author: GLICKSTEIN, Judge.

text:
    David Allen SCHLICHER, Appellant, v. STATE of Florida, Appellee.
    No. 81-2134.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

At issue is whether appellant’s sentence should be vacated because of the trial court’s alleged erroneous determination that there was no reasonable ground to believe appellant was insane. The trial judge, after review of the presentence investigative report and consideration of the prosecutor’s argument, concluded that no reasonable ground existed.

While we are reluctant to interfere with judgment calls, the potential for manifest injustice in this case can only be erased by our intrusion into the decision making process. Appellant’s pre-sentence motion, raising the issue of insanity, alleged that appellant had recently attempted suicide by seriously cutting both his arms. At the hearing on the motion, defense counsel further related that his client had attempted suicide seven times in the past year; and appellant’s father told the trial court:

I wish you’d give the psychiatric treatment as serious attention as you possibly can. I feel that David should have had it long before this, but I was never able to afford it. And God knows we need it.

Under these circumstances, reasonable ground to believe appellant was insane did exist. Accordingly, we vacate the sentence and remand for the conduct of proceedings pursuant to Florida Rule of Criminal Procedure 3.740.

ANSTEAD and HURLEY, JJ., concur.

      . See Florida Rules of Criminal Procedure 3.740(a) and 3.720(a)(1).

      . The prosecutor’s response at the hearing on appellant’s motion was that appellant’s act was done to get a better cell. Once that was accomplished, there was no recurrence of self-inflicted wounds. The trial judge determined that an attempted suicide did not create the required reasonable ground for believing appellant insane.

        .See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Lane v. State, 388 So.2d 1022 (Fla.1980).


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    Milo ALLETT and Allstate Insurance Company, Appellants, v. Peggy HILL, et al., Appellees.
    No. 81-2317.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Dec. 80, 1982.

      David J. Glatthorn of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., West Palm Beach, for appellants.
    William S. Frates, II, of Frates & McCall, Palm Beach, for appellees.
   HERSEY, Judge.

. In this slip-and-fall case the jury returned a substantial verdict for the plaintiffs. Defendant and his insurer appeal the final judgment entered pursuant to that verdict.

The complaint consisted of two counts, one of which was merely a subsidiary claim for damages for loss of consortium. The operative portions of the main count alleged:

4. On several occasions between October 15,1978, when the Plaintiffs signed a lease with the Defendant and January 3, 1979, the Plaintiffs requested that the Defendant install carpeting on the wooden stairway inside their apartment in order to eliminate as a falling hazard the slippery condition of the wooden stairway. On each of these occasions the Defendant agreed to provide the carpet but failed to do so.
5. By failing to install the carpet as agreed, the Defendant negligently allowed to exist a condition known to him to be dangerous to persons using the stairway in Plaintiffs’ apartment, so that Plaintiff, PEGGY HILL, fell on the property and injured herself.
6. The negligent condition was known to Defendant or had existed for a sufficient length of time so that Defendant should have known of it.

Several days prior to trial the defendant filed a motion in limine seeking to exclude evidence that the stairs had since been carpeted. At approximately the same time, plaintiff filed a unilateral pretrial statement listing a “breach of contract of defendant” as one of the issues to be tried. Defendants immediately objected and unsuccessfully moved either to strike the breach of contract issue or to continue the case. Thus the matter proceeded to trial on both the negligence count alleged in the complaint and the breach of contract theory postulated in the pretrial statement.

In order to counter the thrust of the breach of contract cause of action defénd-ants receded from the position taken in their motion in limine. At trial defendants offered evidence that the stairs had been carpeted in order to show performance of the contract. Defendants sought to mitigate the effect of this evidence on the negligence count by proferring an instruction that the evidence should be considered by the jury on the contract issue and not as evidence on the cause of action for negligence. The court refused to give the instruction, from Section 90.407, Florida Statutes (1981) which provides:

Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event.

In addition, defendants timely objected to the introduction of evidence concerning the alleged contract to carpet the stairs, because such evidence violates the parol evidence rule and the doctrine of merger and such a contract was not supported by consideration.

The jury returned a special verdict form finding against the defendants on both the negligence theory and the breach of contract theory. They also found comparative negligence on the part of the plaintiff and made a corresponding allocation of the negligence of each party. The special verdict form did not require the jury to allocate damages between negligence and breach of contract, and therefore, the jury returned a lump sum verdict for each of the plaintiffs. Defendants-appellants base their request for review upon the issues highlighted in these facts.

An analytical overview of the case as it developed in the trial court shows a complaint grounded in negligence and only incidentally referring to a contract, a last minute “amendment” to include a count for breach of contract, refusal of the trial court to grant a continuance in order to provide defendants an opportunity to prepare a defense to that amendment, introduction of parol evidence to establish an oral condition of a written contract, and refusal by the trial court to instruct the jury on the limited purpose for which they could consider the repairs made subsequent to the injury.

The lower court erred in permitting plaintiffs to amend their complaint on the eve of trial to insert the breach of contract issue. As we said in Versen v. Versen, 347 So.2d 1047, 1050 (Fla. 4th DCA 1977):

Although F.R.Civ.P. 1.190, and the cases interpreting and construing it, dictate a liberality on part of the trial judge in granting motions to amend, Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975), this “liberality” gradually diminishes as the case progresses to trial, United States v. State, 179 So.2d 890 (Fla. 3d DCA 1965). Also, this rule of liberality does not authorize a party to state a new and different cause of action under guise of an amendment, or if it will change the issue, introduce new issues, or materially vary the grounds of relief, United States v. State, supra, and such amendments must not prejudice the opposing party, Tucker v. Daugherty, 122 So.2d 230 (Fla. 2d DCA 1960).

Taken by itself we would probably consider this harmless error or governed by subsequent language in Versen:

It is also true that the trial judge’s conclusion to permit or refuse amendment to pleadings will not be disturbed on appeal in absence of some demonstration that he has abused his discretion. See, Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla. 2d DCA 1961), and Joseph T. Miller Construction Company v. Borak, 82 So.2d 147 (Fla.1955).

Id. at 1050.

The error is not isolated, however. It is compounded by the admission of parol evidence to add a term to the written lease which, whether part of the preliminary negotiations or a separate subsequent condition, plainly violates, respectively, the doctrine of merger and the parol evidence rule which we explored in Carlon, Inc. v. Southland Diversified Company, 381 So.2d 291 (Fla. 4th DCA 1980). Furthermore, the trial court erred in refusing the requested instruction on corrective measures. See, e.g., City of St. Petersburg v. Reed, 330 So.2d 256 (Fla. 2d DCA 1976).

Without determining whether the doctrine referred to in jurisprudence as the “two issue” rule applies in this case in any meaningful way, we note that even if the “two issue” rule is applicable, reversal is proper because we have found error with regard to both issues: improper denial of the jury instruction on the purpose for which remedial measures can be considered (on the negligence issue) and improper admission of parol evidence (with regard to the contract issue). See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181, 1186 (Fla.1977).

While each error standing by itself would be insufficient to require reversal, as this case unfolded before the jury each error had a compounding effect on the one that went before. Thus, the end result was to invidiously infect the verdict. Not only was the jury invited to find that the duty which supports the negligence claim arose out of an express oral contract to carpet the stairs, they also were permitted (for lack of an instruction) to assume, by reason of the fact that the contract was eventually performed (albeit too late) defendants must have known all along that the uncarpeted stairway was dangerous.

Because we find reversible error in the combined effect of the errors to which allusion has been made, we reverse and remand for a retrial of all issues after the pleadings are appropriately amended to clarify those causes of action which the jury is to consider.

REVERSED and REMANDED.

DOWNEY and WALDEN, JJ., concur.


author: DELL, Judge.

text:
    John LOMELO, Jr., Appellant, v. Donald O. SCHULTZ, Appellee.
    No. 82-253.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      David R. Mackenzie, Lauderhill, for appellant.
    David A. Dancu and Bruce L. Randall of the Law Office of David A. Dancu, Fort Lauderdale, for appellee.
   DELL, Judge.

Appellant filed his amended complaint for civil damages, charging appellee with improper disclosure of an intercepted wire or oral communication, in violation of Sections 934.10 and 934.08, Florida Statutes (1981). The complaint alleged that appellee disclosed the communication by playing a tape of a telephone conversation to a class he was teaching, to representatives of the media, and to other persons. Appellee moved to dismiss on the grounds that these sections do not permit a cause of action for disclosure of communications which are intercepted with the consent of one party to the communication. The trial judge granted the motion with prejudice, without stating the grounds for the dismissal.

Section 934.10, Florida Statutes, states: Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, or uses ... such communications ....

(Emphasis added.) One who has intercepted a communication in accordance with Chapter 934 may, without civil liability, disclose the contents of the communication while giving testimony in a criminal proceeding, a grand jury proceeding, or a judicial qualifications commission investigation. Section 934.08(3).

The statute clearly creates a civil cause of action for improper disclosure of intercepted communications. Taping one’s own telephone conversation may not be a violation of Chapter 934. However, playing such a tape to persons other than those authorized in Section 934.08(3) constitutes a disclosure in violation of the Chapter. Appellant’s complaint states a cause of action.

Appellee has briefed and vigorously argued matters which, he contends, justified his disclosures. These arguments relate to appellee’s affirmative defenses. A motion to dismiss raises the question of the sufficiency of facts alleged to state a cause of action. Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968). The complaint need not anticipate affirmative defenses. Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973).

