm in part and reverse in part.

The clearest aspect of this case is Clark & Funston’s allegation that AMC/Jeep of Vero Beach, Inc. (“AMC/Jeep”) breached a warranty in the sale of certain fixtures. Though Clark & Funston, Inc., was told that the fixtures were free and clear of all encumbrances, it turned out they were owned by other parties. AMC/Jeep conceded this issue on appeal and, therefore, we affirm that portion of the verdict ($6,000) relating to this claim.

Next, we consider Clark & Funston’s allegation that AMC/Jeep materially breached the sale contract by failing to assign two leases for the property on which the dealership was located. The contract between Clark & Funston and AMC/Jeep specified that:

Seller [AMC/Jeep] shall assign or cause to be assigned to Buyer [Clark & Fun-ston], effective at closing, the leases . . . and Buyer agrees to assume a Seller’s obligations thereunder. Buyer understands and acknowledges that this Agreement is contingent upon the assignment of the . . . Leases described above and in the event that the Seller is unable to obtain the approval of the Buyer by . . . [the lessors], then this Agreement shall be null and void and the Buyer and Seller shall be relieved of any and all obligations contained in this Agreement.

The trial court found that the leases had not been assigned and that the failure constituted a material breach of the contract. Though the analysis is not clear, it appears that the court relied upon this finding and legal conclusion to excuse Clark & Funston from performing any other obligations under the contract. Respectfully, we are compelled to disagree with the learned trial judge both as to the finding that no assignment had taken place and as to the conclusion that there was a material breach of the contract which damaged Clark & Funston.

While it is true that the lessors refused to release AMC/Jeep from liability under the lease agreements until the lessors had an adequate opportunity to observe Clark & Funston’s performance record, it is also true that the lessors orally approved Clark & Funston stepping into AMC/Jeep’s shoes. The evidence clearly demonstrates that the lessors were aware that Clark & Funston had taken possession of the premises and, furthermore, that the lessors accepted the monthly rental checks directly from Clark & Funston. This conduct, in our view, constituted an assignment by operation of law. The supporting principle of law was set forth in Farmers’ Bank and Trust Co. v. Palms Publishing Co., 86 Fla. 371, 98 So. 143 (1923), where the court said:

That a lessor, by accepting the benefits of a lease, after an assignment or subletting by the original lessee, and by a course of conduct reasonably susceptible of a construction that he acquiesces in the assignment or subletting of the leased premises, notwithstanding a covenant against an assignment or subletting, may be held to have waived the covenant and to be es-topped from asserting a forfeiture because of its breach, is well established. 98 So. at 144.

See also Crossman v. Fountainbleau Hotel, 273 F.2d 720 (5th Cir. 1959); 51C C.J.S. Landlord and Tenant § 39 (1968); 49 Am.Jur.2d Landlord and Tenant § 397 (1970); 20 Fla.Jur. Landlord and Tenant § 62 (1958).

Moreover, even if we assume for the sake of argument that AMC/Jeep’s conduct in failing to provide a written assignment of its rights under the leases constituted a breach of the contract, it would not support the $30,000 verdict in this case. While there is a legal remedy for every legal wrong and, thus, a cause of action exists for every breach of contract, an aggrieved party who has suffered no damage is only entitled to a judgment for nominal damages. J. Calamari & J. Perillo, The Laws of Contracts § 14-2 (2d ed. 1977). Clark & Funston has utterly failed to demonstrate that AMC/Jeep’s conduct caused any damage.

Finally, we turn to Clark & Fun-ston’s claim that AMC/Jeep improperly refused to terminate a lien on the dealership’s assets. This, says Clark & Funston, irreparably impaired its financial standing and forced it to close its doors. Without delving into the factual background of this charge, suffice it to say that the alleged injury is not borne out by the record. To the contrary, James A. Sheehan, the former president of the First National Bank of Fort Pierce, the bank which provided the dealership’s floor-plan financing, unequivocally testified that irrespective of the filed security interest, his bank would not have provided additional financing. This is demonstrated by the following colloquy:

(Counsel) Q. Thinking back at that time when all these problems came up, was the floor plan going to be terminated?

(Mr. Sheehan) A. (Witness nods head affirmatively.)

Q. It was not going to be renewed?

A. No.

Q. If the financing statement was not there, if there was a clear record up there as to what Funston & Clark had represented to you as additional collateral, would the bank have been satisfied?

A. No. I don’t think that we would have renewed the line in any event. (Tr. 177-178).

We are compelled to conclude that the record is devoid of substantial, competent evidence to support more than six thousand dollars of the thirty-six thousand dollar judgment. It is an undeniable fact that Clark & Funston operated the dealership for eight to ten months but was unable to make a go of the business. Whether this was a result of undercapitalization or management problems is not clear. But it is certain that Clark & Funston failed to prove that AMC/Jeep was responsible for the demise of the business. Only after Clark & Funston defaulted on various obligations for which AMC/Jeep was secondarily liable, did it institute the present suit. Given the lack of proof at trial, it is hard to suppress the suspicion that this was not a suit premised on the questionable legal rationale that the best defense is a good offense.

As a further indication of the deficiency of proof at trial, we turn to the trial court’s imposition of personal liability upon AMC/Jeep’s president and majority stockholder, Roy C. Chapin, III. In Florida, personal liability can only be imposed upon a corporate officer who has signed a contract in his personal capacity or who has used the corporate entity for fraudulent purposes or where the corporation was merely the alter ego of the shareholders. Charter Air Center, Inc. v. Miller, 348 So.2d 614 (Fla.2d DCA), cert. denied, 354 So.2d 983 (Fla.1977); Riley v. Fatt, 47 So.2d 769 (Fla.1950); 2 M. Gordon, Florida Corporations Manual, Ch. 13 (1975 (1980 Supp.)). In the instant case there was no evidence that Roy Chapin had personally involved himself in the details of the sale nor was there any allegation of fraud. On this basis, there can be no support for the contention that Chapin be held personally liable.

