author: GRIMES, Chief Judge.

text:
    STATE of Florida ex rel. Clarence V. RIDENOUR and John R. Bostrom, Petitioners, v. The Honorable Fred L. BRYSON, as one of the Judges of the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida, Respondent.
    No. 79-1690.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.
    Rehearing Denied Feb. 21, 1980.
    David J. Kurland of Kurland & Johnson, Clearwater, for petitioner Ridenour; and Martin M. Murry, St. Petersburg, for petitioner Bostrom.
    James T. Russell, State’s Atty. and Louis Kwall, Asst. State’s Atty., Largo, for respondent.
   GRIMES, Chief Judge.

Petitioners seek a writ of prohibition to prevent their trial on four counts of a twelve count information, arguing that the statute of limitations has run as to those offenses.

On April 30,1979, the state filed a twelve count information against petitioners and two. other defendants. The first eight counts charged them with the illegal sale of securities. The last four counts, with which we are now concerned, charged them with conspiracy to unlawfully sell securities. In count nine, the state charged that the conspiracy occurred between August 1, 1975, and August 15, 1975, in count ten between August 5, 1975, and August 25, 1975, in count eleven between August 15, 1975, and September 5, 1975, and in count twelve on September 30, 1975.

Petitioners filed motions to dismiss counts nine through twelve on the grounds that the statute of limitations barred their prosecution. The court denied the motions. Following the filing of this action here, we issued an order to show cause and stayed trial on the four counts. Upon a study of the state’s response, we now conclude that the petitioners are entitled to a writ of prohibition.

There is a special five year statute of limitations for the illegal sale of securities. § 517.302, Fla.Stat. (1977). The trial court apparently felt that the statute of limitations for a conspiracy to commit a certain offense should carry the same limitations period as the offense which was the object of the conspiracy. We cannot accept this proposition because it is well settled that conspiracy is a substantive crime that is separate and distinct from the offense which underlies it. See State v. Burkett, 344 So.2d 868 (Fla.2d DCA 1972); 16 Am. Jur.2d Conspiracy § 5 (1979).

The statute of limitations to be used in determining whether a prosecution is timely is the one that is ip effect at the time of the crime. State v. Wadsworth, 293 So.2d 345 (Fla.1974). Here, the state alleged that the conspiracies occurred on dates ranging from August 1, 1975, to September 30, 1975. The general statute of limitations at that time was Section 932.465, Florida Statutes (1973), which imposed a two year limitations period for all offenses not punishable by death. Obviously, conspiracy to unlawfully sell securities is an offense not punishable by death. Therefore, since the state filed its information more than three years after the last date upon which it alleged that the conspiracies had occurred, the statute of limitations bars the prosecution of petitioners for those conspiracies.

We hereby enter a final judgment prohibiting the trial court from trying petitioners on the four counts discussed in this opinion.

SCHEB and DANAHY, JJ., concur.

      . A petition for a writ of prohibition is a proper method of seeking to prevent prosecution where the limitations period has run. See Reino v. State, 352 So.2d 853 (Fla. 1977).

      . This statute refers to all offenses proscribed by Chapter 517 but there is no reference to conspiracy in that chapter.

      . The statute of limitations is now Section 775.-15, Florida Statutes (1979), which went into effect on October 1, 1975. Ch. 74-383, § 10, Laws of Fla.; Ch. 75-24, Laws of Fla.

        .See § 517.302, Fla.Stat. (1973), which makes the illegal sale of securities a third degree felony; § 833.04, Fla.Stat. (1973), which makes a conspiracy to commit a third degree felony a third degree felony.


source: Caselaw Access Project

author: MILLS, Chief Judge. BOOTH, Judge,

license: Public Domain

text:
    John L. McKINNEY, Appellant, v. McKINNEY FARMS and Florida Farm Bureau, Appellees.
    No. QQ-211.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1980.

      James Ross Davis of Billings, Frederick, Wooten & Honeywell, Orlando, for appellant.
    Paul W. Smalbein, Jr., of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Orlando, for appellees.
   MILLS, Chief Judge.

John L. McKinney appeals an order of the Judge of Industrial Claims finding that the treatment of Dr. Robert Thoburn and Dr. Joseph C. Cauthen and hospitalization at the North Florida Regional Hospital In Gainesville were not compensable because the medical care was not in the normal progression of authorized treatment. We reverse.

The record clearly shows that the referral of McKinney to Dr. Thoburn was made by the authorized treating physician in the exercise of his own judgment and not at the request of the claimant. Thus, the facts are distinguishable from those present in Devco Millwork Installation v. Secord, IRC Order 2-3315 (January 12, 1977), where the claimant requested that his authorized physician make a referral. We hold that under these facts the referral to Di;. Thoburn and the subsequent hospitalization and referral to Dr. Cauthen by Dr. Thoburn were in the normal progression of authorized treatment and the carrier is financially responsible for them.

For future cases, however, • we suggest that the authorized physician contact the carrier and secure authorization before subjecting it to financial responsibility for such treatment and hospitalization.

Reversed and remanded to the Deputy Commissioner with directions that she enter an order consistent with this opinion.

McCORD, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: ERVIN, Judge.

text:
    SOUTHSIDE MOTOR COMPANY, Appellant, v. TRANSAMERICA INSURANCE COMPANY, a Foreign Insurance Company, Appellee.
    No. OO-460.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1980.
    Rehearing Denied March 12, 1980.

      Douglas P. McClurg, of Mahoney, Hadlow & Adams, Jacksonville, for appellant.
    Claude K. Slater, of Slater & Randle, Jacksonville, for appellee.
   ERVIN, Judge.

Southside Motor Company appeals the trial court’s Final Order of Dismissal holding that Southside had suffered no “loss” because of fraudulent acts of its employees which were covered by either of two employee fidelity bonds with Transamerica Insurance Company and that the bonds did not define the terms “loss of money, securities and other property” ambiguously. Following the sale of a truck by Southside’s employees to Mr. and Mrs. Padgett, the parties signed an installment sales contract. Later, after Ford Motor Credit Company refused to purchase the contract, the employees made a false financial statement of the Padgetts’ assets and liabilities, forged the Padgetts’ signatures and induced Flagship State Bank of Arlington to purchase it. When Flagship contacted the Padgetts after the latters’ failure to make payments, the forgery was discovered. Southside repurchased the contract and sued the Pad-getts to recover the car or its value. The Padgetts counterclaimed for fraud, and the parties eventually settled, the Padgetts retaining the car and receiving $9,996.63 from Southside. Southside then sued Transamer-ica in this case, alleging that either of two employee fidelity bonds was in effect when Southside repurchased the contract and paid damages to the Padgetts and alleging further that those payments were South-side’s losses which Transamerica was liable for under either of the bonds.

Both of the bonds insure against loss of money, securities or other property sustained by Southside resulting from any fraudulent or dishonest act of Southside’s employees. Neither policy defines “loss.” Both policies define “money” as “currency, coins, bank notes and bullion.” We agree with the appellant that the policy is ambiguous as to what a loss is. Because the clause at issue involves extension of coverage rather than exclusion of coverage, it “must be liberally construed in favor of the insured.” Valdes v. Smalley, 303 So.2d 342, 344 (Fla. 3d DCA 1974). Transamerica correctly distinguishes cases cited by Southside because none of them involves an insured’s loss caused only by the insured’s liability for damages to third persons as a consequence of its employee’s dishonest acts. See Eglin National Bank v. Home Indemnity Company, 583 F.2d 1281 (5th Cir. 1978); Imperial Insurance, Inc. v. Employers’ Liability Assurance Corp., 143 U.S.App.D.C. 173, 442 F.2d 1197 (D.C. Cir. 1970); Levy v. American Mutual Liability Insurance Company, 73 A.2d 892, 195 Md. 537 (Md.App.1950); Hooker v. New Amsterdam Casualty Company, 33 F.Supp. 672 (W.D.Ky.1940). However, none of the above cases holds that liability under the bonds does not arise with these facts. In Anderson, 13 Couch on Insurance, 2d, § 46:101 (1965), at p. 190, it is said that “a bond insuring against loss sustained by reason of dishonesty, fraud, embezzlement, etc., covers losses imposed by the creation of liability to third persons.” Accord, Citizens’ State Bank v. New Amsterdam Casualty Company, 177 Minn. 65, 224 N.W. 451 (1929); H. S. Equities, Inc. v. Hartford Accident and Indemnity Company, 464 F.Supp. 83 (S.D.N.Y.1978).

We conclude that both policies cover an insured’s losses incurred in settlement of a suit for damages caused by its employee’s dishonest or fraudulent acts directed at third persons. Having decided only that, we reverse and remand this cause for further proceedings consistent with this opinion.

SHIVERS and SHAW, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Alberto NUNEZ, Appellant, v. HOLIDAY INN & International Insurance Co., d/b/a The London Agency, Appellees.
    No. QQ-32.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    Rehearing Denied March 12, 1980.
    Alfred D. Bieley, Miami, for appellant.
    Scott V. Berglund, North Miami Beach, John F. McMath, P. A., Miami, for appel-lees.
   PER CURIAM.

Claimant appeals a workers’ compensation order which we affirm except as to the amount of the § 440.15(5)(c), Fla. Stat. (1974), deduction. In applying this provision, the order deducts the full amount of a settlement agreement relating to a prior injury. However, the settlement agreement expressly provides compensation for both permanent and temporary disability, as well as medical benefits, while § 440.15(5)(c) authorizes a deduction only as to compensation received for a previous permanent disability. Amounts received for temporary disability and medical benefits pursuant to the settlement agreement are not subject to deduction under § 440.-15(5)(c).

