text:
    John Elmer CURRY, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee. William BRYANT, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee. Royce CROFT, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee. Leo C. SAXON, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    Nos. AL-383, AL-388, AL-390 and AN-44.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    John Elmer Curry, William Bryant, Royce Croft and Leo C. Saxon, appellants pro se.
    Jim Smith, Atty. Gen., and Leonard George, Jr., Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

Appellants ask this court to reverse the decision by the Department of Corrections denying them entitlement to statutory and work gain-time. We affirm in part and reverse in part.

Appellants were all convicted and sentenced pursuant to the mandatory gun law as set forth in section 775.087(2), Fla.Stat. (1977). After serving the three year mandatory portion of their sentences, appellants requested the Department of Corrections (DOC) to award them credit for statutory and work gain-time they had earned while serving the mandatory portion of their sentences. The DOC denied appellants’ requests on the ground that section 775.087(2) prohibited them from earning any form of gain-time, including work gain-time, while serving the mandatory portion of their sentences. These rulings were thereafter affirmed by the Secretary of the DOC. On appeal, appellants raise three issues.

First, appellants contend that although section 775.087(2) prohibits a prisoner from being released prior to his serving the minimum mandatory portion of his sentence, it does not prohibit a prisoner from accruing statutory gain-time during that period. Based on this interpretation of section 775.-087(2) appellants argue that once a prisoner has completed the minimum mandatory portion of his sentence, he must be given credit for the statutory and work gain-time accrued during that time. We disagree.

The language of section 775.-087(2)(b) is clear. A defendant sentenced under the mandatory gun law is not “eligible” for statutory gain-time under sections 944.27 or 944.29 prior to serving the minimum mandatory sentence of 3 calendar years. We interpret this language to mean that the statutory gain-time provisions of sections 944.27 and 944.29 simply do not apply until a prisoner has completed the mandatory minimum sentence. The mandatory gun law does not draw the distinction between the earning and accrual of gain-time which appellants urge this court to make. If the legislature had intended to create an exception to the mandatory gun law gain-time prohibition which would have allowed prisoners to accrue statutory and work gain-time while serving the 3 year mandatory sentence, they could have expressly created one. In the absence of such an express exception, this court will not imply one. On this basis, we reject appellants’ first point on appeal.

Next, appellants contend that the statutory gain-time ban has been effectively repealed by the Legislature. Section 775.-087(2) presently provides that any person convicted under this statute shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and that such person shall not be “eligible for parole or statutory gain-time under s. 944.-27 or s. 944.29, prior to serving such minimum sentence.” In 1978, the Legislature repealed sections 944.27 and 944.29 and simultaneously enacted a new gain-time statute under section 944.275. In so doing, however, the Legislature failed to amend the mandatory gun law to reflect the repeal of the former gain-time statutes and the enactment of the new gain-time statute. Appellants contend that this omission on the part of the Legislature effectively removed the statutory gain-time ban from the mandatory gun law. We cannot agree.

Although the Legislature failed to amend section 775.087(2)(b) to reflect the repeal of the former gain-time statutes and the enactment of the new gain-time statute as set forth in section 944.275, this omission was clearly the result of a clerical oversight on the part of the Legislature which this court may correct. Where, as here, the Legislature has made a mistake in a reference in a statute to another statute and the real intent of the Legislature is manifest and would be defeated by adherence to the terms of the mistaken reference, a court may disregard the mistaken reference or read it as corrected, in order to give effect to the intent of the Legislature. See generally Tatlow v. Bacon, 101 Kan. 26, 165 P. 835 (1917); Worthington v. District Court, 37 Nev. 212, 142 P. 230 (1914); and State v. Parmenter, 50 Wash. 164, 96 P. 1047 (Wash.1908). That the Legislature intended not to repeal the ban on the earning of statutory gain-time from the mandatory gun law is evidenced by the fact that even after sections 944.27 and 944.29 were repealed, the mandatory gun law continued to prohibit the earning of statutory gain-time. On this basis, it appears evident that the Legislature’s failure to amend the mandatory gun law to reflect the enactment of the new statutory gain-time statute was a clerical oversight. Since the intent of the Legislature would be defeated by adherence to the terms of the mistaken reference to sections 944.27 and 944.29, this court will correct the mistaken reference and read the ban on the earning of statutory gain-time to prohibit the earning of gain-time which was formerly covered under sections 944.27 and 944.29, Fla.Stat. (1977), but which is presently covered under section 944.275, Fla.Stat. (1979). Having corrected the mistaken reference in the mandatory minimum gun law, this court finds that appellants’ second point on appeal is without merit.

We find appellants’ third issue on appeal to be meritorious and reverse on that basis. Appellants contend that even if the ban on the earning of statutory gain-time as set forth in the mandatory gun law remains intact, it does not prohibit a prisoner from earning work gain-time prior to his serving the minimum mandatory portion of his sentence. This issue has been previously addressed by this court in the case of James v. Department of Corrections, 424 So.2d 826 (Fla. 1st DCA 1982), where we held that the mandatory gun law does not include a ban on the earning of work gain-time. Unlike the Legislature’s failure to amend the mandatory gun law to reflect the repeal of sections 944.27 and 944.29 and the enactment of section 944.275, the Legislature’s failure to include work gain-time within the gain-time prohibition set forth in section 775.087 cannot be considered a clerical error or omission, if indeed it can be considered an omission at all. To expand the gain-time ban as set forth in the mandatory gun law to include work gain-time would require this court to read into the statute substantive language which the Legislature failed to include. Such substantive omissions, whether intentional or not, if they are to be corrected, should be corrected by the Legislature and not the courts.

For the above reasons, we reverse the order of the DOC denying appellants credit for the work gain-time that they were eligible to earn while serving the minimum mandatory portion of their sentences and remand the matter for further proceedings consistent with this decision.

ERVIN and LARRY G. SMITH, JJ„ concur.


source: Caselaw Access Project

author: WIGGINTON, Judge.

license: Public Domain

text:
    PERIMETER INVESTMENTS, INC.; and E. Lamar Bailey, Appellants, v. AMERIFIRST DEVELOPMENT COMPANY OF CENTRAL FLORIDA, INC., Appellee. ELBA, INC., Appellant, v. AMERIFIRST DEVELOPMENT COMPANY OF CENTRAL FLORIDA, INC., Appellee.
    Nos. AL-478, AL-479, AL-480 and AL-481.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.

      L. Ralph Smith, Jr., of Dearing & Smith, Tallahassee, for appellants.
    H. Richards Bates, of Anderson & Rush, Orlando, for appellee.
   WIGGINTON, Judge.

The appellants, defendants in two mortgage foreclosure actions below, claim that Amerifirst, the plaintiff, has continued to prosecute the lawsuits in violation of the parties’ settlement agreement. In four orders, trial judges in Leon and Bay counties have denied the defendants’ motions for leave to file a counterclaim which sought specific performance of the settlement agreement, and they have denied the defendants’ motions for temporary injunctions designed to prevent Amerifirst from proceeding with the action. In these consolidated appeals, the defendants challenge the four orders.

Preliminarily, we dismiss the appeals regarding the counterclaims. Our jurisdiction to consider non-final orders is specifically limited by court rule. See Fla.R. App.P. 9.130(a)(3). The judges’ orders in this regard are susceptible of review on direct appeal from final judgment. See generally, Summerlin v. Epps, 340 So.2d 1228 (Fla. 4th DCA 1976) and authorities cited therein.

We do have jurisdiction, however, to consider the interlocutory orders denying the injunctions. Fla.R.App.P. 9.130(a)(3)(B). We affirm the orders denying injunctive relief because the appellants failed to establish that a wrong has been done or will be done. See Marston v. Gainesville Sun Publishing Company, 314 So.2d 257 (Fla. 1st DCA 1975).

The dispositive hornbook issue is whether the Statute of Frauds, Section 725.01, Florida Statutes (1981), applies to litigation settlement agreements. We hold that it does, finding no legislative enactment, court rule or decisional authority that specifically exempts settlement agreements from its purview.

It is not materially disputed that the settlement agreement was oral and that it included among its terms the transfer of property from defendants to plaintiff. By operation of Section 725.01, the agreement was unenforceable. Therefore the bare showing that the bank may have reneged on the settlement cannot, without more, be grounds for an injunction.

The defendants assert that because Florida Rule of Civil Procedure 1.030(d) permits settlement agreements to be oral, the Statute of Frauds is inapplicable. The defendants also contend that the statute should not apply because the agreement was not a contract for the “sale” of land, as contemplated by the statute. We must reject both arguments.

First, assuming for the moment that the Statute of Frauds could be abrogated by court rule, Florida Rule of Civil Procedure 1.030(d) neither addresses nor affects the statute. The rule and the statute are not inconsistent; to the contrary, they act hand in glove to simplify the settlement process while protecting the parties’ rights when the subject of such an agreement is the transfer of land.

We find the defendants’ second argument, that the Statute of Frauds applies only to “sales,” to be meritless. See, e.g., Green v. Price, 63 So.2d 337 (Fla.1953).

Accordingly, the orders denying injunc-tive relief are affirmed. The appeals regarding the counterclaims are dismissed without prejudice to the appellants’ raising the issue on direct appeal.

SHAW and JOANOS, JJ., concur.

      . “No action shall be brought ... to charge any person ... upon any contract for the sale of lands, tenements or hereditaments ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged ...”


author: ERVIN, Judge.

text:
    Karl GULLIFORD, Appellant, v. NIKKO GOLD COAST CRUISES and Zurich Insurance Company, Appellee.
    No. AM-208.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Peter S. Schwedock of Pelzner, Schwe-dock, Finkelstein & Klausner, P.A., Miami, for appellant.
    Steven Kronenberg of Adams, Kelley, Kronenberg & Rutledge, Miami, for appel-lee.
   ERVIN, Judge.