Accordingly, the order of the trial court is reversed and the cause remanded for further proceedings.

BERANEK and HERSEY, JJ., concur.


author: PER CURIAM.

text:
    Mark KREITZ and Jennie Kreitz, Appellants, v. Walter THOMAS, Richard Thomas and Prudential Property and Casualty Insurance Company, Appellees.
    No. 82-597.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      John R. Gillespie, Jr., of Gillespie, McCormick, McFall, Gilbert & McGee, Pompano Beach, for appellants.
    Mottlau & Wakefield, P.A., and Mark Hicks of Daniels & Hicks, Miami, for appel-lees.
   PER CURIAM.

We reverse and remand this suit for personal injuries for a new trial because of the trial court error in admitting into evidence statements of payments received from Workers’ Compensation as a collateral source contrary to the provision of Florida Statute 627.7372(3) (1981). Not only was this done in violation of the statute, it was done in violation of the order entered in limine, and it was done over plaintiff’s objection.

Plaintiff claimed only a relatively small permanent injury and the jury verdict was that he had none. Thus, the issue being close, the fact that plaintiff had been paid Workers’ Compensation benefits may have indeed influenced the jury on the question of plaintiff’s damages and the degree and extent of same. It very well could have concluded that the Workers’ Compensation benefits were sufficient recompense and thereby declined to find that he had a permanent injury.

We reverse and remand upon authority of Cook v. Eney, M.D., 277 So.2d 848 (Fla. 3d DCA 1973); Gates & Sons, Inc. v. Brock, 199 So.2d 291 (Fla. 1st DCA 1967); and Tampa Sand and Material Company v. Johnson, 103 So.2d 250 (Fla. 2d DCA 1958).

Reversed and remanded.

BERANEK, HERSEY and WALDEN, JJ., concur.


author: HERSEY, Judge. ANSTEAD, J.,

text:
    George J. ARNSTEIN, Petitioner, v. Ethel J. ARNSTEIN, Respondent.
    No. 82-877.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      Richard S. Russell, Deerfield Beach, for petitioner.
    No appearance for respondent.
   HERSEY, Judge.

Petitioner seeks certiorari review of an order quashing service of process. In dissolution proceedings petitioner inappropriately chose to effect personal service on his wife in New Jersey under the Long-Arm Statute. § 48.193(e) Fla.Stat. (1981). The wife is not now and never has been a resident of the State of Florida, making publication the statutorily designated mode of obtaining service of process. Unquestionably the court does not have personal jurisdiction over the wife. On the other hand, the court does have subject matter jurisdiction over these dissolution proceedings; it is indisputable that the wife has had adequate notice forestalling any due process attack on the final judgment and we have no indication that the court intends to (and of course it could not) adjudicate questions of alimony or division of property, requiring personal jurisdiction over the absent wife.

In view of the foregoing there is no impediment to continuing with the dissolution proceedings on the basis of in rem jurisdiction and adequate notice to the absent wife.

Responding to the concerns of the special concurring opinion, Section 49.011 Florida Statutes (1981) provides that service of process “by publication may be made in any court on any person mentioned in s. 49.021, in any action ... (4) For dissolution ... of marriage; ...” The section referred to (§ 49.021) provides that service may be by publication “Where personal service of process cannot be had, ...” This would appear to contemplate personal service of process in preference to or at least as the substantial equivalent of service by publication when the current address of the party to be served is known. In either event the purpose of service under these circumstances is not to acquire or exercise jurisdiction. It is to give notice in a due process sense so that the method selected should be one reasonably calculated to bring the proceedings to the attention of the party upon whom service is sought. Personal service, when feasible, seems admirably suited to accomplish that purpose.

Accordingly, we reverse the order quashing service of process and remand for further appropriate proceedings.

WRIT OF CERTIORARI GRANTED.

BERANEK, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, J.,

specially concurring:

I agree that the service of process authorized by the majority makes eminent good sense. My concern, however, is that we may be encroaching upon the legislature’s domain. Service of process is controlled by legislation. Personal service of process on out-of-state residents does not appear to be specifically authorized in dissolution actions. Section 48.193, Florida Statutes (1981). Constructive service is authorized. Section 49.011, Florida Statutes (1981). It is difficult for one to fault the trial court for requiring compliance with the legislative scheme. I would urge the legislature to formally approve personal service of process in dissolution cases where the party resides in Florida and the other in another state and only a dissolution is sought.


author: WALDEN, Judge.

text:
    Fay William SMALL, Appellant, v. Emily H. SMALL, Appellee.
    No. 82-984.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Joel Miller of Miller & Squire, Chartered, Fort Lauderdale, for appellant.
    Stanley M. Sacks, Fort Lauderdale, for appellee.
   WALDEN, Judge.

The essential issue in this appeal is whether the order incarcerating appellant for civil contempt on account of his refusal to pay alimony is void because it neither recites that appellant’s contempt was wilful and that he had the power to pay nor does it provide for purging.

As to the first aspect, Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976), provides:

Under the most respectable authority on contempt that we have been able to find, a “process” contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. Ex parte Cohen, 6 Cal. 318; Repalje on Contempt, par. 129.

Here the committal order did not recite the requisite finding. However, here, different from Faircloth, the services of a General Master were employed to take the testimony and his report specifically found:

(1)
(c) The defendant presently has the ability to comply with the Order and willfully refuses to do so or previously had the ability to comply but divested himself through his fault or neglect designated to frustrate the intent and purpose of the order.

Thereafter the Circuit Judge overruled appellant’s Exceptions and ratified and approved the Master’s Report. It is our opinion that while it would be perhaps better form for the Circuit Judge in such cases to repeat and recite the finding mandated by Faircloth in the order of commitment, we deem it not to be reversible error to fail to do so under the circumstances of this ease. We hold that the Faircloth finding was made based on testimony, approved by the Circuit Judge, and sufficiently memorialized in the official records.

As to the second aspect, that being the failure to provide purging provisions in the order of commitment, Hammond v. Sandstrom, 376 So.2d 466 (Fla. 3d DCA 1979), provides the correct rationale for requiring such provisions:

In order for the contemnor truly to “carry the key to his prison in his own pocket,” see Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla.1956), it is required that the order which authorizes his imprisonment, in this case, the order of commitment, itself show the means by which that key can be utilized. It is hardly appropriate to compel his jailer to investigate the contents of prior orders in the case in order to determine that the prisoner, by having purged himself of contempt, has become entitled to release.

(At 467.)

We hold that the committal order must contain the specifics whereby appellant may. purge himself of contempt and obtain his release from confinement.

We affirm and remand with instructions to add the terms whereby appellant may purge himself of contempt to the order of commitment.

Affirmed and remanded with instructions.

BERANEK and HERSEY, JJ., concur.

      . Hammond v. Sandstrom, 376 So.2d 466 (Fla. 3d DCA 1979).


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Dillard BODDEN, Jr., Appellant, v. Samuel Keith YOUNG, Appellee.
    No. 82-1481.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Dennis A. Vandenberg of Brennan, Mc-Aliley, Hayskar & McAliley, West Palm Beach, for appellant.
    Arnold D. Hessen and Robert L. Schim-mel of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, P.A., Miami, for appellee.
   BERANEK, Judge.

This is an interlocutory appeal from an order on jurisdiction over the person of appellant/defendant. The question is whether plaintiff made a sufficient search and inquiry to satisfy the statutory requirements for constructive service of process on a person who conceals his whereabouts within the State. See Section 48.161, Florida Statutes (1981). Plaintiff filed suit for personal injury growing out of an automobile accident. The defendants were the owner and driver of the other vehicle. Personal service was effected on the owner but not on the driver. The accident occurred in West Palm Beach, Florida, and both defendants were alleged to be residents of that city. Plaintiff attempted personal service of process on the driver at his last known address. The driver no longer lived there, and the present occupant at the address stated that the driver was “unknown.” Plaintiff sought to locate the driver through the United States Postal Authorities, the telephone company, the utility company, and through other public agencies. All of these inquiries were unsuccessful. Plaintiff also sought to locate the adverse driver through discovery directed to the owner of the car. The car owner was an acquaintance of the driver and had given him permission to use the car. The owner stated under oath that the driver’s present address was the same address at which service had been previously attempted and at which the driver was unknown. After service on the Secretary of State, appellant specially appeared through counsel, contesting jurisdiction. Appellant filed a motion to quash challenging the plaintiffs affidavit of compliance, asserting that the affidavit failed “to state [a] sufficient factual basis supporting the claim that there is a concealment.” The court denied the motion and we affirm.

The motion to quash was, at best, vague. The motion gave no information whatsoever as to how the asserted defects in service could be cured; it simply alleged that plaintiff had not sufficiently proved concealment. See Over 30 Association v. Blatt, 118 So.2d 71 (Fla. 3d DCA 1960). We do not, however, decide the case on the insufficiency of the motion. We simply conclude that the record demonstrates a sufficient search and inquiry in accordance with established precedent. See Robinson v. Cornelius, 377 So.2d 776 (Fla. 4th DCA 1979). The plaintiff must reasonably employ the information available to him in a good faith effort. The trial court so found and we agree.

We, therefore, affirm the trial court’s order denying the defendant/driver’s motion to quash.

AFFIRMED.

DOWNEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

As was the case in Robinson v. Cornelius, 377 So.2d 776 (Fla. 4th DCA 1979) I do not believe the appellee made a sufficient showing that the appellant was secreting himself to justify constructive service of process. At most the appellee established that the appellant no longer resided at the same residence where appellant had resided when the incident involved in the lawsuit had occurred.


text:
    Preston BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 82-2304.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      Preston Brown, pro se.
    No appearance required for appellee.
   PER CURIAM.

This is petitioner’s second appeal from the denial of a motion for post-conviction relief without an evidentiary hearing. On the first appeal, 418 So.2d 464 (Fla.1982), we affirmed in part and reversed in part and remanded with instructions that the trial court “append those portions of the record which demonstrate that the prisoner is entitled to no relief or, in the alternative, to afford the defendant an evidentiary hearing on grounds one and two.” In response, the trial court denied petitioner’s motion for post-conviction relief and appended the transcript of the plea conference which led to defendant’s conviction.

Rule 3.850, Fla.R.Crim.P., indicates that a motion for post-conviction relief may be denied without an evidentiary hearing if “the files and records in the case conclusively show that the prisoner is entitled to no relief.... ” See also Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). Given this context, our role is to determine whether the portions of the attached record, i.e., the transcript of the plea conference, satisfy the foregoing standard. We answer in the negative.

Grounds one and two of petitioner’s motion for post-conviction relief assert that his guilty plea was induced by fear resulting from certain alleged statements of defense counsel. It is blackletter law that a plea of guilty “must not be induced by fear, misapprehension, persuasion, promises, inadvertence or ignorance,” Stovall v. State, 252 So.2d 376, 378 (Fla. 4th DCA 1971), and, therefore, the plea acceptance colloquy normally contains an inquiry as to whether any threats or promises have been made to induce the defendant to plead guilty. The transcript of the plea conference in this case, however, fails to reveal a direct question on the topic of threats or promises. Although the defendant did indicate his satisfaction with defense counsel’s services, we cannot negate the possibility of threats or promises. Therefore, since the record appended to the trial court’s order of denial does not conclusively show that the prisoner is entitled to no relief, we reverse the order on appeal and remand with instructions to conduct an evidentiary hearing on grounds one and two of petitioner’s motion for post-conviction relief.

REVERSED and REMANDED with Instructions.

HERSEY, HURLEY and DELL, JJ., concur.


author: GRIMES, Judge.

text:
    Gene P. LORENZO, Appellant, v. STATE of Florida, Appellee.
    No. 81-1996.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1982.
    Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant, Gene Lorenzo, complains that his probation was improperly revoked for failure to follow the time limitations of the Interstate Agreement on Detainers Act, section 941.45, Florida Statutes (1979).

Lorenzo was placed on probation in January of 1979 for delivery of cannabis. Two months later, his probation officer filed an affidavit alleging that Lorenzo had violated the terms of his probation. A warrant was issued for Lorenzo’s arrest but was not immediately served upon him. In April of 1980, Lorenzo was convicted of the federal crime of unlawful possession of a firearm. As a result, he was incarcerated in the federal correctional institution at Memphis, Tennessee. The state lodged a detainer against him for the probation violation. By letter dated November 13, 1980, the state was notified by the warden of the federal prison that Lorenzo had requested the final disposition of his probation violation charges. Lorenzo was delivered to the state on February 12, 1981. However, the first hearing on the probation violation charges did not occur until June 26, 1981, and it was not until September 11, 1981, that the court heard the testimony which led to the probation revocation. On appeal Lorenzo contends that the charges should have been dismissed because he was not tried within the 180-day period prescribed by the Interstate Agreement on Detainers Act.

The Detainers Act requires that when a prisoner requests a final disposition of “any untried indictment, information, or complaint” on the basis of which a detainer has been lodged against him, he shall be tried within 180 days. In Gaddy v. Turner, 376 So.2d 1225 (Fla. 2d DCA 1979), this court held that charges of probation violation fell within the coverage of the Detainers Act. In ordering Gaddy’s discharge for failure to hold the hearing within 180 days, we noted that the detrimental effect of a detainer upon a prisoner is likely to be the same, whether the detainer is based upon a probation violation or upon an untried criminal charge.

The 180 days within which the state had to bring Lorenzo to trial ran out even before the first hearing was held on June 26, 1981. Therefore, Lorenzo’s judgment of conviction premised upon the probation revocation is reversed.

BOARDMAN, Acting C.J., and CAMPBELL, J., concur.

      . While the record does not reflect the date upon which the state received the letter, we shall assume that its delivery by mail occurred within a week after November 13, 1980.

      . Section 941.45(3)(a), Florida Statutes (1979), reads in pertinent part:
      (3) REQUEST FOR FINAL DISPOSITION.—
      (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; ....

      . In fairness to the trial judge, he asked the state attorney and the public defender on three occasions to advise him whether section 941.-45(3) applied to probation revocations, but neither counsel informed him of the existence of the Gaddy opinion which had been on the books for more than a year.


text:
    STATE of Florida, Appellant, v. Walter BLANKENSHIP, Appellee.
    No. 82-79.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   GRIMES, Judge.

The state appeals an order discharging appellee for a constitutional speedy trial violation.

On December 3, 1979, the state filed an information charging appellee with possession in excess of 2,000 pounds of cannabis. The trial was originally set for April 1, 1980, but his attorney obtained a ninety day continuance. On April 29, 1980, the case was called but passed because neither ap-pellee nor his lawyer was present. The case was passed again on June 3, 1980, because the state chemist was in the hospital. The case was reset for trial on July 8,1980. On the day before the trial was scheduled to begin, appellee moved for continuance because of a conflict in his lawyer’s trial schedule. He specifically waived his right to a speedy trial. The court once again postponed the trial.

On September 16, 1980, the trial was again continued by stipulation of defense counsel and the assistant state attorney. On October 17, 1980, the parties stipulated to further continue the trial which by then had been set for October 21,1980. By order dated November 6,1980, the court accepted the stipulation, continued the trial to a future date to be determined by the court and directed that the speedy trial time be tolled for the period of the continuance. On November 2, 1981, the case was reset for trial on December 1, 1981. The appellee moved for discharge for denial of his constitutional right to speedy trial on November 17, 1981. The court held a hearing on December 1, 1981, at which no testimony was taken, and thereafter ordered appellee’s discharge.

The court erred in entering the order of discharge for two reasons. In the first place, the court predicated its ruling solely upon the fact that appellee was not brought to trial for the approximate one year period between November 6,1980, and November 17,1981. Yet, the determination of whether a person has been deprived of his constitutional right to a speedy trial depends in large part upon the consideration of four elements: (1) length of delay, (2) reason for delay, (3) whether the defendant asserted his right to be tried speedily, and (4) prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). With respect to these elements, the record in this case reflects only the length of the delay and the fact that appellee never asserted his right to a speedy trial. In Barker itself the Supreme Court noted that the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. In any event, the length of delay, standing alone, will not support the conclusion that constitutional speedy trial rights have been violated. Barker v. Wingo; State v. Bonamy, 409 So.2d 518 (Fla. 5th DCA 1982); but cf. State v. Forsten, 401 So.2d 1160 (Fla. 3d DCA 1981), in which the discharge may have been upheld solely because of the passage of time, though the opinion does not foreclose the possibility that other factors existed.

The second reason for reversal is grounded upon the rationale of State v. Moss, 395 So.2d 561 (Fla. 5th DCA 1981). In Moss the defendant moved for a continuance and expressly waived “his right to a speedy trial as provided by State and Federal Constitutions, the Laws of Florida, Rule 3.191, Florida Rules of Criminal Procedure and other applicable provisions.” Later he successfully obtained an order of discharge for violation of his constitutional right to speedy trial. The court reversed on the premise that the speedy trial waiver continued for an indefinite period of time. The court then noted:

When an accused expressly waives his speedy trial rule rights for an indefinite period of time he can reacquire certain speedy trial rule rights in the same manner as when he has, by seeking and obtaining a continuance, impliedly waived his rule rights; i.e., by filing a demand for a speedy trial, which commences the running of a 60 day period under Florida Rule of Criminal Procedure 3.191(a)(2) or by filing a nonmeritorious motion for a discharge the denial of which will commence the running of a 90 day period under Florida Rule of Criminal Procedure 3.191(d)(3). See Butterworth and Cullen. Similarly, when constitutional speedy trial rights are waived for an indefinite period of time those rights can be reinstated by a demand for a speedy trial, a withdrawal of the waiver, or some other clear assertion of constitutional speedy trial rights. In such event, the accused will again be entitled to trial within a reasonable time measured from such assertion. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

395 So.2d at 562-63.

In essence, the posture of the instant case is the same as it was in Moss. In his motion for continuance appellee expressly stated that he “waives his right to a speedy trial.” The waiver was not limited to the right to speedy trial under the Florida Rules of Criminal Procedure. The court confirmed the tolling of the speedy trial time in its order entered upon the subsequent stipulation for continuance. Appellee made no demand for speedy trial or otherwise asserted a constitutional right to a speedy trial until such time as he filed the motion which led to his discharge. While the filing of this motion was sufficient to constitute a request for speedy trial, it did not entitle appellee to be discharged.

We reverse the order of discharge and remand the cause for further proceedings. As in Moss, this opinion when final will constitute a denial of appellee’s motion for discharge and will commence the running of a new ninety day period within which appellee must be brought to trial under Florida Rule of Criminal Procedure 3.191(d)(3).