The order in the present case also deducts the amount of a previous compensation award which was reversed by the Industrial Relations Commission in Nunez v. Royal Kitchen Cabinets, Inc., 7 FCR 284 (1972), cert. dismissed, 276 So.2d 54 (Fla.1973). But neither the briefs of the parties, nor our independent examination of the record, has revealed any evidence that such compensation was ever received by the claimant. We therefore direct that this issue be reconsidered upon remand, with the parties afforded the opportunity to present further evidence if desired.

Accordingly, the order appealed is affirmed in part and reversed in part, and the cause remanded for further proceedings.

SHAW and WENTWORTH, JJ., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Amy Louise GARRISON, Appellant, v. William N. GARRISON, Appellee.
    Nos. 78-1163, 78-1164.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    James R. Rich of Christiansen, Jacknin & Myers, Palm Beach, for appellant.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

On July 26, 1976, the Palm Beach County Circuit Court, in dissolving the 32 year marriage of the parties, ordered Mr. Garrison to provide his wife as alimony:

(a) rehabilitative periodic payments of $800 per month for two years; $650 per month for the succeeding two years; and $450 per month for four years thereafter, or until August 1, 1984, when.the payments were to end entirely;
(b) the mortgage, taxes and insurance payments on the marital domicile, totaling approximately $400 per month, to continue for as long as Mrs. Garrison resided there; in another portion of the judgment, she was given exclusive possession of the home until the youngest child, who was then 14, reached 18; and
(c) a new automobile every other year until 1980.

The trial judge denied the wife permanent alimony on the ground that

“she has not carried the burden of showing that she must be completely and permanently dependent upon the husband for the rest of her life.”

Mrs. Garrison appealed the judgment to this court, which in Garrison v. Garrison, 351 So.2d 1104 at 1105 (Fla. 4th DCA 1977), reversed that ruling, holding:

[T]hat a showing of complete and permanent dependence by the wife on her husband is a factor to be considered; but it is not an essential element which must be proved before there can be an award of permanent alimony. As was noted by the trial judge, the present case contains most of the factors enumerated in McAllister, [McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977)], indicating that an award of permanent alimony is appropriate.
The error is harmful even though the wife may at any time during the rehabilitative period petition for a continuation of rehabilitative alimony or a modification to make the alimony permanent. This is so because the burden is placed upon the wife to show significantly changed circumstances before there can be a modification. If she is entitled to permanent alimony it should be awarded now. Later, if the husband can show changed circumstances, either his or hers, he may be entitled to modification. Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).
It may be that a combination of permanent and rehabilitative alimony would be justified. As stated in McAllister, supra, at 355, we do not intend to lend support to the thought that a middle aged healthy woman need not go out to work. The wife should be encouraged to seek employment, and to accomplish this, in addition to permanent alimony, an award of rehabilitative alimony may be appropriate.
Upon remand the trial court is directed to reconsider that part of its final judgment awarding rehabilitative rather than permanent alimony and enter a new order consistent with this opinion.

Pursuant to the mandate which followed this decision, the lower court again considered the cause on April 27,1978. At that hearing, which afforded an almost unique opportunity to consider whether the rehabilitative intent of the judgment had been justified by actual events, it was revealed that Mrs. Garrison had indeed been employed since the dissolution. Unfortunately, her efforts had been only minimally successful. Although she had been engaged as a real-estate broker on a full time basis, she earned only $2,300 in all of 1977 and $175.00 during the first four months of 1978. There was no evidence adduced which indicated that her real estate income would or was likely to increase in any way during the succeeding years. The record of the hearing on remand showed also that the child had left the home to live with her father and that the parties were in the process of selling it. Although we are told that Mrs. Garrison will receive approximately $18,500 for her equity, the sale will result in a termination of Mr. Garrison’s obligation to pay all the costs of her place to live; and Mrs. Garrison will then be required to shoulder that burden herself.

In most other respects the situation had remained about the same. Mr. Garrison, the general manager of Garrison Datsun, remained fully able to pay the alimony awards, of well over $1,200 per month, as were required for the first two years after the dissolution. On the other hand, Mrs. Garrison was barely able to meet her needs — to within $5.00 per month — by combining the amounts received from her ex-husband and her real estate income.

Subsequent to the hearing, the trial judge entered an order which provided

“that the alimony requirement be the same as that set out in the final judgment, except that commencing August 1, 1984 the Husband shall pay Three Hundred ($300.00) Dollars per month as permanent alimony.”

Under the order, Mrs. Garrison would receive $800 per month until August, 1978; $650 per month until August 1, 1980; $450 per month until August 1, 1984; and $300 per month permanently thereafter. Mrs. Garrison has again appealed. Again, we are compelled to reverse.

It is obvious, as our prior opinion makes clear, that this is in all respects, an appropriate case for an award of permanent alimony. Under the circumstances, we cannot interfere with the court’s conclusion that the $800.00 per month initially provided was a reasonable award commensurate both with the needs of the wife — as partially satisfied by her own income — and the husband’s ability to pay. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). We agree with the wife’s contention, however, that there is no basis in the record to support the successive diminishments of that amount over the ensuing years. Since there is no showing that Mrs. Garrison, who is now 53, would earn any more from her real estate endeavors in the future than she has in the past, the progressive reductions in alimony can be based only on the lower court’s speculation and conjecture as to a favorable change in her circumstances. It is axiomatic that no order so founded may be permitted to stand. On this record, therefore, the following statement in McNaughton v. McNaughton, 332 So.2d 673, 675 (Fla. 3d DCA), cert. denied, 345 So.2d 424 (Fla.1977) is controlling:

The amount of $750 per month as alimony is adequate and that amount is not an abuse of the discretion of the trial judge. See Silvers v. Silvers, Fla.App. 1973, 274 So.2d 555. Our review of the record reveals no basis for the intermittent reductions in the amount of alimony . It is not necessary for a trial judge to anticipate changes in the circumstances. The statutes and the case law of this state provide the judge with a wide basis for the change in the amount of alimony where there is a change in financial circumstances or where equity so requires. See Fla.Stat. § 61.14; and Nichols v. Nichols, Fla.App.1974, 304 So.2d 497. The reduction of alimony from $750 to lesser amounts is an abuse of discretion under the facts of this case.

Similarly, this court noted in McCloskey v. McCloskey, 359 So.2d 494, 497 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979):

As we did in the McAllister case supra, we point to the fact that the court here, in effect, additionally made an award of rehabilitative alimony in the sum of $58,-000 per annum (the cost of maintaining the house in which the wife is to live for 5 years). We are of the opinion that such an award of rehabilitative alimony was in error. There was not the slightest reason to suppose that the wife’s needs would be any different 5 years later than they were on the day of the final hearing. Accordingly, if she needs the equivalent of $100,000 now, she would also need it 5 years hence.

See also, e. g., Kvittem v. Kvittem, 365 So.2d 791 (Fla. 4th DCA 1978); West v. West, 345 So.2d 756 (Fla. 4th DCA 1977).

We acknowledge the possibility that the able trial judge was misled by our rather broad hint in the prior opinion that a combination of rehabilitative and permanent alimony “may be appropriate.” Necessarily implicit in that suggestion, however, was the requirement that any judgment to be fashioned by the chancellor be supported by the evidence; the one entered below is not. Moreover, the requirements that the husband provide for the cost of Mrs. Garrison’s home and for new cars are both shortly to end; these amounts may properly be considered to have constituted the “rehabilitative” alimony which could appropriately be terminated in the light of the wife’s post-dissolution earnings.

For these reasons, we reverse the alimony provision of the order under review and remand the cause with directions to enter an award of permanent alimony of $800.00 per month. The judgment below is otherwise affirmed.

Affirmed in part, reversed in part and remanded.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . We again emphasize, as we did in the earlier opinion at 351 So.2d 1105, that this award is subject to modification under § 61.14, F.S. (1977) upon a showing of a significant change in circumstances, including, for example, an unexpected increase in- Mrs. Garrison’s earnings.


text:
    Lyle Wolf PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 79-577.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1980.
    Rehearing Denied Feb. 26, 1980.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RAWLINS, ROBERT W., JR., Associate Judge.

Appellant, Lyle Wolf Palmer, appeals his conviction after a jury trial, of sexual battery, robbery, and possession of a firearm by a convicted felon. Palmer contends that the trial court should have granted him a continuance until the public defender who had represented him prior to trial could be present for the trial or, in the alternative, that the court should have allowed him to represent himself. We hold that under the circumstances it was an abuse of discretion for the court to refuse to grant a continuance. We reverse.