We reverse and remand the deputy commissioner’s order dismissing appellant and claimant Karl Gulliford’s claim for workers’ compensation benefits. His claim stems from a July 13, 1980 auto accident arising out of and in the course of his employment with Nikko Gold Coast Cruises, the appel-lee. The claim falls within the dual-purpose doctrine, an exception to the going and coming rule which routinely bars compensation.

Karl Gulliford worked as a tour bus dispatcher for Nikko Gold Coast Cruises, a Miami Beach tour company. In that position he was a “jack-of-all-trades,” dispatching tour buses, answering the phone, doing repair work on tour boats, handling problems with tour bus drivers, and assisting customers in making reservations. Also, for over three-and-one-half years, Gulliford had routinely performed an additional task, that of “taking the bank home” at night.

Gulliford’s testimony reveals that each day between 2:15 and 3:00 p.m. he would empty the cash drawers used by the employer’s tour ticket sellers, lock the money in his car, work until 5:30 or 6:00 p.m., and take the money home for the evening. If Gulliford ever used his car at night, he would always lock the “bank” in a safe place in his home. The next morning he would take the “bank” back to work, so that the ticket sellers would have a ready supply of money on hand to make change for customers. Gulliford stated that he viewed this task as part of his job and considered himself to be the guardian of the money.

The “bank” regularly consisted of approximately $500. Because of the amount of money involved, Marvin Wildman, a former owner of Nikko Gold Coast Cruises, stated that he did not consider it safe to leave the “bank” at the ticket office over night. Hence, Wildman initiated the practice of having the claimant take the “bank” home each night. Wildman paid the claimant $100 per month as a car allowance primarily for the purpose of using his personal car to go out and assist a tour bus driver, if his bus broke down. Wildman also stated that the car allowance included payment for the cost of taking the “bank” home at night and bringing it back in the morning.

Approximately two weeks before claimant’s accident, Wildman sold his business to Jerry Faber. The new owner told Gulliford that until informed otherwise, his job would remain exactly the same. On the morning of July 13, 1980, Gulliford followed his normal route to work, first taking his wife to her worksite and driving on to Miami Beach with the “bank.” Unfortunately, he never reached his destination, because en route to his employer’s office he was involved in an auto accident.

Gulliford filed a claim for workers’ compensation, which was controverted by his new employer, Jerry Faber, who argued by affidavit that the only reason the claimant was driving at the time of the accident was to get to work, and that the claimant’s injury did not arise out of and in the course of his employment. The deputy commissioner agreed and dismissed the claim. We reverse and remand for consideration of the claimant’s benefits.

This case is controlled by the dual-purpose doctrine. Professor Larson explains the doctrine by noting:

Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had no [sic] coincided with the personal journey. This principle applies to out-of-town trips, to trips to and from work, and to miscellaneous errands such as visits to bars or restaurants motivated in part by an intention to transact business there.

1 Larson, Workmen’s Compensation Law § 18.00 (1978) (e.s.). The doctrine is consistent with Florida law as set forth by the Florida Supreme Court in Cook v. Highway Casualty Co., 82 So.2d 679 (Fla.1955), a workmen’s compensation case, wherein the claimant was injured in an auto collision. “So long as the business purpose is ‘at least a concurrent cause of the trip,’ ..., the employer may be held liable for workmen’s compensation.” Id. at 682.

We note that the Cook court specifically indicated that the dominant purpose of the trip was not necessarily required to be for a business purpose. Accord Davis v. Bert Friedman Court Reporting Service, 251 So.2d 129 (Fla.1971); Krause v. West Lumber Co., 227 So.2d 486 (Fla.1969). No inquiry need be made as to the relative importance of the trip’s business importance. Levine v. Builders Aluminum Stone Co., 186 So.2d 26, 28 (Fla.1966). All that need be determined is that the injury resulted due to a trip, a concurrent cause of which was a business purpose. Cook, at 682.

In the case at bar, the concurrent causes were: (1) the claimant’s personal act of driving himself and his wife to work, and (2) the business-related act of “taking the bank” to work. Professor Larson treats this type of situation as compensable.

§ 18.24 Carrying employment impedimenta to and from work

The mere fact that claimant is, while going to work, also carrying with him some of the paraphernalia of his employment does not, in itself, convert the trip into a part of the employment. For example, the mere fact that at the time of the accident the employee had with him some of the tools of his trade, such as a steamfitter’s hard hat, a pocket rule, and a level, all belonging to the employer, does not make the accident compensable. However, if it can be said that the transporting of the employment materials amounted to the performing of a business service of sufficient dimensions to bring it within the basic dual-purpose rule, in the sense that if the employee could not have combined this service with his going or coming trip, a special trip would have had to be made to accomplish the same business objective, the journey may be within the course of employment.

Larson, supra, § 18.24 at 4-247, 250-251 (e.s.).

Gulliford’s claim was undoubtedly dismissed due to the employer/carrier’s not unpersuasive argument and reliance upon the factually similar case of United States Fidelity and Guaranty Co. v. Rowe, 126 So.2d 737 (Fla.1961). In Rowe, claimant was ordered by her employer to take home $30 of fee money from a nursery and not to leave the funds at the nursery overnight. The supreme court found that none of the exceptions to the “going and coming” rule were applicable and denied compensation. However, Rowe does not control this case for two reasons.

First, Rowe is easily distinguished, because it involved the act of taking funds home on only one occasion, apparently without remuneration, and the task was not a regular job duty. In the case at bar, Gulli-ford routinely took the “bank” home, received compensation for this assignment, and had regularly carried out the task for quite sometime. The task was at a minimum impliedly a part of his contract of employment. As noted in Swartzer v. Food Fair Stores, Inc., 175 So.2d 36 (Fla.1965):

“Generally it appears that the employer’s liability in such cases depends upon whether or not there is a contract between employer and employee, express or implied, covering the matter of transportation to and from work.”
Once an obligation to furnish transportation is demonstrated, by whatever means satisfied, then “[t]he hazards of the highway [are] inherent” in the contract of employment and claims arising therefrom are compensable as arising out of and in the course of the employment.

Id. at 37 (e.s.) (footnotes omitted).

Second, the continuing viability of Rowe is in doubt. Rowe was announced in 1961. It seems somewhat in conflict with the dual-purpose doctrine advocated by the earlier Cook case, but we find that the concepts set forth by Cook have been adhered to much more closely in post-Rowe cases by this court and the supreme court. For example, in Krause, at 488, it was noted that “[a]n employee whose activities are serving a personal and business purpose is within the scope of the Workmen’s Compensation Act” (emphasis in original) (footnote omitted). See also Poinciana Village Construction Corp. v. Gallarano, 424 So.2d 762 (Fla. 1st DCA 1982). In Levine the court stated that it would not even inquire into the relative importance of business and personal purposes of a trip, so long as a business purpose was at least a concurrent cause of the trip.

Based on the rule of law in Cook, Professor Larson’s treatment of the issue, and determinations by other jurisdictions finding this type of situation compensable, we conclude that the deputy erred in dismissing Gulliford’s claim, effectively denying him compensation. The deputy commissioner’s order is REVERSED and this case is REMANDED for further consistent proceedings.

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

      . We carefully distinguish troublesome language in one of our more recent cases. In Sunshine Jr. Food Stores v. Thompson, 409 So.2d 190 (Fla. 1st DCA 1982), a casual reference was made to the dual-purpose doctrine in an effort to distinguish away the claimant/appellee’s argument. This court noted: “The cases relied on by the deputy commissioner and by claimant for the proposition that claimant’s injury is compensable, as sustained during a trip bearing a predominant business purpose, are readily distinguishable from the instant case.” Id. at 191 (e.s.). It should be noted that Sunshine Jr. Food Stores should not be read as requiring a predominant business purpose under the dual-purpose doctrine which would conflict with Cook and its progeny. Rather, the Sunshine Jr. case merely notes that cases cited by the appellee involved factual situations with a predominant business purpose, and that the cases were distinguishable.

      . See Kariger Motors, Inc. v. Kariger, 132 Ind. App. 85, 173 N.E.2d 916 (1961) (corp. officer normally depositing funds in the bank on his way to work was in the course of employment when he was fatally injured on the way home from work with funds to be deposited the next day); Cox v. Copeland Bros. Construction Co., 589 S.W.2d 55 (Mo.App.1979) (accident was compensable in case wherein claimant was killed in car accident on his way from home to job site with construction plans necessary to continuance of work that he had altered at home- the night before).


text:
    Dennis G. RUPPEL, Trustee, Appellant, v. AMERIFIRST DEVELOPMENT COMPANY OF CENTRAL FLORIDA, Appellee.
    No. AM-400.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.

      Elizabeth J. Daniels, of Johnson, Blakely, Pope, Bokor, Ruppel & Tew, P.A., Clear-water, for appellant.
    H. Richard Bates, of Anderson & Rush, Orlando, for appellee.
   WIGGINTON, Judge.

This is an appeal from a partial summary judgment entered in a mortgage foreclosure action. Appellee Amerifirst holds security interests in the mortgagors’ property now in foreclosure in Leon and Bay counties. Appellant Ruppel is trustee for a bank that holds a subordinate interest in the Leon County property (Amerifirst named Ruppel’s bank as a defendant in this suit). At issue is whether the doctrine of marshaling of assets should have prevented the entry of partial summary judgment under the circumstances of this case. We find no error in the judge’s decision, and therefore affirm.

In terms pertinent to this appeal, the doctrine of marshaling of assets provides that if one creditor has an interest in two properties belonging to the same debt- or, and another creditor has an interest in one of those properties, then the first creditor can be compelled initially to seek his recovery from the property not secured by the second creditor. This lessens the chance that the second creditor may lose his security solely at the whim of the first creditor’s choice of property to pursue. See generally State Bank of Florida v. Roche, et al., 35 Fla. 357, 17 So. 652 (1895).