OTT, C.J., and SCHOONOVER, J., concur.


text:
    Warren T. YOPP, Appellant, v. STATE of Florida, Appellee.
    No. 82-463.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1982.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueekheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant seeks review of a judgment and sentence imposed pursuant to the charge of shooting into a building in violation of section 790.19, Florida Statutes (1981). We affirm the judgment, but remand the case for correction of sentence.

The sentence imposed did not credit appellant for time served in county jail prior to imposition of sentence. A sentencing court is required under section 921.161(1), Florida Statutes (1981), to credit a defendant with all time spent in county jail before sentence. Bronson v. State, 402 So.2d 570 (Fla. 1st DCA 1981). Accordingly, we remand the case to the trial court for correction of sentence.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


text:
    Abdul Wali SHABAZZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-890.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1982.
    Abdul Wali Shabazz, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Abdul Wali Shabazz appeals from an order of the trial court denying his petition for writ of habeas corpus. We treat this petition for writ of habeas corpus as a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant’s allegation concerning the propriety of certain jury instructions attempts to raise matters which properly should have been raised on direct appeal. Merrill v. State, 364 So.2d 42 (Fla. 1st DCA 1978). Appellant may not present such matters in a motion seeking post-conviction relief. Stallings v. State, 319 So.2d 640 (Fla. 1st DCA 1975).

AFFIRMED.

BOARDMAN, A.C.J., and SCHEB and SCHOONOVER, JJ., concur.


author: MILLS, Judge.

text:
    Peter NOEL, Appellant, v. M. ECKER & COMPANY, Appellee.
    No. YY-124.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.

      Richard W. Driscoll of Kahn & Gustafson, Fort Lauderdale, for appellant.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellee.
   MILLS, Judge.

The facts are not in dispute in this workers’ compensation appeal. Noel, while working with a noisy piece of machinery on 12 February 1980, sustained a hearing loss which the deputy commissioner found to be a 32% loss in each ear. Noel did not prove or even claim that any wage loss resulted from this injury. The deputy commissioner ruled that Noel’s claim for permanent partial disability benefits was not compensable under Section 440.15(3), Florida Statutes (1979). We affirm.

Noel first contends that because his claim would have been compensable under Section 440.15(3)(m), Florida Statutes (1977), the denial of benefits under the 1979 amendments to the Workers’ Compensation Act deprives him of his rights of due process and equal protection. We disagree. Acton v. Ft. Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982). Nor does the 1979 Act deny Noel access to the courts under Article I, Section 21 of the Florida Constitution. Acton, id.

Noel also contends that he is entitled to seek a common law tort remedy against his employer. This argument is likewise without merit. Section 440.11, Florida Statutes (1979).

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


author: WENTWORTH, Judge.

text:
    HOTEL ROYAL PLAZA and Reliance Insurance Co., Appellants, v. Kelly Dennis EDGAR, Appellee.
    No. AJ-362.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.

      Thomas A. Moore, of Pitts, Eubanks & Ross, Orlando, for appellants.
    Irvin A. Meyers, of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order by which claimant was awarded further medical examination and treatment. We conclude that the deputy erred in striking employer/carrier’s defense of “no causal relationship,” and we accordingly remand the order appealed.

Claimant allegedly sustained an industrial accident, with injury to her back, in August of 1979. Medical treatment was provided until January of 1980 when claimant’s physician released her from medical care. In June of 1981 a claim was filed requesting additional medical treatment, and application for hearing was made in October of 1981. The hearing was held in January of 1982, at which time employer/carrier controverted the claim for further medical treatment, contending that claimant’s present complaints are not causally related to her industrial accident. Counsel for claimant did not object or seek any continuance, but the deputy nevertheless disallowed employer/carrier’s defense since it had not been previously raised and a formal notice to controvert had not been filed.

Section 440.20(6), Florida Statutes, requires that a notice to controvert be filed “on or before the 21st day after ... knowledge of the alleged injury .... ” Section 440.20(7) provides a “10% additional payment” penalty assessable upon an employer/carrier’s failure to timely file a notice to controvert; section 440.20 does not, however, authorize the deputy to strike an employer/carrier’s defense as a consequence of failing to timely file a notice to controvert. See Virginian Inc. v. Ponder, 72 So.2d 781 (Fla.1954). While a deputy commissioner is not bound by technical or formal rules of procedure, see § 440.29(1), Florida Statutes, and may “do all things conformable to law which may be necessary” to effectively discharge the duties of the office, see § 440.-33(1), Florida Statutes, these provisions do not authorize the deputy to strike employer/carrier’s defense in the circumstances of the present case. Although employer/carrier did not timely file a notice to controvert, it was nevertheless incumbent upon claimant to prove entitlement to the requested benefit, including the necessity of establishing a causal relationship between her present complaints and the industrial accident. In the circumstances of this case the deputy exceeded his authority in striking employer/carrier’s defense.

We remand the order appealed for the deputy to conduct further proceedings and consider the issue of causal relationship between claimant’s present complaints and the industrial accident.

McCORD and BOOTH, JJ., concur.


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

text:
    Michael Raye SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AJ-438.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    Carroll Cayer, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

We affirm appellant’s conviction and sentence for robbery, noting that there was no appealable conviction and sentence for conspiracy to commit robbery. Section 924.06(1), Fla.Stat. (1981); Fla.R.App.P. 9.140(b)(1). In rejecting appellant’s attack upon the warrantless arrest, we adhere to Barfield v. State, 396 So.2d 793, 795 (Fla. 1st DCA 1981), and disagree with State v. Doherty, 240 So.2d 332 (Fla. 4th DCA 1970), to the extent that Doherty holds that the State, demonstrating the veracity of hear-said information relied on for an arrest, must show both the credibility of the informant and the reliability of his information. Proving veracity, as Barfield demonstrates, is by one means or the other, not both. Nor on this record can we find that appellant involuntarily confessed as a result of improper inducements by an interrogator. It is not per se an unlawful inducement to promise to notify parole authorities, or the prosecutor, or the court, of the accused’s cooperation under questioning. Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980), modified on other grounds, 410 So.2d 1343 (Fla.1982); see also State v. Williams, 358 So.2d 1094 (Fla. 1st DCA 1978); but see Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), cert. den., 374 So.2d 101 (Fla.1979). Here the record as a whole does not compel a finding that appellant’s confession was involuntary. No other error appears.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    CENTURY NATIONAL BANK, a corporation, Appellant, v. Wilma J. WILLIAMS, D.O., and Isiah J. Williams, her husband, Appellees.
    No. AK-302.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.

      William A. Bald of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant.
    Herman S. Paul of Lewis, Paul, Issac & Castillo, P.A., Jacksonville," for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

In determining that the promissory note in question capped the interest rate payable at “the maximum permitted by applicable law” existing when the note was executed, rather than as applicable law may have existed from time to time during the 10-year life of the note, the trial judge gave the contract language a permissible meaning resolving the ambiguity against the party responsible for it. Planck v. Traders Diversified, Inc., 387 So.2d 440, 442 (Fla. 4th DCA 1980), rev. denied, 394 So.2d 1153 (Fla.1981); MacIntyre v. Green’s Pool Service, Inc., 347 So.2d 1081, 1084 (Fla. 3d DCA 1977). Regardless, then, that the bank might have contracted for a higher interest cap, 12 U.S.C. § 85, it did not do so.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    Barbara L. WALES, Appellant, v. Robert E. WALES, Appellee.
    No. AK-306.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.
    » Gary C. Pajcic of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant.

      Gene T. Moss of Moss & Edwards, Jacksonville, for appellee.-
   MILLS, Judge.

In this appeal from the trial court’s final judgment of dissolution of marriage, the wife contends that the trial court erred in incorporating the terms of an antenuptial agreement into the final judgment and in implicitly holding that the agreement had not been abandoned by the parties. We disagree.

On 31 January 1980, one day before their marriage, husband and wife entered into an antenuptial agreement which, among other things, provided that the wife was to transfer certain property located on Jose Terrace from her name into the joint names of her and her husband. The parties further agreed that all property acquired during the marriage would be jointly owned and that in the event of divorce, wife was to receive sole ownership of the Jose Terrace property and two-thirds of the property acquired during the marriage.

The parties acquired six parcels of real estate during the marriage. Three of these parcels were jointly owned, two of them were owned and mortgaged solely by the wife, and one of them was owned by the wife but mortgaged by the husband. The Jose Terrace property was never deeded by the wife as required by the agreement. In the final judgment of dissolution, the trial court upheld the antenuptial agreement, awarding the wife sole ownership of the Jose Terrace property and two-thirds ownership in the six parcels of real estate.

An antenuptial agreement may be abandoned by the parties when the actions of one party are inconsistent with the existence of the contract and such actions are acquiesced in by the other party. McMullen v. McMullen, 185 So.2d 191 (Fla. 2d DCA 1966). However, the question of whether there has been an abandonment is one of fact. Sinclair Refining Co. v. Butler, 172 So.2d 499 (Fla. 3d DCA 1965); 17 Am. Jur.2d, Contracts, § 484. Findings of the trial court come clothed with the presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them. Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981). Though the husband testified that he did not know any of the realty acquired during the marriage was jointly owned, there is still some evidence to indicate that the parties intended to live by the terms of the contract. Therefore, we decline to disturb the trial court’s finding on appeal.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


text:
    Betty CARLTON and William J. Carlton, her husband, Appellants, v. Ray RIDINGS, M.D., Appellee.
    No. AM-228.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1982.