On the morning of Palmer’s trial, Assistant Public Defender Larry Roberts moved for continuance on the ground that the regularly assigned attorney, Ellen Hoffen-berg, was unexpectedly ill and unable to appear. Roberts stated that because of change of policy in the Public Defender’s office, Ms. Hoffenberg had spent three weeks prior to trial preparing arguments and cross-examination and that he, Roberts, was unprepared to handle the trial. The prosecutor responded that Roberts had taken depositions, prepared the pretrial motions, and had represented several months earlier that he was prepared for trial. The court commented that the case did not appear to be complex, that Roberts knew the facts and the applicable law and that his only role would be to cross-examine the witnesses. The court gave Roberts until noon to obtain the file and communicate with Ms. Hoffenberg. When court reconvened at 12:30 p. m., Roberts reiterated that he was not prepared to go forward with the trial, that appellant did not want Roberts to represent him, and that Roberts was not competent to do so. The court again denied Roberts’ motion for continuance. After a short recess, Roberts informed the court that appellant wished to make a statement for the record to object to going to trial. The court denied this request. Roberts participated in voir dire and after the jury was selected, he repeated appellant’s request to address the court. Following preliminary instructions to the jury, Roberts informed the court that he would not make an opening statement and the court replied that Roberts would be given an opportunity to participate in the trial. Roberts stated that appellant wished to represent himself and was prepared to go forward on the case. The court responded, “We have competent lawyers in this case” and that the matter would proceed. The court made no further inquiry into appellant’s request to represent himself.

Following the prosecutor’s opening statement, Roberts reiterated his motion for continuance, which the court denied. The court then granted appellant’s request to make a statement. The following dialogue ensued:

MR. ROBERTS: Your Honor, may it please the Court, he would requést an opportunity to speak to the Court about his defense as it relates to the Court, basically what I previously said.
THE COURT: You may speak.
For the record, you are Lyle Wolf Palmer?
THE DEFENDANT: Yes, Your Hon- or. I am charged with a crime that can send me to prison for a total of seven consecutive lifetimes. I am represented today by counsel that is totally unprepared to defend me. I have a counsel that is prepared to defend me but she is inadvertently sick today and could not come to court.
This trial has been put off twice by the State Attorney’s office in order for them to prepare their case. I feel I should have the right to prepare my defense also.
THE COURT: Thank you, Mr. Palmer.
The Court has been informed Mr. Roberts has been involved in this trial and has taken practically all of the depositions. Mr. Roberts is experienced counsel. The office of the Public Defender has experienced counsel and, if necessary, Mr. Sam Hillman, and Mr. Rondolino have been available in the halls and I notice they are available, to assist you, and the Court sees nothing in this case so far that is so complicated present counsel can not handle the matter.
I will deny the motion now and we will proceed.

During the course of the trial the State presented testimony from 14 witnesses. Roberts declined to cross-examine any of the witnesses and at the end of the first day at trial, renewed all prior motions. All motions were again denied.

On the second morning of the trial Assistant Public Defender Rondolino informed the court that Ms. Hoffenberg remained unable to appear on behalf of appellant. The court restated the opinion that the case was not complex and that there was adequate competent counsel available. After the State rested its case, Roberts declined to make any motions and announced that the defense rested without producing any evidence. In chambers, the court advised appellant that he had a right to testify or not to testify and suggested that he discuss the matter with Roberts. After a conference, Roberts declined to reopen the case and stated that the defense did not request any specific jury instructions. Roberts also refused to present any closing argument to the jury.

Following the jury verdict, Roberts moved for a new trial on the ground that the court erred by failing to grant a continuance so that Ms. Hoffenberg could be present. The court found that adequate counsel was available, that Roberts had taken depositions and was familiar with the case, and that the trial was fairly conducted.

At the sentencing hearing, Ms. Hoffen-berg argued that sentence should not be imposed because appellant had been deprived of effective representation of counsel. The court found that appellant had failed to avail himself of counsel provided and that no legal cause had been shown why sentence should not be pronounced.

We believe the court was justified in denying appellant’s first and second requests for a continuance because at that time it could properly have assumed that, despite Roberts’ disagreement with the ruling, he would represent appellant to the best of his ability. After all, Roberts was involved in the preparation of the case and the court granted him additional time to communicate with Ms. Hoffenberg and his client to become updated. Therefore, we find no abuse in the judge’s exercise of discretion which resulted in denial of these two motions for continuance.

However, after stating that he was unprepared to make an opening statement, Roberts made his third request for a continuance. At this point the problem of affording appellant effective counsel took on a different complexion for then it was becoming obvious that Roberts did not intend to represent appellant.

Denial of a motion for a continuance is, of course, within the sound discretion of the court. Riggins v. State, 283 So.2d 878 (Fla. 1st DCA 1973). While initially the trial court -was correct in denying appellant’s motions, we think'it was an abuse of discretion not to grant a continuance once it became apparent that appellant would not be adequately represented. When appellant was declared insolvent, the state was obligated to furnish him with counsel. Yet by proceeding further under these unique circumstances, appellant was deprived of effective legal representation.

In view of our decision, it is unnecessary to reach appellant’s contention that he should have been permitted to represent himself. We reverse the judgment and sentence entered against appellant and remand this cause with directions for the trial court to grant appellant a new trial.

GRIMES, C. J., and SCHEB, J., concur.

      . While, as a result of this appeal, the net effect of Mr. Roberts’ conduct was to obtain a continuance after all, we trust that the bench and the bar will not view this as an acceptable means of securing postponements. We do not further comment on the propriety of Mr. Roberts’ actions only because the matter is not before us.


text:
    Sam NEAL, Jr., Appellant, v. WILSON FOODS CORPORATION, Self-Insured, Appellee.
    No. QQ-366.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1980.
    Warren L. Harris, of Albritton ■&'Ses-sums, Tampa, for appellant.
    Michael S. Rywant, of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD and BOOTH, JJ., concur.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla.1st DCA, 1979).

On the merits, I would concur in the majority’s opinion.


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

text:
    ENCHANTED FOREST TOWERS and Hartford Accident & Indemnity Company, Appellants, v. Maurice PREVOST, Appellee.
    No. QQ-377.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    Rehearing Denied March 14, 1980.
    R. E. Hodges of Miller & Hodges, Coral Gables, for appellants.
    Guy Gladson, Jr. of Gladson & Sullivan, Miami, for appellee.
   ROBERT P. SMITH, Jr., Judge.

We have carefully considered appellants’ contentions that the judge of industrial claims erred by granting, in 1978, appellee’s petition to modify the compensation order entered in July 1975. There is substantial competent evidence of material changes in appellee’s physical condition, causally related to the original accident, and in other conditions bearing on appellee’s wage earning capacity, which justify the modification order. Section 440.28, Florida Statutes (1977).

AFFIRMED.

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


author: PER CURIAM.

text:
    Sandy Lee PAYNE, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Louie L. Wainwright, Respondents.
    No. TT-287.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    Rehearing Denied March 14, 1980.
    Sandy Lee Payne, pro se.
   PER CURIAM.

This cause is before us on Petition for Writ of Habeas Corpus asserting failure of respondents to properly compute a presumptive release date. Factual matters are asserted, and no record is provided. Petitioner has failed to exhaust administrative remedies. Houston v. Florida Parole and Probation Commission, 377 So.2d 34 (Fla.1st DCA 1979); Anderson v. Florida Probation and Parole Commission, 378 So.2d 861 (Fla.1st DCA 1979). The petition is denied.

MILLS, C. J., and SHAW and WENT-WORTH, JJ., concur.


text:
    Jose A. CASAS, Appellant, v. Rafael ROSELL and Catalina Rosell, Appellees.
    No. 79-672.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Rehearing Denied March 21, 1980.
    McCormick, Bedford & Backmeyer and Gerald L. Bedford, Miami, for appellant.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellees.
    Before HUBBART and NESBITT, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In accord with our prior mandate issued upon a previous full appeal in this cause [Casas v. Rosell, 359 So.2d 491 (Fla.3d DCA 1978)], the judgment under review is reversed and the cause remanded to the trial court with directions to enter a judgment for the plaintiff. The amount of the judgment shall be determined by the trial court based either upon the previous evidence adduced in this cause at the final hearing or upon taking additional testimony [which may include an accounting] or both. In any event, the trial court shall enter a judgment for the plaintiff in an amount no less than $37,000 plus interest which was admitted by the defendant/appellee Rafael Rosell at the trial in this cause as being the minimum amount which he owes to the plaintiff/appellant Jose A. Casas.

It is so ordered.


text:
    In re ESTATE OF Catherine W. UTLEY, Deceased.
    No. 79-763.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.
    Rehearing Denied March 21, 1980.

      Charles R. McKinnon of McKinnon & Stewart, Chartered, Vero Beach, for appellant, Henry B. Utley as Personal Representative.
    Chester E. Clem, Jr., of Jackson & Clem, P. A., Vero Beach, for appellee, Joseph B. Fitzpatrick.
   PER CURIAM.

The personal representative appeals on order requiring him to pay appellee’s $5,000 claim against the estate predicated upon an unmatured promissory note. Appellant contends that the claim was barred by Section 733.709, Florida Statutes (1977). We reverse.

Section 733.709 provides:

733.709 Claims undisposed of after 1 year — When a person has filed a claim against an estate and the claim has not been paid, settled, or otherwise disposed of and no proceeding is pending for the enforcement or compulsory payment of it at the expiration of 1 year from the date the claim was filed, the claim shall be forever barred. No action shall thereafter be brought to enforce it. This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person .in possession of personal property or the right to foreclose and enforce the mortgage or lien, (emphasis added).

It is undisputed that no such proceeding was pending one year after appellee’s claim was filed.

The trial court was of the opinion that this section did not apply to appellee’s claim and, alternatively, that even if it did apply, the personal representative, waived the right to assert it.

We find that appellee’s claim fell within the purview of this section. The trial court cannot create an exception where the statute does not. In Re: Brown’s Estate, 117 So.2d 478 (Fla.1960). See also In Re: Estate of Perlman, 381 So.2d 248, (Fla. 4th DCA, Nov. 28, 1979).