Here, Ruppel raised the doctrine as an affirmative defense to Amerifirst’s foreclosure complaint. In its motion for summary judgment, and in this appeal, Amerifirst has argued that marshaling is inappropriate because there was no “common debtor;” that is, the Leon County property belonged to Elba, Inc. while the Bay County property belonged to Perimeter Investments, Inc. and E. Lamar Bailey. In one terse sentence, the judge denied the marshaling defense and proceeded to partial summary judgment.

The judge did not err in denying the marshaling defense on the theory that there was no common debtor to connect Ruppel with Amerifirst. Although Elba (the Leon County mortgagor) and Perimeter and Bailey (Bay County mortgagors) have close ties and interests, they are all separate legal entities. We are not persuaded that these entities should be treated as one for purposes of marshaling. The trial judge did not err when he reached the same conclusion.

We find no merit to the appellant’s argument that summary judgment was inappropriate because Amerifirst did not present sworn testimony to refute the affirmative defense of marshaling. Because it is apparent on the face of the record that the marshaling defense could properly be denied, any sworn testimony in this regard would have been superfluous.

Finally, Ruppel has not presented reversible error in his allegation that the Bay County property was worth more than the $65,000 mentioned in the motion for summary judgment. This figure appears in the partial summary judgment as a credit against the debt that relates to the Leon County property. In other words, Ameri-first’s Leon County recovery has been reduced by the value it placed on the Bay County property. This informal application of the marshaling doctrine by Amerifirst appears to be voluntary and gratuitous. We see no error, from Ruppel’s standpoint, in permitting this figure to appear in the judgment.

Accordingly, the partial summary judgment is AFFIRMED.

SHAW and JOANOS, JJ., concur.

      . The mortgagors are not parties to this appeal.


text:
    Michael AIKENS, Appellant, v. STATE of Florida, Appellee.
    No. AN-276.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Michael Aikens in pro per., appellant.
    No appearance for appellee.
   WIGGINTON, Judge.

This appeal is from the order of the trial court denying Aikens’ Rule 3.850 motion for post-conviction relief. We affirm as to all three points raised on appeal; however, our affirmance as to the third point merits some discussion.

Aikens was convicted of armed robbery and aggravated assault against separate victims, in violation of Sections 812.13(2)(a) and 784.021, Florida Statutes. He was sentenced to twenty years for the armed robbery count and to five years for the aggravated assault count, those sentences to run consecutively. Aikens also received, under Section 775.087(2), Florida Statutes, mandatory minimum three year sentences for both counts, those sentences to run consecutively. In his motion, relying on Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981), Aikens argues the trial court could not “enhance” his sentences by imposing the mandatory minimum sentences for possession of a firearm, where a firearm, as here, was an essential element of the crime or crimes charged. Aikens’ argument assumes that paragraphs (1) (authorizing enhancement of a penalty for possession of a firearm unless such forms an essential element of the crime charged) and (2) of Section 775.087 are to be read in pari materia. However, this Court recently receded from Skipper and recognized that paragraphs (1) and (2) serve different functions. See Vause v. State, 424 So.2d 52 (Fla 1st DCA 1982).

Aikens was convicted of armed robbery and aggravated assault, both of which fall within the ambit of Section 775.087(2); therefore, the trial court properly imposed the consecutive mandatory sentences. Fa use; Blanton v. State, 388 So.2d 1271 (Fla. 4th DCA 1980); Bradley v. State, 413 So.2d 1248 (Fla. 1st DCA 1982); State v. Lopez, 408 So.2d 744 (Fla. 3d DCA 1982); State v. De La Rosa, 414 So.2d 26 (Fla. 3d DCA 1982); Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982); Palmer v. State, 416 So.2d 878 (Fla. 4th DCA 1982); D’Alessandro v. Shearer, 360 So.2d 774 (Fla.1978).

The trial court’s denial of Aikens’ Rule 3.850 motion is AFFIRMED.

MILLS and ERVIN, JJ., concur.


author: PER CURIAM.

text:
    Dan TURNER, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-116.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The judgment of conviction is affirmed upon a holding that (1) the trial court properly denied the motion to suppress based on the totality of the circumstances, see Leon v. State, 410 So.2d 201 (Fla. 3d DCA), petition for review denied, 417 So.2d 329 (Fla.1982); Collier v. State, 353 So.2d 1219 (Fla. 3d DCA 1977); see also Michigan v. Moseley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); (2) the trial court did not unduly restrict cross-examination of certain state witnesses, see Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979); and (3) the jury instructions given by the trial court when taken as a whole adequately enabled the jury to consider the theory of defense, see Scott v. State, 396 So.2d 271 (Fla. 3d DCA 1981).

Affirmed.


text:
    Alan Mark LEONARD, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2411.
    District Court of Appeal of Florida, Third District.’
    Dec. 21, 1982.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL and PEARSON, DANIEL S. and JORGENSON, JJ.
   PER CURIAM.

Appellant appeals his convictions and sentences following a jury trial, which found him guilty of conspiracy to commit robbery with a firearm, attempted robbery with a firearm and second degree felony murder.

He was sentenced to 15 years imprisonment for conspiracy to commit robbery, concurrently with two 40 year terms for attempt to commit robbery and second degree murder. This appeal followed.

We find no merit in this appeal and the points urged for reversal, save and except one which relates to a double jeopardy sentence.

As to the alleged error in cross-examination, see Leonard v. State, 386 So.2d 51 (Fla. 2d DCA 1980); Thorpe v. State, 350 So.2d 552 (Fla. 1st DCA 1977); State v. Young, 283 So.2d 58 (Fla. 1st DCA 1973).

As to the alleged error in regard to certain hearsay testimony, first, no objection was made to part of it and no motion to strike was made, therefore the error has not been preserved. Jalbert v. State, 95 So.2d 589 (Fla.1957); McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980).

As to the remainder, it at best was harmless. Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975); Russell v. State, 270 So.2d 462 (Fla. 3d DCA 1972); Wells v. State, 256 So.2d 580 (Fla. 3d DCA 1972); Section 924.-33 Florida Statutes (1975).

There is no error found in the original instructions as given and no objection was made. State v. Lowery, 419 So.2d 621 (Fla.1982).

No error has been demonstrated in the court, upon a request from the jury for a reinstruction in regard to the degrees of homicide, by giving to the jury written instructions citing the different degrees of homicide, notwithstanding the provisions of Florida Rules of Criminal Procedure. It was apparent from the jury’s question that they had resolved the issue of guilt adversely to the defendant and were only interested in reinstruction as to what degree of homicide the defendant had committed. Henry v. State, 359 So.2d 864 (Fla.1978); State v. Kurns, 397 So.2d 463 (Fla. 2d DCA 1981). Further the trial court gave defense counsel every opportunity to object to the procedure followed and he declined the opportunity to make any objections and therefore we find it waived.

Wherefore the convictions, adjudications and sentences are affirmed except the sentence for attempted robbery with a firearm, which is stricken.

Therefore the actions of the trial court hereunder review, except as modified as above, are affirmed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Ann Shepherdson ADAMS, Appellant, v. S. Charles ADAMS, Appellee.
    No. 81-2673.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Leonard H. Rubin and Paul A. Louis and John L. Zavertnik, Miami, for appellant.
    Webster & Moorefield and Barbara North Burton, Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

In Adams v. Adams, 340 So.2d 1290 (Fla. 3d DCA 1977), this court held that Mr. Adams’s obligation to support his four children as imposed by a pre-July 1, 1973 support order continued until they reached twenty-one or “further order of court.” The determinative issue on the present appeal is whether, without filing a motion to modify, he could unilaterally terminate those payments for two of the children on the ground that they had become self-supporting and emancipated before their twenty-first birthdays. We hold that a modification proceeding was indispensable and therefore reverse the order below, which retroactively approved Adams’s cessation of payments.

As they relate to this legal question, the facts are undisputed. The present action began when, in late 1980 and early 1981, Ms. Adams filed motions to adjudicate ar-rearages in child support which had accumulated on the outstanding judgment since 1977, and to hold her ex-husband in contempt if they were not paid. At a hearing before a general master to whom the motions were referred, and although no motion to modify had ever been filed, the father defended his nonpayment, in part, on the ground that he was not obliged to support his son David — who reached twenty-one on March 2,1979 — after June, 1977; or his son Scott — whose twenty-first birthday was October 25,1980 — after January, 1978 because they had become self-supporting on those respective earlier dates. Over the wife’s objection, the general master received extensive — and disputed — testimony on these issues and accepted Mr. Adams’s factual contentions to that effect. Accordingly, his recommended order provided that Adams be required to pay only undisputed arrear-ages of $6,506.22 and did not include an additional $10,615.92, which represented the payments accrued between the dates of the boys’ alleged emancipation and their twenty-first birthdays. Ms. Adams now appeals from the trial court order overruling her exceptions to, and confirming the master’s report.

Our conclusion that the pre-twenty-first birthday payments must be awarded because no motion to modify or reduce them was filed is in full accordance both with prior determinations on the precise emancipation issue involved here and the general law that orders for alimony and support must be obeyed until legal action is taken to relieve oneself of their terms. Thus, in Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978), we unequivocally said

The law is well-settled that a divorce decree entered prior to July 1, 1973, requiring a husband to make child support payments to his wife, either until majority or without specifying a termination date therein, obligates the husband on the face of the decree to make child support payments until the child reaches his twenty-first birthday. The only method by which a husband may absolve himself of such obligation of support prior to the child reaching twenty-one is if he files a motion to modify under Section 61.14, Florida Statutes (1977), and is able to show that the child has since become married or self-supporting, [emphasis supplied]

359 So.2d at 27. Accord, Burgdorf v. Burgdorf, 372 So.2d 988 (Fla. 2d DCA 1979), cert. dism., 392 So.2d 1372 (Fla.1980) (containing identical language); Hoffman v. Hoffman, 135 So.2d 747 (Fla. 3d DCA 1961) (Carroll, J., dissenting); see Langlois v. Langlois, 365 So.2d 179 (Fla. 3d DCA 1978); but see Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).

