text:
    Stanley MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-678.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Rehearing Denied June 16, 1982.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), has taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850. The motion to vacate, the files and record in this case fail to conclusively show the petitioner is not entitled to relief, and he is therefore entitled to an evidentiary hearing on his Rule 3.850 motion. See, Francis v. State, 413 So.2d 1175 (Fla.1982), 7 FLW 186; Ivory v. State, 351 So.2d 26 (Fla.1977); Cole v. State, 181 So.2d 698 (Fla. 3d DCA 1966); Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960).

Reversed and remanded for evidentiary hearing.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    Charles Martin KALINOSKY and Joseph Lee Woodall, Appellants, v. STATE of Florida, Appellee.
    No. 80-1992.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Rehearing Denied June 9, 1982.
    Richard M. Gale, Miami, for appellants. Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellants were found with 46 bales of marijuana and convicted of trafficking in cannabis in excess of 100 pounds but less than 2,000 pounds. They raise four points on appeal, three of which merit discussion.

Appellants argue that the trial court committed reversible error in denying defense counsel’s motion to remove the 46 bales of marijuana from the courtroom at the close of the evidence and prior to closing argument. In an innovative argument, they contend that the odor emanating from the bales was marked and offensive, causing counsel to be physically ill, and prejudicing the jury. The question of whether defense counsel was too sick to effectively argue to the jury was for the trial court to determine. A review of the record demonstrates that the closing arguments of both counsel were lengthy; the record does not establish an impairment of their ability to conduct closing argument. We hold that the trial court did not abuse its discretion on this issue. In reaching this conclusion we caution that the trial court and counsel should be continually conscious of maintaining a proper atmosphere of judicial decorum in the courtroom. As for the issue of jury prejudice, appellants were charged with trafficking in 2,000 pounds or more of marijuana. Weight was an issue for the jury to determine and the bales were obviously relevant. We note that appellants were convicted of trafficking in less than 2,000 pounds of marijuana, even though the 46 bales weighed 2,860 pounds. Clearly, had the jurors been prejudiced by the offensive odor of the marijuana, they would have convicted appellants of the higher charge.

Appellants next urge that the trial court abused its discretion in limiting the voir dire examination of two jurors. During jury selection, defense counsel informed the court that the Fort Lauderdale News was publishing a series of articles on the criminal justice system in Broward County. The October 8, 1980, edition headlined drug cases although the instant case was not mentioned. When questioned, one juror informed the court that he had read only the headlines, but the second juror admitted to reading the entire article. Defense counsel requested that these jurors be examined individually and out of the presence of the other jurors for the purpose of determining what impressions and ideas these jurors developed from reading the articles. The trial court denied this request because both jurors stated they could be fair and impartial regardless of what they read.

The extent to which the parties may examine prospective jurors on voir dire is a matter within the sound discretion of the trial judge. Essix v. State, 347 So.2d 664 (Fla. 3d DCA 1977). We have reviewed the transcript of the voir dire examination which encompassed over 400 pages and find no abuse of discretion. As stated above, the articles were of a general nature and did not involve pre-trial publicity directed specifically at appellants’ case. We further note that defense counsel did not challenge the jurors for cause nor did they exercise their remaining peremptory challenge to remove either juror. Appellants having demonstrated no prejudice, we will not interfere with the exercise of the trial court’s discretion.

As to the third point, appellants argue that the drug trafficking statute, Section 893.135, Florida Statutes (1979), is unconstitutional. The Florida Supreme Court has ruled on this issue and has held the statute to be constitutional. See State v. Benitez, 395 So.2d 514 (Fla.1981).

We therefore affirm.

AFFIRMED.

DELL and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    Bryant William BOWLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-51.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Rehearing Denied June 9, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction and sentence for drug trafficking. On appeal it is asserted by appellant that the trafficking statute is unconstitutional; that evidence used against him was secured as the result of an improper search and seizure; that a statement was improperly used against him; that his motion for continuance was improperly denied; and that the trial court erred in instructing the jury. We affirm.

In our view appellant’s constitutional challenge must be rejected on the authority of Benitez v. State, 395 So.2d 514 (Fla.1981). As to the allegedly illegal search and seizure we believe there is competent substantial evidence in the record to support the trial court’s holding that no illegal search took place. We agree with appellant that the trial court’s finding of abandonment was not correct. However, we find abundant evidence in the record to uphold the action of the police in securing a search warrant to search appellant’s plane after appellant, who initially consented to a search of the plane, fled the scene. As to the admission of appellant’s oral statement, our examination of the record reveals that appellant failed to object to the introduction of such statement at trial and, hence, he is barred from raising the issue on appeal. Witt v. State, 388 So.2d 1 (Fla. 4th DCA 1980). We find no abuse in the trial court’s denial of the motion for continuance made at trial. See generally Vitiello v. State, 167 So.2d 629 (Fla. 3d DCA 1964) and Brown v. State, 224 So.2d 789 (Fla. 3d DCA 1969). Nor do we find that the trial court erroneously commented on the evidence in the instructions to the jury.

Accordingly, no reversible error having been demonstrated, the judgment of conviction and sentence are affirmed.

DOWNEY and ANSTEAD, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Timothy H. KENNEY, Esquire, Appellant, v. Paul VANDIVER and The Three V International Corporation, etc., et al., Appellees.
    Nos. 81-335, 81-436 and 81-967.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Rehearing Denied June 9, 1982.
    Harvey Kaufman of Winkel, Sims, Ken-ney & Crosswell, Palm Beach, for appellant.
    Donald P. Kohl and Gary S. Israel of Kohl, Springer, Springer & Varner, Palm Springs, for appellee Vandiver.
    George E. Mastics of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellee Three V.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

There is a saying, “Fool me once, shame on you. Fool me twice, shame on me.” Appellant, a lawyer, who during the course of certain litigation was hired to replace the plaintiff’s original lawyer, and who himself was subsequently discharged, then rehired, and finally discharged a second time, seeks review of (1) a judgment fixing the amount of his attorney’s charging lien against the funds generated by ultimate settlement of the client’s lawsuit, and (2) a post judgment order which permitted the lien against the funds to be discharged by payment of the judgment.

Because we reverse the judgment, an opinion is mandated. To facilitate a better understanding of the basis of our decision, an extensive recitation of facts is necessary. Thus burdened, and lacking, as it is, in foreseeable value as precedent, this opinion stands as a persuasive argument for the adoption of a rule permitting unpublished opinions on a selective basis.

Appellee, Mr. Vandiver, plaintiff in what was described as a complex lawsuit against a corporation owned and controlled by members of his family, enjoyed a succession of lawyers as his counsel. The lawyer whom he initially retained and who filed the lawsuit was discharged after six months. Mr. Vandiver then retained appellant for the agreed fee of $50.00 per hour plus costs. Fourteen months later, Mr. Vandiver discharged appellant and thereafter, for over a month, sought without success to retain other counsel. Mr. Vandi-ver then returned to appellant’s office and requested that he resume his role as counsel. Appellant agreed to do so. However, at that time appellant, as confirmation of the agreement reached, wrote Mr. Vandiver a letter dated November 21, 1978, which, in portions relevant to this issue, stated:

Pursuant to our conference of November 20, 1978, it is agreed that the undersigned will continue with representing you in the above-styled cause.
That commencing as of November 20, 1978, our hourly fee will be $65.00 per hour.
So as to cover the necessary costs that have been incurred and that will be incurred in the future, you will deposit with my office $500.00 as soon as possible. As to the remaining costs, they will be paid on a monthly basis of _ (fill in how much you feel you are going to be able to pay us each month so that we can note the file appropriately).
******
As of the present time, the total amount of your bill is $8,825.00 plus costs in the amount of $1,646.34. You presently have a balance on file with the Clerk’s office which I will ask the Clerk to release to us so that we can use that to cover some of the outstanding costs.
******
So that there won’t be any misunderstanding as to the fee arrangement that you and I have, as you can note the total fee up to date is as indicated with the hourly rate now commencing at the rate of $65.00 per hour.
******
If everything is in accordance with what you and I discussed on November 20, 1978, then I’d appreciate it very much if you would sign a copy which is enclosed for your convenience and return it to me at your earliest convenience. (Emphasis supplied).

On December 7, 1978, Mr. Vandiver signed and delivered to appellant a copy of the above letter thereby indicating his agreement with its content. Approximately ten months later, Mr. Vandiver again discharged appellant and retained new counsel. Appellant filed a claim for a charging lien for reasonable compensation. Subsequently the lawsuit was settled.

At the evidentiary hearing held to determine the amount of appellant’s charging lien, Mr. Vandiver testified that when he initially retained appellant, the latter agreed that the attorneys fees would not exceed $10,000. This testimony, though denied by appellant, formed the basis of the court’s finding that at the onset of appellant’s employment, the parties struck a bargain that the cost of the litigation, excluding costs, would not exceed $10,000. On the basis of that finding, and the court’s rejection of Mr. Vandiver’s unsubstantiated testimony of having made partial payments to appellant in cash (which appellant denied), the court awarded appellant $10,000 as a reasonable fee for services rendered to Mr. Vandiver. The court refused to award appellant any sums for reimbursement of costs expended, finding that the sum of $1,719.80 (which appellant acknowledged having received to apply on costs) equalled the total of legitimate cost incurred by appellant on behalf of Mr. Vandiver.