As to the waiver claim (which was actually an estoppel argument), the evidence was insufficient to establish that any conduct of the personal representative or his agents wrongfully induced the appellee to believe that an adjustment of his claim would be made, so as to lull him into failing to properly preserve it. North v. Culmer, 193 So.2d 701 (Fla. 4th DCA 1967). See also Adams v. Hackensack Trust Company, 156 Fla. 20, 22 So.2d 392 (1945); Davis v. Evans, 132 So.2d 476 (Fla. 4th DCA 1961) cert. den. 136 So.2d 348 (Fla.1961).

Accordingly, the order is reversed.

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


text:
    USA-1 BUILDING SERVICES and American Fire & Casualty Company, Appellants/Cross-Appellees, v. Doris O. BOWEN, Appellee/Cross-Appellant.
    No. QQ-177.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.
    Rehearing Denied March 14, 1980.

      Robert E. Sheridan of Jesse F. Sparks, P.A., Orlando, for appellants/cross-appel-lees.
    Keith A. Mann, of Miller & Cooper, P.A., Orlando, for appellee/cross-appellant.
   PER CURIAM.

As to the appellants’ points on appeal, the order is affirmed. As to the cross-appellant’s points on appeal, the order is reversed and the cause is remanded for a new order not inconsistent with this opinion.

The uncontroverted evidence reveals that the claimant, in making application for the job with the instant employer, was asked whether she suffered any “handicaps” or “defects”. She answered in the negative. The evidence supports the conclusion that although she had suffered prior injuries she was free of handicaps and defects relative thereto at the time of her application. See Tropicana Products, Inc. v. Rupright, 9 FCR 281, 282 (1975).

In light of Dr. Gilmer’s opinion that the claimant was in need of psychiatric evaluation, the deputy’s finding to the contrary is not supported by the record. The cause is therefore remanded for the entry of an order allowing such examination; the cost to be borne by the carrier.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Edward J. LaBRECQUE, Appellant, v. FLORIDA VOCATIONAL REHABILITATION AND DIVISION OF RISK MANAGEMENT, Appellee.
    No. QQ-172.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.

      Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for appellant.
    Thomas F. Woods of Woods, Johnston & Erwin, Tallahassee, for appellee.
   PER CURIAM.

Claimant appeals a compensation award of 40% permanent disability to the foot. Cross-appellant appeals the award of attorney’s fees.

Claimant injured his right ankle in an industrial accident on May 13, 1975. Dr. Bellamy testified that claimant’s disability rating was 50% permanent impairment of the foot, 40% permanent impairment of the leg, or 35% permanent disability of the body as a whole considering his ankle injury in conjunction with a preexisting degenerative arthritis in his left hip. The JIC awarded claimant a 40% permanent disability of the leg, entitling him to 80 weeks of compensation.

Claimant urges on appeal that he was entitled to the most favorable remedy, i. e., 50% of the foot, entitling him to 87½ weeks of compensation, or 35% permanent disability of the body as a whole. We agree and reverse the order as to the 40% disability of the leg. In reviewing the record, we do not find competent, substantial evidence to support an award of 35% permanent disability of the body as a whole. However, the evidence does support the finding that the claimant sustained a permanent disability to his ankle.

It is apparent that an ankle injury could be interpreted as either a foot injury or a leg injury. Since Section 440.15(3), Florida Statutes (1973) addresses injuries for the loss of a foot or loss of a leg but makes no mention of loss of an ankle, the JIC should have awarded claimant the most favorable remedy, disability for loss of a foot. When the Workmen’s Compensation Act is susceptible of disparate interpretations, the construction most favorable to the employee shall be adopted. Farrens Tree Surgeons v. Winkles, 334 So.2d 569 (Fla.1976).

We reverse the award as to the disability and instruct the JIC to enter an order awarding claimant a 50% permanent disability of the foot. As to all other issues, the JIC’s order is affirmed.

MILLS, C. J., and McCORD and BOOTH, JJ., concur.


text:
    CONTINENTAL CASUALTY COMPANY, Appellant, v. Marjorie SCHAUBEL and Howard Schaubel, Appellees.
    No. 78-2194.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.

      Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, Jeanne Heyward, Miami, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Continental Casualty Company, defendant in a declaratory action, appeals a final judgment ordering it to provide coverage and a defense for Howard Schaubel, a medical doctor, who was being sued for libel, slander, and invasion of privacy.

Continental issued a personal umbrella excess liability policy to the Schaubels. The insurance contract defined personal injury as including “invasion of privacy, libel, slander or defamation of character”. The exclusions section provided that the policy would not apply to personal injury intentionally caused by or at'the direction of the insureds, nor would it apply to any business pursuits or to the rendering of any professional service.

Dr. Schaubel was sued in two separate law suits. The one suit claimed libel in connection with statements that Schaubel had made to the press while he was part of an investigation team for the Monroe County Medical Society. The other suit claimed libel, slander, invasion of privacy arising out of these statements made to the press and other recommendations and comments made to committees and members of a Key West hospital staff. Each charged that Dr. Schaubel acted with malicious intentions to do damage to the injured party.

Schaubel demanded coverage and a defense from Continental. Continental denied any coverage, claiming that the acts were intentional and/or made in connection with business and the rendering of professional services and, therefore, outside the scope of the policy.

After a non-jury trial, the trial court entered a final judgment in favor of Schau-bel, finding no malice as a matter of fact. We reverse upon the reasoning contained in Federal Insurance Company v. Appelstein, 377 So.2d 229 (Fla.3d DCA 1979), and remand the cause to the trial court with directions to enter a declaratory judgment in favor of the appellant, finding no duty because of the allegations of the separate suits indicating that the actions on the part of the insured were within the exclusions contained in the policy involved.

Reversed and remanded, with directions.

      . This was presented as a counterclaim in slander action instituted against one Buckner, a medical doctor. In this connection, see: Buckner v. Physicians Protective Trust Fund, 376 So.2d 461 (Fla.3d DCA 1979), wherein he was similarly denied coverage.

      . It is noted that the Appelstein opinion was rendered on November 20, 1979, subsequent to the entry of the final judgment in this cause on June 22, 1978.


text:
    KEN ROBERTS CHRYSLER-PLYMOUTH, INC., and Universal Underwriters Insurance Company, Appellants, v. Paul J. EGAN, Kevin Gerard Egan, and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 79-26.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Rehearing Denied March 20, 1980.
    Goodwin, Ryskamp, Welcher & Carrier and Arthur M. Simon, Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

By this appeal and cross-appeal, we are asked to review a final judgment concerning an insurance coverage issue in a personal injury tort action. The final judgment under review finds that the Universal Underwriters Insurance Company policy herein “provides primary coverage for the claims of David Saleeba and Kathleen Sa-leeba arising out of the accident of December 24, 1975, as described by the amended complaint filed in this action” and that the State Farm Mutual Insurance policy herein “provides secondary coverage for said claims, which is excess over that coverage provided by Universal Underwriters Insurance Company.” The trial court declined, upon request, to set the applicable limits of liability as to the Universal policy which was found to provide primary coverage in the subject automobile accident.

We affirm the final judgment under review on the main appeal and cross-appeal except insofar as the trial court declined to set the applicable limits of liability on the Universal Insurance policy. As to the latter, the final judgment under review is reversed and the cause remanded to the trial court with directions to amend the final judgment to set the applicable limits of liability as to the above Universal policy in the amount of $100,000 per person and $300,000 per occurrence. In our view, Paul J. Egan and Kevin Gerard Egan are insureds under part IV section (3)(a) of the above Universal Insurance policy which provides the above $100,000/$300,000 limits, as primary coverage for the subject accident herein. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973), cert. denied 280 So.2d 685 (Fla.1973).

Affirmed in part; reversed and remanded in part.


text:
    BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. EAGLE FAMILY DISCOUNT STORES, INC., Appellee.
    No. 79-138.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Walton, Lantaff, Schroeder & Carson and N. James Turner, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellee.
    Before BARKDULL and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The Board of County Commissioners of Dade County (Dade County) filed a complaint seeking money damages from Eagle Family Discount Stores, Inc. (Eagle) for its negligence in stacking and arranging certain goods and products stored in a warehouse owned by Dade County and leased to Eagle. Dade County now appeals an order striking its complaint against Eagle as a sham as well as a final order dismissing its complaint with prejudice. As grounds for its motion to strike, Eagle alleged that in a prior declaratory action in Federal Court, Dade County had taken a position inconsistent with its position in this case, now knowing same to be false.

Pertinent history is that following a fire in the warehouse, United States Liability Insurance Company, Dade County's casualty insurance carrier, sued for a judgment relieving it from liability for losses to Dade County due to the fire. The carrier alleged, among other things, that Dade County at the time of the loss, and prior thereto, knew, or in the exercise of reasonable care should have known, that there was improper storage of materials in the building which materially increased the fire hazard for the building and which could or did cause the loss by fire. The carrier further contended that this activated a policy provision which suspended coverage.

Dade County denied the allegations as to improper storage, and through the testimony of Eagle’s warehouse manager, together with his computer records, obtained a favorable order stating that there was no evidence that the storage practices increased the fire hazard. Actually, Dade County collected its insurance by proving there were no improper storage practices by Eagle and now maintains a completely inconsistent position in pleadings seeking damages from Eagle for the same improper storage it successfully proved did not exist. Olin’s Inc. v. Avis Rental Car System of Florida, 104 So.2d 508 (Fla.1958).