As Judge Carroll’s opinion in Hoffman points out, the present issue is conceptually indistinguishable from one in which it is claimed that changed circumstances justify a decrease or elimination of alimony or support payments. In that situation, it is clear that, regardless of the actual facts, the payments not only must be made as provided, but become vested property rights of which the recipient cannot constitutionally be deprived until and unless a motion for modification is filed and favorably acted upon. E.g., Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980); Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977). These decisions reflect the rather straightforward notion that one who is required by court order to make specified payments may not cavalierly ignore the judgment, and, as it were, take the law into his own hands by making the determination that there is a legal reason to depart from the terms of the order. Only the court can make such a ruling, and it may do so only upon the filing of an appropriate pleading and then only prospectively. In concluding that these principles apply directly to the question of whether a particular child had become self-supporting we follow also what we (naturally) think are the better-reasoned authorities from other jurisdictions. In re Marriage of Lehrer, 63 Cal.App.3d 276, 133 Cal.Rptr. 709 (1976); Hoos v. Hoos, 86 Ill.App.3d 817, 42 Ill.Dec. 174, 408 N.E.2d 752 (1980); In re Marriage of Rosenbaum, 85 Ill.App.3d 931, 41 Ill.Dec. 213, 407 N.E.2d 711 (1980); Jozwick v. Jozwick, 72 Ill.App.3d 17, 28 Ill.Dec. 321, 390 N.E.2d 488 (1979); Weppner v. Weppner, 78 Wyo. 106, 319 P.2d 127 (1957); see Ross v. Ross, 397 N.E.2d 1066, 1069, n. 4 (Ind.App.1979); contra, Ditmar v. Ditmar, 48 Wash.2d 373, 293 P.2d 759 (1956). Indeed, there is a special reason why the rule should be enforced in this particular context. As is alleged in this very case, such a unilateral termination may well amount to a self-fulfilling prophecy, in that the child may become required to support himself simply because of the cessation of his payments. In order both to preclude that possibility and, more important, to achieve the high purpose of upholding the authority of an existing order of court, it is not too much to require that the issue be submitted for prior judicial determination.

For these reasons, the trial court is directed, after remand, to amend the order under review by entering judgment against Mr. Adams in the additional sum of $10,615.92, for a total of $17,122.14.

Remanded with directions.

      . In two other appearances of this case, Adams v. Adams, 357 So.2d 264 (Fla. 3d DCA 1978), and Adams v. Adams, 368 So.2d 958 (Fla. 3d DCA 1979), we approved an upward modification of the support provisions and considered orders holding the husband in contempt for failing to make the payments required.

      . The basis of our decision makes it unnecessary to resolve the questions, which are in controversy, of whether the two boys were in fact self-supporting and, if they were, whether they became so only for the inequitable reason that their father had previously withheld their support payments. See text at note 7, infra.

      . The majority in Hoffman based its decision on another ground and did not disagree with Judge Carroll’s opinion to the following effect:
      Without having sought modification of the decree because the boy no longer needed his support, the father simply stopped the support payments after he entered the Academy. More than a year later, the mother sued out a rule requiring the father to show cause why he should not be adjudged in contempt for such default. The court then ruled he should pay the defaulted amounts and currently maturing payments as ordered by the decree. The fact that the government was supporting the boy, was rejected as a defense to the rule to show cause. The father was caught there by a technicality. Had he first filed a petition to modify the decree, it can be assumed he would have been relieved of most if not all of the support required of him by the decree, so long as the minor son remained in the Air Force Academy. But when he offered the fact that the boy was in the Academy in response to the rule to show cause, the chancellor was justified, under respectable authority, in holding him to the terms of the unmodified decree.[] While not having ruled on those precise facts, the Florida Supreme Court has held generally that a decree ordering alimony or child support must be obeyed until modified where the basis for claiming modification is one not expressly stated in the decree to have that effect.[]
      3 Peacock v. Peacock, [212 Ga. 401, 93 S.E.2d 575]; Torras v. McDonald, [196 Ga. 347, 26 S.E.2d 598]; Corbridge v. Corbridge, [230 Ind. 201, 102 N.E.2d 764]; Carson v. Carson, 120 Ind.App. 1, 89 N.E.2d 555; Schrader v. Schrader, [148 Neb. 162, 26 N.W.2d 617]; Weitz v. Weitz, 1 A.D.2d 1025, 151 N.Y.S.2d 520.

        4 See McArthur v. McArthur, Fla. 1958, 106 So.2d 73, and cases cited therein. See also, English v. English, Fla.App.1960, 117 So.2d 559; 10 Fla.Jur., Divorce, Separation & Annulment, §§ 202, 203, 219.
      135 So.2d at 748-49 (footnote 2 omitted).

      . If dicta in Langlois that “support payments may be terminated as of the date of emancipation,” 365 So.2d at 180, suggest that a support order may be retroactively modified to a time before the filing of a motion to modify, we disapprove of that language.

      . See note 3, supra.

      . Obviously this principle does not apply when an indisputable, objective occurrence, such as remarriage or reaching the age of majority, takes place which, under the law or the terms of the judgment itself, automatically terminates a support obligation.

      . See note 2, supra.

      . Since the children are now emancipated by age, the order is, to this extent, not subject to enforcement by contempt. Johnson v. Johnson, 382 So.2d 427 (Fla. 3d DCA 1980).


text:
    FININVEST INVESTMENTS, LTD., and Offices by the Sea Condominium Association, Inc., Appellants, v. METROPOLITAN DADE COUNTY and Malvolio, N.V., a Netherlands Antilles corporation, Appellees.
    No. 81-2752.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Lapidus & Stettin, and Richard Lapidus, Miami, for appellants.
    Robert A. Ginsburg, County Atty., and Eileen Ball Mehta, Asst. County Atty., Levine, Reckson, Reed & Geiger, and Allen Reed, Miami, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Medical Arts, Inc. v. Rohrbaugh, 293 So.2d 366 (Fla. 4th DCA 1974); Metropolitan Dade County v. Maddox, 242 So.2d 165 (Fla. 3d DCA 1970); Warnock v. Florida Hotel and Restaurant Commission, 178 So.2d 917 (Fla. 3d DCA 1965).


author: HENDRY, Judge.

text:
    Earnest James BROWN, Appellant, v The STATE of Florida, Appellee.
    No. 82-270.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Bennett H. Brummer, Public Defender, and Robin H. Greene , Asst. Public Defender, Clare Tacher, Certified Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and Scott A. Silver, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   HENDRY, Judge.

The appellant, Earnest James Brown, was charged in a three count information with (1) sexual battery, (2) robbery and (3) burglary. A jury found him guilty of sexual battery on count one, petit theft on count two and burglary on count three.

The court adjudicated him guilty and imposed a life sentence on the burglary count and suspended sentence as to the other two counts. However, the written order states that the life sentence was imposed for count one (sexual battery).

Appellant contends that the trial court erred in entering a written sentencing order which differed from the court’s oral pronouncement. We find merit in this contention. The written sentence must be corrected to conform to the oral pronouncement of the court. Sirmons v. State, 405 So.2d 310 (Fla. 4th DCA 1981); Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980); petition for review denied, 397 So.2d 779 (Fla.1981).

As to the conviction, appellant seeks reversal on the ground that the trial court erred in denying his request for a special jury instruction on identification since it was a critical issue at trial. We find no error in the trial court’s instructions to the jury. The instructions given were clear, comprehensive and correct. No special instruction on the issue of identity was necessary or required. The issue was adequately covered in the standard jury instructions that were given. State v. Freeman, 380 So.2d 1288 (Fla.1980); Smith v. State, 375 So.2d 864 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980); Cruz v. State, 310 So.2d 360 (Fla. 3d DCA 1975).

For the reasons stated the judgment appealed is affirmed, but the cause is remanded for correction of the sentence in accordance with this opinion.

Affirmed and remanded.


author: PER CURIAM. SCHWARTZ, Judge

text:
    FIRST AMERICAN TITLE INSURANCE COMPANY, INC., a California corporation authorized to do business in Florida, Appellant, v. FIRST TITLE SERVICE COMPANY OF the FLORIDA KEYS, INC., a Florida corporation, Appellee.
    No. 82-431.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Buck & Tatum and Thomas R. Tatum, Fort Lauderdale, for appellant.
    Turner, Fascell & Russo and S. Alan Stanley, Coral Gables, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

The trial court dismissed a charge against an abstract company for negligent preparation of an abstract brought by one not in privity with the abstract company. A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973); Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940); Kovaleski v. Tallahassee Title Company, 363 So.2d 1156 (Fla. 1st DCA 1978); Chelsea Title & Guarantee Company v. Louis Briggs Construction, Inc., 315 So.2d 229 (Fla. 1st DCA 1975); Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974).

We affirm and agree with the reasoning of the appellee that Sickler v. Indian River Abstract & Guaranty Co., supra, correctly states the rule of liability as to abstract companies in Florida today. The liability of an abstract company extends only to the parties who either contract with the company or are in privity with it and further that Sickler v. Indian River Abstract & Guaranty Co., supra, was not overruled by the Supreme Court in A.R. Moyer, Inc. v. Graham, supra, the decision by the 1st DCA in Kovaleski v. Tallahassee Title Company, supra, to the contrary, notwithstanding.

Therefore the final order under review be and the same is hereby affirmed.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

While I do not believe that Sickler should be the law of Florida, I do agree that it was not overruled by Moyer. Under Hoffman v. Jones, 280 So.2d 431 (Fla.1973), therefore, I have no choice but to agree to affirmance, secure in the knowledge that, since this conclusion is in certified direct conflict with Kovaleski, the issue will be resolved by the supreme court, which alone has the authority to do so.