As a result of Clark & Funston’s default on lease payments and on a bank loan which it had assumed, AMC/Jeep was required to pay out $19,597.00. Accordingly, AMC/Jeep counterclaimed for this sum in the trial court. The counterclaim, however, was denied apparently as a result of the court’s conclusion that AMC/Jeep materially breached the contract which, in turn, excused Clark & Funston’s performance. In light of our reversal of the finding of a material breach, and since the testimony regarding AMC/Jeep’s paying out $19,-597.00 was uncontradicted at trial, we hold that AMC/Jeep is entitled to judgment in the amount claimed with credit to Clark & Funston for the six thousand dollars previously affirmed. Therefore, we affirm the judgment in part and reverse in part and remand the cause with instructions to enter judgment in favor of AMC/Jeep of Vero Beach, Inc. and against James E. Funston and Clark & Funston, Inc. in the sum of $13,597.00 plus court costs.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

MOORE and BERANEK, JJ., concur.


text:
    ROBERT WILMOTH ASSOCIATES, INC., Lucius G. Hill and Phillip D. Lewis, Inc., Appellants, v. Paul J. RYMARQUIS, Appellee.
    No. 79-2486.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Larry Klein, West Palm Beach, and Lewis, Vegosen, Koeppel & Rosenbach, Palm Beach, for appellants.
    K. Judson Boedecker of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for appellee.
   PER CURIAM.

The sole question involved on this appeal is the effect of the below underlined terms contained in a promissory note:

The total principal amount shall become payable on October 1, 1977, or the date of the funding of the permanent mortgage whichever occurs last, to be paid only in the event that the permanent mortgage financing for a permanent mortgage loan to Rvmach Development is hereafter closed. . . .

It is undisputed that Rymach Development never obtained a permanent mortgage loan and that the failure to obtain it was through no fault of the maker-appellee.

The appellant contends that the above quoted terms were inserted in the note merely to set a time for payment, and that the failure of the condition to occur mandates a holding that payment shall be within a reasonable time. See, Lee v. Bossung, 127 Ind.App. 388, 138 N.E.2d 913 (Ind.1956); Hughes v. McEwen, 112 Miss. 35, 72 So. 848 (Miss.1916); Richards v. Tavares, 105 Cal.App. 261, 287 P. 552 (Cal.1930). The appel-lee argues that the requirement of obtaining a permanent mortgage loan is a condition precedent to the obligation to pay, and because the condition never occurred, there is no obligation.

The intention of the parties was a question of fact which was resolved by the trial court upon the presentation of substantial competent evidence. We may not substitute our judgment for that of the trier of fact.

AFFIRMED.

MOORE, GLICKSTEIN and HURLEY, JJ., concur.


text:
    MISAL CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellant, v. RUSCO INDUSTRIES, INC., a corporation, d/b/a Look Products, Appellee.
    No. 80-713.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Mark C. Menser, Fort Lauderdale, for appellant.
    Bruce David Green of Levine & Green, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellee Rusco Industries, Inc., sued appellant Misal Construction Company, Inc., in two counts, a) for $2,544.48 due and owing according to an account attached to the complaint and b) for $2,544.48 based upon an account stated. Misal’s answer contained a general denial of all the crucial allegations of the complaint except that it admitted having had business dealings with appellee. The answer also contained an affirmative defense of failure of consideration resulting from failure to deliver goods contracted for and furnishing defective and inferior workmanship and materials. The trial court entered summary judgment for Rusco and this appeal ensued.

Rusco filed an affidavit in support of its motion for summary judgment, stating that Misal was indebted to Rusco in the sum of $2,544.48. Thus, while the affidavit is no model it might be sufficient to prove Count I. However, it states nothing in support of the second count, which is based on an account stated. But more importantly the affidavit is insufficient to carry the day because there are answers to interrogatories that show that a genuine issue of fact remains in the case. Rusco filed some 29 interrogatories to Misal which Misal answered in almost monosylabie fashion. The answers would certainly justify a motion to compel better answers. However inadequate the responses may appear, they unquestionably demonstrate a genuine issue of material fact between these parties. For example, one answer admits Misal ordered goods, merchandise, and services from Rus-co. But various other answers support Mis-aks pleadings in that the answers to interrogatories asserted the goods in question were damaged and that Rusco agreed to correct certain deficiencies but did not do so.

Much of the argument in the briefs deal with the contention that the party moved against must file a counter-affidavit or suffer summary judgment. This, of course, is not correct. If the court file contains other competent proof such as depositions, admissions, or answers to interrogatories, which contradicts the moving party’s claim, it is not necessary for the non-moving party also to file an affidavit to counter the movant’s affidavit. That is not to say that good practice may not often suggest also filing an affidavit so as to point up the contradicting statements which may be buried throughout a voluminous court file.

We believe this record demonstrates sufficient evidence of genuine issues of material fact to require a trial or at least further discovery before summarily terminating the litigation.

REVERSED AND REMANDED.

DOWNEY, ANSTEAD and MOORE, JJ., concur.


text:
    STATE of Florida, Appellant, v. Cyndi Marie LAPOINT, Appellee.
    No. 80-759.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

REVERSED AND REMANDED on authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

DOWNEY, MOORE and HERSEY, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Demosthenes Nicolas JONSON, Appellee.
    No. 80-829.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
   HERSEY, Judge.

The order granting appellee’s motion to dismiss is reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla., 1981) and this cause is remanded for further appropriate proceedings.

MOORE and BERANEK, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Orlando DOMINQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 80-1361.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, 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.
   PER CURIAM.

Defendant appeals his conviction and sentence for escape. Defendant asserts error based upon Fouts v. State, 374 So.2d 22 (Fla.2d DCA 1979), because the jury learned of the underlying crime for which defendant was incarcerated at the time of his escape. There was never any question that defendant did in fact escape. He took the stand and admitted doing so. The defense was that defendant was desperate to see his wife and children. During the defendant’s testimony, there was confusion about the number of crimes for which defendant had been sentenced. In any event, defendant testified he had been sentenced to some twenty years for numerous different crimes. Under these circumstances, there was certainly no prejudice to the defendant when the jury was advised that defendant had been sentenced for the single underlying crime of burglary. On appeal there was no argument asserting prejudice, and we conclude that under the circumstances of this case defendant may have been helped and was certainly not hurt by disclosure of the underlying crime.