In the declaratory action, the issue was, “Did improper storage practices by Eagle increase the fire hazard, and did Dade County have control or knowledge of same?” The second part of the question became moot upon finding that there were no improper storage practices. In this case we have the same issue, “Did improper storage practices by Eagle increase the fire hazard?”

Though the causes of action in the two cases are admittedly different, the relevant issues are identical, and a court of competent jurisdiction has decided the exact question. Standard Accident Ins. Co. v. Simpson, 151 Fla. 564, 10 So.2d 85 (1942). Therefore, Dade County is estopped by judgment from litigating the same issue in a state court. City of Hialeah Gardens v. Prieto, 353 So.2d 200 (Fla. 3rd DCA 1977); and we concur with the trial court’s determination that there were no genuine issues to be tried.

Affirmed.


text:
    FIRST NATIONAL BANK OF HOMESTEAD, a National Banking Corporation, Appellant, v. THUNDERBIRD PRODUCTS CORPORATION, Appellee.
    No. 79-752.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Rehearing Denied March 20, 1980.
    Strook, Strook & Lavan and Judith H. Hayes, Miami, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier and Arthur M. Simon, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Gulfstar, Inc. v. Advance Mortgage Corp., 376 So.2d 243 (Fla. 3d DCA 1979).


author: BARKDULL, Judge.

text:
    Alvin STRACHEN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-819.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Rehearing Denied March 20, 1980.

      Alfonso C. Sepe and Alan R. Soven, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   BARKDULL, Judge.

By one notice of appeal filed on April 13, 1979, carrying three file numbers (Nos. 74-7485, 74-7486, 74-7368), the appellant sought review of an order Dated April 4, 1979 discharging him from a mental sex offender program, and sentencing him to a term of years. By points on appeal, the appellant attempts to urge error in two rulings of the trial court on November 13, 1978, in denying 3.850 motions in Cases Nos. 74-7485 and 74-7486. The notice of appeal comes too late as to these orders. See: Blakely v. State, 191 So.2d 610 (Fla. 2d DCA 1966); Fuller v. Wainwright, 238 So.2d 65 (Fla.1970).

Turning to the only valid points relating to the April 4, 1979 order, (1) that the court erred in failure to return him to the sex offender program, and (2) that even if the appellant was to be sentenced he was entitled to credit on his sentence for time served in the sex offender program, citing Section 917.218, Florida Statutes (1977), effective July 1, 1977, we find no merit in either contention. First, whether or not to continue the appellant in the sex offender program was a discretionary matter with the trial judge. From the record in this cause, we fail to find any abuse of discretion by the trial court in determining not to return the appellant to the sex offender program. Huckaby v. State, 343 So.2d 29 (Fla.1977). Upon the entry of the sentence, the appellant was not entitled to credit for time served in the sex offender program pursuant to Section 917.218, Florida Statutes (1977), because the crime for which he was convicted occurred on August 31, 1974 and the statute became effective subsequently. Statutes in effect on the date of the crime, as they relate to sentencing, control the amount of sentence given, not those in effect on the date of the entry of the sentence. Castle v. State, 330 So.2d 10 (Fla.1976), affirming Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1975); State v. Jefferson, 340 So.2d 1189 (Fla. 4th DCA 1976); Smith v. State, 358 So.2d 1164 (Fla. 4th DCA 1978).

Therefore, for the reasons above stated, the order of April 4,1979 here under review be and the same is affirmed.

Affirmed.

      . The appellant has escaped from the facility wherein the sex offender program was being administered; he was before the court seeking to be returned to the program.


text:
    Nicholas A. STELLA et al., Appellants, v. Terrence M. ASH, D.C., Appellee.
    No. 79-1250.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.

      Horton, Perse & Ginsberg and Edward A. Perse, P. J. Carroll & Associates, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and Susan J. Cole, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

By this appeal, the appellant seeks review of a final order dismissing without leave to amend his complaint alleging malpractice, the trial judge having found that it appeared on the face of the complaint that the applicable statute of limitations had run.

We reverse upon the reasoning contained in Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979). The complaint alleges that the proper diagnosis of the patient’s illness was made without the statute of limitations. However, the complaint is silent as to whether or not the nature of this diagnosis was conveyed to the patient.

Therefore, the final order of dismissal be and the same is hereby reversed for further proceedings.

Reversed and remanded, with directions.

      . See and compare: Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980).

      . It is noted that the order, the subject matter of this appeal, was entered by the trial court without the benefit of the reasoning in the Mott decision.


author: SCHWARTZ, Judge.

text:
    Alex KOKAY, as Personal Representative of the Estate of Christopher Kokay, a minor, Deceased, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, a Foreign Corporation, authorized to do business in the State of Florida, Appellee.
    No. 79-1431.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.

      Freshman, Gerson & Freshman and Philip M. Gerson, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The sole issue before us involves the application of the last sentence of the recently-enacted “anti-stacking” statute, Section 627.4132, Fla.Stat. (1977). We conclude that the provision means just what it says and that the statute does not operate to prevent “stacking,” in accordance with the pre-627.4132 law, when the policies involved have different named insureds.

The present case is an appeal from a declaratory judgment for the defendant-insurer, South Carolina Insurance Company, entered, pursuant to cross motions for summary judgment, upon the following stipulated facts. On February 12,1978, a minor, Christopher Kokay, was killed as a result of the negligence of an uninsured motorist. At the time, he was an additional insured under two separate South Carolina policies, each of which had $10,000 UM coverage. One of the policies insured a vehicle owned by Christopher’s father in which he was the named insured; the other covered another car owned by the child’s mother, as to which she was the named insured. Christopher was occupying neither automobile when the accident occurred. Since it was agreed that the plaintiff below, Christopher’s estate, had sustained more than $20,-000 in damages, the sole question in the trial court—as here—was the purely legal one of whether both or only one of the policies applied. The trial judge ruled with the insurance company that, under § 627.-4132, only the $10,000 limits of one policy were available. We hold to the contrary.

§ 627.4132, which entirely governs this case, provides in its entirety as follows:

If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds. [e. s.]

Under this statute, it is obvious that, on the facts involved here, the estate is entitled to the benefit of both policies. As the insurer concedes, that would be the case absent the existence of § 627.4132. Tucker v. Government Employees Ins. Co., 288 So.2d 238 (Fla.1973); Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966). In other words, the plaintiff was provided with the $20,000 in “coverage [which is] available by reason of [the] insurance policies insuring different named insureds,” the father and mother respectively. The entirely clear and totally unambiguous language of the concluding sentence of § 627.-4132 explicitly provides that under these facts, the preceding provisions of the section “shall not apply to reduce the coverage,” thus plainly leaving the availability of both policies intact. As we said in dealing with the operative provisions of the same statute in State Farm Mutual Automobile Ins. Co. v. Kuhn, 374 So.2d 1079, 1080-1081 (Fla. 3d DCA 1979):

The well established principle of law is that where the words used and the grammatical construction employed in a statute are clear and they convey a definite meaning, the legislature is presumed to have meant what it said and, therefore, it is unnecessary to resort to the rules of statutory construction. Hialeah, Inc. v. B & G Horse Transp., Inc., 368 So.2d 930 (Fla. 3d DCA 1979).

Since the statute itself contains a term which explicitly excepts its effect upon the situation before us, reversal is required.

We recognize that this conclusion is directly contrary to the holding in McLellan v. State Farm Mutual Automobile Ins. Co., 366 So.2d 811 (Fla. 4th DCA 1979). We respectfully, but thoroughly, disagree with that decision. In our judgment, the conclusion reached in McLellan is inappropriately based upon the court’s interpretation of the supposed intent of the legislature in enacting § 627.4132 to preclude stacking in every instance, notwithstanding the language in the statute itself which is unequivocally to the contrary of the court’s view. But, in the words of Justice Thornal in Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960):

In making a judicial effort to ascertain the legislative intent implicit in a statute, the courts are bound by the plain and definite language of the statute and are not authorized to engage in semantic niceties or speculations. If the language of the statute is clear and unequivocal, then the legislative intent must be derived from the words used without involving incidental rules of construction or engaging in speculation as to what the judges might think that the legislators intended or should have intended. Fine v. Moran, 74 Fla. 417, 77 So. 533; Miami Bridge Co. v. Railroad Commission, 155 Fla. 366, 20 So.2d 356; State ex rel. Bie v. Swope et al., 159 Fla. 18, 30 So.2d 748.

Moreover, we do not share either the fourth district’s apparent belief that there is an irreconcilable confusion or conflict between the final sentence and the remainder of the statute, or its concern that giving that provision its clear meaning would somehow emasculate the section as a whole. As worded, § 627.4132 serves, as in the Kuhn case, supra, and in State Farm Mutual Automobile Ins. Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), to preclude an insured who has not paid for coverage on the vehicle in which he is injured from claiming the benefits of another policy. It also prevents a particular person who owns and insures several vehicles, each for a premium which is fixed to cover only the risks involved in that vehicle, from nonetheless securing the gross coverage of all the policies. In a situation like this one, however, in which both Christopher’s mother and father took out policies and paid premiums which insured him wherever he was, the statute, by its terms, does not apply. In any event, if, as the McLellan case in effect holds, the legislature meant to provide that, under all circumstances, and even though there are different named insureds, the injured person is entitled to the coverage provided by one, and only one, applicable policy, it could, should, and undoubtedly would have said so. But it specifically said otherwise, and we are bound to follow its command.