      Robert B. Persons, Jr., Sarasota, and Paul M. Harden, Miami, for appellants.
    Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp, Childs, Mickler & Cohen, P.A., Jacksonville, for appellee.
   MILLS, Judge.

Betty and William H. Carlton, plaintiffs below, appeal the entry of summary judgment for Ridings on the ground that their claim for medical malpractice is barred by Section 95.11(4)(b), Florida Statutes (1981). We affirm.

On 25 April 1980, the Carltons filed their original complaint in this action, alleging that Dr. Ridings negligently administered radiation therapy to Mrs. Carlton on 10 July 1975, and further alleging that they did not become aware of this alleged malpractice until 18 September 1978 due to fraud, concealment, and intentional misrepresentation of fact by Dr. Ridings.

Section 95.11(4)(b) sets out two periods of limitation which are applicable to medical malpractice claims. The first sentence of Section 95.11(4)(b) provides that such claims must be filed within two years of the date of injury or discovery of the injury, but in any event not later than four years after the injury. The Carltons’ claim is clearly barred under this first sentence because it was not filed within four years of the injury-

The last sentence of Section 95.11(4)(b) applies in those cases where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented discovery of the injury within the four-year period. In those cases, the period of limitations is extended forward two years from the time of discovery of the injury, but in any event, not later than seven years from the date of the injury. According to the plain language of the statute, however, this last sentence is applicable only in cases where the injury is not discovered within four years of the date of injury. In the present case, the injury was discovered within four years, so this last sentence cannot apply.

The Carltons cite several cases for the proposition that the statute of limitations is tolled where fraud, concealment, or misrepresentation prevent discovery of the injury during the limitations period. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978); Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979). All of these cases involved earlier versions of Section 95.11(4)(b), none of which contained any special provisions for cases of fraud, concealment, or misrepresentation. Therefore, we will not follow the reasoning of those cases.

Alford v. Summerlin, 362 So.2d 103 (Fla. 1st DCA 1978), does deal with Section 95.-ll(4)(b) as it is presently enacted. However, that case is distinguishable because it did not involve a suit filed more than four years after the date of the injury; it concerned only whether the statute of limitations should be extended for an additional two years beyond the' usual two-year period.

We hold, therefore, that because the Carl-tons discovered the alleged injury before 10 July 1979 and failed to file suit before that date, their claim for medical malpractice is barred by Section 95.11(4)(b), Florida Statutes (1981).

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.


author: RYDER, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. James F. BRYCE, Appellee.
    No. 82-1043.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Richard D. Mars, Lakeland, for appellee.
   RYDER, Acting Chief Judge.

The state appeals from the dismissal of its information for bookmaking, arguing that the lower court erred in finding section 849.25, Florida Statutes (1981), to be unconstitutional. We reverse.

The state charged appellee with violation of the RICO Act, section 943.462, Florida Statutes, and five counts of bookmaking in violation of section 849.25, Florida Statutes. Appellee moved to dismiss on the ground that section 849.25. was unconstitutionally vague, indefinite, and ambiguous. The lower court granted the motion, noting that the statute did not define the term “taking or receiving.” Thus, the court found that even if the term distinguished accepting and offering of bets, it was unconstitutional because it established different classes.

We hold this case to be governed by our reasoning and holding in the recent opinion of State v. Tate, 420 So.2d 116 (Fla. 2d DCA 1982). We therein hold, in similar circumstances, that section 849.25 does not violate the equal protection clauses of the United States and Florida Constitutions and is not so vague that men of common intelligence must necessarily guess at the statute’s meaning and differ as to its application.

REVERSED and REMANDED for further proceedings.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Richard Hillery MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 82-89.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1982.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant pled nolo contendere to a first degree felony charge of possession of a controlled substance. Subsequent to the adjudication of guilt, the trial court entered a written judgment which, inter alia, ordered appellant to pay a $5,000.00 fine pursuant to section 775.0835, Florida Statutes (1981). This section authorizes the court to order an optional fine, not to exceed $10,000.00, payable to the Crimes Compensation Trust Fund. However, such a fine may be ordered only if the crime pled to, or convicted of, is a felony or misdemeanor which results in the injury or death of another person.

Because appellant entered a plea of nolo contendere to a felony which did not result in the personal injury or death of another person, the court was not authorized under the statute to order such a fine.

Accordingly, we strike the $5,000.00 fine imposed pursuant to section 775.0835. In all other respects, we affirm appellant’s judgment and sentence.

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


author: SCHEB, Acting Chief Judge.

text:
    James A. NAPIER, Appellant, v. Julie NAPIER, Appellee.
    No. 82-456.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1982.
    Stephen D. Hughes, Largo, for appellant.
    Crockett Farnell, Clearwater, for appel-lee.
    R. Clark Robinson of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, amicus curiae.
   SCHEB, Acting Chief Judge.

In the final judgment dissolving the parties’ marriage, the court made provisions for alimony, awarded custody of the two-year old child to the wife (appellee) and imposed appropriate support requirements on the husband (appellant). Paragraph nine of the final judgment stipulated:

9. The Husband will be required to provide for a college education for the child should the academic performance and the wishes of the child indicate the desirability of such education past the high school level.

Appellant correctly points out that it would be error for the trial court to require him to pay for the child’s education past the age of majority. Therefore, we construe paragraph nine as not imposing any financial responsibility upon appellant after his daughter attains eighteen years of age. Whether the parties’ child will still be dependent past the age of majority should be determined by the court, if requested, at such time as the daughter attains her majority. Cyr v. Cyr, 354 So.2d 140 (Fla. 2d DCA 1978).

As construed, we affirm the final judgment of dissolution in all respects.

DANAHY and SCHOONOVER, JJ., concur.


text:
    James E. GRAYES, Appellant, v. STATE of Florida, Appellee.
    No. 82-839.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1982.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the record, we find that the affidavit supporting the search warrant was insufficient. Although the affidavit stated the time at which the informant met with and spoke to the affiant, it did not specify the time at which the informant observed the illegal act, appellant’s possession of cocaine. The affidavit in this case duplicates the one in King v. State, 410 So.2d 586 (Fla.2d DCA 1982). Therefore, the trial court having erred in denying appellant’s motion to suppress the evidence pursuant to the invalid search warrant, the judgment and sentence herein are REVERSED and the cause REMANDED for further proceedings.

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


author: GRIMES, Acting Chief Judge.

text:
    Samuel Isaiah GENTRY, Appellant, v. STATE of Florida, Appellee.
    No. 82-940.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The main issue in this case is whether voluntary intoxication may be a defense to attempted second degree murder.

The appellant choked his father and swore to kill him. He then snapped a pistol several times next to his father’s head. When the gun failed to fire, the appellant struck his father in the head with the gun. The state charged appellant with attempted murder.

■ At the trial, appellant contended that he was intoxicated when he attacked his father. The judge instructed the jury that voluntary intoxication may be a defense to a crime which required a specific intent. He charged the jury that first degree murder was a specific intent crime. He also instructed the jury that one could be convicted of second degree murder without proof of specific intent. While the judge referred to specific intent only in the context of first and second degree murder, the clear implication of his instructions as a whole was that voluntary intoxication could be a defense to attempted first degree murder but not to attempted second degree murder. Appellant’s objection was sufficiently precise to preserve his point for appellate review. See Spurlock v. State, 420 So.2d 875 (Fla.1982). The jury ultimately returned a verdict of attempted second degree murder.

Appellant relies upon a long line of authority which states that attempts are specific intent crimes. Adams v. Murphy, 394 So.2d 411 (Fla.1981); Worthey v. State, 395 So.2d 1210 (Fla. 3d DCA 1981); Littles v. State, 384 So.2d 744 (Fla. 1st DCA 1980); Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967). Therefore, appellant reasons that the court erred in leading the jury to believe that voluntary intoxication could not be a defense to attempted second degree murder.

It is well settled that voluntary intoxication is not a defense to second degree murder because no degree of murder below first degree murder is a specific intent crime. Crews v. State, 143 Fla. 263, 196 So. 590 (1940); Garner v. State, 28 Fla. 113, 9 So. 835 (1891). The crime of second degree murder requires the proof of no more than a general intent to commit the imminently dangerous act which results in the unlawful killing. See Polk v. State, 179 So.2d 236 (Fla. 2d DCA 1965). Hence, there is an anomaly in the law of Florida under which an attempt to commit second degree murder appears to require a specific intent, but the consummated act of second degree murder does not require such an intent.

Of all of the Florida cases which have stated that attempts are specific intent crimes, only Littles v. State involved an attempt to commit a crime which itself did not require a specific intent. However, Lit-tles dealt only with the question of whether the crime of attempted second degree murder existed at all in the face of the argument that it would require proof that the defendant intentionally committed an unintentional act.

In the final analysis, we are unwilling to conclude that appellant must have had a specific intent to attempt to commit second degree murder when he would not have needed a specific intent had he accomplished his objective. To put it another way, if voluntary intoxication would not be a defense to appellant’s consummated second degree murder of his father, it should not be a defense to appellant’s abortive attempt to commit the same crime. We hold that the intent required to attempt to commit a crime is no greater than the intent necessary to commit the crime itself.