Appellant contends the trial court erred in not recognizing that the letter which appellant wrote to Mr. Vandiver under date of November 21, 1978, and which Mr. Van-diver signed and returned on December 7, 1978, indicating his approval, constituted either an account stated or a new contract between the parties. However, there could be no harm to appellant for the court refusing to recognize it as an account stated as of November 21, 1978, because, even had it done so, the status of the account at that point in time would not preclude the court’s finding that at the onset of employment the parties had agreed to a $10,000 limitation on the fee.

We are persuaded, however, that the court did err harmfully in failing to give effect to the letter agreement as a new contract between the parties by which Mr. Vandiver, in consideration of appellant agreeing to furnish him further representation in the pending litigation, agreed to pay (1) the sum of $8,325.00 for past legal services, and (2) the sum of $65.00 per hour for future legal services. The terms of this written agreement are not in dispute and Mr. Vandiver admitted that he signed and delivered the agreement to appellant. This was, in the purest sense, a novation, the parties having entered into an entirely new and unambiguous agreement of equal or greater dignity to the agreement first made with respect to the same subject matter. Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962). The effect was to make inapplicable the bargain between the parties which the court found to have been made at the onset of the initial employment, i.e., that the appellant’s fee would not exceed $10,000. In lay language, the letter agreement started “a whole new ball game.”

Mr. Vandiver contends that a great deal of the appellant’s time and services charged to this file were either exaggerated or exorbitant, and in either event, were unproductive and unnecessary to proper preparation of the case. While that may be a valid argument to address to services rendered subsequent to November 21, 1978, it should fall on deaf ears as to appellant’s services rendered prior to that date, Mr. Vandiver having expressly agreed to pay $8,325.00 for those services.

Our reversal of the judgment which established the amount of appellant’s charging lien at $10,000 is mandated because we perceive that the trial court held the parties to the bargain which it found they had made at the time of appellant’s original employment, without the court giving proper effect to the novation which occurred by the new letter agreement dated November 21, 1978. Appellant is entitled to have the amount of his charging lien set at $8,325.00, plus an additional amount at the rate of $65.00 per hour for the time after November 21, 1978, which appellant reasonably and necessarily spent on behalf of representation of Mr. Vandiver’s interest, the determination of which remains a matter within the discretion of the trial court. The court is at liberty to make that determination solely on the evidence previously submitted, or in its discretion, it may take additional evidence. No error has been shown in reference to the allowance for reimbursement of costs and out of pocket expenses.

The final judgment provided that appellant’s charging lien would be discharged upon, appellant’s “acceptance” of the $10,-000 fee and $150.00 in costs taxed for the proceeding. Appellee tendered this amount which appellant refused. The judgment was not superseded and the court did not err in authorizing disbursement of the remainder of the settlement proceeds.

REVERSED and REMANDED for further proceedings consistent herewith.

DOWNEY and HERSEY, JJ., concur.


text:
    CITY OF HALLANDALE, Appellant, v. PROSPECT HALL COLLEGE, INC., a private institution, Appellee.
    No. 81-977.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Rehearing Denied June 7, 1982.

      Richard Kane and James T. Schoenbrod, Hallandale, for appellant.
    Tom Bush of the Law Offices of Tom Bush, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final judgment which denied the City of Hallandale’s request for an injunction against an alleged zoning violation and granted Prospect Hall College’s counterclaim for mandamus ordering the City to issue a motel license to the College.

This suit arose in the following context. The College leased an oceanfront motel in Hallandale for use as a dormitory. When a controversy arose as to whether this use was in violation of the City’s zoning regulations, the College opened the facility to the public and provided a twenty-four hour desk clerk. In addition, rooms are rented to students on a semester basis at a lower rate than that charged to overnight guests. The City sought an injunction against the use of the facility as a dormitory alleging that such use created a nuisance and constituted a zoning violation. The nuisance count was subsequently abandoned. The College counterclaimed seeking mandamus for the issuance of a motel license by the City. We find that the injunction was properly denied and the mandamus was properly granted.

As to the injunction issue, we note that the area in which the facility is located is zoned as RM-25 Residential Multi-Family (High Density) District. Permitted residential uses in this district are listed as being: (a) multi-family residential dwellings; (b) hotels and motels; (c) single family residential dwellings, subject to RS-6 regulations; (d) two-family (duplex) residential dwellings, subject to RD-14 regulations; (e) nursing and convalescent homes; and (f) residential accessory uses. The record clearly indicates that the premises leased by the College are used partly as a motel and partly as a dormitory. Since zoning regulations are in derogation of private ownership rights, general zoning law provides that zoning ordinances are to be construed broadly in favor of the property owner absent clear intent to the contrary. 7 Fla. Jur.2d Building, Zoning and Land Controls § 59 (1978). Applying this reasoning, we can find little, if any, difference between the permitted hotel and nursing home uses and a dormitory since both of those permitted uses often involve long-term residency. Thus, the injunction was properly denied.

We also find that mandamus was properly granted since the facility was clearly being used as a motel. The College maintains a front desk, a staff of employees on a twenty-four hour basis, is licensed by the state hotel licensing board and the state food service licensing board, has a Broward County Health permit and has advertised with the Hallandale Chamber of Commerce and the American Automobile Association. Under these circumstances, the College certainly has a right to an occupational license for the operation of a motel and the court properly granted mandamus ordering the City to issue such license.

AFFIRMED.

BERANEK, DELL and WALDEN, JJ., concur.


text:
    Joan Bonnie BERZNER, Appellant, v. HOSPITAL DEVELOPMENT AND SERVICE CORPORATION, a Florida corporation, d/b/a Plantation General Hospital; Al Quartin, Sunny Hendrix and Anita Young, jointly, severally and individually, Appellees.
    No. 81-1344.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Rehearing Denied June 8, 1982.
    Robert W. Heaton, Jr., of Sobo, Wellens & Balocco, Fort Lauderdale, for appellant.
    Jefferson D. Kirby, III, and Mary K. Hig-ginbotham of Ford, Harrison, Sullivan, Lowry, Sykes, Atlanta, Ga., and William M. O’Bryan of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from an order dismissing Plaintiff’s initial Complaint for damages. It was done without leave to amend on the ground that jurisdiction was preempted by the National Labor Relations Board.

Plaintiff was a nurse employed by the Defendant-Hospital. She alleged that she was discharged because of certain labor activities. Plaintiff’s complaint contained six counts stemming from her discharge and circumstances surrounding it.

It is conceded that Count one was properly dismissed for the reason stated. The remaining Counts incorporate by reference Count one, and they sound in tort of various kinds.

In this appeal Plaintiff asserts, as could be expected, that the lower tribunal erred in dismissing her complaint, and particularly, dismissing it with prejudice, while Defendants contend that all counts are properly and solely within the jurisdiction of the National Labor Relations Board.

Because of the admixture of the Counts we cannot, at this stage, without in effect pleading Plaintiff’s case for her, determine if Plaintiff could amend her complaint so as to eliminate Count one and so as to state a cause of action within the jurisdiction of our state Court System. It may be that Plaintiff can fit her Counts or some of them within the exceptions to the preemption doctrine as delineated in Sears, Roebuck & Co. v. San Diego County District of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977); Linn v. Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). It may be that Plaintiff can disassociate her grievances or some of them from her labor activities.

And so, the record and authorities considered, we hold that Plaintiff should have an opportunity to amend her Complaint if she is so advised. Blue v. Weinstein, 381 So.2d 308 (Fla.3d DCA 1980).

Reversed and Remanded for proceedings consistent herewith.

HERSEY, WALDEN, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Johnny PUTTS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-257.
    District Court of Appeal of Florida, First District.
    May 5, 1982.
    Rehearing Denied June 7, 1982.
    Johnny Putts, appellant pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for appellee.
   PER CURIAM.

The petition for writ of mandamus has been treated as a notice of appeal and appellant’s brief. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). The action of the Florida Parole and Probation Commission is affirmed.

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


author: SCHWARTZ, Judge.

text:
    Carlton HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1904.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rehearing Denied June 17, 1982.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   SCHWARTZ, Judge.

As held in Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981) and Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981), it was improper to admit hearsay evidence as to the basis for the inclusion of the defendant’s picture in a photographic lineup. Unlike those cases, however, the in-court identification of the defendant was not severely challenged, and there was no alibi or other defense asserted. It therefore clearly appears from this record that the error was harmless. Section 924.33, Fla.Stat. (1979).

Affirmed.


text:
    HULL & COMPANY, INC., Appellant, v. James McGETRICK, as representative of Underwriters at Lloyd’s, London, Dominion Insurance Co., Ltd., and Excess Insurance Co., Ltd., Appellees.
    No. 82-42.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rehearing Denied June 17, 1982.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, and Joseph H. Lowe, Miami, for appellant.
    Boyd, Jenerette, Leemis & Staas, P.A., and Charles T. Boyd, Jr., Jacksonville, for appellees.

      Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

This is an appeal from a summary judgment holding that Hull & Co., Inc., a third-party defendant below, is required to indemnify the third-party plaintiff, Lloyd’s of London (represented by James McGetrick) for a judgment secured against Lloyd’s by one of its insureds. We reverse.