Defendant also contends that the trial court erred in the written sentence by failing to give him credit for time served of 154 days to apply to the sentence from which he had escaped. Although the trial judge’s oral pronouncement of sentence was proper, the State concedes the written judgment and sentence provide no credit is to be given for time served. The matter is, therefore, remanded to the trial court with directions to vacate this aspect of the sentence and for correction of this error. Defendant need not be present at the proceedings upon this remand.

AFFIRMED IN PART; REVERSED IN PART.

BERANEK and GLICKSTEIN, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

Although I agree with the majority’s assessment that any error committed by the trial judge in reading an amended information to the jury which contained an allegation as to appellant’s previous conviction of burglary was harmless, I think it is important to note that this court has previously rejected the holding of Fouts v. State, 374 So.2d 22 (Fla.2d DCA 1979) as it applied to a prosecution for possession of a firearm by a convicted felon. See Parker v. State, 389 So.2d 336 (Fla.4th DCA 1980).


author: LETTS, Chief Judge.

text:
    FLORIDA POWER & LIGHT COMPANY, Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, Appellee.
    No. 80-1515.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Dean Andrews and R. G. Lubbers, Jr., of Andrews & Lubbers, Fort Lauderdale, for appellant.
    Philip S. Shailer of Shailer & Purdy, Fort Lauderdale, for appellee.
   LETTS, Chief Judge.

Florida Power & Light (FP&L) appeals from a final summary judgment denying it credit for ad valorem taxes paid by it and collected by the City on behalf of the “Downtown Development Authority of the City of Fort Lauderdale” (DDA). We reverse.

Under the franchise agreement entered into between the City and FP&L, the latter was required to pay compensation to the City in an annual sum equal to six percent of its revenues obtained from electricity sales, less “the amount of all taxes, licenses and other impositions levied or imposed . . . by the [City] upon [FP&L’s] electric property business or operations. . . . ”

Needless to say FP&L wants to take credit for the tax levied by the City for the benefit of the DDA in an amount, which over several years, has added up to in excess of $225,000. However the City claims FP&L is not entitled to any credit because the DDA, created by a special act of the legislature, is a separate and distinct entity over which the City has little or no control. Further, the City argues that in collecting the tax, it is only performing a ministerial act, has no discretion over the amount of the tax to be levied and is merely a conduit through which all the revenues received, flow to the DDA treasury.

We do not dispute any of the foregoing. However without protracted legal analysis, we point out that the written franchise entitles FP&L to a credit for “all taxes . . . and other impositions levied or imposed by the [City].” There are no exceptions, exclusions or limitations.

Chapter 69-1056, Laws of Florida Special Act of 1969 which created the DDA provides in pertinent part:

Section 10. The director shall prepare and submit for the approval of the Board a budget for the operation of the Authority for the next fiscal year. The budget shall conform to the fiscal year of the city and shall contain the information required of all City Departments. After approval by the Board, a copy of the budget shall be delivered to the city by the director with a statement of the millage required therefor as determined by the Board, which millage shall be levied by the City Commission not to exceed the limits fixed by law. . . .
Section 11. The City Commission is authorized to levy an ad valorem tax on all downtown real and personal property not exceeding one mill on the dollar valuation (as such valuations are assessed for the general ad valorem roll of the city) of such property for the purpose of financing the operation of the Authority. (Emphasis supplied).

Furthermore, to take one year as an example, the 1979 City resolution on this subject provides as follows:

RESOLUTION NO. 79-295
A RESOLUTION LEVYING AN AD VALOREM TAX FOR FISCAL YEAR 1979/1980 ON BEHALF OF THE DOWNTOWN DEVELOPMENT AUTHORITY OF THE CITY OF FORT LAUDERDALE, PURSUANT TO CHAPTER 69-1056, LAWS OF FLORIDA, SPECIAL ACTS OF 1969, AND CERTIFYING SAME TO THE COUNTY OFFICIALS.
* * * * * *
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF FORT LAUDER-DALE, FLORIDA:
SECTION 1. That pursuant to the provisions of Chapter 69-1056, Laws of Florida, Special Acts of 1969, relating to the Downtown Development Authority of the City of Fort Lauderdale, Florida, the City Commission of the City of Fort Lauder-dale does hereby levy on all property subject to an ad valorem tax both real and personal, lying within the “Downtown” area of Fort Lauderdale, as defined in said Act, a tax of 0.7271 mills for the purpose of financing the operation of the Downtown Development Authority, plus a tax of 5 mills for debt service payment and reserve for the bonds of said Downtown Development Authority.
SECTION 2. That such tax levy shall be certified by the City Clerk to the County Property Appraiser, County Tax Collector and Board of County Commissioners of Broward County, Florida, by delivering a certified copy of this Resolution to each, so that such levy and millage may be included in the total millage to be certified by the Board of County Commissioners of Broward County, Florida, to the Property Appraiser and Tax Collector of Broward County, Florida, for imposition against all property located within the aforesaid “Downtown” area of the City of Fort Lauderdale, Florida, liable to taxation.
ADOPTED this the 5th day of September, 1979.
(Emphasis supplied).

From the language above quoted, it is impossible to conclude other than that the amount to be levied is a tax and that it is the City of Fort Lauderdale, that is doing the levying thereof. As we have already said, it is clear that FP&L is entitled to credit under the terms of the franchise agreement for all taxes and impositions levied by the City, not just those that the City, in its infinite wisdom, sees fit to permit credit for. The City’s remedy, if any, must be to renegotiate and modify the agreement rather than contort the meaning of its present perfectly plain phraseology.

Any conceivable doubt that we might have had as to the correctness of our conclusion was laid to rest at oral argument when it was conceded that under the Special Act, all of the assets of the DDA are to revert to the City no later than the year 2010 (see Section 14 thereof). This ultimate resolution belies all attempts to argue that the City and the DDA are separate entities connected only by the City’s role as the DDA’s collector of taxes. It should also be remembered that the Very name of this authority as set forth in the Act is: “The Downtown Development Authority of the City of Fort Lauderdale" (Section 1(1) of the Special Act, emphasis supplied).

From the sum of the foregoing, we hold that FP&L is entitled to this annual credit and we remand this cause with directions to enter a summary judgment in favor of FP&L in accordance herewith.