The judgment below is therefore reversed and the cause remanded with directions to enter a declaratory judgment that the plaintiff is entitled to the $20,000 in UM benefits provided by both policies in question.

Reversed and remanded.

      . Bound to give it some effect, the McLellan court “interpreted” the last sentence to mean that the injured person may recover under the one policy providing the highest coverage. We find no basis for this conclusion in the statute, which contains utterly no indication that its application turns on the amount or limits of coverage in a particular policy. If the legislature intended this result, it could have accomplished it simply by inserting a single word to the effect that “the insured is protected only to the extent of the greatest coverage” available, instead of employing an entire sentence which seems on its face not to deal with the issue at all. Finally, we are mystified as to why the lawmakers would want to provide the benefits of the largest available policy only when the policies have different named insureds.

      . Another example of the effect of the proviso would be the situation in which a particular insured is covered both by his own and by his employer’s policies, for each of which separate premiums would obviously have been paid.


text:
    Robert Earl WHITEHEAD and Opal Whitehead, Appellants, v. Horace C. HEWETT, Appellee.
    No. NN-345.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.
    Rehearing Denied March 18, 1980.
    W. Paul Thompson of Thompson, Adkin-son & Beasley, DeFuniak Springs, for appellants.
    James P. Appleman, Marianna, for appel-lee.
   PER CURIAM.

Substantial competent evidence supports the trial court’s custody order. On the cross-appeal, we find the trial court acted within its discretion in denying attorney’s fees and in awarding visitation rights to the grandparents. The grandparents were the legal custodians of the child under a previous order of the Court, and this modification proceeding was initiated by the child’s father. Sections 61.16, 61.13(2)(b), Florida Statutes (1979). Contrast Shuler v. Shuler, 371 So.2d 588 (Fla. 1st DCA 1979).

The motion to quash the appeal is DENIED but the order appealed is affirmed.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    SPECIAL DISABILITY TRUST FUND OF the FLORIDA DEPARTMENT OF LABOR & EMPLOYMENT SECURITY, Appellant, v. William B. HARRISON and Broward Vending, Inc. and Security Insurance Group of Hartford, Appellees.
    No. PP-320.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1980.
    Rehearing Denied March 18, 1980.
    Claire D. Dryfuss, Tallahassee, for appellant.
    Albert P. Massey, III, of Pyszka, Kessler & Adams, Fort Lauderdale, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Special Disability Trust Fund appeals from an order finding that the employer/carrier’s claim against the Fund, filed August 13, 1974, satisfied the requirement of Section 440.49(4)(g), Florida Statutes (1973), that any claim for reimbursement by the Fund be filed

. within sixty days after the date copies of the order awarding the compensation with respect to which reimbursement is claimed are mailed to employer and carrier at the last known address of each, or, if payment of such compensation is made by the employer or carrier without an award, within sixty days after the date the first payment of compensation for the permanent disability was made.

The employer, Broward Vending, Inc. employed claimant with knowledge of his preexisting physical impairment by reason of back injuries. During his employment claimant reinjured his back and, on September 5, 1973, the employer/carrier accepted claimant as permanently totally disabled, and began payment of benefits for that disability. The reimbursement claim against the Fund was barred when more than sixty days then elapsed before the claim was made. Special Disability Trust Fund v. Brevard County Board of Public Instruction, IRC Order 2-2726 (Feb. 12, 1975), cert. den., 320 So.2d 392 (Fla.1975). The claim was not revived by the legislature’s amendment to the statute by Chapter 74-197; Section 21, which now runs the sixty-day claim period from the date “excess compensation for the permanent disability [is] made.” Section 440.49(2)(g), Florida Statutes (1979). We cannot agree with appellees’ contention that the 1974 amendment was simply declaratory of the existing statutory purpose.

REVERSED.

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


text:
    Kenneth HIPKE, Petitioner, v. PAROLE AND PROBATION COMMISSION, Respondent.
    No. PP-26.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.
    Kenneth Hipke, pro se.
    Michael H. Davidson, Tallahassee, for respondent.
   ROBERT P. SMITH, Jr., Judge.

Hipke complains of Parole and Probation Commission action fixing his tentative release date. Fla.Admin.Code Chapter 23-19. When Hipke was sentenced in 1972, Section 921.161(1), Florida Statutes (1971), permitted but did not require the sentencing judge to allow explicit credit for jail time served before sentence. See Heilmann v. State, 310 So.2d 376 (Fla. 2d DCA 1975). For stronger reasons it follows that the Parole and Probation Commission, having no sentencing authority, may not now be compelled to give retrospective credit for jail time served before Hipke was sentenced. No error is shown in the Commission’s consideration, during assessment of Hipke’s past criminal record, of an offense committed in another country. The inmate’s entire “past criminal record” is pertinent in the Commission’s assessment of the inmate’s recidivist tendencies. See Section 947.002(2), Florida Statutes (1979). Nor did the Commission err, when considering aggravating circumstances bearing on Hipke’s tentative release date, in giving due weight to the same circumstances which influenced the sentencing court to impose a consecutive sentence. The court’s sentence fixes a maximum term to be served; the Commission’s process tentatively fixes the actual time to be served, within the limit thus established by the court. The court and Commission have thus considered the same aggravating circumstances for complementary purposes, and no showing is made that that is not as it should be. The petition is

DENIED.

ERVIN and BOOTH, JJ., concur.


text:
    KENNEDY & COHEN and Old Republic Insurance Company, Appellants, v. Robert PORTER and Twin City Fire Insurance Company, Appellees.
    No. QQ-235.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1980.
    John F. McMath, P. A., Miami, for appellants.
    Lloyd C. Hawthorne, Live Oak, for Robert Porter, appellee.
    Charles Desmond Crowley, Fort Lauder-dale, for Twin City Fire Ins. Co., appellee.
   PER CURIAM.

The order on appeal is affirmed except as to the award of temporary total disability benefits from February 13, 1976 until May 1, 1976, and from June 20, 1976 until January 8, 1977. The evidence reveals that the claimant failed to demonstrate a complete diminution of wage earning capacity and, in fact, did return to work for short periods of time during these timeframes. On April 26, 1976, he was released by his doctor with a finding of minimal discomfort. In May of 1976, he found a job and worked for three months. A medical report noted that on August 25, 1976 he was forced to discontinue his employment due to back pain. On October 11, 1976, his physician reported that claimant had attempted to return to work but had been forced to quit because of pain; by November 1st he was again seeking light work. On January 8,1977, he was rated as 10% permanently partially disabled. We can find no evidence in this record supporting total incapacity during the relevant time periods. Accordingly, the order is reversed as to the award of temporary total disability from February 13, 1976 until May 1, 1976; and from August 20, 1976 until January 8, 1977. See Collins Appliances, Inc. v. Hodges, IRC Order 2-3709 (February 22, 1979; Action Pool Builders, Inc. v. Grant, IRC Order 2-3743 (March 23, 1979); Teleprompter of Florida, Inc. v. Springer, IRC Order 2-3439 (May 19, 1978); and Miller Enterprises v. Houck, IRC Order 2-3565 (October 1, 1978).

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Alexander STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 79-738.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Karala B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After a nonjury trial, appellant was convicted of procuring a person under the age of sixteen years for prostitution in violation of Section. 796.03, Florida Statutes (1978 Supp.), and he was sentenced to one year in jail. We reverse.

Gladys Sims was the sole witness for the state. She testified that on October 2,1978, when she was fifteen years old, she was at the Hayes Motel with her sister. Her sister went outside the room and returned with appellant. Appellant asked Gladys if she was supposed to be working for him. She replied that she was not. Over objection she was allowed to explain that she knew appellant meant prostitution because he was a pimp.

Gladys went on to testify that appellant then grabbed her by the neck, scratched her, and hit her. She ran out the door and called the police. When she returned appellant was gone.

Gladys stated that she had known appellant prior to the night in question, but she had never talked to him. Appellant had not asked her to work for him before, but he had offered her money and clothes, which she would not take.

The evidence presented was insufficient to prove the essential elements of the offense charged, and the trial court erred in denying appellant’s motion for directed verdict of acquittal made at the conclusion of the state’s ease.

Accordingly, the judgment and sentence are REVERSED and the cause REMANDED with directions to discharge appellant.

GRIMES, C. J., and HOBSON and BOARDMAN, JJ., concur.


text:
    Dennis A. TWINING, Appellant, v. STATE of Florida, Appellee.
    No. 79-795.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.
    Jack O. Johnson, Public Defender, and Charles L. Stutts, Asst. Public Defender, Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction of possession of a short-barreled shotgun. However, the maximum statutory penalty for that offense is five years. Section 790.-221(2), Fla.Stat. (1977). Thus, the maximum period of probation which may be imposed is five years. See Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976). The six-year term of probation imposed below is excessive.

Accordingly, appellant’s conviction is affirmed, but we remand for the trial court to impose a new term of probation consistent with this opinion.

GRIMES, C. J., and SCHEB and RYDER, JJ., concur.


author: GOBBIE, EVELYN, Associate Judge.

text:
    Suzanne MAHONEY, Appellant, v. Larry Michael MAHONEY, Appellee.
    No. 79-1192.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.

      Emmett Abdoney, Tampa, for appellant.
    Michael A. Tonelli, Tampa, for appellee.
   GOBBIE, EVELYN, Associate Judge.

Suzanne Mahoney appeals from the award to her of child support, arguing the amount is inadequate and the conditions on disbursement of the funds improper. We agree and reverse for entry of an award of a greater amount of child support.