The underlying litigation was brought by Edward L. Ball alternatively against Lloyd’s on a policy insuring a valuable ring and, if it were determined that there was no coverage, for negligence against Ball’s insurance agent, Smith-Lesher Insurance, Inc. The primary issue in the case was whether Lloyd's was charged with knowledge of adverse information concerning the risk, which, if it were not known to Lloyd’s, would have voided the policy; if it were known, since Lloyd’s did not cancel, the company would remain responsible for the loss. A Smith-Lesher employee, Pittman, testified that he had transmitted the information to Gerald Seligman, an underwriter who was employed by Hull & Co. Seligman completely contradicted Pittman, stating by deposition that he had been told no such thing. Lloyd’s defended against Ball’s action on the grounds that (a) Seligman and not Pittman was telling the truth, and (b) even if he were not, based on the admitted fact that no one had told Lloyd’s itself, Seligman’s knowledge was not imputable to Lloyd’s. On the latter issue, Lloyd’s position was that Hull was merely an independent broker and contractor rather than its agent. After a non-jury trial, the judge rejected both contentions and entered a judgment in Ball’s favor against Lloyd’s which was affirmed in Underwriters at Lloyd’s, London v. Ball, 412 So.2d 498 (1981).

Since, in the light of the issues tried and decided, Lloyd’s liability to Ball was based solely upon what Hull & Co. was found to have been told but did not forward to Lloyd’s, the determinations inherent in the judgment give rise to a clear right of indemnity by Lloyd’s against Hull. 12 Fla. Jur.2d Contribution, Indemnity, and Subro-gation § 13 (1979). Nevertheless, the summary judgment, which was obviously founded upon this theory, cannot stand. This is because the purported indemnitor, Hull, is not under the circumstances bound as a matter of law by the conclusions inherent in Ball’s judgment against Lloyd’s. It is well settled that a judgment rendered against an indemnitee like Lloyd’s is conclusive for res judicata or estoppel by judgment purposes against a potential indemnitor like Hull — but only upon the condition that the indemnitor has been given timely notice and an opportunity to appear and defend the action. MacArthur v. Gaines, 286 So.2d 608 (Fla.3d DCA 1973); Olin’s Rent-A-Car System, Inc. v. Royal Continental Hotels, Inc., 187 So.2d 349 (Fla. 4th DCA 1966), cert. denied, 194 So.2d 621 (Fla.1966); Westinghouse Electric Corp. v. J. C. Penney Co., 166 So.2d 211 (Fla. 1st DCA 1964); see Hoskins v. Midland Ins. Co., 395 So.2d 1159 (Fla.3d DCA 1981); Sol Walker & Co. v. Seaboard Coast Line R. Co., 362 So.2d 45, 52 (Fla.2d DCA 1978) (quoting from Restatement of Judgments § 106 (1942) that judgment binding on co-defendant in indemnity action “if and only if the other had an opportunity to defend or to participate in the defense.” [e.s.]) The condition was not satisfied in this case. Although leave to file it was secured before, the third-party complaint for indemnity was not served upon Hull until after the trial and the entry of judgment against Lloyd’s; thus its pend-ency plainly gave the alleged indemnitor no effective notice of Ball’s lawsuit. See Wright v. Fidelity & Casualty Co. of New York, 139 So.2d 913 (Fla. 1st DCA 1962); Annot. — Sufficiency and timeliness of notice by indemnitee to indemnitor of action by third person, 73 A.L.R.2d 504, 536-37 (1960). Moreover, there is nothing in the record which indicates that Lloyd’s “vouched in” Hull, or informed it and sought defense of the action in any legally meaningful extrajudicial way. See Hoskins v. Midland Ins. Co., supra, at 395 So.2d 1162 (Nesbitt, J., specially concurring); Olin’s Rent-A-Car System, Inc. v. Royal Continental Hotels, Inc., supra. In this regard, we cannot accept the suggestion that notice and opportunity may be imputed to Hull, merely because one of its employees, Selig-man, appeared as a witness in the case. Annot., supra, 73 A.L.R.2d at 509-511.

When, as is thus true here, there is no notice the indemnitee must, ab initio and irrespective of the prior action, establish— and the indemnitor is of course free to contest — the facts which support the right to indemnification. MacArthur v. Gaines, supra, at 286 So.2d 610; Wright v. Fidelity & Casualty Co. of New York, supra; 46 Am.Jur.2d Judgments § 553 (1969); 42 C.J.S. Indemnity § 32(2) (1944). In fact, as was said in Orth v. Consumers’ Gas Co., 280 Pa. 118, 124 A. 296, 297 (1924):

If notice ... is not given, then, in a subsequent proceeding to obtain indemnity, the plaintiff must establish his claims for damages without reference to the amount of the judgment in the prior action against him (31 C.J. 453, 463, §§ 53, 62); in other words, under such circumstances the plaintiff in the second suit is not barred from recovery, but there is placed on him the burden of justifying his payment of damages to the person who sued him, by offering against the defendant in the second suit practically the same evidence as was relied on to establish the case against him, the plaintiff, when he was defending the first suit. [e.s.]

Thus, Lloyd’s is placed in the ironic position of attempting to establish against Hull just the opposite of what it unsuccessfully claimed in defense of Ball’s case against it: that Pittman did tell Seligman, or that Hull’s knowledge through Seligman was insufficient to bind Lloyd’s. Since there are obvious conflicts on these issues, the summary judgment must, for the reasons stated, be reversed for trial. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed.

      . Consistent with this finding, the court also entered judgment in favor of Smith-Lesher.

      . Thus affording Lloyd’s the opportunity to cancel the coverage or reject a renewal application.

      . Even though he did so as to the issues which are determinative as to both Ball’s case against Lloyd’s and, now, Lloyd’s against Hull.


author: BARKDULL, Judge.

text:
    Katherine CARAVASIOS, Appellant, v. M. W. SPATES CONSTRUCTION, et al., Appellees.
    No. 82-113.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rehearing Denied June 8, 1982.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul Siegel, Miami, for appellant.
    John P. McMath, Miami, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BARKDULL, Judge.

Katherine Caravasios, an employee of the Miami-Dade Water & Sewer Authority, was injured on the job. Both she and her husband sued the two construction companies who were then working on the premises. The husband claimed medical expenses; Katherine did not. Ultimately, the jury returned a verdict of $160,000.00 in favor of Katherine and $0 in favor of her late husband’s estate. Katherine settled for $150,-000.00 to avoid an appeal.

Old Republic, the worker’s compensation carrier for the Water & Sewer Authority, filed its motion for equitable distribution, seeking half of the monies paid out for medical bills and disability benefits as well as half of all future compensation. Old Republic also sought to recover on penalties and interest it had paid, as well as fees it paid to an expert witness who examined Caravasios and testified at the compensation hearing. Caravasios objected to Old Republic’s claim and moved for attorney’s fees.

The trial court entered an order finding that the applicable statute provided for recovery of “50% of what [the carrier] had paid and future benefits to be paid...” and that the total amount of medical payments was $9,485.95 and the total amount of disability benefits was $16,505.67. The court then ordered Caravasios to reimburse Old Republic for half of those two totals and, recognizing that future benefits were unliquidated, ruled that Old Republic could simply reduce future payments by half.

The appellant contends that (1) when an injured employee recovered nothing from the tortfeasor for past or future medical expenses, the carrier should not be entitled to reimbursement; (2) permitting the carrier to recover one-half the penalties and interest assessed against it defeats the whole purpose of the worker’s-compensation statute, which has penalty provisions to assure prompt payment. Although the Supreme Court has found the penalty payment to be “compensation” for purposes of taxing attorney’s fees [Lockett v. Smith, 72 So.2d 817 (Fla.1954) ], the same characterization should not be applied where the carrier seeks reimbursement. (3) Section 440.39, Florida Statutes (1975), permits reimbursement for medical benefits paid, not litigation expenses in the form of expert witness fees.. (4) The carrier’s 50% reduction of all future benefits could exceed the amount of Caravasios’ recovery from the tortfeasor. (5) Caravasios was entitled to attorney’s fees incurred in resisting the reimbursement claim.

As to the first contention, we find no merit and affirm. The statute permits recovery upon any judgment. Section 440.-39(3)(a) Florida Statute (1975). As to the second contention, we find merit and reverse. It would go contrary to the intent of the statute to permit a delinquent carrier to recover one-half of penalties and interest it was required to pay because of its dilatory response to the claimant’s claims in the first instance. Therefore, we reverse this portion of the order under review.

As to the third point, we affirm the award for professional services, the appellant having failed to demonstrate that the amount awarded was for a fee for testimony.

As to the fourth point, the maximum amount that the carrier can recover is capped by the amount received by the claimant. State Department of Health and Rehabilitative Services v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981).

As to the last point, we affirm the denial of attorney’s fees in the trial court on the initial establishment of the equitable claim. Universal Engineering Corporation v. Cartier, 380 So.2d 1160 (Fla. 3d DCA 1980). However, we will allow a fee in this court for services rendered in sustaining the fee awarded under the reasoning of Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977).

Therefore, for the reasons above stated, we modify the order under review by striking from the award the amount of $1,090.18, representing the penalties and interest recovered.