The rationale for our holding impliedly conflicts with the dictum of several decisions and specifically with the statement in Worthey v. State, 395 So.2d 1210 (Fla. 3d DCA 1981), that “[a]ll attempts are necessarily specific intent crimes whether the relevant completed offense is or not.” 395 So.2d at 1211. Therefore, pursuant to article V, section 3(b)(4) of the Florida Constitution, we hereby certify this case to the supreme court as being in direct conflict with Worthey v. State.

AFFIRMED.

RYDER, J., and NELSON, WILLIAM J., Associate Judge, concur.

      . We are not concerned in this case with the defense of insanity brought on by intoxication. See Cirack v. State, 201 So.2d 706 (Fla.1967).

      . Why earlier Florida courts reached the conclusion that attempts were always specific intent crimes is not clear. Section 777.04(1) proscribing attempts says nothing about intent. We also note that the Florida Standard Jury Instructions in Criminal Cases (1981 ed.) makes no reference to intent in its instructions on attempt.


author: JOANOS, Judge.

text:
    Dianne D. and David L. SPRAYBERRY, Appellants/Cross-Appellees, v. SHEFFIELD AUTO AND TRUCK SERVICE, INC., Appellee/Cross-Appellant.
    No. AK-64.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.

      Ernest W. Welch of Welch & Munroe, P.A., Tallahassee, for appellants/cross-ap-pellees.
    Frank E. Sheffield, Tallahassee, for ap-pellee/cross-appellant.
   JOANOS, Judge.

Appellants Dianne D. and David L. Sprayberry, plaintiffs below, argue the following points on appeal: (1) that the trial court improperly granted a directed verdict on the basis that the quantum of proof required of a plaintiff in a fraud case is clear and convincing evidence; (2) that the trial court improperly granted a remittitur in the amount of damages awarded by the jury, and (3) that the trial court erred in granting a directed verdict on their claim under the Motor Vehicle Information and Cost Savings Act (15 U.S.C. § 1981 et seq.). Sheffield Auto and Truck Service, Inc., urges the following issues in its cross-appeal: (1) that the trial court erred in denying its motion for directed verdict on the ground that the Sprayberrys failed to prove their case by a preponderance of the evidence; (2) that the trial court erred in allowing the issue of lost profits ■ to be presented to the jury; and (3) that the trial court erred in allowing the introduction into evidence of damages sustained after David Sprayberry determined he had not gotten the benefits of his bargain. We affirm in part and reverse in part.

The central issue in this cause is whether the correct burden of proof in an action for fraud is a preponderance of the evidence standard or a clear and convincing evidence standard. Initially, we note that there is a divergence of views on this subject in the opinions of the various district courts of appeal and the Florida Supreme Court. Compare Rigot v. Bucci, 245 So.2d 51 (Fla.1971); Blaeser Development Corp. v. First Federal Savings & Loan Association, 375 So.2d 1118 (Fla. 4th DCA 1979); Pelekis v. Florida Keys Boys Club, Inc., 358 So.2d 849 (Fla. 3d DCA 1978); Harrell v. Branson, 344 So.2d 604 (Fla. 1st DCA 1977); Pender v. Hatcher, 303 So.2d 427 (Fla. 2d DCA 1974) (a preponderance or greater weight of the evidence standard) with Canal Authority v. Ocala Mfg. Ice & Packing Co., 332 So.2d 321 (Fla.1976); Headley v. Pelham, 366 So.2d 60 (Fla. 1st DCA 1978) (clear and convincing evidence standard). The better view of the authorities is that the correct burden of proof in an action for fraud is the preponderance or a greater weight of the evidence standard.

The Florida Supreme Court appeared to have definitively settled this issue in Rigot v. Bucci, supra, when it expressly and unequivocally held “that only a preponderance or greater weight of the evidence is required to establish fraud, whether the action is at law or in equity,” and overruled all decisions holding to the contrary. 245 So.2d at 53. However, in Canal Authority, supra, a more recent case, the Florida Supreme Court apparently overlooked its earlier holding in stating: “It is rudimentary that proof of fraud must be by clear and convincing evidence.” 332 So.2d at 327. In Canal Authority, the primary issue on appeal was whether the Canal Authority had the statutory authority to pursue an action in eminent domain against the appellee. The Court concluded that it did and then proceeded to state that, even if the Canal Authority lacked the requisite statutory authority, the only category of tort within which the allegations of the complaint could conceivably fall was fraud and deceit and it was “doubtful the allegations would satisfy the requirement that fraud be pleaded with particularity.” Id. at 327. Proceeding onward, it then decided that the quality of evidence did not meet the clear and convincing standard requirement. Id. However, in so stating, it failed to note its earlier ruling in Rigot v. Bucci, supra. We therefore conclude that this statement in Canal Authority is superfluous to that decision and agree with the Fourth District Court of Appeal that it is obiter dictum. Blaeser Development Corp. at 1118. Further, we will not presume that the Court intended to overrule its earlier decision sub silentio. Accordingly, we find that a preponderance or greater weight of the evidence standard applies and expressly recede from any decisions to the contrary.

We disagree with appellants’ argument that the trial court erred in directing a remittitur. The trial court determined that if the directed verdict was set aside by an appellate court the jury verdict should be reduced from $34,826.61 to $22,674.00. The trial court was correct in finding that no competent evidence was presented as to the difference in value between the 1978 International Harvester glider received by appellants and a used 1978 International Harvester which they were allegedly entitled to receive. Appellants have failed to demonstrate how the jury could properly have awarded more than $22,674.00 absent a consideration of that difference.

In addition, we agree with appel-lee’s argument that the matter of lost profits should not have gone to the jury. Therefore, the damages should be reduced even further. Ordinarily, a party may not recover contractual damages, such as lost profits, in a tort action. Greater Coral Springs Realty, Inc. v. Century 21 Real Estate of Southern Florida, Inc., 412 So.2d 940 (Fla. 3d DCA 1982). This rule is subject to the limited exception found in Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972).

One who has been fraudulently induced into a contract may elect to stand by that contract and sue for damages for the fraud. When this happens and the defrauding party also refuses to perform the contract as it stands, he commits a second wrong, and a separate and distinct cause of action arises from the contract.

Id., at 723, quoting Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106, 110 (9th Cir.1960), cert: denied 368 U.S. 822, 82 S.Ct. 41, 7 L.Ed.2d 27. Appellants misapprehend the scope of this decision. Simply stated, Ashland Oil holds that an action for fraudulent inducement and breach of contract are not mutually exclusive and may be brought in the same suit. In this case, however, appellants have simply failed to allege any breach of contract. The first count of their suit alleges fraudulent inducement to contract. Their second alleges deceptive and unfair trade practices, while the third alleges violations of the Motor Vehicle Information and Cost Saving Act, 15 U.S.C. § 1981 et seq. There being no breach of contract claimed, the issue of lost profits should never have gone to the jury and the assessment of these damages must be stricken from the award.

We find no merit in the remaining points on appeal or on cross-appeal.

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

BOOTH and WENTWORTH, JJ., concur.


text:
    MEDICAL CENTER HOSPITAL and Underwriters Adjusting Co., Appellants, v. Lynda WACIKOWSKI, Appellee.
    No. AK-419.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    R. William Futch of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellants.
    David B. Kesler, St. Petersburg, for ap-pellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The appellant hospital, self-insured under chapter 440, appeals a compensation award contending, principally, that there is no competent evidence on which the deputy might have found that claimant’s herniated disc, operated successfully in December 1980, was caused by her work-related accident in October 1979. The deputy could not have so found, the argument goes, because claimant’s pain complaints were confused and five doctors thought claimant had some other organic difficulty, or none at all. Yet claimant’s evidence showed a continuous pattern of radiating pain, recorded by the examining and treating physicians, and a competent surgeon’s unqualified opinion that the herniated disc was the cause of claimant’s pain and disability.

The proof of his diagnosis was that the pain claimant suffered for months before disappeared instantly by disc surgery.

The employer’s claim, that the deputy’s finding is without substantial competent evidence, is itself insubstantial if not frivolous. Gold Coast Paving Co. v. Fonseca, 411 So.2d 259 (Fla. 1st DCA 1981), is plainly distinguished on the facts. A physician’s reasoned opinion is no less capable of supporting the deputy’s order because his testimony was by deposition, as is the case in so many contested workers’ compensation matters. We will not retry the case and speculate upon the weight of evidence, and the credibility of witnesses, simply because some of the testimony, or all of it, was by deposition.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    Max E. SKINNER, Appellant, v. BURNUP & SIMS and Crawford & Company, Appellees.
    No. AL-34.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.

      Alex Lancaster, Sarasota, for appellant.
    Keith Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   PER CURIAM.

This court, sua sponte, dismisses Claimant’s Application for Review finding that the Order entered by the Deputy Commissioner on March 15, 1982 is not a final appealable order. That Order simply vacated a prior non-final order which had determined the Claimant’s average weekly wage based on the stipulation of the parties and reset the case for hearing for purposes of receiving additional evidence as to Claimant’s average weekly wage. As a result, we determine the order is not final and appeal-able. See, Mills Electrical Contractors v. Marthens, et al., 417 So.2d 700 (Fla. 1st DCA 1982); The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982); Halphen v. Western Contracting Corp., 389 So.2d 1254 (Fla. 1st DCA 1980).