      . We realize that this opinion is in direct conflict with Kovaleski v. Tallahassee Title Company, supra, and hereby certify as to such conflict in accordance with Art. 5, Sec. 3(b)(4) of the Florida Constitution as amended in 1980.


text:
    Joerg A. JENSEN and Ann Jensen, his wife, Appellants, v. Mary Ann COE, Appellee.
    No. 82-553.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellants.
    Murray B. Weil, Jr., and L. George Scheer, Miami Beach, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

Affirmed. Garcia v. Allstate Insurance Company, 327 So.2d 784 (Fla. 3d DCA 1976); Gulf Life Insurance Company v. Pringle, 216 So.2d 468 (Fla. 2d DCA 1968).


text:
    Gerald S. ARENBERG and the American Federation of Police, Appellants, v. CRIMINAL JUSTICE PUBLICATIONS, INC., Appellee.
    No. 82-561.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.

      James P. Ryan, North Miami, for appellants.
    Paul & Thomson and Richard J. Ovelmen, Miami, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

This is an appeal from an order quashing service of process and dismissing defendant as a party for lack of jurisdiction over the person. The parties concede that service was inadequate. Therefore, we affirm the trial court’s order. Because of this affirmance, we do not reach the other issue raised by the appellant.


text:
    D.G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-801.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Bennett H. Brummer, Public Defender, and Robin Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack Ludin, Asst. Atty. Gen., Miami, for appellee.
    Before BARKDULL and SCHWARTZ, JJ., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

Appellant was adjudged delinquent in juvenile court upon charges of strong-arm robbery and burglary of a conveyance. Upon consideration of the record, we reverse on the authority of J.O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980) and Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980).

Reversed.


author: BASKIN, Judge.

text:
    Diana L. ERICK, Appellant, v. Ronald P. ERICK, Appellee.
    No. 82-1174.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.

      Turner, Fascell & Russo and Charles J. Crowder, Coral Gables, for appellant.
    Mason & Meyerson and Jill D. Touby, Miami, for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We modify the final judgment insofar as it requires the wife to pay three-quarters of the mortgage obligation without receiving reimbursement until sale of the marital home. The wife, who has exclusive possession of the house owned by the parties as tenants in common while the children are minors, is in no better position to carry the obligation than is the husband, despite the promise of reimbursement in the future. Although the trial court recognized that payment from the husband might increase if his earnings were to increase substantially, we find that the court’s failure to require the husband to pay half the mortgage, insurance, taxes, and necessary repairs as they became due constituted an abuse of discretion and permitted the husband to build his equity without full regard to the burden on the wife. Waskin v. Waskin, 346 So.2d 1060 (Fla. 3d DCA 1977); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977). Accordingly, we modify the final judgment to require the husband to pay half the mortgage, insurance, taxes, and necessary repairs.

Affirmed as modified.


text:
    Juan Jose DELGADO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1348.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti A. Roth-enberg, Asst. Atty. Gen., for appellee.

      Before HUBBART, C.J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

The order revoking the appellant’s probation is affirmed with one modification. The findings in the order under review that the appellant (a) possessed a firearm without the consent of his probation supervisor, and (b) possessed a concealed firearm, are stricken as being unsupported by the evidence. Upon remand in this cause, the trial court shall strike such findings from the order under review. Williams v. State, 375 So.2d 867 (Fla. 2d DCA 1979); Brouillett v. State, 373 So.2d 449 (Fla. 2d DCA 1979).

The sentences imposed in this case are affirmed with one modification. It appears that the appellant may not have been given full credit for the jail time he served on the original split sentences as a special condition of probation. The trial court credited the appellant with 52 days of prior jail incarceration; the record however, seems to support appellant’s contention that he served approximately seven (7) months in jail (August 22,1980 — March 20,1981) on the original split sentences. Upon remand, the trial court should conduct a hearing to determine the time actually served in jail by the appellant on the original split sentences and to give the appellant appropriate credit for this jail time on the sentences under review. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107, 1112 (Fla.1980); State v. Jones, 327 So.2d 18, 25 (Fla.1976); Schell v. State, 379 So.2d 444 (Fla. 3d DCA 1980). The appellant need not be present at this hearing upon remand. Meintzer v. State, 399 So.2d 133, 135 (Fla. 5th DCA 1981); DeForest v. State, 356 So.2d 52, 53 (Fla. 1st DCA 1978).

Affirmed as modified and remanded for further proceedings.


text:
    POINT ROYALE REALTY, INC., Appellant, v. Joseph M. ARMBRUSTER, Appellee.
    No. 82-1394.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Krause, Reinhard, Pozen & Dobelstein, and Ronald Dobelstein, Miami, for appellant.
    George, Hartz, Burt & Lundeen, and Michael Goldberg, Miami, for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977); Florida Power & Light Company v. Gilman, 280 So.2d 15 (Fla. 3d DCA 1973).


text:
    Lilia STYLES, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a foreign corporation licensed to do business in the State of Florida, as Subrogee for Flora J. Stringer, as parent and natural guardian of Patrick Stringer, Appellee.
    No. 82-1685.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.

      Jonas & Jonas, and Daniel Jonas, Miami Beach, for appellant.
    Ludovici & Choos, Miami, for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   PER CURIAM.

A showing that the sheriff attempted, unsuccessfully, to personally serve the defendant with process at her home, each occasion being a workday, after 8:00 a.m. and before 6:00 p.m., when appellant’s place of employment was known to the appellee, is not evidence that appellant was concealing her whereabouts or avoiding process so as to justify substituted service pursuant to Section 48.161, Florida Statutes (1977). Bird v. International Graphics, Inc., 362 So.2d 316 (Fla. 3d DCA 1978). The order denying appellant’s motion to vacate the final judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Hertha HORNER, Appellant, v. William Lloyd HORNER, Appellee.
    No. 82-1746.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Casoria, Goff & Friedman and George H. Aslanian, Jr., Fort Lauderdale, for appellant.
    Richard H.W. Maloy, Coral Gables, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We reverse the order approving a general master’s recommendation that the appellee-husband’s visitation rights be restored because the order of reference did not include the matter, thus rendering the master’s determination a nullity. Waszkowski v. Waszkowski, 367 So.2d 1113 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979); Sniffen v. Sniffen, 382 So.2d 823 (Fla. 4th DCA 1980).

      . In addition, the record shows that the wife was not given fair notice that the issue would be considered at the hearing before the master. Barreiro v. Barreiro, 377 So.2d 999 (Fla. 3d DCA 1979).


text:
    CITY OF MIAMI, Appellant, v. BAILEY & DAWES, a professional association, and Guy B. Bailey, Jr., d/b/a Law Offices of Guy Bailey, Jr., Appellees.
    No. 82-1801.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Jose R. Garcia-Pedrosa, City Atty., and Mikele S. Carter, Asst. City Atty., for apel-lant.
    Bailey & Dawes and Jesse C. Jones and Mercedes C. Busto, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The city employed the appellees to prosecute a certain cause of action relating to a parcel of real property. City of Miami v. St. Joe Paper Company, 347 So.2d 622 (Fla. 3d DCA 1977); City of Miami v. St. Joe Paper Company, 364 So.2d 439 (Fla.1978); City of Miami v. St. Joe Paper Company, 441 U.S. 939, 99 S.Ct. 2153, 60 L.Ed.2d 1040 (1979).

Before the matter was concluded the city exercised the right to terminate the relationship as a policy matter in the best interests of the city. The contract of employment in this regard, read in part as follows:

If the firm of PETTIGREW & BAILEY is not proceeding in the best interest of the City of Miami, the City may cancel the contract, reimbursing PETTIGREW & BAILEY for its work done until the point of cancellation.

Subsequent to the dismissal of the suit then pending in the U.S. Supreme Court, the city refused to pay any fees. An action was instituted by the appellees to collect same and a summary judgment on liability was entered in favor of the appellees. The appeal ensued. We affirm.

When the city, as a policy matter, elected to terminate the services of the counsel in the city’s “best interest” in accordance with the contract, they assumed the responsibility to pay a reasonable fee for services rendered in accordance with the same provisions of the employment agreement. City National Bank of Miami v. Citibank, N.A., 373 So.2d 703 (Fla. 3d DCA 1979).

Therefore the summary judgment on liability be and the same is hereby affirmed.

      . The case was on rehearing, and therefore was still pending. See Southern Title Research Co. v. King, 186 So.2d 539 (Fla. 3d DCA 1966); Knights of the Ku Klux Klan Realm of Louisiana v. East Baton Rouge Parish School Board, 679 F.2d 64 (5th Cir.1982); 1 C.J.S., Actions § 142.


text:
    Artis WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2496.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 1982.
    Artis Wright, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The appellant seeks review pursuant to Fla.R.App.P. 9.140(g) of the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850. We agree with the trial court’s determination that the allegations of the motion are legally insufficient to support the relief sought. Bohn v. State, 354 So.2d 1233, 1234 (Fla.3d DCA 1978) and cases cited.

Affirmed.


text:
    FLORIDA POWER AND LIGHT COMPANY, Appellant, v. Johnny M. CHATMAN, Appellee.
    No. AI-190.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Albert E. Harum, Jr., Miami, for appellant.
    Edward H. Hurt of Hurt & Parrish and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers’ compensation order awarding temporary total disability benefits from January 15, 1981, and continuing so long as the claimant remained temporarily and totally disabled. The employer/carrier urges that this award was unsupported by competent substantial evidence, as there was neither medical evidence that claimant was unable to work after January 15, 1981, nor a conscientious work search. We agree and reverse.

Claimant Chatman is 28 years old with a high school education and work experience as a truck driver, meter reader, laborer and cement finisher. On June 6, 1980, while employed by appellant Florida Power and Light Company as a mechanic and maintenance helper, he sustained a lumbosacral sprain while using a sledge hammer on concrete. The deputy accepted the testimony of claimant’s chiropractor, Dr. Woodall, that claimant reached orthopedic maximum medical improvement on December 17,1980 with a “minimal” permanent orthopedic disability of five percent of the body as a whole. At the time of Dr. Woodall’s last examination on this date, the only orthopedic complaint claimant had was dull lower back and leg pain if he was under physical stress or on his feet too long.