As modified, the order under review is affirmed.

      . Section 440.39(3)(a) Florida Statutes (1975).

      . This case is governed by the compensation laws that existed in 1975.


author: HERSEY, Judge.

text:
    Larry Wayne CARROLL, Appellant, v. STATE of Florida, Appellee.
    No. 81-1240.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Rehearing Denied June 16, 1982.

      Richard L. Jorandby, Public Defender, and Thomas L. Rolle, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

The trial court sustained a state objection and excluded defense photographic exhibits without conducting a Richardson hearing. (Richardson v. State, 246 So.2d 771 (Fla.1971)). Since “[a] Richardson inquiry is designed to ferret out procedural prejudice occasioned by a party’s discovery violation,” Smith v. State, 872 So.2d 86, 88 (Fla.1979), it is a mandatory component of the trial court’s decision-making process. Failure to conduct a Richardson inquiry requires automatic reversal. Smith v. State, supra; Kilpatrick v. State, 376 So.2d 386 (Fla.1979); Cumbie v. State, 345 So.2d 1061 (Fla.1977); cf. Cuciak v. State, 410 So.2d 916 (Fla.1982).

Accordingly, we reverse and remand for a new trial.

Appellant stands convicted of burglarizing a vehicle and stealing a radio from that vehicle. The testimony establishes that he was observed by a law enforcement officer as he entered a 1979 Ford Bronco parked on a used car lot from which he exited carrying a shiny-chrome-aluminum-type box which he placed in his own vehicle. He then attempted to drive away but was stopped by the officer who found on the front floor of the passenger side of appellant’s vehicle an AM-FM stereo cassette radio, a pair of pliers and some radio knobs.

Appellant’s defense was that sometime earlier he had installed the radio in a truck owned by his employer but used almost exclusively by appellant. Upon later being advised that the truck would no longer be at his disposal he removed the radio. This was alleged to have occurred more than two weeks prior to the incident resulting in appellant’s arrest.

At trial appellant attempted to introduce into evidence a photograph of his employer’s truck and a photograph of the dashboard of the truck showing a void where a radio might otherwise have been.

The state objected to the introduction of the photographs for failure of appellant to comply with the applicable discovery rule. The photographs were excluded. No Richardson inquiry was undertaken by the trial court.

We have concluded that the per se reversible error rule of Richardson v. State, supra, requires that we award appellant a new trial. We do so with great reluctance.

The proffered evidence appears to have little if any probative value. Surely the photograph of an empty truck lends absolutely nothing to appellant’s defense. The second photograph, showing a truck’s dashboard in which is a gaping hole, once the supposed repository of a radio, lends credence to appellant’s story only if supported by a string of inferences which stretch so thin as to endanger if not to destroy fundamental concepts of relevance. At best the culminating inference is cumulative. Thus, if exclusion had been based upon a rule of evidence, it is doubtful if error could have been shown and it is certain that prejudice could not have been shown. At worst, any error would have been considered harmless.

Because of the serious consequences of a violation of the Richardson rule a word about its appropriate application seems in order. Initially the rule was formulated to ensure fairness to a defendant in a case in which the state had violated a discovery rule. In a case in which the trial court refused to exclude states’ witnesses whose names had not been disclosed to the defense despite defendant’s activation of then Rule 1.220(e) of the Florida Rules of Criminal Procedure (now Rule 3.220), this court held that refusal to impose the sanction of exclusion was not per se reversible error. However, said Judge Owen, while the matter is discretionary

[1]f ... it is brought to the attention of the trial court that the state has failed to comply with Rule 1.220(e) CrPR, the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.

Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970). This language was quoted with approval by the supreme court in Richardson and the rule was instituted that failure to conduct such an inquiry constituted per se reversible error. The reverse edge of this sword was unsheathed in Bradford v. State, 278 So.2d 624 (Fla.1973), holding that it was per se reversible error to fail to conduct a Richardson-type inquiry where the defense violated a discovery rule and the trial court did impose the sanction of exclusion of evidence favorable to the defendant.

In refining Richardson, the supreme court held that errors committed under the rule can never be harmless, Cumbie v. State, 345 So.2d 1061 (Fla.1977), and that a post-trial hearing is insufficient to determine prejudice, rather a new trial is a prerequisite to fairness. Land v. State, 293 So.2d 704 (Fla.1974); Wilcox v. State, 367 So.2d 1020 (Fla.1979).

The lesson of these cases is clear: a Richardson-type inquiry is mandatory where a violation of the discovery rules is relied upon to exclude evidence proffered by a criminal defendant or to refuse to impose the sanction of exclusion of evidence proffered by the state. This analysis is obviously not intended to be exhaustive of the possible ramifications of the Richardson rule, but is simply an attempt to point out and emphasize the two most commonly encountered troublesome areas and to suggest that, in case of doubt, a proper inquiry may alleviate the necessity for a new trial. It certainly would have accomplished that purpose in the case we now return to the already overburdened trial court.

REVERSED and REMANDED for NEW TRIAL.

DOWNEY and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    Fred A. PREUSS, Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
    No. 81-1355.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Rehearing Denied June 14, 1982.

      Gilbert E. Theissen of Walsh, Theissen & Boyd, P.A., Fort Lauderdale, for appellant.
    Richard S. Womble of Fertig & Curtis, P. A., Fort Lauderdale, for appellee.
   DELL, Judge.

Fred A. Preuss appeals from an order denying his motion for attorneys fees and costs incurred as a result of United States Fire Insurance Company’s wrongful refusal to furnish him with a defense in a tort action.

William Adams sued the appellant, Fred A. Preuss, for personal injuries sustained as a result of an airplane accident. Appellant notified the appellee, United States Fire Insurance Company, of the claim and requested a defense. Appellee denied coverage and refused to defend appellant in the Adams suit.

Appellant then filed suit against appellee, asserting his right to coverage and a defense of the Adams suit. On August 3, 1979, the Honorable Lamar Warren entered summary judgment in favor of the appellant on the issues of coverage and right to a defense. During the pendency of an appeal from that summary judgment, appellant filed a motion to assess the attorneys fees and costs which he incurred at the trial level in this case and for attorneys fees which he incurred in the defense of the Adams suit. On March 20, 1980, the Honorable Barry J. Stone entered an order awarding $1,340 as attorneys fees incurred at the trial level in the case sub judice, but stated that, “. .. the remaining relief prayed for by the plaintiff must be stayed pending the appeal of the aforementioned summary final judgment....” Subsequently, this Court affirmed the summary judgment and appellant filed a motion seeking attorneys fees for the appellate proceedings in this suit and renewed his motion for attorneys fees and costs incurred in the defense of the Adams suit. A third trial judge heard this motion and awarded attorneys fees for the appellate proceedings but held that the trial court lacked jurisdiction to award attorneys fees and costs in the Adams suit.

Appellant asserts that the trial court by its previous orders either retained jurisdiction to award attorneys fees and costs resulting from the Adams suit or that the orders are vague and ambiguous and should be interpreted to permit the recovery of such fees and costs.

Attorneys fees constitute an element of damage recoverable by an indemnitee when his insurance company wrongfully fails to defend. See, Prudential Insurance Company of America v. Lamm, 218 So.2d 219 (Fla. 3d DCA 1969), cert. denied, 225 So.2d 529 (Fla.1969); Morse Auto Rentals, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla. 3d DCA 1967); Fountainebleau Hotel Corporation v. Postol, 142 So.2d 299 (Fla. 3d DCA 1962). Moreover, the trial court, whenever necessary or proper, has the authority to consider and grant incidental or supplemental relief pursuant to a declaratory decree. § 86.061, Fla.Stat. (1979). A trial court, therefore, has the authority not only to determine the rights of the parties in the declaratory action, but it also has jurisdiction to assess other types of relief.

In the present case, appellant in his complaint prayed for an award of attorneys fees for services rendered in defense of his rights in the Adams suit. He timely asserted his motion for attorneys fees and costs and Judge Stone stayed the motion pending the outcome of the appeal of the order granting summary judgment. This case is a classic example of the old adage that “too many cooks spoil the broth,” and that but for three trial judge changes the question of jurisdiction would in all probability not have occurred. The three orders conflict with each other and result in an ambiguity and an unjust result which must be corrected. The first order failed to expressly reserve jurisdiction to award attorneys fees as damages. The second order stayed the motion for such damages and the third order held that the trial court lacked jurisdiction to award such fees. The record does not support such a conclusion. Accordingly, we affirm that part of the order awarding attorneys fees incurred by the appellant in the prior appellate proceeding and reverse that part of the order denying appellant’s request for attorneys fees and costs incurred in the defense of the Adams suit. We remand this case to the trial court for entry of an order allowing reasonable attorneys fees and costs incurred by appellant in the case of Adams v. Preuss, supra note 1.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

DOWNEY and WALDEN, JJ„ concur.