REVERSED AND REMANDED.

MOORE and BERANEK, JJ., concur.

      . We have not ignored the City’s argument that under several definitions of the word “levy,” what it is doing in the instant case is not really levying, but only collecting the tax. The problem with that argument is that the City itself uses the word “levy” in the franchise agreement, in its resolutions and caused it to be used in the special act. It would be patently unfair to allow it to vary the definition of the same word from document to document depending on which is to its advantage.


text:
    STATE of Florida, Appellant, v. Bryan Degrace TREADWELL, Appellee.
    No. 80-1880.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.

      Jim Smith, Atty. Gen., Tallahassee and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

REVERSED AND REMANDED on authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

DOWNEY, MOORE and HERSEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Confessor COLON, Janice MacNamee and Steven Williams, Appellees.
    No. 81-18.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Sean Moore and W. T. Laswell, P. A., Fort Lauderdale, for appellee-Colon.
    Richard Jorandby, Public Defender, West Palm Beach, for appellee-MacNamee.
    Angelo Marino, Jr., Fort Lauderdale, for appellee-Williams.
   PER CURIAM.

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

REVERSED AND REMANDED.

MOORE, HERSEY and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. David BAILEY, Thomas Feasel and William Burke, Appellees.
    No. 81-31.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

REVERSED AND REMANDED on authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

DOWNEY, MOORE and HERSEY, JJ., concur.


text:
    Robert Lynn WATFORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-103.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.

      Rupert Jasen Smith, Fort Pierce, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This appeal is dismissed, the issues being controlled by State v. Benitez, 395 So.2d 514 (Fla.1981) decided adversely to appellant’s position, rendering this cause moot.

DOWNEY, MOORE and HERSEY, JJ., concur.


text:
    HUGHES SUPPLY, INC., Appellant, v. Joel PEARL, and Does I-X, Appellees.
    No. 81-489.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    William B. Wilson of Maguire, Voorhis & Wells, P.A., Orlando, for appellant.
    Robert G. Udell of Saylor & Beatty, Stuart, for appellee — Joel Pearl.
   HERSEY, Judge.

This is an appeal seeking review of a non-final order denying a motion for change of venue, filed pursuant to Section 47.122, Florida Statutes (1979), Florida’s forum non-conveniens statute. The complaint, filed by appellee Joel Pearl, alleges that appellant and ten of its agents and employees tortiously interfered with the business relationship between Pearl and Progress Lighting Fixtures. The suit was instituted in the circuit court of St. Lucie County and appellant’s motion for a change of venue to Orange County was denied.

The record reveals that neither the appellant nor the appellee, Joel Pearl, reside in St. Lucie County. Appellee is a resident of Martin County and appellant corporation has its principal place of business in Orange County. Although not specifically pled, all allegations indicate that the cause of action arose in Orange County. All of appellant’s officers, directors, employees and agents who were involved with Progress Lighting Fixtures work in Orange County and live in or about the Orlando, Orange County area. Appellant’s documents and business records pertaining to transactions and contacts with Progress Lighting are located in Orange County. The only connection with St. Lucie County is that appellant has an office there; however, that office is not involved in the subject matter of the litigation.

A motion for change of venue pursuant to the statute is addressed to the sound judicial discretion of the trial court and the exercise of that discretion will not be disturbed except upon a clear showing of abuse. Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976); Florida Power & Light Company v. Troutman, 396 So.2d 743 (Fla. 4th DCA 1981). In view of the minimal contacts between the parties and the cause of action and St. Lucie County, compared with the substantial contacts with Orange County, we believe that the record constitutes a clear showing that St. Lucie County is a forum non-conveniens so that the relief sought should have been granted.

We reverse and remand the case with instructions to transfer the cause to the circuit court of Orange County, Florida.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: COWART, Judge.

text:
    William Otis DRAPER, Appellant, v. STATE of Florida, Appellee.
    No. 79-335.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.

      Richard L. Jorandby, Public Defender, and Jorge LaBarga, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

This is an appeal from an order revoking probation for violation of five conditions of probation.

We have reviewed the appealed order, the record and briefs and find there is substantial competent evidence to support a finding that the appellant had sufficient ability to pay the cost of supervision as directed in his probation order. It was a matter of priorities and appellant chose to use the little money he had for other purposes. There was also sufficient evidence to show that appellant knowingly drew a worthless check thereby violating the worthless check statute and the condition of his probation that he not violate any law.

There is a third reason revocation was proper. The probation order directed appellant to comply with all instructions of his probation officer. Appellant had previously pled guilty to a violation of his probation and had been restored to probation on the court imposed condition that he attend and successfully complete a program at a probation and restitution center. While a resident at the center he was specifically instructed to write no checks without the express approval of his probation supervisor. Appellant disregarded this directive and wrote two checks. We uphold the trial court’s finding that this action violated the provision of the probation order directing the probationer to comply with all instructions of his probation officer.

Probation is supervision and control with the hope of rehabilitation. While only the court can set conditions of probation, the judge cannot personally supervise; he cannot set forth a complete guide book of directions in an order of probation. Instead, he properly delegates to the probation supervisor the giving of specific instructions necessary for effective and successful supervision. The court retains complete control over determination of the reasonableness and necessity of instructions given and the materiality of alleged violations. § 948.06(1), Fla.Stat. (1979); Watkins v. State, 368 So.2d 363 (Fla. 2d DCA 1979). The instruction violated by appellant was specific, clear, reasonable, and, in the opinion of both the trial judge and the probation supervisor, necessary for effective supervision and control. The violation was substantial, material and willful. Appellant’s first opportunity on probation was unsuccessful and the trial judge gave him one further chance at the probation and restitution center in order to avoid his imprisonment. Close supervision and control at the center was of the essence of the reinstated probation although in this instance it was unsuccessful. The trial court was of the opinion that the probation and restitution center system is a good concept and that it will not work without supervision by probation officers with authority by court order to give meaningful instructions to probationers. We agree.

The trial court expressly did not find appellant to have violated Conditions 9 and 11 of his probation order but, apparently through clerical error, violations of these two conditions were recited in the order of revocation. Although that erroneous recital is harmless it is hereby stricken and the order of revocation of probation, as corrected, and the judgment and sentence are

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . See, e. g., Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980); Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978); Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975).