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


text:
    PEPSI COLA BOTTLING CO. and Whiting National Services, Appellants, v. Willie J. WALKER, Appellee.
    No. AM-116.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.

      Nancy L. Cavey of Earle & Thompson, St. Petersburg, for appellants.
    Paul W. Hitchens of Akerson & Swisher, St. Petersburg, for appellee.
   PER CURIAM.

The Appellants, employer/carrier (e/c), in this workers’ compensation action contend that the deputy commissioner (the deputy) erred in awarding claimant temporary total disability (TTD) benefits from September 17, 1981 through January 14, 1982 and from January 29, 1982 through February 16, 1982. We disagree and find that there was competent substantial evidence to support the deputy’s conclusion that the claimant’s injury was the result of an industrial accident and not the result of Reiter’s Syndrome. Appellants alternatively contend that the deputy erred in finding that the e/c was not entitled to reclassification of wage-loss benefits overpaid from May 8, 1981 through July 8, 1981 and a credit for such overpayment. We agree and reverse paragraph 16 of the deputy’s order with instructions.

Although some confusion has existed in the past concerning the reclassification of benefits overpaid in one class of compensation and the application of such overpayment as a credit against unpaid benefits of another class such confusion was eliminated by our decision in Belam Florida Corporation v. Dardy, 397 So.2d 756 (Fla. 1st DCA 1981). In Dardy we rejected the misconception that overpayment of compensation in one class of benefits could never be applied as a credit when a different class of benefits is found to be due and we stated that

[a] more moderate approach, and one that we hereby adopt, presumes that any overpayment of compensation is a gratuity in the absence of a finding that a reasonable basis exists for the overpayment If the Deputy finds such a basis the presumption is dissipated and he may allow the overpayment to be applied as a credit against compensation ultimately found to be due even though the compensation may be of another class. We expressly recede from any decision by this court to the contrary.

Id. at 758. When the e/c seeks a credit for overpayment, it is incumbent on the deputy to determine whether a reasonable basis exists for such overpayment. State of Florida, Division of Family Services v. Varela, 418 So.2d 1182 (Fla. 1st DCA 1982).

Accordingly, we reverse paragraph 16 of the deputy’s order and remand this case with directions to the deputy to calculate the amount of wage-loss benefits which were paid to claimant from May 8, 1981 through September 17, 1981 and to determine also whether a reasonable basis existed for such overpayment. If the overpayment was reasonable, the e/c must be allowed a credit against any unpaid TTD benefits awarded. If no benefits remain unpaid, or if the amount of such credit would exceed the unpaid TTD benefits, such excess portion of the overpayment must be considered gratuitous and may not be recovered by the e/c. Cf. State of Florida, Division of Family Services v. Varela.

AFFIRMED in part, REVERSED in part and REMANDED.

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


author: SHIVERS, Judge.

text:
    SUNNY PINES CONVALESCENT CENTER and Hewitt Coleman & Associates, Inc., Appellants, v. Mary WALTERS, Appellee.
    No. AM-163.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Thomas M. Burke and Daniel DeCiccio, of Rumberger, Kirk, Caldwell, Cabaniss & Burke, P.A., Orlando, for appellants.
    Andrea L. Cain and Irvin A. Meyers, of Meyers & Mooney, P.A., Orlando, for appel-lee.
   SHIVERS, Judge.

The Employer/Carrier (E/C) appeal the award of temporary total disability (TTD) benefits from May 31, 1980, to September 30, 1981. We affirm in part and reverse in part

There is competent and substantial evidence in the record to support the finding by the Deputy Commissioner (DC) that claimant was temporarily and totally disabled during the period for which temporary total disability benefits were awarded. However, the record reveals that claimant was employed as a maid for a short time during the period for which TTD benefits were awarded. On this basis, we affirm the award of TTD benefits during the period between May 31, 1980 and September 30, 1981, except for the period during which claimant was employed. Since the record does not reveal precisely how long claimant was employed or how much she earned during the period between May 31, 1980 and September 30, 1981, we must remand the matter to the DC with instructions that he affirm the award of TTD benefits except for any periods that claimant was employed.

We also affirm the DC’s decision to retain jurisdiction for the purpose of determining a reasonable attorney’s fee. We do so because, with respect to that issue, the order is non-final and, as such, non-appeala-ble.

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


author: PER CURIAM. BASKIN, Judge

text:
    NARANJA LAKES CONDOMINIUM NO. ONE, INC., Naranja Lakes Condominium No. Two, Inc., and Naranja Lakes Condominium No. Three, Inc., Appellants, v. S.A. RIZZO, Appellee.
    No. 81-561.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Haddad & Josephs and Michael Seth Cohen, Miami, for appellants.
    William E. Schockett, Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Appellants, Naranja Lakes Condominium No. One, Inc., No. Two, Inc., and No. Three, Inc., brought suit against their builder and developer, J & T Developers, and S.A. Riz-zo, individually, for construction defects. The action against Mr. Rizzo, a corporate officer, consisted of two counts sounding in tort and two counts sounding in contract. The trial court dismissed the entire complaint. We affirm in part and reverse in part.

The trial court correctly dismissed those counts sounding in contract as against Mr. Rizzo. Plaza del Prado Condominium Association, Inc. v. G.A.C. Properties, Inc., 295 So.2d 718 (Fla. 3d DCA 1974). The negligence issues, however, are controlled by our decision in Adams v. Brickell Townhouse, Inc., 388 So.2d 1279 (Fla. 3d DCA 1980). In that case we stated, “One purpose of the corporate fiction is to insulate stockholders from liability for corporate acts; however, officers of a corporation are no less personally responsible for their tor-tious acts by virtue of those acts having been performed in the corporate name.” Adams, supra, at 1280, and cases cited therein.

Appellee’s contention that the appellants lack standing on a privity theory is in our view without merit. See Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1979). “[Pjrivity of contract is not an essential element in a negligence suit between a subsequent purchaser and the builder of a condominium project.” Id. at 978. See also A.B. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973); Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689 (Fla. 2d DCA 1979).

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

BASKIN, Judge

(specially concurring).

I concur in the majority opinion affirming dismissal of the contract claims. I also concur in the reversal of the dismissal of the tort claims. See Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981) and authorities cited; Rizzo’s liability for negligent design does not arise from his status as a corporate officer. Thus, the second amended complaint states a cause of action and should not have been dismissed.

      . Not a party to this appeal.


text:
    Jacques BARRATTEAU, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1603.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Lisa M. Ber-low-Lehner, Legal Intern, and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant, Jacques Barratteau, was charged by information with second degree murder. Upon trial the jury found him guilty as charged. The trial court adjudicated him guilty and sentenced him to one hundred thirty-four years imprisonment.

Appellant urges reversal of his conviction and sentence. The points relied upon for reversal are that (1) “the trial court erred in restricting the defendant’s cross-examination of a state witness, where such questioning was crucially relevant to the theory of the defense, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States,” and (2) “the trial court erred in denying the defendant’s motion for mistrial where the prosecutor’s comments in closing argument, to the effect that the defendant had the burden to produce exculpatory evidence, violated the Fifth and Fourteenth Amendments to the Constitution of the United States.”

We have carefully considered the points on appeal in the light of the record, controlling principles of law, and briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. Castor v. State, 365 So.2d 701 (Fla. 1978); A. McD. v. State, 422 So.2d 336 (Fla.3d DCA 1982); Bennett v. State, 405 So.2d 265 (Fla. 4th DCA 1981); Alvarez v. State, 401 So.2d 881 (Fla. 3d DCA 1981); Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981); Phillips v. State, 351 So.2d 738 (Fla.3d DCA 1977), cert. denied, 361 So.2d 834 (Fla.1978); Frierson v. State, 339 So.2d 312 (Fla.3d DCA 1976); see Clark v. State, 363 So.2d 331 (Fla.1978).

An appellant, in a criminal case, has the burden of showing that the trial proceedings were so infected with prejudicial error as to compel a reversal of the judgment. Such error must be clearly demonstrated by appellant.

We find that no error was committed which injuriously affected any substantial rights of the appellant. Therefore the judgment and sentence are affirmed.

Affirmed.


text:
    Willie B. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1868.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Bennett H. Brummer, Public Defender and Lisa Bennett, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Casimir v. State, 352 So.2d 143 (Fla. 3d DCA 1977); Baxter v. State, 355 So.2d 1234 (Fla. 2d DCA), cert. denied, 365 So.2d 709 (Fla.1978).


text:
    Clementeen M. SINGLETON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2512.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.

      Bennett H. Brummer, Public Defender, and Elizabeth J. Du Fresne and Sarah Lea Tobocman, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant was charged in a three count information with first degree murder, carrying a concealed firearm and display of a firearm while committing a felony.

Appellant pled not guilty to each of the charges. Upon trial the jury returned a verdict of guilty on all three counts. However, as to count one appellant was found guilty of the lesser included offense of second degree murder. The trial court ordered that adjudication be withheld and suspended entry of sentence as to the possession charge. Appellant was sentenced to a term of thirty years with a three year minimum mandatory sentence for second degree murder and to a concurrent five year term for the concealed firearm charge.

By this appeal appellant urges that the judgment and sentences be reversed or alternatively, that the second degree murder conviction be reduced to manslaughter on the grounds (1) that the circumstantial evidence relied upon by the state was not inconsistent with any reasonable hypothesis of innocence and that the state failed to rebut appellant’s version of self defense and (2) that the evidence was insufficient to establish the mental element for second degree murder and the charge should have been reduced to manslaughter.