      . William E. Adams, et al. v. Fred A. Preuss, Case No. 78-6527 filed in the Circuit Court of the Seventeenth Judicial Circuit, in and for Bro-ward County, Florida.


text:
    In the Interest of D. J., a child.
    No. 81-2197.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Rehearing Denied June 16, 1982.
    Richard L. Jorandby, Public Defender, Margaret Good, Asst. Public Defender, and Steve Benedict, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See O. A. v. State, 393 So.2d 604 (Fla. 3d DCA 1981).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


author: SHIVERS, Judge.

text:
    C. Ray GREENE, Jr., Appellant, v. STATE of Florida DEPARTMENT OF NATURAL RESOURCES/State of Florida Board of Trustees of the Internal Improvement Trust Fund, Appellees.
    No. AD-232.
    District Court of Appeal of Florida, First District.
    May 14, 1982.

      Peter A. Portley of Portley & Sullivan, Pompano Beach, and Ross A. McVoy of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    John W. Williams, St. Petersburgh, for appellees.
   SHIVERS, Judge.

This is an appeal from a Department of Natural Resources order denying appellant’s petition for an administrative hearing pursuant to Section 120.57(1), Florida Statutes (1979). We affirm.

On February 5,1981, appellant, as a State citizen, filed a “Verified Petition and Complaint Pursuant to Section 403.412(5), Fla. Stat., For Formal Administrative Hearing Pursuant to Section 120.57(1), Fla.Stat., and Injunctive Relief Pursuant to Section 403.-412(2), Fla.Stat.” The petition alleged the State’s proposed 32 million dollar acquisition of Westlake, a tract in Broward County approved by appellees, did not qualify for the State’s environmentally endangered land (EEL) purchase program because it did not meet the legal criteria for the determination of an EEL parcel. Appellant contended the reports and evaluations prepared by the DNR staff assisting the Conservation and Recreation Land Committee (CARL), and other independent reports, factually established that Westlake did not meet the criteria for an EEL purchase.

The CARL program was created by Section 253.023, Florida Statutes (1979) for the purpose of recommending the acquisition of EELs by the State in order to preserve valuable and irreplaceable natural resources. The criterion and procedure for selection of EEL parcels was promulgated by appellees in Rule 16Q-2.05, Florida Administrative Code, which sets forth the seven steps for purchase evaluations which must be satisfied prior to a recommendation of acquisition by the CARL selection committee. Under Chapter 259, Florida Statutes (1979), the CARL selection committee is authorized to submit an annual evaluation of proposed EEL sites and to recommend the acquisition of such sites on a priority basis to the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board). Prior to making a recommendation for the acquisition of an EEL parcel to the Board, DNR must hold a public hearing in the county in which the proposed land parcel is located and submit a report of the meeting to the Board along with the recommendation for acquisition. In turn, the Board shall approve in whole or in part the EEL list submitted by the Committee. Once the selection committee’s list is approved by the Board, DNR commences negotiations for the voluntary acquisition of the lands on the list. However, since the list of lands are only proposals and the negotiations voluntary, there is no certainty that a particular parcel will ultimately be acquired by the State.

On December 16,1980, the Board met and considered the CARL Committee’s final priority acquisition list, which included the recommended purchase of Westlake. Appellant’s representative was present and argued to the Board that Westlake did not meet the legal requirements for Board consideration. However, the Board approved the proposed purchase. After considering appellant’s petition for a formal hearing and injunctive relief, DNR entered the appealed order on February 26, 1981, denying the petition on the following grounds:

A petition for a formal administrative hearing pursuant to Section 120.57(1) was premature in that the acceptance of the final report by the Governor and Cabinet resulted in no action which affected the substantial interest of any citizen or class of citizens in this determination.
Also, on the face of the pleadings the petitioner states no substantial interest whatsoever which would be affected by the action taken by the Governor and Cabinet in accepting and approving the C.A.R.L. Selection Final Report.
In summary the Department denies your petition for a 120.57(1), F.S., hearing and denies the complaint and petition for in-junctive relief on the grounds that there is no license or permit involved which would properly serve as final agency action for a 403.412 verified complaint challenge and there is no action, either already taken or pending which affects the petitioner’s substantial interests.

DNR correctly denied the petition for a Section 120.57 formal hearing because appellant alleged no special injury or substantial interest which would be affected by the Board’s acceptance of the CARL Committee’s proposed acquisition of Westlake. Section 120.57(1) applies only to Agency decisions which affect the substantial interests of a party. Section 120.52(10)(b), Florida Statutes (1979), defines a “party” as “any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.” Rule 28-5.201(2)(b), Florida Administrative Code, requires that all petitions for formal administrative proceedings contain, among other things, an explanation of how a party’s substantial interests would be affected by the agency action. Based upon appellant’s petition below, he lacks the necessary standing to assert that he has a substantial interest which will be affected by the approved but tentative acquisition of West-lake. Appellant is neither the owner, nor adjacent owner, of any land in the Westlake parcel nor the owner of any land on the CARL Committee’s acquisition list with lower priority than Westlake, or the owner of land not on the list but which allegedly should be on the list.

Appellant’s attempt to use Section 403-412 as a springboard into a Section 120.57 proceeding is misplaced. Section 403.412 has not obviated the requirement that a citizen allege a special injury or allege the agency decision affects a substantial interest. Although Section 403.412(2) has done away with the requirement of showing a special injury required by the traditional rule of standing provided express conditions precedent are met, this statute only applies to suits to maintain an action for injunctive relief in circuit court. Florida Wildlife Federation v. State Department of Environmental Regulation, 390 So.2d 64 (Fla. 1980). There is no provision in Section 403.-412(2) authorizing a citizen to initiate and maintain a Section 120.57 proceeding without meeting the substantial interest test.

Contrary to appellant’s argument, Section 403.412(5) also does not authorize or allow a citizen to initiate a Section 120.57 proceeding without first meeting the substantial interest standing test. Section 403.412(5) provides:

In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs, a political subdivision or municipality of the state, or a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.

Section 403.412(5) does allow a citizen of the state to intervene as a party without meeting standing requirements in any “administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction.” However, appellant is not an intervenor but is attempting to maintain or initiate an administrative proceeding.

Even assuming Section 403.412(5) could be interpreted as authorizing appellant to initiate an administrative action, his petition still fails to meet the conditions precedent to bringing such an action. Section 403.412(5) applies to administrative, licensing, or other proceedings involving those agencies with power and authority over environmental permitting and licensing. Ap-pellees’ statutory power and authority is derived from Chapter 253 and Chapter 259 and does not include any licensing or permitting powers over activity, conduct, or products in the state. The approval of a proposed EEL acquisition under Section 253.023 is not a permit or license regulating an activity or particular human conduct, and does not even constitute final agency action. Appellees’ conduct only approved a proposed list of EEL acquisitions authorizing DNR to commence negotiations for the voluntary acquisition of the lands on the list.

Even assuming Section 403.412(5) can further be interpreted to include appellees’ approval of the proposed EEL acquisition list as a licensing or permitting proceeding, appellant’s verified petition is still deficient. Section 403.412(5) provides a citizen with standing to intervene as a party on the filing of a verified pleading “asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.” Appellant’s petition fails to allege how the approval of the EEL acquisition list has or will have the effect of “impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.” Instead, the petition basically alleges Westlake does not meet the requirements of an EEL and should therefore not be on the proposed EEL acquisition list. It does not follow that the acquisition by the state of a particular parcel of land designated, whether correctly or incorrectly, as an EEL will then have the effect of impairing, polluting, or injuring the air, water, or other natural resources of the state.

Therefore, we affirm appellee’s denial of appellant’s petition for a formal administrative hearing and injunctive relief.

AFFIRMED.

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


text:
    Fred KAYTES, on behalf of himself and as Father and Next Friend of Adam Kaytes and Jolie Kaytes, Appellant, v. Maria Joy KAYTES, Appellee.
    Nos. 81-1416, 81-1679 and 81-2307.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing June 17, 1982.
    Joseph S. Paglino, Miami, Frank Wolland, North Miami, for appellant.

      Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Upon consideration of the consolidated appeals of both parties challenging provisions of the Final Judgment of Dissolution of Marriage and the husband’s appeal from the Order on Various Motions, we affirm the trial court’s decision.


author: DELL, Judge. BERANEK, Judge,

text:
    George A. MAASS, Appellant, v. Sigurd CHRISTENSEN and Dola Christensen, his wife, Royal Mariner of Fort Lauderdale, Inc., a Florida corporation not for profit, and Wilma A. Maney, Appellees.
    No. 81-422.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.
    Curtin R. Coleman of Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.

      Robert A. Plafsky of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauder-dale, for appellees-Christensen.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., and Todd L. Smith, P.A., Fort Lauderdale, for appellee-Maney.
   DELL, Judge.

This appeal involves a controversy between the condominium apartment owners over the rights to parking space number 28 at the Royal Mariner of Fort Lauderdale. Appellant, George A. Maass, the defendant/counterclaimant below, appeals from the court’s denial of his claim for slander of title. During oral argument, Maass waived his claim for other damages but maintained his claim to recover attorney fees as part of the cost of removing the cloud from his title.