Dr. Mutter, a psychiatrist who initially examined claimant on August 13, 1981, felt claimant had sustained a depressive reaction related both to the industrial accident and to marital difficulties but that he was able to work with the sole restriction that he not be required to concentrate for long periods. By September 23, 1981, Dr. Mutter felt that even this concentration problem was “lifting.”

Claimant concedes that he is able to work but was not “sure what kind of work [he] wanted [or] what kind of career,” and stated that he “just didn’t want to take anything,” such as a newspaper delivery job. Claimant further admitted that many of the jobs he had applied for were in areas in which he had no experience and that the reason he was not working prior to August 7, 1981 was because of the lack of desirable openings and his uncertainty regarding his career. Prior to October 8, 1981, there was evidence that claimant had recently conducted a job search out of state, but there was no testimony as to the kinds of jobs applied for or whether they were within claimant’s physical restrictions. Therefore, due to the lack of evidence of inability to work or of a sufficient work search, the award of temporary total disability benefits subsequent to January 15, 1981 is not supported by competent substantial evidence and must be reversed. See, Conshor, Inc. v. Barnhardt, 422 So.2d 946 (Fla. 1st DCA, 1982).

BOOTH and WIGGINTON, JJ., concur.

WENTWORTH, J., dissents without written opinion.


author: SHIVERS, Judge.

text:
    William Earl CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. AJ-172.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.

      Nathaniel Dedmond, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

William Earl Campbell appeals trial court’s order denying his motion to suppress search warrant issued in this cause and all evidence seized thereunder. We reverse.

Appellant Campbell pled nolo contendere to the charge of possession of controlled substances in violation of section 893.13(1), Fla.Stat. (1981), and was adjudged guilty. The information charging Campbell with the crime was based on evidence obtained pursuant to a search warrant. Campbell moved to suppress the evidence seized on the basis that the search warrant was invalid and issued without probable cause.

Campbell argues that the trial court erred in denying his motion to suppress because the affidavit in support of the search warrant does not meet the Aguilar-Spinelli test for reliability. (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). Campbell specifically contends that the affidavit does not indicate whether the confidential informant was known to the affiant to be reliable. Appellant maintains this omission requires reversal of the trial court’s denial of Campbell’s motion to suppress. See Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977).

The State maintains that the affidavit was not based on hearsay but on the independent observations of the affiant. Thus, the State asserts, the trial court did not err in denying appellant’s motion to suppress, even though the State did not establish the reliability of the confidential informant in the affidavit.

It is not necessary to determine whether the affidavit satisfies the Aguilar-Spinelli test. Even considering the hearsay statements, the affidavit is insufficient to justify the issuance of a warrant to search the premises.

In State v. Gieseke, 328 So.2d 16 (Fla.1976), the Florida Supreme Court held that where an affiant in an affidavit personally supervises a “controlled buy” resulting in the purchase of marijuana from within a described premises, that fact alone establishes sufficient probable cause to justify a warrant to search the premises, even where hearsay testimony from a confidential informant is contained in the affidavit. The court further held that the successful “controlled buy” was a sufficient demonstration of the probable reliability of the informant’s hearsay statements relative to the presence of additional contraband on the premises.

In State v. Baxter, 356 So.2d 1250 (Fla. 1st DCA 1978), our court was confronted with a factual situation somewhat similar to Gieseke but reached a contrary result. There, the affiant, a police officer, stated that he had searched the informant before he entered the house and found him to be free of drugs, had observed the informant enter a building, and had searched the informant upon leaving the building and discovered a controlled substance described as valium, percodan, dexamyl and dilauid in his possession. We held that this evidence was insufficient to justify the issuance of a warrant to search the premises. In reaching that holding, we noted that:

... the controlled substance, valium, per-eodan, dexamyl and dilauid, are medicines not infrequently prescribed by physicians and dispensed by pharmacists. For aught that appears in the affidavit the confidential informant slipped into the appel-lee’s residence, surreptitiously removed medication from a container bearing a prescription number and slipped back to the place where the officer, affiant, was waiting. There is no allegation that the controlled substances were illegally obtained, illegally retained nor that the quantity turned over to the officer by the informant was either sold or delivered by appellee or any occupant of said residence to said informant, (emphasis supplied)

Id., at 1251.

We further noted that:

Obviously the recitations in the affidavit will be different, depending on the facts of each case, and whether the controlled substance is an ordinary prescription drug or contraband such as marijuana or heroin, (emphasis supplied)

Id., at 1251.

Based on the above facts, Baxter is distinguishable from Gieseke on two grounds. First, in Baxter, unlike Gieseke, there is no evidence of a “controlled buy.” Second, Baxter and Gieseke are distinguishable based on the fact that the controlled substances in Baxter (valium, percodan, dexa-myl, dilauid) are drugs which may be legally obtained and possessed with a prescription. Marijuana, on the other hand, the controlled substance in Gieseke, is a Schedule I drug which has no currently accepted medical use. See section 893.03 (l)(c), Fla.Stat. (1982).

The facts of the instant case appear to be identical to those presented in Baxter. The affidavit states, in part:

That within the past five days, the affi-ant was contacted by a confidential informant, who stated that Quaaludes were being kept and sold at the above described location. After first searching the confidential informant and finding no drugs, the affiant observed the confidential informant go to and enter the above described location, staying approximately five minutes. The affiant then observed the confidential informant leave the above described location, returning directly to the affiant, turning over a quantity of white pills which appeared to be Quaalude. The affiant then field tested the substance with a Narcoban Test Kit, which proved positive for Methaqualone (Quaalude). From the above stated facts, the affiant does believe that Quaalude is being kept and sold at the above described location.
And I am satisfied that there is probable cause to believe that the property so described is being concealed on the (person), (premises), motor vehicle(s) above described and that the foregoing grounds for application for issuance of the search warrant exist.

Based on a reading of the above, it is apparent that the present case is distinguishable from Gieseke on the same grounds as Baxter. Here, there is no allegation or evidence to indicate the presence of a “controlled buy.” In addition, at the time of the crime, the controlled substance in this case, like the controlled substance in Baxter, had some accepted medical use. See section 893.03(2)(c), Fla.Stat. (1981). Based on these distinctions and the authority of Baxter, we reverse.

We note, however, that in 1982 the Legislature changed the classification of metha-qualone from a Schedule II to a Schedule I drug. See section 893.03(l)(d), Fla.Stat. (1982). Although we note this change, we do not address the question of whether our decision in this case would be any different under the 1982 statute.

REVERSED and REMANDED with direction to vacate the order denying appellant’s motion to suppress the evidence, and to grant the same.

ROBERT L. SMITH, Jr., C.J., and THOMPSON, J., concur.


text:
    CITRUS CENTRAL and Professional Administrators, Inc., Appellants, v. Buman PARKER, Appellee.
    No. AK-169.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.

      Richard H. Weisberg of Cooper & Riss-man, Orlando, for appellants.
    Bill McCabe of Sheperd, McCabe & Cooley, Orlando, for appellee.
   SHIVERS, Judge.

In this workers’ compensation case the employer/carrier appeals the final order of the deputy commissioner which found ap-pellee, Parker, entitled to wage-loss benefits. We agree with appellant and reverse.

Appellee Parker, claimant below, was employed as a truck driver for Citrus Central. On April 9,1980 Parker fell and injured his right hip and back. Parker suffered a herniated disc and came under the care of Dr. Kim, an orthopedic surgeon, who performed a lumbar laminectomy on May 27,1980. In October 1980, Dr. Kim discharged Parker to return to work with a five percent permanent physical impairment. Physical limitations imposed by Dr. Kim included no lifting in excess of thirty pounds and limited driving of no more than two hours at any one time. Parker returned to work for Citrus Central at that time and worked continuously thereafter until April 5, 1981. Parker testified that he found the work very difficult upon his return to Citrus Central and that the bouncing he experienced while driving a truck was very uncomfortable.

At the time of Parker’s injury he was earning $6.94 per hour. Upon his return to Citrus Central he performed various jobs at various rates of pay ranging from $7.09 per hour to $7.61 per hour. In April of 1981 Parker was laid off. The evidence is uncon-troverted that this layoff was due to the economic condition of Citrus Central and had nothing whatsoever to do with Parker’s injury or physical limitations.

On April 24, 1981 Parker began working for Aircraft Services International, Inc., in a job consisting of handling petroleum products and jet fuel. This job consisted of making sure that fuel was moved three miles from one tank to another, which meant that Parker’s driving was limited to approximately three miles per trip. Parker testified that this job was less physically demanding than his previous job with Citrus Central. Parker’s job with Aircraft Services paid $5.20 per hour with fringe benefits which amounted to $11.56 per week. In June 1981, Citrus Central attempted to recall Parker. Citrus Central, however, could not guarantee Parker how long he would remain back at work. Parker decided not to return to Citrus Central and to remain with Aircraft Services instead.

Parker testified that there were two reasons for not returning to Citrus Central. First, the job with Aircraft Services provided him with a permanent, year-round position, whereas the Citrus Central position was subject to relatively frequent layoffs. Parker felt that even though he was earning less money per hour, he would be better off in the long run because of the year-round nature of the Aircraft Services job. Second, the Citrus Central job was uncomfortable and difficult to perform. Parker testified that he is continuing to have difficulties with his back, that he can’t bend over, and that he gets an ache in his back if he stands a long time. There is no evidence in the record, however, that Parker is physically unable to perform the work at Citrus Central. On these facts, the deputy commissioner awarded wage-loss benefits, specifically finding that Parker acted reasonably in not returning to Citrus Central and that he did not voluntarily limit his income.