      . § 832.05, Fla.Stat. (1979).

      . We are aware that the holding in Watkins is not consistent with Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978), Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978), and Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977).


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

text:
    STOTTLER STAGG AND ASSOCIATES, INC., a Florida Corporation, Appellant, v. James W. ARGO, Appellee.
    No. 80-802.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.

      John M. Starling of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellant.
    Joseph S. Gillin, Jr., of Storms, Krasny, Normile, Dettmer & Gillin, P.A., Melbourne, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a final judgment holding that an agreement with appellee was not enforceable because it was an “investment contract” and, therefore a “security” as defined by section 2(1) of the Securities Act of 1933 and section 517.02(1), Florida Statutes (1977), and had not been registered.

Stottler Stagg was an engineering firm. Argo, upon retirement from a career with the United States Corps of Engineers, was hired by Stottler as manager of its Jacksonville office. Argo suggested that Stottler consider the business potential for their services in Saudi Arabia. Argo recommended a Colonel Gray, also from the United States Corps of Engineers, as being knowledgeable and having influential contacts in Saudi Arabia.

A series of meetings, most of which Argo attended, were held. When Richard Stott-ler, president of appellant corporation, indicated reluctance to commit any significant amount of money to the venture because of the company’s limited experience in overseas ventures, Argo stated that he had enough confidence in himself that he would be an investor and that he would advance one-half of the cash necessary to fund the venture, up to a maximum commitment of $100,000.

Thereafter, Stottler entered into an agreement with Gray and another individual to form a Virginia corporation, GKJ Corporation, each to receive thirty-three and one-third percent of the voting stock. Argo was familiar with the terms and was present at most of the negotiations leading up to the execution of the agreement on October 20, 1977.

On October 27, 1977, Stottler and Argo signed their agreement whereby Argo agreed to advance funds on an equal basis with Stottler up to a maximum of $100,000. Stottler put $153,000 into the venture but Argo failed to pay any part of his commitment which precipitated this litigation.

The issue here is whether the October 27, 1977 agreement was exempt under the provisions of section 517.061, Florida Statutes (1977) and sections 4(1), (2) of the Federal Securities Act of 1933, as amended.

The purpose of laws requiring the registration of securities is to protect the public from fraudulent and deceptive practices in the sale and marketing of securities. Edwards v. Trulis, 212 So.2d 893 (Fla. 1st DCA 1968); Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964). The Securities Act was not intended as protection for those shown to be able to fend for themselves. Garfield v. Strain, 320 F.2d 116 (10th Cir. 1963).

To be the subject of registration, the agreement must be a “security” and the seller must be the “issuer or underwriter.”

15 U.S.C. § 77b(4) defines “issuer” as every person who issues or proposes to issue any security. 15 U.S.C. § 77b(11) defines “underwriter” as any person who has purchased from an issuer with a view to the distribution of any security, or participates or has a direct or indirect participation in any such undertaking. 15 U.S.C. § 77b(1) defines a security, in part, as an “investment contract.” The trial court held that the agreement met the tests for an investment contract set down by S.E.C. v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946):

(a) the investment of money
(b) in a common enterprise
(c) with an expectation of profit
(d) to be derived solely from the efforts of others.

328 U.S. at 297, 66 S.Ct. at 1102.

In Rudd v. State, 386 So.2d 1216 (Fla. 5th DCA 1980), this court adopted the Howey test for determining whether a transaction constituted a security or more specifically, an “investment contract” under the Florida Sale of Securities Act.

In the instant case, the trial court found that the first three elements did not warrant discussion but we are not so persuaded. The venture into which Argo was investing was the Saudi Arabian undertaking, the GKJ Corporation. The October 27, 1977 agreement was nothing more than an understanding between Argo and Stottler as to how they would share in their mutual investment in GKJ.

It is clear that Argo is not within the class of persons the statute and Act were designed to protect. He was knowledgeable; he participated in all negotiations; it was he who first interested his employer in the overseas operation; and his offer to participate was a motivating force in Stott-ler’s decision to enter the Saudi venture.

The stock of GKJ was exempt under the provisions of section 4(2) of the Securities Act of 1933, as amended, which exempts transactions by an issuer not involving any public offering. A private offering is exempt if the purchasers (1) are limited in number, (2) are sophisticated, and (3) have a relationship with the issuer enabling them to command access to information that would otherwise be contained in a registration statement. Cook v. Avien, Inc., 573 F.2d 685 (1st Cir. 1978). See also section 517.061(3), Florida Statutes (1977).

Appellee did not contend that the transaction was in any way misrepresented, or that he was refused information, or that he was naive. His only apparent complaint was that he was not permitted to take an active part in the Saudi operation. This very factor, however, under the fourth element of the Howey test would have prevented the agreement from being an “investment contract” as defined under the Securities Act.

We REVERSE and REMAND for entry of judgment for appellant.

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

      . 15 U.S.C. § 77b(l).

      . 15 U.S.C. § 77d(l), (2).

      . 15 U.S.C. § 77d(2).

      . If a representation to such effect was made, it was not incorporated in either agreement and Argo did not exert this as a defense to the complaint.


author: COBB, Judge.

text:
    J. C. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1032.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The defendant, J. C. Miller, appeals his conviction of issuing a worthless check on the basis of the failure of the trial judge to conduct an adequate Richardson inquiry following a timely objection to the testimony of an unlisted rebuttal witness for the state.

At trial Thomas Crabtree, the owner of an automobile repair shop, testified that he had worked on Miller’s car, and that Miller had paid him by the check in question. Crabtree stated that he deposited Miller’s check, and it was returned by Miller’s bank with the notation “Account Closed.” An assistant cashier at the bank upon which the check was drawn testified that the account had been closed by the bank on May 25, 1978, “for carrying and [sic] overdraft as a result of insufficient fund charges.”

Miller’s defense was that he did not issue the check. He denied it was his signature on the check. He further testified that while he in fact went to Crabtree’s garage for an estimate, his car was never repaired there. Miller further denied presenting any check to Crabtree and stated that he had not written any checks on the particular account since May of 1978, the month the account was closed. As impeachment, the state confronted Miller with several checks drawn on the account that were dated with the year 1979. Miller denied having drawn them.