Appellee, Wilma A. Maney, owned a condominium apartment and three parking spaces numbered 26, 27 and 28. Nelle Jab-lonka, not a party to this action, owned an apartment and parking space 112, and rented space 28 from Maney. Maney offered her apartment and two unspecified parking spaces for sale. In May, 1977, she entered into a contract to sell her apartment together with parking spaces 27 and 28 to Maass. In June she accepted checks in the amount of $2,000 from Jablonka. One check, in the amount of $500 and dated June 4, 1977, contains the notation “Par. payment on Space # 28,” and the other check, for $1,500 and dated June 6, 1977, contains the notation “Sale of Garage Space # 28.” Jablonka testified that she bought space 28 on June 6. It thus appears that on that date, Maney had sold the same parking space twice. The condominium by-laws provided that:

At the time of purchase of member’s unit, member was irrevocably assigned the parking space or spaces bearing the same number designation as set forth in such written assignment of parking .. . [H]e can sell, assign and convey all additional spaces ... to another apartment owner; provided, however, that such assignment is in writing and an executed copy of same is provided to the Directors of the Association for permanent records....

Maney did not execute the required written assignment of parking space 28 to Jablonka. In July, the Maney-Maass sale closed. These closing documents did include an executed assignment of spaces 27 and 28 to Maass, which was recorded. In September the appellees, Sigurd and Dola Christensen, entered into a contract with Jablonka to purchase her apartment together with parking spaces 112 and 28. Three days after entering into this contract, the Christensens received a letter from Jablonka’s listing broker which advised them that an error appeared in the contract, and that in rechecking this with Royal Mariner, the broker found that “the records showed 112 and 26.” The Christensens submitted the required application for approval to buy the apartment with spaces 112 and 26 to Royal Mariner, which approved them. The Chris-tensens admitted in their answer to request for admissions, and Mr. Christensen testified at trial, that they knew Maney had assigned space 28 to Maass before they closed their transaction with Jablonka. Notwithstanding this knowledge, the Jab-lonka-Christensen sale closed in November and thereafter the Christensens engaged in a vigorous effort to create paper title to space 28 in themselves. They obtained a letter from Maney stating that Jablonka purchased space 28 on June 8, 1977. Jab-lonka provided a bill of sale for space 28 which the Christensens recorded December 16, 1977, and Jablonka executed an assignment of space 28 to the Christensens. They wrote Maass and the manager of the Royal Mariner and asserted ownership in space 28. They prepared an assignment from Maney to Jablonka bearing the date June 8, 1977, which Maney signed, and they filed suit against Maass for recission and cancellation of the assignment of space 28 to Maass. Maass counterclaimed against the Christen-sens and filed a third party suit against Maney for indemnification. The trial court held that Maass owned space 28 but denied his counterclaim for slander of title, finding no fraud or malice on the part of any party. The court ordered each party to bear his own attorney fees and assessed costs against Maney.

Maass presents one issue on appeal: whether the trial court erred in ordering each party to bear his own attorney fees. He argues first that since the trial court found that Maney caused the controversy by her initial failure to execute the proper conveyance documents, Maass may look to her for his attorney fees under his claim for indemnity. Secondly, Maass argues that the trial court should have found in his favor on the slander of title action, entitling him to collect his attorney fees from the Christensens as part of the cost of removing the cloud from his title.

We find no merit in Maass’ claim for indemnity against Maney. Because the trial court held Maass not liable to the Chris-tensens, Maney’s alleged obligation to indemnify never arose. See Seaboard Air Line Ry. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Chappell v. Scarborough, 224 So.2d 791 (Fla. 1st DCA 1969). Maass falls outside the limited exception created by Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla. 4th DCA 1978), which dealt with a significantly different set of facts. Nor does Maass establish an independent basis for indemnification. Thus, no basis exists to award attorney fees in favor of Maass against Maney.

Before reaching the merits of Maass’ next point we shall discuss a more general matter: that is, whether, under the facts and circumstances of this case, a slander of title action will lie against one who claims an adverse interest in a condominium parking space.

One who, without a privilege to do so, publishes matter which is untrue and disparaging to another’s property, in land, chattels or intangible things under such circumstance as would lead a reasonable man to foresee that the conduct of a third person or lessee thereof might be determined thereby is liable for pecuniary loss resulting to the other from the impairment of vendibility thus caused.

Restatement of Torts § 624 (1938) as adopted in Lehman v. Goldin, 160 Fla. 710, 36 So.2d 259 (Fla.1948). Any kind of legally protected interest in land, chattels or intangible things may be disparaged if the interest is transferable, and the cause of action will lie not only in the case of true “ownership” in the classic sense, but also where the property interest consists of a mortgage, lease, easement, reversion or remainder. Restatement of Torts § 624, Comment c (1938).

Article III of the Declaration of Condominium defines common elements as all portions of the condominium property not included in the units, including those inside parking spaces which are not subject to exclusive private use as assigned by the Association. This definition clearly exempts Space 28 from the common elements. The declaration defines units as that part of the condominium property subject to private ownership. The Declaration, ByLaws, and Rules and Regulations variously refer to the interest held in a parking space as an “irrevocable assignment,” a “sale, lease or transfer,” and “exclusive use.” Thus, it is unclear whether the parking space is part of the unit, or something else. Since all documents we have examined tie assigned parking spaces to apartment ownership, we conclude that at the very least this space is an appurtenance to the apartment. Although the Maney-Maass deed does not mention parking spaces, as appurtenances spaces 27 and 28 passed to Maass by deed as an incident to his purchase of the apartment. 19 Fla.Jur.2d Deeds § 154. Thus disparagement of Maass’ interest in parking space 28 constitutes disparagement of the apartment, as alleged in Maass’ counterclaim.

Maass argues that the trial court should have found in his favor and awarded him attorney fees against the Christensens. We have held that attorney fees are recoverable in a slander of title action because part of the pecuniary loss includes the expense of litigation to remove the cloud cast upon the title. Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973). Malice in this cause of action means lack of legal justification and is presumed if the disparagement is unprivileged. Only if the defendant speaks under circumstances supporting a privilege must the plaintiff prove actual malice. Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965).

Maass proved all elements of his pri-ma facie case, and the Christensens do not contend otherwise on appeal. They argue only that they acted under circumstances supporting a privilege. Privilege, however, is an affirmative defense which the Chris-tensens did not raise in their answer to Maass’ counterclaim. Thus, no legal basis existed to enter judgment against Maass.

Assuming, arguendo, the parties tried the issue of privilege by consent, circumstances of privilege do not appear. The mere notation “Space 28” on the checks from Jablon-ka to Maney does not rebut the presumption of malice, especially in view of the Christensens’ admitted knowledge of Maass’ interest in space 28 and their attempts to create paper title in themselves.

We reverse the judgment of the trial court as to Maass’ action against the Chris-tensens and remand the cause with directions to hold an evidentiary hearing on attorney fees, and enter judgment therefor in favor of Maass. In all other respects, we affirm the judgment of the trial court.

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH DIRECTIONS.

HERSEY, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. This appeal boils down to a question of attorneys’ fees after a complex condominium controversy over a parking space. The controversy was solely internal in that it was among the condominium unit owners. It is my view that traditional concepts of real property law are not necessarily applicable in every technical respect to the condominium concept of ownership created by virtue of Florida Statutes, Chapter 718. I would thus affirm the denial of attorneys’ fees.

      . We find no record of assignment of space 26 from Maney to Jablonka. How the broker determined that Jablonka owned space 26 rather than 28 is unclear. However, the parties do not complain or address this issue.

      . It appears the condominium documents were executed before the enactment of Chapter 718, Florida Statutes (Supp.1976), so the statutory definition “limited common elements,” § 718.-103(14), does not apply.

      . Maass denies this assertion by the Christen-sens, and nothing appears in the record to support it. The Christensens did not move to amend the pleadings to conform to the evidence, Florida Rule of Civil Procedure 1.190(b), nor does the final judgment indicate that this issue was before the court below.


text:
    Harry A. SWEETEN, Sr., Appellant, v. June A. ANDERSON and The Church of the Little Flower, Appellees.
    No. 81-980.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.

      Perry W. Hodges, Jr., of Hodges, Gossett, McDonald & Gossett, P. A., Hollywood, for appellant.
    Bob Zwicky of Taylor, Zwicky & Micha-lak, Fort Lauderdale, for appellee-June A. Anderson.
   HERSEY, Judge.

Appellee, June A. Anderson, obtained a final judgment for arrearages of child support in the amount of $39,217.00 which she then sought to recover in garnishment proceedings.

A writ of garnishment was served on appellant’s employer who thereupon confessed indebtedness. In reliance on the exemption from garnishment of wages for personal labor or services created by Section 222.11, Florida Statutes (1981), appellant filed his affidavit alleging head of household status.

A preliminary but transient issue is raised by an affidavit made by appellee’s attorney which apparently was filed within the two day period established by Section 222.12, Florida Statutes (1981) and which ostensibly was for the purpose of contesting appellant’s eligibility for homestead status. This issue is rendered moot, however, by counsel’s concession in open court (transcribed and made part of the record on appeal) that appellant is, indeed, entitled to claim the homestead exemption.

The stage is thus set for the main thrust of appellant’s appeal. Section 61.12, Florida Statutes (1981) carves out of the Section 222.11 exemption an exception where the debt for which garnishment is sought arises from “.. . orders of the court of this state for alimony, suit money, or child support .. . . ” The ultimate issue is whether or not this exception applies where arrearages in “alimony, suit money, or child support” have been reduced to final judgment, as here. This question has recently, and irrevocably been put to rest in appellant’s favor. Sokolsky v. Kuhn, 405 So.2d 975 (Fla.1981). We therefore merely echo the holding of our supreme court that reducing arrearages to a final judgment precludes resort to the exception of Section 61.12.