The question on appeal is whether the trial judge abused his discretion in his award of child support and denial of attorney’s fees. Although there is no transcript, there are certain authenticated facts before us which can be considered pursuant to Section 59.15, Florida Statutes (1979), which provides:

Proceedings in pais; authentication— Proceedings in pais, not stenographically reported, may be authenticated by recitals in orders, judgments, or decrees, of the trial court, or of the judge thereof,

According to the wife’s affidavit, she left for her native Wales in 1977 when her marriage was irretrievably broken, taking the children with her. The husband filed for dissolution on May 8, 1978 in Hillsbor-ough County, but the wife had no funds to travel to the United States. Upon her request, the court referred her to a local attorney. Her yearly income, including welfare, amounts to $7,280.00. Appellee’s income is approximately $20,000.00 yearly.

Appellant wife, who still lives in Wales with her two children, aged eight and ten, was awarded $50.00 per month child support. The sum was to be paid through the court registry but not disbursed until the wife returned to this country with the children. The court also denied appellant an attorney’s fee.

Based upon the facts, such a decision cannot stand and must be reversed. There is no need for this mother to be on welfare when the father is perfectly capable of contributing to the support of his own children. Viewing the disparity of the parties’ incomes, an award of $50.00 per month for two children living in a land plagued by inflation is an abuse of discretion, allowing this court to increase the award. See Schultz v. Schultz, 290 So.2d 146 (Fla. 2d DCA 1974); Farbman v. Farbman, 208 So.2d 648 (Fla. 3d DCA 1968). That portion of the judgment awarding child support is reversed and the cause remanded with directions that the judgment be amended and an allowance of $250.00 per month be made for child support. The amendment shall operate prospectively from the date of this decision.

We find the provision that child support monies not be disbursed until the wife returns to the United States to be an exercise of futility, since the wife has no wherewithal to travel to Tampa to collect the funds. This court is not unmindful of the fact that the lower court meant well in ruling. It is obvious that the judge was trying to force the wife to return the children to the United States. However, the wife should not be punished nor the children made to suffer in order to accomplish this aim. This is particularly so since the wife had no objection to the children being with their father during summer vacation as long as he paid the air fare. We direct the trial court to include in the amended final judgment a provision that the clerk be directed to disburse to the wife, at the name and address to be given by the wife’s attorney, all deposits presently in his registry. We direct further that all future monthly payments be handled in similar fashion, and that the husband pay the additional $2.00 per month filing fee.

The award of an attorney’s fee is within the discretion of the trial court based upon the wife’s necessity and the husband’s ability to pay. Carroll v. Allen, 219 So.2d 69 (Fla. 4th DCA 1969). Necessity and ability were shown below, and the court referred the case to the attorney in the first place. We find the denial of attorney’s fees to be an abuse of discretion, and direct the court below to make a determination of such fees to be awarded the wife’s counsel for his representation. We also grant appellant’s attorney’s fees, and direct the lower tribunal to determine an additional fee for services rendered in this court, together with costs.

Lastly, this court is precluded from making a determination as to whether the evidence was sufficient to support the lower court’s rulings on the personal property owned by the parties, since there is neither a transcript nor authenticated facts on this point. The presumption of correctness stands and the judgment will not be disturbed. See Williams v. Williams, 172 So.2d 488 (Fla. 1st DCA 1965).

AFFIRMED in part; REVERSED in part and REMANDED with directions.

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


text:
    August H. HOCH, Appellant, v. Dawn M. HOCH, Appellee.
    No. 79-1470.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.
    Gerald C. Surfus and Jerrel E. Towery, of Lee & Surfus, Sarasota, for appellant.
    Robert M. Johnson, of Johnson & Joy, P. A., Sarasota, for appellee.
   GRIMES, Chief Judge.

The husband appeals from that portion of a final judgment of dissolution which awarded his wife a $7,000 special equity in his interest in the jointly owned marital home.

The parties who are in their late forties have been married for twelve years. There are no children living at home. The husband earns a weekly net income of $153.46 as a marriage counsellor while the wife earns a weekly net income of $107.82 as a registrar at a junior high school.

At the time of the marriage, the wife owned a house which she sold. She and her husband used the $600 in proceeds from that sale together with $1,000 borrowed from her brother to purchase a second home. During this period, the husband was having problems with alcoholism and failed to keep up the mortgage payments. As a result, the parties lost their home and received no money from the sale. They then bought a third home which they presently own as tenants by the entireties. The wife has made practically all of the mortgage payments on this home. However, the husband has paid many other bills incurred by the family. The court granted no alimony but awarded the wife a $7,000 special equity in the marital home, which was over and above the one half interest she obtained upon dissolution.

In Ball v. Ball, 335 So.2d 5 (Fla.1976), our supreme court held that a special equity may be created by an unrebutted showing that one spouse supplied all of the consideration for property held as tenants by the entireties from a source clearly unconnected with the marital relationship. On the other hand, a special equity will not arise when a couple acquires the property from funds earned by one spouse during the course of the marriage while the other spouse performs normal household and child rearing responsibilities. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). Also, where both husband and wife work and the wife pays for the property while the husband’s earnings go toward the support of the family, the wife’s contribution cannot be deemed unconnected with the marital relationship so as to entitle her to a special equity. Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979).

This record clearly reflects that none of the funds which the wife spent on the marital home came from a source unconnected with the marital relationship. Although some of the money which she originally put into the first house might be traced into the second, these funds were lost at foreclosure. Moreover, all the funds she used to make the mortgage payments on the third home came from her earnings while the parties were married.

The judgment awarding the wife a $7,000 special equity in the husband’s one-half interest in the marital home is reversed. We are mindful, however, of the recent admonishment by our supreme court that the several remedies available to a trial judge to apportion assets and to provide support incident to dissolution are interrelated and should not be viewed independently. Canakaris v. Canakaris No. 54,124 (Fla. Jan. 31, 1980). Accordingly, we remand the case so that the trial court can have the opportunity to consider the imposition of such other remedies as may be necessary to equitably conclude this dissolution proceeding.

SCHEB and OTT, JJ., concur.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Daniel Patrick GRANEY, Appellee.
    No. 79-1529.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Arthur N. Eggers, Tampa, for appellee.
   CAMPBELL, Judge.

The appellant, State of Florida, by information, charged the appellee, Daniel Patrick Graney, the defendant below, with unlawfully entering a structure with intent to commit theft therein in violation of Section 810.02, Florida Statutes (1977). That statute provides a defense to the offense charged if “the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” In an attempt to show that he came within the exclusionary language of the statute, and that, therefore, the undisputed facts did not establish a prima facie case of guilt, the appellee filed a motion to dismiss pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), and alleged:

1. He is charged with the burglary of a structure located at the Whisper Lake Apartments.
2. The structure in question is the apartment complex laundromat.
3. The laundromat is open twenty-four (24) hours a day to allow access to the washing and drying machines located therein.
4. At the time the defendant was allegedly seen in the laundromat the door thereto was propped open allowing access to the room.

The state did not traverse or demur to the appellee’s motion and the court below granted the appellee’s motion to dismiss.

It is significant that the appellee did not attempt to avoid the offense by specifically alleging that he was a resident of the apartment complex, and by reason of that fact, had consent to enter, or that he was specifically invited to enter under any other basis, nor does he specifically allege that the premises were at the time open to the public, but instead seems to rely on some type of implied consent by reason of the fact that the structure in question was an apartment complex laundromat. The facts as alleged in the appellee’s motion to dismiss filed below do not of themselves establish or necessarily give rise to an implication that the premises were at the time open to the public or that the appellee was licensed or invited to enter. Since the appellee’s motion to dismiss does not demonstrate that the undisputed facts fail to establish a pri-ma facie case by bringing him within the exclusionary language of Section 810.02, Florida Statutes (1977), and a mere implied supposition is not sufficient to require the state to traverse or demur, the motion to dismiss should have been denied. Ellis v. State, 346 So.2d 1044 (Fla.1st DCA 1977).

We, therefore, reverse the granting of the motion to dismiss and the cause is hereby remanded for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


text:
    John Emmett MALLOY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1852.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.

      Jack 0. Johnson, Public Defender, and Charles L. Stutts, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

Appellant appeals from an order revoking his probation on the ground that the conduct upon which the court based the revocation took place before the entry of the probation order. We reverse.

The state charged appellant by information with burglary and petty theft. Pursuant to plea negotiations between his defense counsel and the state attorney, appellant pled guilty to both charges. The terms of the plea negotiations were that appellant would be placed on probation following a presentence investigation, that there would be a six month jail cap, that the question of adjudication would be left to the discretion of the court, and that the state attorney’s office would not recommend that appellant go to jail. The court accepted the plea, withheld adjudication, and ordered appellant to appear for sentencing at a later date.

Appellant left the state and failed to appear before the official conducting his presentence investigation. One and one half years after the entry of his plea, appellant appeared for sentencing on the charges. The court adjudicated him guilty and placed him on five years probation with six months to be spent in jail. As a condition of probation, he was to comply with the instructions of his probation supervisor. The court also stated that the order was to be entered as of the date of the plea. Thereupon, the court found that appellant had violated the terms of his probation by refusing to report to his probation officer for the presentence investigation and revoked the probation on this basis. It then sentenced appellant to two years in state prison.