To rebut Miller’s testimony, the state called John Bradley, an investigator for the Putnam County State Attorney. The defense objected that Bradley had not been listed by the state in its discovery responses. This objection was summarily overruled. Bradley then testified that Miller had talked with him voluntarily on at least two occasions, and that Miller had told him that he, Miller, had issued the check in question to Crabtree, the complainant. Bradley testified that Miller told him he was dissatisfied with the work Crabtree had performed on his car.

The record shows that the state failed to include the name of witness Bradley in its discovery documents. The record also shows that defense counsel timely objected to the state’s use of Bradley in rebuttal. The rules of criminal procedure requiring disclosure of witnesses apply to all witnesses, including rebuttal witnesses. Hicks v. State, 400 So.2d 955 (Fla.1981); Kilpatrick v. State, 376 So.2d 386 (Fla.1979); McDonnough v. State, 402 So.2d 1233 (Fla. 5th DCA 1981). The trial court made no inquiry into the circumstances surrounding the discovery violation, nor did it even attempt to ascertain whether Miller had been prejudiced by the state’s omission. Because the record does not affirmatively show that Miller was not prejudiced by Bradley’s testimony, the trial court committed reversible error by summarily overruling defense counsel’s objection. Wilcox v. State, 367 So.2d 1020 (Fla.1979); Cumbie v. State, 345 So.2d 1061 (Fla.1977); Smith v. State, 319 So.2d 14 (Fla.1975); Richardson v. State, 246 So.2d 771 (Fla.1971); McDonnough; Hardison v. State, 341 So.2d 270 (Fla. 2d DCA), cert. denied, 348 So.2d 953 (Fla.1977).

The state argues that Zeigler v. State, 402 So.2d 365 (Fla.1981), requires counsel to do more than object to the inclusion of a witness who was not disclosed during discovery. More specifically, the state argues that defense counsel is required to ask for something less than outright exclusion when the trial court overrules an objection and request for exclusion of a witness. The state’s position is that Miller waived his discovery rights by “simply objecting and not asking for a more specific remedy.” In Zeigler the defendant objected to the testimony of an expert witness. The witness had conducted tests which were not disclosed to the defense. The Zeigler court held that the trial court had taken sufficient steps to remedy any prejudice by granting defense counsel’s request for a recess and allowing counsel to interview the witness for the amount of time requested by counsel.

Unlike the present case, the trial court in Zeigler remedied any prejudice to the defendant resulting from the state’s action. Zeigler did not change the rule of law established by the numerous cases previously cited that stand for the proposition that once an objection is made, an inquiry must be had, prejudice or its absence determined, and a proper remedy or sanction fashioned, if need be. The present case is also distinguishable from Lucas v. State, 376 So.2d 1149 (Fla.1979), wherein defense counsel did not object to a surprise rebuttal witness, and instead merely informed the judge that the witness was not on the state’s witness list. In the present case, Miller’s counsel clearly objected.

REVERSED and REMANDED for new trial.

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

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Bradley’s testimony was in fact devastating to Miller’s defense. Before Bradley’s testimony, the state had proved its case only circumstantially. Bradley’s testimony rebutted Miller’s statements that (1) he did not get his car repaired by Crabtree; and (2) he did not issue or present the particular check to Crabtree.


text:
    Nancy E. MAY and Nationwide Mutual Fire Insurance Company, Appellants, v. Helen E. WILLIAMS, Appellee.
    No. 80-1314.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    Robert K. Rouse, Jr. of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Day-tona Beach, for appellants.
    Wesley A. Fink of Fink, Loucks & Sweet, Daytona Beach, for appellee.
   PER CURIAM.

REVERSED and REMANDED for further proceedings consistent with Purdy v. Gulf Breeze Enterprises, Inc., 403 So.2d 1325 (Fla.1981).

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


author: DAUKSCH, Chief Justice.

text:
    Sarah Elizabeth NEAL, now known as Sarah Elizabeth Jones, Appellant, v. Leonard H. NEAL, Appellee. Leonard H. NEAL, Appellant, v. Sarah Elizabeth NEAL, now known as Sarah Elizabeth Jones, Appellee.
    Nos. 81-190, 81-193.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.

      George Ritchie, Cocoa, for appellant/ap-pellee.
    Frank J. Bankowitz and Linton S. Water-house, Orlando, for appellee/appellant.
   DAUKSCH, Chief Justice.

This case arises from two orders entered by the trial court in a marriage dissolution matter.

In 1976 a judgment was entered dissolving the marriage between these parties. In the judgment it was found and adjudged as follows:

1. The marriage of Petitioner, SARAH ELIZABETH NEAL, to Respondent, LEONARD H. NEAL, is dissolved because it is irretrievably broken.
2. The Settlement Agreement entered into evidence as Petitioner’s Exhibit 1 dated January 13,1976, was executed voluntarily after a full disclosure and is for the best interest of the parties. Said Agreement is approved, confirmed and ratified by the Court and incorporated into this Final Judgment by reference and the parties are ordered to comply with it.
3.Petitioner, SARAH ELIZABETH NEAL, is restored the use of her former name, to-wit: SARAH ELIZABETH POLICICCHIO, by which name she shall hereafter be known.

There was nothing else ordered by the judgment and there was no specific reservation of jurisdiction over any matters.

The Settlement Agreement set out how the parties would divide their properties. In certain portions of the Agreement the real property interests of the parties were settled.

In late 1977 the wife sought relief from the trial court in the form of a “Petition for Contempt and Request for Additional Relief.” After hearing in 1978, the successor judge to the judge who heard the original dissolution proceedings entered an order changing the final judgment in regard to the paragraphs concerning the parties’ real property interests. The parties had agreed to a particular method of disposition of the real property; that method was not working, according to the wife in her petition, so the trial judge changed the method and ordered the husband to comply with the changes.