We therefore reverse and remand for such further proceedings as may be necessary and appropriate to reflect this conclusion.

Appellant has additionally questioned the validity of the judgment itself; however, no appeal was timely taken from that judgment and we are without jurisdiction to consider that point in this appeal.

REVERSED and REMANDED.

GLICKSTEIN, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Florence GREENBERG, individually, and as personal representative of the Estate of Jerome Greenberg, Appellant, v. MANOR PINES REALTY CORPORATION, et al., Appellees.
    No. 81-1308.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.
    See also Fla.App., 404 So.2d 126.
    William P. Jacobson, West Palm Beach, for appellant.
    Jan A. Yelen and David Yelen of Yelen & Yelen, P. A., Coral Gables, for appellee-As-sociated Health Plans, Inc.
   OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

Appellants sued four defendants, one of whom, (appellee) after obtaining summary judgment in its favor, was awarded attorneys fees under Section 57.105, Florida Statutes (1979). The issue here is whether the court erred in finding that [as to appel-lee] there was a complete absence of a justiciable issue of either law or fact.

Plaintiff’s amended complaint (in the count relevant to this issue) alleged that she was the beneficiary of a group life insurance policy which insured the life of her deceased husband, that appellee, Associated Health Plans, Inc., as the administrator of the group policy, was responsible for making payment of the policy proceeds for and on behalf of the defendant insurer, and that both appellee and the insurer had refused payment. In due course it was established through discovery and affidavits that (1) plaintiff’s husband, for whom premiums had been paid, did not qualify as an insured under the policy definition, and (2) appellee, while the administrator of a group health insurance policy, was not the administrator of the group life insurance plan and was not authorized to act in that capacity. On the basis of these facts the court entered a summary judgment in favor of all defendants, which on appeal, was affirmed as to the insurer and as to the administrator. 404 So.2d 126. When the mandate went down, the trial court then awarded attorneys’ fees to the administrator, which order is the subject of this appeal.

The touchstone to an award of attorneys’ fees under Section 57.105, Florida Statutes (1979), is a justified determination that the action is so clearly devoid of merit, both on the facts and the law as to render the action frivolous. See, e.g., Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982); City of Deerfield Beach v. Oliver-Hoffman Corp. of Deerfield Beach, 396 So.2d 1187 (Fla. 4th DCA 1981); T.I.E. Communication v. Toyota Motors, 391 So.2d 697 (Fla. 3d DCA 1980); and Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). While the trial court did, indeed, find a complete absence of a justicia-ble issue of either law or fact, we think that this finding was not justified on the facts of this case.

In the initial pleading stages, and until it was established to the contrary by subsequent discovery, there were justiciable issues as to (1) whether plaintiff’s husband qualified as an insured under the policy definition, and (2) whether appellee administrator, which in fact received and forwarded to the insurer the claim for death benefits, was the administrator of the group life insurance policy with authority to pay or deny claims under the policy. These issues were in due course established adversely to plaintiff’s assertions. That fact, however, is not enough to invoke the operation of the statute. City of Deerfield Beach v. Oliver-Hoffman Corp., supra.

Appellee contends that, even if there were justiciable issues of law or fact at the time the action was initiated, the plaintiff at some point during the course of the trial proceedings became aware that she could not factually sustain the issues and, thus, (appellee argues) from that point onward plaintiff’s conduct in pursuing the action was necessarily frivolous. We do not decide here whether the course of litigation may be divided into non-frivolous and frivolous segments for the purpose of applying the statute to the latter. Assuming the viability of such a concept, it is apparent that in this case there was no appreciable imposition on either the court or counsel subsequent to that point in the course of the litigation where it could be said fairly that the case was no longer sustainable on either the law or the facts.

The order appealed is reversed.

DOWNEY and HERSEY, JJ., concur.


text:
    Lavern Connell MOORE, Appellant, v. STATE of Florida, Appellee.
    No. VV-278.
    District Court of Appeal of Florida, First District.
    May 21, 1982.

      Michael E. Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We affirm all points on appeal. As to Point IV, challenging the court’s imposition of a separate sentence for sexual battery as a lesser offense to burglary while committing an assault, we conclude, after examining the allegations of Count II, relating to the burglary offense, that sexual battery, not alleged in Count II to be the means by which the assault was committed, could not be a lesser offense to burglary. Accordingly, the court’s imposition of the separate sentence for sexual battery was not barred by the provisions of Section 775.021(4), Florida Statutes (1977). Cf. Borges v. State, 415 So.2d 1265 (Fla.1982).

ERVIN, BOOTH and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Joseph WEBB, Deceased, Rosemary Turner, Appellant, v. HILLS VAN SERVICE and Nationwide Mutual Ins. Co., Appellees.
    No. AE-361.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Thomas W. Davis, of Barton, Cox & Davis, Gainesville, for appellant.
    Heskin A. Whittaker, of Whittaker, Pyle, Stump & Webster, Orlando, for appellee.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order denying approval of an attorney’s fee agreement between claimant and her attorney. Claimant’s attorney had negotiated a lump sum settlement with payment of periodic compensation benefits previously awarded, and sought approval of a fee agreement by which claimant would pay an attorney’s fee. The deputy denied approval after determining that “the Workmen’s [sic] Compensation Rules do not provide for payment of an attorney’s fee” in these circumstances.

We disagree with the deputy’s apparent conclusion that the absence of any express provision in the rules precludes the approval of a fee. Section 440.34, Florida Statutes, is a substantive provision insofar as it relates to entitlement to, and the source of payment of, a claimant’s attorney’s fee. Therefore, the present case is governed, in this regard, by § 440.34, Florida Statutes (1976) — the statutory provision in effect at the time of the compensable accident. Cf., Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). Since in the present case claimant has by contractual arrangement agreed to pay her own attorney’s fee, § 440.34(1), Florida Statutes (1976), is inapplicable inasmuch as that provision relates only to deputy approval of attorney’s fee awards payable by an employer/carrier, upon the “successful prosecution of the claim.” However, § 440.34(3)(a), Florida Statutes (1976), further requires deputy approval of “any fees, other consideration, or any gratuity on account of services so rendered . ... ” The attorney’s fee arrangement in the present case is constrained by this provision, and it is therefore necessary that claimant’s attorney obtain approval from the deputy prior to receipt of any such fee. But the absence of an express authorizing provision, in either the statute or the Workers’ Compensation Rules of Procedure, does not preclude deputy approval or otherwise prohibit the fee arrangement involved in this case. Such a prohibition would be in derogation of the common law, and the statute will not be so construed absent a clear legislative intent in this regard. Cf., East Coast Tire Co. v. Denmark, 381 So.2d 336 (Fla. 1st DCA 1980). We find no clear legislative intent to prohibit such a fee arrangement, and we therefore conclude that, in the circumstances of this case, the contractual fee arrangement between claimant and her attorney is not prohibited and is subject to deputy approval pursuant to § 440.34(3)(a), Florida Statutes (1976). In discharging his obligation under this statute the deputy should determine the reasonableness of the amount of the fee, considering the value of the service — obtaining a lump-sum payment of periodic compensation benefits previously awarded — rendered by claimant’s attorney.

The order appealed is reversed and the cause remanded for further proceedings.

ERVIN and SHIVERS, JJ., concur.


author: MILLS, Judge.

text:
    John L. SALA, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-424.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    John L. Sala, pro se.
    Catherine L. Dickson, Tallahassee, for ap-pellee.
   MILLS, Judge.

Sala appeals the establishment of his presumptive parole release date (PPRD). We affirm.

The Parole Commission’s aggravation of Sala’s PPRD because of a history of heroin abuse is appropriate under Rule 23-19.-03(l)(b)3, Florida Administrative Code.

The aggravation for multiple offenses with concurrent sentences is proper pursuant to Rule 23-19.01(5), Florida Administrative Code.

McCORD and SHIVERS, JJ., concur.


text:
    Paul S. PERKINS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-148.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Paul S. Perkins, pro se.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Perkins appeals the establishment of his presumptive parole release date. We affirm.

The aggravation for multiple offenses with concurrent sentences is proper under Rule 23-19.01(5), Florida Administrative Code. The aggravation in each case was within the matrix guidelines for each offense.

No abuse of discretion is shown in the appellee’s assigning an offense characteristic oí “moderate” for possession of a knife during incarceration.

The appellee provided a written explanation for its deviation from the examiner’s recommendation.

McCORD and SHIVERS, JJ., concur.


author: BARKDULL, Judge. BASKIN, Judge

text:
    John Clarence FULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2244.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   ON REHEARING

BARKDULL, Judge.

John Fuller brings this appeal from convictions and sentences for third degree murder and the unlawful possession of a firearm while engaged in a criminal offense.