We find it unnecessary to reach appellant’s argument that the appellee voluntarily limited his income. Section 440.15(3)(b)2, Florida Statutes (1981), provides that before wage-loss benefits may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of compensable injury. The facts as found by the deputy commissioner here do not establish any causal connection between claimant’s injury and his wage loss. As we stated in Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), “We think a more plausible and reasonable interpretation of the burden of proof provision is found by relating it to the requirement of showing a causal relation between the injury and a change in employment status, and to the specific qualifications and limitations on wage loss entitlement mentioned in the statute. That is to say, the burden of proof provision is to require the employee to go forward with evidence showing a change in employment status due to the injury, and an adequate and good faith attempt to secure employment commensurate with his abilities so as to establish, prima facie, an economic loss and to show that he or she has not voluntarily limited his or her income or failed to accept employment commensurate with his or her abilities.” Id. at 876 (emphasis added). In the case at bar, the facts are uncontro-verted that following maximum medical improvement claimant returned to the very same job he had before he was injured, making more money than he had before he was injured, and that his eventual layoff in April 1981 was due to business conditions and in no way related to his injury. The deputy commissioner did not find, and there is no evidence in the record to support a finding, that claimant’s layoff had any causal connection whatsoever to his prior injury or subsequent partial disability and limitations. See, Southern Freightways v. Reed, 416 So.2d 26 (Fla. 1st DCA 1982); Sheraton Towers Hotel v. Roche, 408 So.2d 807 (Fla. 1st DCA 1982). Although it is possible that if the claimant had not been laid off, he would eventually have had to resign due to the pain and discomfort of his injury, to so find on the instant record would be pure speculation. Accordingly, the deputy commissioner’s order of February 3, 1982 is REVERSED.

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


author: BOOTH, Judge.

text:
    Donald DOWDELL, Appellant, v. STATE of Florida, Appellee.
    No. AK-465.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.

      Louis 0. Frost, Jr., Public Defender, and Lewis H. Buzzell, III, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from an order of the trial court denying petition for a writ of habeas corpus of appellant, who is held on a fugitive warrant issued by the Governor of Georgia. Appellant contends the warrant was defective in that it alleged that appellant was physically present in Georgia at the time of “the crime” and thereafter fled, whereas, in fact, his “crime” was violation of probation which occurred outside the State of Georgia.

The warrant states that the crime for which it is issued is “theft by receiving,” committed in the State of Georgia. The issue thus presented is whether the original offense, committed in Georgia, or the probation violation, which occurred in Florida, forms the basis for and controls the extradition demand. Under Section 941.03, Florida Statutes, the extradition demand must allege that the person charged was present in the demanding state at the time the crime was committed and that thereafter he fled from the state.

The trial court ruled as follows:

There remains a question as to whether or not the defendant is a fugitive.... It is uncontradicted that the defendant was not physically present in Georgia on October 12, 1981, the date that the alleged probation violation occurred. It has been stipulated by the parties that the defendant clearly was present in the State of Georgia on the date of the commission of the felony for which he was originally placed on probation. That felony being theft by taking or receiving stolen property.
There has long been a principle of law in this state that if a person violates his probation, by an act in another state, that act constitutes a violation of the crime for which he is on probation. Therefore he may be extradited to the state which placed him on probation for that crime.

The trial court, construing Section 941.03, Florida Statutes, correctly held that the extradition was based on the felony which occurred in Georgia.

In denying the petition for writ of habeas corpus, the trial judge relied in part upon Ex Parte Nabors, 33 N.M. 324, 267 P. 58 (1928), wherein the New Mexico Supreme Court, interpreting the Uniform Criminal Extradition Act, held that the original crime and not the violation of parole was controlling for extradition purposes. Florida adopted the Uniform Act, Chapter 941, Part I, Florida Statutes, in 1941, but to date no Florida cases have ruled directly on this point. However, the Florida Supreme Court, in Russ v. State, 313 So.2d 758, 760 (Fla.1975), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1976), rejecting a double jeopardy claim, held that probation violation “involves conduct which violates the terms of probation for an already-established criminal offense.” (emphasis theirs) The Russ case, supra, states the majority view that violation of probation is conduct which relates back to the original crime and further supports the holding below.

Affirmed.

McCORD and WENTWORTH, JJ., concur.

      . Cases from other jurisdictions having the Uniform Act are in accord with the trial court’s decision. Wynsma v. Leach, 189 Colo. 59, 536 P.2d 817 (1975), Tatum v. Cronin, 197 Colo. 227, 591 P.2d 97 (1979), State ex rel. Hall v. Hawkey, 263 N.W.2d 141 (S.D.1978), Wilkins v. Granrud, 178 N.W.2d 644 (N.D.1970), and Austin v. Brumbaugh, 186 Neb. 815, 186 N.W.2d 723 (1971).


text:
    Harrison W. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AL-75.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appel-lee.
   PER CURIAM.

We reverse appellant’s conviction of second degree murder, based upon the trial court’s failure to instruct the jury that the appellant could be convicted of third degree murder.

Murder is an offense divided into degrees. Rule 3.490, Florida Rules of Criminal Procedure, prior to October 1,1981, provided that when the information or indictment charges an offense which is divided into degrees, the court “shall in all such cases” charge the jury as to the degrees of the offense. This rule required an instruction on the degrees of the offense, even if there was no evidence of the lesser degree. However, by amendment effective October 1, 1981, Rule 3.490 was amended so as to provide that the judge “shall not instruct on any degree as to which there is no evidence.” Under the revised rule, as well as the revised jury instructions in criminal cases, a jury instruction on third degree murder was required in this case only if there was evidence of that offense. See, In The Matter Of The Use By The Trial Courts Of The Standard Jury Instructions In Criminal Cases, etc., [1981 FLW 305], case nos. 56,734 and 58,799, opinion filed April 16, 1981. The State concedes this, but contends that there is no evidence which would support a third degree murder conviction. We disagree.

The appellant’s repeated hitting and kicking of the victim clearly constitutes battery as defined by Section 784.03(1), Florida Statutes. Considering the severity of the injuries suffered by the victim as testified to by the doctors, the evidence would also be sufficient to show “great bodily harm,” which will support a conviction of aggravated battery under Section 784.045(l)(a), Florida Statutes. Defense counsel suggested at trial that battery or aggravated battery were underlying felonies sufficient to support a third degree murder finding. This court has so recognized. Webb v. State, 410 So.2d 944 (Fla. 1st DCA 1982); Harper v. State, 386 So.2d 808 (Fla. 1st DCA 1980). The error in failing to give the charge is reversible, not harmless. See, Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980).

No reversible error occurred with respect to the trial court’s rulings on the testimony of the pathologist. We agree, as argued by appellee, that the pathologist did not testify as to how the victim’s injuries were inflicted. The doctor testified to the nature of the injuries, and that some of those injuries were consistent with a blow by a fist, but that others would require greater force and were consistent with a kick, or other trauma. He further opined that a fracture of the hyoid bone is consistent with steady, strong pressure, but not with a blow by a fist, or the edge of a hand. Nothing in the doctor’s testimony was inconsistent with appellant’s version of the offense. This testimony is not beyond the expertise of the pathologist, as was the testimony in Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977).

In view of our reversal on other grounds, it is unnecessary to address the contention that a sentencing error occurred because of a misconception on the part of both the state and the defense as to the minimum sentence the trial court was required to impose upon appellant.

REVERSED and REMANDED for new trial.

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


author: WENTWORTH, Judge.

text:
    PETER HAYNES & SONS and Morrison Assurance Co., Inc., Appellants, v. John Arthur TURNER, Appellee.
    No. AL-340.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.

      Eugene W. Harris, of Harris, Wallace & May, Lakeland, for appellants.
    James W. Aaron, Sebring, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order, contending that the deputy commissioner erred in finding that an employment relationship existed and that claimant sustained an injury arising out of and occurring within the course and scope of his employment. We conclude that the deputy did not err and we therefore affirm the order appealed.

Claimant was a day laborer who had worked loading watermelons onto a truck for the employer. It was the employer’s practice to dispatch a van in the morning, providing transportation for prospective workers; the formal hiring process was then completed at the work site. After receiving such transportation, but before the formal hiring decision was made, claimant began spreading hay and then pulled a conveyor belt into a truck in preparation for loading; claimant testified that he often performed these activities upon arriving at the job site. Claimant then testified that as he was positioning the conveyor belt he slipped and fell backwards, whereupon his hand entered a fan duct and a finger was severed.

Employer/carrier’s witnesses disputed claimant’s testimony as to the circumstances of his injury, and further testified that claimant had previously been told not to return to the job site, and that claimant would have been refused employment during the formal hiring process. Claimant testified that he was not told to stay away, that he asked and was allowed to ride out in the van, and that everybody who went out in the van was put to work. Consonant with his function as a fact-finder, the deputy commissioner was entitled, in the context of the recited circumstances, to accept claimant’s testimony and reject the contrary testimony of employer/carrier’s witnesses. See Grillo v. Big “B” Ranch, 328 So.2d 429 (Fla.1976). We therefore conclude that the deputy did not err in finding that an employment relationship existed and that claimant sustained an injury by accident arising out of and occurring within the course and scope of his employment.

The order appealed is affirmed.

BOOTH and THOMPSON, JJ., concur.


text:
    James ALLEN and Josephine H. Allen, Appellants, v. Randolph S. ENSLOW, Peggy Enslow and State Farm Fire & Casualty Company, Appellees.
    No. AM-64.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1982.

      Bruce A. McDonald, of Emmanuel, Sheppard & Condon, Pensacola, for appellants.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lees.
   WENTWORTH, Judge.

This is an appeal from a final order of the circuit court, granting appellees’ motion to dismiss. We affirm.

Appellants are husband and wife who filed a complaint alleging that the husband was injured by a dog which ran into the street and attacked him as he rode by on his motorcycle. In addition to counts in strict liability against the dog owners (Chapter 767, Florida Statutes), the complaint alleged that the dog owners’ landlords negligently permitted the dog to be kept on their property when they “knew or should have known that persons passing on the streets adjacent to said premises may be attacked by said animal.” The trial court granted the appellee landlords’ motion and dismissed the complaint as to them, finding that because the incident occurred on a public right-of-way and not on appellees’ property, liability could not be imposed on them and their insurer.