The principal question on appeal is whether the first successor judge had jurisdiction to enter the order which changed the terms of the original dissolution judgment. The answer is no, because without a specific reservation of jurisdiction the trial court lost jurisdiction over the entire case except to enforce the exact terms of the original judgment. Superior Uniforms, Inc. v. Brown, 221 So.2d 214 (Fla.3d DCA 1969). See Altieri v. Altieri, 341 So.2d 525 (Fla. 1st DCA 1977); Mintz v. Ellison, 233 So.2d 156 (Fla.3d DCA 1970). The matters contained in the judgment were final, settled and res judicata.

The two orders now on appeal before us are the orders of another successor judge; the first of which denies the wife’s motion to enforce the first successor judge’s order changing the terms of the judgment. The other order on appeal is the one denying husband’s Motion for Relief under Florida Rule of Civil Procedure 1.540(b)(4). We affirm the first order denying relief to the wife and reverse the order denying the husband relief. For the same reason the judge was correct in denying the wife relief he was incorrect in denying the husband relief. The order which changed the final judgment was void because the trial court had no jurisdiction to enter it. Except to enforce the provisions of the judgment the trial court gave up all jurisdiction of the case when it rendered the final judgment of dissolution. Florida Rule of Civil Procedure 1.540(b)(4) provides relief to the husband regarding this void order and the trial judge should have afforded such relief.

The order denying the relief requested by the wife is affirmed and the order denying relief requested by the husband is reversed and this cause is remanded for entry of an appropriate order declaring void those provisions of the 1978 order which change the original dissolution judgment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SHARP, and COWART, JJ., concur.

      . The judgment or decree is void.


text:
    Jerry Lorenzo GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 81-261.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. State Atty., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant Griffin is appealing his plea of guilty that was entered pursuant to a written plea agreement.

A defendant should file a post-trial motion with the trial court seeking to withdraw a plea prior to appealing the plea. Robinson v. State, 373 So.2d 898 (Fla.1979); Wallace v. State, 394 So.2d 225 (Fla. 5th DCA 1981); Wells v. State, 390 So.2d 808 (Fla. 5th DCA 1980); Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979). There is nothing in the record to show that any such post-trial motion was filed in the case at hand. Accordingly, we dismiss this appeal.

DISMISSED.

SHARP and COWART, JJ., concur.


text:
    Gene MASON, Appellant, v. AUDIOASIS, INC., a Florida Corporation, Appellee.
    No. 81-273.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    James A. Scott, Jr. of Wells & Wells, P. A., Daytona Beach, for appellant.
    Nicholas A. Caputo, Holly Hill, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

The court below entered final judgment in favor of Audioasis in the amount of $3,594.74. The record indicates that a mathematical error was made in calculating this amount and the correct award should have been $3,494.74. We REMAND for correction of the award and as modified, AFFIRM the final judgment.

COBB and COWART, JJ., concur.


text:
    ATLANTIC COMMERCIAL DEVELOPMENT CORP., Ruby Mountain Construction and Development Corp., and Meadow Valley Ranchos, Inc., Petitioners, v. NORTEK, INC., Respondent.
    No. 81-950.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 1981.
    Jeffrey S. Goldman of Rice, O’Dell & Goldman, Orlando, and Robert Mark of Arky, Freed, Stearns, Watson & Greer, Miami, for petitioners.
    Valerie J. Hall, Gainesville, for respondent.
   COWART, Judge.

This is a petition for certiorari to review an order denying a motion for substitution of counsel.

Apparently a certain group of litigating parties have over one hundred related cases pending before the trial judge and, in the past, there has been such a constant changing of lawyers representing some of the parties that it was difficult for the trial court to maintain proper control over the course of the entire litigation. At one point of time, when the law firm of Arky, Freed, Stearns, Watson & Greer appeared on behalf of certain parties in one cause the trial judge gave them fair warning that if they chose to enter an appearance as counsel of record they would not be allowed to withdraw and that no other counsel would be allowed to substitute on their behalf. True to the trial judge’s foresight, a few months later the law firm of Rice, O’Dell and Goldman and the Arky firm jointly moved the trial court for an order permitting the substitution of the Rice firm for the Arky firm. The trial court, true to his warning, denied the motion and declined to permit the Rice firm to act as counsel for petitioners in lieu of the Arky firm.

We can understand how disjointing, disruptive and discombobulating it can be, in protracted, multitudinous litigation of complex nature, for a party to change counsel. In such litigation there are usually matters and understandings between the trial judge and trial counsel that are not so clearly recorded in counsel’s files but that some great imposition on other counsel and the trial judge is necessary to assist new counsel to become familiar with the entire controversy and past understandings. On the other hand it is the clear, near-absolute right of a litigant to dispense with the services of one attorney and to employ and proceed with another.

We note Florida Rule of Judicial Administration 2.060(h) and (i) which provides that an attorney for a party shall not be permitted to withdraw from an action nor may an attorney be substituted unless the withdrawal or substitution is approved by order of the court. However, State ex rel. Branch v. DuVal, 249 So.2d 468 (Fla. 3d DCA 1971), hold that, in view of the established right of a client to dismiss an attorney of record and proceed with another, the court is under such a clear legal duty to order substitution of counsel that a relator would be entitled to the issuance of a peremptory writ of mandamus, if necessary, to accomplish the entry of an order for a desired substitution of counsel.

It has been said that approval by the court should be rarely withheld and then only upon a determination that to grant the requested withdrawal or substitution of counsel would interfere with the efficient, orderly and proper functioning of the court. As “unusual circumstances” justifying a refusal to allow withdrawal Fisher v. State, 248 So.2d 479 (Fla.1971), cites only cases involving the untimeliness of the request: withdrawal being denied when made a few days before trial, on the eve of-trial or on the day of trial.

When the motion for substitution of counsel in this case was filed the case was still in the pleading stage, as a motion to strike an amended counterclaim was outstanding. The case had not been scheduled for trial. The trial court did not find nor is there any basis in the record to deduct, that there were unusual circumstances justifying denial of a withdrawal and substitution of counsel. The trial court acted in adherence to his earlier warning that no substitution would be permitted. Although it was fair of the trial judge to forewarn counsel of his intended action in the event substitution of counsel was later requested, we cannot hold that a client’s substantive right to change counsel can be limited or eliminated by such a judicial forewarning. Accordingly we quash the order dated July 2, 1981, denying the motion to substitute counsel. An order dated August 3, 1981, striking pleadings of petitioner as sanctions for failure to make discovery also refers in the premises to the petitioners’ failure to comply with the trial court’s order on motion for substitution of counsel dated July 2, 1981. Reposing special confidence in the trial judge we assume that the trial court will neither visit, nor allow to remain, upon petitioners any sanction, penalty or disadvantage that may have resulted from entry of the order we quash.