Fuller was charged with second degree murder and with displaying a firearm during the commission of the second degree murder felony. A jury trial was held at which evidence was introduced by the State, consisting of a written statement and a video tape statement by the defendant. According to the evidence, the defendant had been seeing Bessie Gerald for about two years. (In return for money, Ms. Gerald would provide the defendant with sexual intercourse.) On the evening of August 31, 1979, the defendant and Gerald were at a lounge together. Gerald asked the defendant to buy her a drink and for $11.00 so that she could claim her clothes from the cleaners; defendant gave her the $11.00 and she said she would “see” him later. The next morning (September 1) the defendant and Gerald were together at another lounge, at which time the defendant pulled a gun and shot Gerald in the chest. At the time, Gerald had an alcohol level which was described as a “barely walking type of intoxication”. Gerald died from her wound, giving rise to the information filed against the defendant.

At the charge conference, the prosecution requested instructions on lesser degree crimes, but the defense objected to such charges. However, the court instructed the jury on second degree murder (the charge actually filed against the defendant), third degree murder, and manslaughter. No charge, however, was given on a “non-enumerated underlying felony to third degree murder”. A jury verdict of guilt was returned on the lesser degree charge of third degree murder, and another jury verdict of guilt was returned on the charge of displaying a firearm during the commission of a felony. The defendant was sentenced to fifteen years’ imprisonment on each count to run concurrently, with a three-year mandatory minimum sentence on Count I. This appeal followed.

The appellant contends it was fundamental error not to instruct the jury on an underlying non-enumerated felony to the lesser degree charge of third degree murder. The underlying non-enumerated felony for which no jury instruction was given on the third degree murder charge was aggravated battery. Secondly, it was error to adjudicate and punish the defendant both for the crimes of third degree murder (Count I) and for the display of a firearm during the commission of that felony (Count II), inasmuch as this violated the defendant’s right not to be placed in jeopardy twice for the same offense as guaran-' teed by the Fifth Amendment to the United States Constitution.

We find the appellant’s first point to be without merit. Where a homicide has taken place, whether or not an aggravated assault occurred as part of a crime that culminated in the death of the victim is immaterial. What we are dealing with is the death of a human being which was either lawful or unlawful homicide. Upon a jury determination that the defendant caused the victim’s death unlawfully, it must then determine what degree of murder or manslaughter is involved. Therefore, where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide. Brown v. State, 245 So.2d 68 (Fla.1971); Martin v. State, 342 So.2d 501 (Fla.1977); Compare, Coxwell v. State, 397 So.2d 335 (Fla. 1st DCA 1981). See and compare: Alicea v. State, 392 So.2d 960 (Fla. 4th DCA 1980).

As to the second point, we vacate the sentence upon the conviction for displaying of a firearm during the commission of a felony upon the reasoning of the Supreme Court as stated in its opinion in State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Therefore the conviction and sentences are hereby affirmed. The sentence for display of a firearm in the commission of a felony is hereby vacated.

Affirmed in part, reversed in part.

BASKIN, Judge

(concurring in part, dissenting in part).

Failure to instruct on the underlying felony upon which the third-degree murder conviction was based constitutes greater error than does a similar failure for a homicide based upon premeditation, contrary to footnote 2 of the majority opinion. It is more important for the court to define the underlying felony for the jury when felony murder is the basis of the unlawful homicide because it is the only means of establishing criminal intent necessary to support a conviction under due process of law when the charge is not based upon premeditation.

In Knight v. State, 338 So.2d 201 (Fla.1976), the supreme court permitted conviction of a felony murder as a lesser included offense of a charge founded upon premeditation. In State v. Jones, 377 So.2d 1163 (Fla.1979), the court clarified its ruling and affirmed an appellate decision requiring instruction on the underlying felony in order to sustain a felony murder conviction. In Knight v. State, 394 So.2d 997 (Fla.1981), an appeal from a denial of habeas corpus, the court stated:

We expressly noted in Jones that there was no contention that there was sufficient evidence to establish premeditated murder. We conclude that where there is sufficient evidence of premeditation, the failure to give the underlying felony instruction, where it has not been requested, is not error which mandates a reversal absent a showing of prejudice. [Citation omitted] (emphasis added).

Id. at 1002. The requirement of an instruction on the underlying felony is supported by McRae v. Wainwright, No. 61,865 (Fla. March 25, 1982) [7 FLW 151]; see Robles v. State, 188 So.2d 789 (Fla.1966); Frazier v. State, 107 So.2d 16 (Fla.1958). In defendant Fuller’s case, premeditation was not an element of the offense of which he was convicted. His conviction depends upon felony murder, and case law tells us that the underlying felony must be defined. Mahaun v. State, 377 So.2d 1158 (Fla.1979) and State v. Jones dictate that failure of the trial court to define the underlying felony of the primary charge constitutes fundamental error requiring reversal even in the absence of an objection because the intent to commit the underlying felony must be proven. Cases upholding convictions despite the absence of instruction on the underlying felony depend on premeditation for proof of intent. Alicea v. State, 392 So.2d 960 (Fla.4th DCA 1980).

Defendant Fuller was convicted of third-degree felony murder, an offense no longer considered a necessarily included lesser offense of second-degree murder under Standard Jury Instructions in criminal cases effective July 1, 1981. Third-degree murder is no longer listed as a lesser included offense of second-degree murder committed under a “depraved mind” theory or during the commission of a felony. These instructions, however, did not apply to defendant Fuller and, because the jury was not instructed on any underlying felony which might establish the intent necessary for a third-degree murder conviction, I believe the conviction must be reversed.

I am in full agreement with the remainder of the majority opinion.

      . “MR. ROSENBERG: Judge, after careful consultation with Mr. Fuller, Mr. Zelman has some announcement.
      MR. ZELMAN: Judge, we’re not requesting any lessers.
      THE COURT: State?
      MR. KAHN: The State is going to request lessers, Judge.
      THE COURT: Are you?
      MR. KAHN: Yes.
      THE COURT: Okay. I will give second, third and manslaughter, and noting the defense’s objection.”

      .
      “. .. Moreover, in Frazier v. State, 107 So.2d 16 (Fla. 1958) the Supreme Court determined that where the evidence supported a jury finding of murder by premeditated design, error in the felony murder instruction was harmless. This same thought was recently reiterated by the Supreme Court in Vasil v. State, 374 So.2d 465 (Fla.1979). If it be harmless, rather than fundamental error to give an erroneous felony murder instruction in a case where the princi-pie charge is murder by premeditated design, we certainly cannot declare it to be fundamental error in the case now before us in which a felony murder instruction has been properly given and the shortcoming is merely failure to define the elements of the underlying felony, especially when defense counsel specifically objects to the giving of any such instruction, as he did in the instant case. ...” [emphasis supplied]


text:
    Edna Mae BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1401.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker and Warren S. Schwartz, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Fuller v. State, 414 So.2d 264 (Fla. 3d DCA 1982).


text:
    Theodore F. WEHRLE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-705.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

The single issue on this appeal is whether or not the trial court erred in denying the defendant’s motion for discharge under the Florida speedy trial rule, Fla.R.Crim.P. 3.191. We conclude that the trial court did not err and, accordingly, affirm.

The defendant was arrested on March 2, 1980. An information was filed and a plea entered on April 15,1980. The trial was set for June 2, 1980. On June 9, 1980, the State and defense filed a motion for stipulated continuance on the basis that discovery had not yet been completed. The trial court granted the motion, reset the case on the September, 1980 trial docket and tolled the speedy trial period until that time. On September 26, 1980, the State and the defense filed a memorandum of agreement to a negotiated plea, which the trial court felt It could not accept without further information. The case was reset until October 3, 1980, the speedy trial time again being tolled. Appellant has not favored the Court with a record regarding the events of October 3, 1980. We, accordingly, rely on the trial court’s recollection of those events as reflected on the motion to discharge hearing, which occurred on January 9, 1981.

At the outset, we note the first continuance in this cause reflected the parties’ agreement that the matter be continued until “the next available trial date.” The next available trial date was September 26, 1980 when, again, the parties jointly agreed to a continuance until October 3, 1980. The next record activity was an order of court, entered on December 4, 1980 (inside the speedy trial period), which set the case for trial on the January, 1981 trial docket and tolled the speedy trial rule. The court’s order was sua sponte and reflected service on both the State Attorney and counsel for the defense. At the discharge hearing, the court recessed to check its docket records and, thereafter, made the following announcement:

THE COURT: The Court has checked its record of cases called for trial on September 25th at which time it was announced that there was a negotiated plea and not necessary to go to trial at which time the case was continued until October 3rd which was plea day, it was continued to 10:30 on that day. At the appointed time and date the case was called for a negotiated plea and the Court was advised that the Defendant was withdrawing his plea, so it was not held. Obviously the trial date having been passed, the Court on December 4th entered an order formally resetting the case for trial to the month of January which is being called today.

We find remarkable similarity between the case sub judice and that of Davis v. State, 386 So.2d 1287 (Fla. 3d DCA 1980). The court’s conditional acceptance of the plea on September 25, 1980 and the defendant’s withdrawal of the plea on October 3, 1980 serve to take the case outside the ambit of Fla.R.Crim.P. 3.191. State ex rel. Wilholt v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978). Following the withdrawal of the plea, all that was left to do was to set the case for trial within a reasonable time. Butter-worth In and For Broward County v. Fluellen, 389 So.2d 968 (Fla.1980).

The judgment and sentence are, accordingly, affirmed.


text:
    Luis CRESPO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1155.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981); State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981); Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979).