Appellants urge that we extend the holding in Christie v. Anchorage Yacht Haven, 287 So.2d 359 (Fla. 4th DCA 1973), to this case. In Christie, our sister court held that where there was evidence (1) that the landowner knew that a dangerous dog was kept loose on the premises by an employee’s widow, (2) that persons regularly used a path across the property, (3) that such persons would not be aware of the risk involved, and (4) that the owner failed to warn of such dangerous condition or risk, a jury question was raised as to the landowner’s liability in negligence to one injured by the dog on the landlord’s premises. As appellants recognize, this court has refused to extend Christie to a situation where plaintiff was injured on her own property by wild animals alleged to be negligently maintained on the defendant landowner’s adjacent property by his employee, and with the defendant’s knowledge or notice, absent any interest in or use of the animals by the defendant landowner. O’Steen v. Kemmerer, 344 So.2d 313 (Fla. 1st DCA 1977). We are not persuaded by appellants’ attempt to distinguish O’Steen. That decision, precluding recovery in such circumstances by one injured on her own property, cannot in our opinion be reconciled with the asserted liability of the landlord in this case to one injured on the street by a tenant’s dog. Cf., collected cases, Anno. 81 A.L.R.3d 638.

The order is affirmed.

BOOTH and THOMPSON, JJ., concur.


author: RYDER, Judge.

text:
    Joseph C. PARRISH, Appellant, v. STATE of Florida, Appellee.
    No. 82-755.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1982.

      Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Joseph C. Parrish challenges his conviction and subsequent sentence for the crime of introducing contraband into a state facility in violation of section 944.47, Florida Statutes (1979). Parrish asserts that the trial judge erred in denying his motion to dismiss because the undisputed facts failed to establish a prima facie case that Parrish introduced the contraband into a correctional state institution.

The motion to dismiss filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) revealed that on August 23,1981 corrections officer Douglas Bercume was engaged in a routine shakedown search of the D-l dormitory of the Zephyrhills Correctional Institution. As part of the shakedown, Bercume was searching the cell occupied by Parrish. While engaged in the search of Parrish’s cell, it appeared to Officer Bercume that appellant was attempting to leave the immediate area and go towards the bathroom. Officer Bercume stationed himself between the bathroom and Parrish and ordered appellant to submit to a strip search. After Parrish removed his shorts, Bercume noticed a lump in the shorts as they lay on the floor. Upon further inspection, Bercume discovered that there was a pouch sewn into the inside of the shorts which contained a cigarette package which, in turn, contained a quantity of marijuana. Parrish was arrested and charged with the aforementioned crime.

At the hearing on appellant’s (c)(4) motion to dismiss, the state only orally traversed the motion and maintained, in essence, that because Parrish had possession of marijuana it necessarily followed that he, in fact, introduced the substance into the facility. There was absolutely no evidence adduced before or presented to the trial judge in support of this argument.

The trial judge denied the motion to dismiss and ruled that the factual circumstances, in short, mere possession of the marijuana, fell within the purview of the acts prohibited in the 1979 version of section 944.47. We disagree. The then section 944.47(l)(a) read in part:

It is unlawful to introduce into or upon the grounds of any correctional or penal institution..., or to take or attempt to take or send therefrom, any of the following articles ... to wit: .... 4. Any narcotic or hypnotic or excitative drug.... (emphasis added)

We hold that mere possession of marijuana without more evidence of introduction was not within the purview of this particular 1979 statute. In fact, the Florida State Legislature recognized that fact and amended the statute in 1981 to add a section encompassing mere possession of contraband as a prohibited act which would cover the factual situation involving Mr. Parrish here. The amendment, however, did not become law until October 1,1981, a little over a month subsequent to the occurrences surrounding Mr. Parrish sub judice.

We are aware of Dees v. State, 397 So.2d 1145 (Fla. 2d DCA 1981) and London v. State, 347 So.2d 639 (Fla. 4th DCA 1977). Although helpful, neither case is actually on point. Further, we do not believe our decision is in conflict with either, as in both cases there was evidence that the contraband found on each defendant was discovered during a search of the particular defendant immediately upon his return to the facility from activities outside the institution.

Finding that the mere possession of marijuana does not satisfy the state’s burden of proving even a prima facie case that violated the 1979 version of section 944.47 and finding, as well, no other evidence that Parrish introduced the contraband into a correctional state institution, we hold that the trial judge erred in denying appellant’s motion to dismiss. Accordingly, we REVERSE the order denying the motion to dismiss and set aside the judgment and sentence entered herein.

GRIMES, A.C.J. and NELSON, WILLIAM J., Associate Judge, concur.

      . 944.47(l)(c), Florida Statutes (1981).


text:
    STATE of Florida, Appellant, v. Marvin E. WHITE, Appellee.
    No. 82-1045.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    James H. Kynes of Winkles & Trombley, P.A., Tampa, for appellee.
   PER CURIAM.

This appeal raises the same legal questions considered in State v. Tate, 420 So.2d 116 (Fla. 2d DCA 1982). Therefore, upon the authority of that case, the order dismissing the information is hereby reversed.

GRIMES, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: HURLEY, Judge.

text:
    Henry Penn WENGER, Appellant, v. BREAKWATER HOMEOWNERS’ ASSOCIATION, INC., Appellee.
    No. 81-1492.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 31, 1983.

      Caron E. Speas of Law Offices of Brian M. Mark, Miami, for appellant.
    Linwood Cabot of Cabot, Wenkstern & Casteel, Fort Lauderdale, for appellee.
   HURLEY, Judge.

This appeal concerns the scope of authority of a homeowner’s association. The precise question is whether the Breakwater Homes Association has the authority to prevent a member/homeowner from adding a second story to his home. We answer in the negative and, therefore, reverse.

Breakwater is an exclusive subdivision in the City of Fort Lauderdale, Florida. It consists of fifty-nine single-story homes plus a community pool and other related facilities. The particular piece of property in question here was conveyed in 1960 from the Breakwater Beach Land Company to the original owners, a Mr. and Mrs. Burke. The warranty deed from Breakwater to the Burkes contained the following relevant provisions:

(4) ... no building, garage or other structure shall be constructed on the subject property without plans of such proposed building having first been submitted to the Board of Directors of Breakwater Homes Association, a nonprofit Delaware corporation, authorized to transact business in the State of Florida, and the approval thereof having first been obtained in writing from said Board of Directors.
* * # * * #
(8) The legal or equitable title to the property herein contained can only be owned during the duration of these restrictions by an approved member of the Breakwater Homes Association, so long as such association is in existence.

The deed further stated that the restrictions were to run with the land for twenty years.

Henry P. Wenger, appellant, purchased the Burkes’ property in 1976. Before doing so, and pursuant to the requirements of the deed, he joined the Breakwater Homes Association. At that time, the association had a by-law which permitted it to “establish rules and regulations for the use of the common facilities .... ” Pursuant to this enabling authorization, the association enacted article one, rule four which duplicated the deed restriction and provided as follows:

No building, garage or other structure or external structural change shall be constructed on any property unless such plans have first been submitted to and approved by the City of Fort Lauderdale Building and Zoning Department and then submitted to the Board of Directors of Breakwater Homes Association and their subsequent approval obtained in writing.

Sometime in late 1979 or early 1980, Mr. Wenger decided to add a second story to his home. He obtained a building permit from the City of Fort Lauderdale and submitted a request for approval to the association’s board of directors. The board, however, citing esthetics and uniformity within the subdivision, unanimously disapproved Mr. Wenger’s request. Thereafter, he initiated a declaratory action to contest the association’s power. The trial court ruled for the association and this appeal ensued.

The deed restrictions on the Wenger property expired in December, 1980. It also appears that on the date of trial, the other deed restrictions either had expired or were on the verge of expiring. Consequently, the court did not rely on the deed restrictions, but based its decision on a finding that the association possessed the power in question and that it had not been exercised in an arbitrary or unreasonable manner.

It is undisputed that Mr. Wenger, in making application for membership in the association, agreed to be bound by the bylaws and rules and regulations of the association. His agreement, however, was implicitly limited to valid by-laws, rules and regulations. Thus, the mere existence of the agreement does not resolve the underlying question of whether Article I, Rule 4, — the rule requiring association approval for external structural changes — is a valid exercise of the association’s powers. To answer this question we must turn to the source of the association’s power, its amended bylaws.

Article II, Section 1, indicates that the purpose of the association “is to provide its members with maintenance of individual residential property ... and of community facilities .... ” The terms “maintenance” and “community facilities” are defined in Article XI, Sections 1 and 2. “Maintenance” means “that the Corporation assumes the obligation to care for the lawns, trim the shrubbery, replace sprinkler heads, and from time to time, paint the exterior of the resident building including the roof.” “Community facilities” include the “[c]lub-house, pool, pond and other common grounds and artifacts not falling under individual ownership by lots or land parcels ... . ” Finally, Article V, Section 2 delineates the authority of the board of directors. The preamble to Section 2 indicates that the board “shall have the powers and duties necessary for the administration of the affairs of the corporation and may do all such lawful acts and things as are not by Statute or by the Certificate of Incorporation or by these Amended By-Laws, directed or required to be exercised or done by the members.” Subsection “c”, in turn, authorizes the board “to establish rules and regulations for the use of the common facilities owned by the corporation to be used by the membership, which rules and regulations shall be for the purpose of the safety, convenience and general welfare of the entire membership.”

It is well settled that a corporation may normally expressly exercise “only powers conferred by act of incorporation and implied power necessary to the performance of authorized functions.” Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 311, 144 So. 674, 676 (1932). Thus, we hold that the homeowners’ association exceeded its powers by promulgating the rule that individual construction would be subject to association approval. Accordingly, the trial court’s decision that the association was reasonably exercising its powers in denying Mr. Wen-ger’s request to build, cannot be sustained.

The cause is reversed and remanded for further proceedings consistent with this opinion,

DOWNEY and BERANEK, JJ., concur.