PETITION GRANTED, ORDER QUASHED.

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

      . Hastings v. Osius, 104 So.2d 21 (Fla.1958); Harvey v. Rowe, 141 Fla. 287, 192 So. 878 (1940); Carey v. Gulfport, 140 Fla. 40, 191 So. 45 (1939); Diem v. Diem, 136 Fla. 824, 187 So. 569 (1939); Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538 (1938); United States Sav. Bank v. Pittman, 80 Fla. 423, 86 So. 567 (1920); Levin v. Rosenberg, 372 So.2d 956, 958 (Fla. 3d DCA 1979); Brasch v. Brasch, 109 So.2d 584 (Fla. 3d DCA 1959).


text:
    James Oscar SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1972.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1981.
    Jerry Hill, Public Defender and Richard N. Staten, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and sentence. However, we remand for clarification of the order relating to the trial judge’s statement that he retained jurisdiction, inasmuch as he did not state with individual particularity the basis for retaining such jurisdiction as is required by section 947.16(3), Florida Statutes (1979).

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Curtis S. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-107.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1981.
    Jerry Hill, Public Defender, Bartow and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s revocation of probation is affirmed. In view of the fact that appellant was insolvent, the trial court erred in assessing him a public defender’s fee, court costs, and requiring him to pay a sum to the Crimes Compensation Fund. See Armstrong v. State, 377 So.2d 205 (Fla. 2d DCA 1979). Accordingly, the portion of the order assessing a public defender’s fee, court costs, and requiring appellant to pay money to Crimes Compensation Fund is stricken.

SCHEB, C. J., and HOBSON and CAMPBELL, JJ., concur.


author: WENTWORTH, Judge. BOOTH, Judge,

text:
    Jacob GAVRONSKY, Appellant, v. Dorothy Kimball GAVRONSKY, Appellee.
    No. WW-465.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1981.
    Simon D. Rothstein of Adams, Rothstein & Siegel, Jacksonville, for appellant.
    Chanselor Howell, Richard Sandler, Jacksonville, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a dissolution order which awards appellee the marital home and which places various restrictions upon appellant regarding child visitation. We affirm the property division in this case on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), but find that several of the visitation restrictions are overbroad and unsupported by any eviden-tiary predicate, and we reverse that aspect of the order.

While the denial or restriction of visitation rights is generally disfavored, see Yandell v. Yandell, 39 So.2d 554 (Fla.1949), it is within the court’s discretion to restrict or limit visitation as may be necessary to protect the welfare of the child. See Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979); Hechler v. Hechler, 351 So.2d 1122 (Fla. 3d DCA 1977). But Adams and Hech-ler also indicate that record evidence must support the necessity for any visitation restrictions. In the present case no factual findings were made as to the necessity for visitation restrictions, and the record lacks any evidentiary support regarding the need for several of the restrictions which were imposed. For example, the order requires that all visitation be attended by either appellant’s mother or sister, and further requires that the children (both male, ages 6 years and 4 years at the time of the hearing) be provided separate beds and that neither of them sleep in the same bed with appellant (their father). The present record lacks an adequate evidentia-ry predicate as to the necessity of such restrictions, and appellant’s motion stating limited conditions for temporary visitation was not directed to, and accordingly did not stipulate, the restrictions imposed by the final order. We note also the apparent lack of any potential evidentiary predicate for certain of the restrictions imposed, i. e., the requirement that any medication taken by appellant at such times must be prescribed by a physician licensed to practice in Duval County (thereby prohibiting treatment by an out-of-state physician), and the further requirement that no one other than appellant, his mother and sister, and the children, be present during visitation. Cf., Patrick v. Patrick, 358 So.2d 1184 (Fla. 1st DCA 1978).

The order appealed is accordingly reversed as to the entirety of the visitation restrictions imposed, and otherwise affirmed. The cause is hereby remanded for such further proceedings as may be warranted, which may include additional evidence and the entry of a “visitation restriction” order which is supported by evidence.

SHAW, J., concurs.

BOOTH, J., concurs in part, dissents in part.

BOOTH, Judge,

concurring in part, dissenting in part:

I would affirm the judgment below in its entirety.


text:
    Thelma LAWTON, Appellant, v. FLORIDA STEEL CORPORATION and Hartford Insurance Co., Appellees.
    No. ZZ-425.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1981.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant.
    Richard H. Gaunt, Jr. of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellees.
   PER CURIAM.

That part of the Deputy’s order of 23 December 1980 finding that Lawton has an 8% anatomic disability and ordering the employer/carrier to pay at this rate less credit for permanent partial disability compensation previously paid to Lawton, is reversed because this finding exceeds the scope of-the hearing.

The application for hearing, the amended application, the notice of hearing, and the pre-hearing discussion of the issues were limited to medical care, temporary total disability and whether previously paid permanent partial compensation should be converted to temporary total.

The Deputy erred when he entered an order for permanent partial disability after a hearing expressly limited to the issues set forth above. Because of this action Lawton was deprived of due process, the right to submit evidence on her permanent partial disability. Diplomat v. Grimes, 379 So.2d 1025 (Fla. 1st DCA 1980); City of Hialeah v. Hilyard, 379 So.2d 1029 (Fla. 1st DCA 1980); Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980).

Reversed and remanded for appropriate action consistent with this opinion.

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


text:
    Mickey Lamont BUIE, Appellant, v. STATE of Florida, Appellee.
    No. AB-105.
    District Court of Appeal of Florida, First District.
    Sept. 17, 1981.
    Michael Allen, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The trial court did not have the benefit of the Supreme Court’s ruling in State v. Williams, 397 So.2d 663 (Fla.1981), when it retained jurisdiction over the first third of appellant’s sentence. This cause is remanded with instructions that the sentence be corrected by striking the trial court’s retention of jurisdiction over the first one-third of the sentence.

SHAW and THOMPSON, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.