Appellant cites O’Steen v. State, 261 So.2d 208 (Fla.1st DCA 1972), for the proposition that conduct occurring prior to the probation order cannot form the basis for a revocation of probation. Relying upon Hart v. State, 364 So.2d 544 (Fla.4th DCA 1978), and Martin v. State, 243 So.2d 189 (Fla.4th DCA 1971), the state argues that the revocation was proper because the offending conduct took place subsequent to the entry of appellant’s guilty plea.

We find that Hart and Martin are distinguishable from the instant case. In both of those cases the probation order had been entered when the conduct occurred, even though the term had not yet commenced. Here, the court had not entered the probation order at the time of the violation. While we can understand why the court might have been disenchanted with appellant, the law does not permit the revocation of a defendant’s probation for conduct which occurs prior to the entry of the probation order.

When the court entered the judgment and sentence according to the plea bargain, it obviously did so intending to immediately revoke the probation because of appellant’s prior conduct. Now that we have determined that the probation cannot be revoked under these circumstances, we believe the court should again be given the right to decide whether to impose a sentence consistent with the bargain. Accordingly, we vacate the original judgment and sentence along with the order of revocation and remand for further proceedings. Should the court conclude that appellant is not now entitled to benefits of the plea bargain, it retains the option of imposing a more severe sentence, but in this event it must afford appellant the opportunity to withdraw his plea. State ex rel. Milton v. Strickland, 361 So.2d 446 (Fla.2d DCA 1978).

REVERSED and REMANDED.

SCHEB and OTT, JJ., concur.


text:
    AGRICO CHEMICAL COMPANY, Appellant, v. DEPARTMENT OF ENVIRONMENTAL REGULATION, Freeport Sulphur Company, Division of Freeport Minerals Company, and Sulphur Terminals Company, Inc., Appellees.
    No. 79-2029.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1980.
    James T. Butler and Edward P. de la Parte, Jr., of de la Parte & Butler, Tampa and John T. Allen, Jr., St. Petersburg, for appellant.
    Richard M. Goldstein, William L. Earl and Paul H. Amundsen, of Peeples, Earl, Smith, Moore & Blank, Miami, Mary F. Clark, Tallahassee, for appellees.
   ON MOTION TO DISMISS

PER CURIAM.

The Motion to Dismiss the cross-appeals in this case squarely raises the question of whether the time limit for taking a cross-appeal under the present appellate rules is jurisdictional. This court previously denied motions to extend the time for serving the instant notices of cross-appeal, recognizing that the time period might well be jurisdictional. The record herein reflects that which is undisputed by the parties: appel-lees Freeport’s and Sulphur Terminals Company’s notices of cross-appeal (unless the time was tolled or extended) were untimely served.

The method of initiating a cross-appeal under the “new” (1977) rules of appellate procedure is by serving a notice of cross-appeal within ten days of the main notice of appeal or within thirty days of rendition of the order appealed from, whichever is later. Under the “old” (1962) rules, a cross-appeal was initiated by filing a cross-assignment of error within ten days after the appellant had filed his assignments of error. Unlike the strict jurisdictional construction given the time limit as to the main appeal, under the old appellate rules the ten-day time limit for filing cross-assignments of error was considered non-jurisdictional and, hence, could be extended. We have been cited, and have found, no cases which decide whether the time period for initiating a cross-appeal under the new appellate rules is jurisdictional.

Cross-appellee argues that because the new .rules refer to a notice of cross-appeal, the time limit should be considered jurisdictional as with the notice of appeal. Cross-appellant points out that the new rules refer to serving the notice of cross-appeal in contrast to filing a notice of appeal, arguing that serving is not a jurisdictional event. Cross-appellant further argues that the appellate court already has jurisdiction by virtue of the filing of the notice of appeal.

We are of the opinion that the time for initiating a cross-appeal could have been made jurisdictional by the appellate rules. Because making the time limit for cross-appeals jurisdictional would be a major change from the construction of the former appellate rules, it is presumed that the new rules would be explicit. Unfortunately, however, neither the rule itself nor the commentary thereto specifically addresses the jurisdictional issue. For this reason, and keeping in mind that the rules refer to service of a notice of cross-appeal, we hold that the appellate court acquires jurisdiction of the case by virtue of the filing of the main notice of appeal and the time for service of the notice of cross-appeal is non-jurisdictional and may be extended. This does not mean that the time limit will be extended in any given case. The time limit should ordinarily be complied with. Failure to do so might well result in losing the opportunity to cross-appeal.

Here, motions for extension were filed before the time limit had expired and the notices of cross-appeal served very soon thereafter. Therefore, the previous order of this court denying the motions for extension is withdrawn, the motions for extension are granted and the motion to dismiss cross-appeals is hereby denied.

GRIMES, C. J., and SCHEB and RYDER, JJ., concur.

      . Rule 9.110(g), Fla.R.App.P.

      . Rule 3.5(b), Fla.R.App.P.

      . See commentary to Rule 3.5(b), Fla.R.App.P. 1962 revision.

      . In addition to arguing that the time limit, is non-jurisdictional and may be extended by this court, cross-appellant also argues that the filing of its motion to extend time on the last day for serving a timely notice of cross-appeal tolled the time for such service pursuant to Rule 9.300(d), Fla.R.App.P. Thus, cross-appellant urges that its notice of cross-appeal, served on the day that the motion for extension was denied, was timely, however, if the time limit is jurisdictional, not only could the time not be extended by order of this court but a motion to extend the time would not automatically toll the time. Therefore, the question of whether the time limit is jurisdictional cannot be avoided here.


text:
    Mark Anthony GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1034.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    Bennett H. Brummer, Public Defender, and Carlos L. DeZayas, Sp. Appointed Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Roach v. State, 181 So.2d 362 (Fla. 3d DCA 1966); State ex rel. Mitchell v. Walker, 294 So.2d 124 (Fla. 2d DCA 1974); Simpkin v. State, 363 So.2d 45 (Fla. 3d DCA 1978); Castor v. State, 365 So.2d 701 (Fla.1978).


author: BARKDULL, Judge. SCHWARTZ, Judge

text:
    The STATE of Florida, Appellant, v. Jorge DEMOYA, Appellee.
    No. 79-871.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Arturo Alvarez, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   BARKDULL, Judge.

Following an automobile accident, the appellant was requested to take a blood alcohol test by an investigating officer, pursuant to Section 322.261, Florida Statutes (1977). In this connection, the appellee consented to permit his blood to be analyzed to determine alcoholic content. Notwithstanding the limited consent to test for alcohol, the State tested and determined that there was evidence of the drug metha-qualone contained within the blood of the appellee. He was thereupon charged in a fourrcount information with manslaughter and the information specifically referred to the drug methaqualone. He subsequently moved to suppress the results of the test which described the drug methaqualone. This motion was granted, and the State appeals. We affirm.

Florida having adopted an implied consent law through its Legislature, that law is to be strictly construed. The appel-lee only consented to have his blood tested for alcohol. When the State, through its agents, ran additional tests it went beyond the limited consent obtained pursuant to the statute and, therefore, the trial judge was correct in her order on the motion to suppress. See: People v. Keen, 396 Mich. 573, 242 N.W.2d 405 (1976); People v. Weaver, 74 Mich.App. 53, 253 N.W.2d 359 (1977); 1979 Op.Atty.Gen.Fla. 079-4 (Jan. 19, 1979).

We are not here faced with the Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) situation, because the law enforcement officers did not proceed on the theory sustained in the cited case (even if such was viable in this State, which we do not here decide); they proceeded solely on the statute, Section 322.-261, supra. They received limited permission and anything obtained beyond the permissible test was properly the subject of a motion to suppress.

The order under review be and the same is hereby affirmed.

Affirmed.

SCHWARTZ, Judge

(dissenting)

The appellee concedes that, on the basis of the facts known or obvious to the investigating officers, they had probable cause to believe that he had been driving while under the influence of a drug other than alcohol. Under Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and its progeny, they were therefore constitutionally entitled to secure his blood in order to test it for drugs, without a warrant and without his consent. Since this is true, I believe that the source of the blood actually used for that purpose, and the circumstances under which it was taken, are legally irrelevant. For this reason, I would reverse the order under review.

      . “Suspension of license; chemical test for intoxication. — (l)(a) Any person who shall accept the privilege extended by the laws of this state of operating a motor vehicle within this state shall by so operating such vehicle be deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood if he is lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of alcoholic beverages. . . . ”

      . See: Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Compare State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977), certiorari dismissed 362 So.2d 1056 (Fla.1978).


text:
    Edward FAINBERG, Appellant, v. Reeva FAINBERG, Appellee.
    Nos. 79-1108, 79-1109.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1980.
    Melvyn B. Frumkes, Miami, for appellant.
    Levine, Reckson, Reed & Geiger and Allen P. Reed, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

The final judgment of marriage dissolution and contempt order under review were within the discretion of the trial court to enter and are, accordingly, affirmed as being supported by substantial competent evidence. We have no authority to retry this case on appeal or disturb the trial court’s discretion herein in any way. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Ingram v. Ingram, 379 So.2d 955 (Fla.1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979), adopting 352 So.2d 867 (Fla. 3d DCA 1977); (Hubbart, J. dissenting); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Koeppel v. Koeppel, 351 So.2d 766 (Fla. 3d DCA 1977); Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977); Silvers v. Silvers, 274 So.2d 555 (Fla. 3d DCA 1973); Studdle v. Studdle, 267 So.2d 688 (Fla. 3d DCA 1972); Marcel v. Marcel, 132 So.2d 210 (Fla. 2d DCA 1961).