We have carefully read and considered the transcript of testimony and evidence offered during trial. To sustain the conviction, the state relies upon circumstantial evidence to establish appellant’s guilt of second degree murder. Without recounting in detail the evidence adduced at trial, we find in the record ample competent evidence which is wholly consistent with appellant’s guilt and inconsistent with any reasonable hypothesis of innocence. It is evident that the jury elected to believe the testimony of the witnesses testifying on behalf of the state and to disbelieve appellant’s testimony regarding her version of the killing. Both the jury, by its verdict, and the able trial judge, in denying appellant’s motion for a new trial, found the evidence to be wholly sufficient to sustain the judgment challenged herein. Determinations as to the weight to be given the evidence and credibility to be accorded the witnesses who testify lie uniquely within the province of the jury. Its findings of fact, as affirmed by the trial judge, will not be disturbed unless shown to be clearly erroneous.

Appellant having failed to demonstrate error, the judgment and sentences are affirmed.

Affirmed.


text:
    Emerio Manuel BETHENCOURT, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2602.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.

      Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen. and William R. Thomas, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and PEARSON, DANIEL S. and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Mosier, 392 So.2d 602 (Fla. 3d DCA 1981).


text:
    The STATE of Florida, Appellant, v. Alejandro A. TORO and Gilbert Mejia, Appellees.
    No. 81-2762.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Manuel Vasquez; Weiner, Robbins, Tun-key & Ross and Geoffrey C. Fleck, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The order under review suppressing evidence seized from the defendants is reversed and the cause remanded to the trial court for further proceedings upon a holding that: (1) the discovery of cocaine on the defendants’ persons was justified as a search incident to a valid arrest based on probable cause conferred by a trained narcotics dog’s “alert” on their luggage, State v. Foster, 390 So.2d 469 (Fla. 3d DCA 1980); State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980); Mata v. State, 380 So.2d 1157 (Fla. 3d DCA), petition for review denied, 389 So.2d 1112 (Fla.1980); and (2) given the existence of probable cause to arrest the defendants for narcotics violations, the fact that the search preceded their formal arrest does not vitiate the search, Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981); State v. Byham, 394 So.2d 1142 (Fla. 4th DCA 1981); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977).

Reversed.


author: FERGUSON, Judge.

text:
    ERICKSON ENTERPRISES, INC., d/b/a Perkins Cake and Steak, and William Erickson, Appellants, v. LOUIS WOHL & SONS, INC., Appellee.
    No. 82-36.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Smoot, Johnston, Johnson & Green, Fort Myers, for appellants.
    Jeffrey R. Roth, Miami, for appellee.
    Before HUBBART, C.J. and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Erickson appeals from a final judgment taxing attorneys fees and costs.

Wohl sued on a contract seeking to collect $4,620.60 allegedly owed by Erickson for new restaurant equipment. The contract provided, “. . . in the event collection action becomes necessary ... all charges including court costs, attorney’s fees and interest will be paid by the purchaser.” Erickson filed an answer, thirteen affirmative defenses, and a counterclaim for $9,180.72. After a two-day non-jury trial final judgment for $3,885.00 was entered in favor of Wohl on his claim, and against Erickson on the counterclaim. By a subsequent order, from which this appeal is taken, the court awarded legal fees of $6,000.00 and costs of $794.00.

We first dispose of the challenge to the award of costs as without merit.

There was an agreement between Wohl and his attorneys that the fees for handling the contract action would be one-third of any recovery obtained on Wohl’s complaint and $100.00 per hour for defending the counterclaim. It is conceded that, excluding the counterclaim, by terms of the agreement Wohl would be entitled to $1,300.00 in fees (Vs of the recovery) for the collection action. The dispute is over the $4,700.00 excess.

Erickson makes three arguments: (1) it is not obligated to pay for the fees incurred in defending the counterclaim, (2) Wohl is entitled to no more than $1,300.00 because no additional work or time was required to handle the counterclaim, or (3) Wohl is entitled to no more than an additional $700.00 which Erickson’s witness testified was the value of services for defending the counterclaim — arrived at by estimating that no more than seven hours, at $100.00 per hour, was required to handle the counterclaim.

Wohl counters: (1) because defense of the counterclaim was inseparably part of its suit on the contract it is entitled to a fee for defending the counterclaim, (2) defense of the counterclaim required more time and effort than the original action for collection, and (3) a separate award of fees cannot be made for Wohl’s suit to collect on the contract and the defense of Erickson’s counterclaim, therefore, the question is simply what is a reasonable fee, determination of which is within the sound discretion of the trial court.

We agree that on the facts of this case, it was appropriate to award Wohl a fee for defending against Erickson’s counterclaim. Where a plaintiff, in order to recover in an action where the contract sued upon provides for attorney’s fees, is required to prevail on the defendant’s counterclaim which is based on the same contract, as well as on his own action, defense of the counterclaim is part and parcel of the original action and plaintiff is entitled to a fee for defending the counterclaim as well. See Peacock Construction Company v. Gould, 351 So.2d 394 (Fla. 2d DCA 1977). We see no reason to distinguish this case where the fee is based on contract, from Peacock where the fee was based on a statute.

But unlike Peacock, upon which Wohl relies, there is competent evidence in the record which suggests that the parties will have little difficulty preparing a breakdown of the number of hours spent on the collection action and the counterclaim. Further, there is an agreement between the plaintiff and his attorney as to how the fee will be determined for both the collection suit and defense of the counterclaim. All the necessary elements are present for application of the correct standard for determining an appropriate fee: where two contracts exist, one between the parties and one between a party and his attorney, the fee shall be based on the actual agreement under which the claimant seeks indemnity for attorney’s fees, if not excessive, or a reasonable fee, whichever is lower. Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla. 3d DCA 1981); Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So.2d 728 (Fla. 3d DCA 1980). It was error to determine the amount of attorney’s fees without considering the fee agreement between the claimant and his attorney.

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

      . Of course if the trial court makes a finding, supported by the record, that it is impossible to separate the legal work performed in the action to collect, from work done in defense of the counterclaim, then Peacock is controlling, and it would be appropriate to assess a reasonable fee, considering the factors set out in the Code of Professional Responsibility DR2-106(B).


text:
    NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Appellant, v. PETERS, PICKLE, FLYNN, NIEMOELLER, STIEGLITZ & DOWNS, and Frederick B. Hart, Esq. and St. Paul Fire & Marine Insurance Company, Appellees.
    No. 82-97.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Smith, Davenport, Bloom & Harden and Hugh M. Davenport, Jacksonville, for appellant.
    Talburt, Kubicki & Bradley and Carol A. Scott and Betsy E. Hartley, Miami, for ap-pellees.
    Before SCHWARTZ and PEARSON, DANIEL S. and FERGUSON, JJ.
   PER CURIAM.

Dismissed. See S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974); Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).


author: HENDRY, Judge.

text:
    Alvaro CISNEROS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-215.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   HENDRY, Judge.

Appellant was tried and found guilty of aggravated battery by the trial judge in a non-jury trial.

Appellant urges reversal on the ground that the evidence adduced by the state was insufficient to support the court’s findings. We find no merit in that contention. It is well settled law that determinations as to the weight of the evidence and the credibility of witnesses, and evidentiary findings and conclusions are exclusively the duty of the trial judge as the trier of fact and an appellate court may not substitute its opinion of the facts or re-weigh the evidence and reach a conclusion different from that of the trial judge. E.Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980); Heineman v. State, 327 So.2d 898 (Fla. 3d DCA), cert. denied, 336 So.2d 1182 (Fla.1976).

Appellant was placed on probation for a term of three years with a provision that he make restitution in an amount to be determined by the probation supervisor or the court. We agree with appellant’s contention that the trial court erred in delegating authority to the supervisor to determine the amount of restitution to be made. Therefore we remand the cause with instructions to hold an evidentiary hearing as to the amount of restitution to be made. E.Y. v. State, supra. The order placing appellant on probation is in all other respects affirmed.

Affirmed in part and reversed in part with directions.


text:
    OCEAN DIVERS, INC., a Florida corporation, Appellant, v. KEYS LOBSTER, INC., a Florida corporation; and Shirley A. Gunn, Appellees.
    No. 82-271.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Bercuson & Cahan and David Bercuson, Coconut Grove, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Alan S. Gold and Timothy A. Smith, Miami, for appellees.
    Before BASKIN and PEARSON, DANIEL S. and FERGUSON, JJ.
   PER CURIAM.

The conclusions of the trial court that Keys Lobster, Inc. acted reasonably and in good faith in disapproving the credit of Ocean Divers, Inc. and that, therefore, Ocean Divers’ failure to obtain credit approval, a necessary condition precedent to the exercise of its option to-purchase certain property owned by Keys Lobster, freed Keys Lobster to sell the property to another, are amply supported by the trial court’s findings, inter alia, that Ocean Divers had insufficient assets or cash flow either to make the required down payment, or realistically to assure that the ten-year purchase money note would be paid, and that even if the financial condition of the principals of Ocean Divers were arguably sound, no evidence documenting this soundness was given to Keys Lobster, and, more important, no commitment to guarantee personally the corporate obligation was timely made by these principals. Since these findings, in turn, are amply supported by the evidence, we affirm the judgment below.

Affirmed.