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

text:
    Timothy BRUMLIK, Appellant, v. Raymond PALMER and Dorothy Palmer, his wife, Appellees.
    No. 81-480.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 1981.

      Frank C. Whigham, Sanford, for appellant.
    Abbot M. Herring, Sanford, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Timothy Brumlik appeals from a partial final judgment entered in an action to recover real property.

Appellees Raymond and Dorothy Palmer, the sellers, and Timothy Brumlik, the purchaser, entered into a real estate sales agreement but failed to close because of various disputes. Brumlik apparently obtained the original deed and recorded it. The Palmers sued seeking ejectment and compensation for damages to the property while in the possession of Brumlik. Brum-lik answered and counterclaimed for specific performance.

The court found that the agreement had been mutually breached, denied damages and specific performance, ordered the Palmers to return the deposit, and ordered Brumlik to execute a deed reconveying the property to the Palmers. The trial judge later ordered Brumlik to obtain a deed from a third person, not a party to the proceedings, to whom he had subsequently conveyed the property.

The relief granted is not supported by the pleadings or the proof. While counsel for the Palmers did make a motion which was interpreted by the court to be a motion to amend the pleadings to conform to the evidence, the nature of the motion does not appear in the record nor does the amendment or the type of relief sought. Because neither the pleadings, amendments nor proof support the relief granted, we reverse and remand for repleading and retrial.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Florida, Appellant, v. Dennis Edward VAN WINKLE, Appellee.
    No. 81-595.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    Charles R. Trulock, Jr. and Howard Reiss, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., J.

The state appeals from an order granting the motion of appellee Dennis Van Winkle for discharge under Florida Rule of Criminal Procedure 3.191, the speedy trial rule. We REVERSE.

On September 21, 1980, appellee was arrested for attempted murder. While executing an arrest and search warrant, officers from the Orange County Sheriff’s Office and the Orlando Police Department discovered a field of marijuana. At the time of the discovery, the officers did not know whether the field belonged to appellee or his brother who was also residing on the property. Appellee’s brother stated that the marijuana belonged to appellee.

On January 6,1981, appellee was charged with possession of cannabis and a capias was issued for his arrest. He turned himself in on February 2, 1981. Trial was scheduled for April 16, 1981, a date more than 180 days from the date of his arrest for attempted murder on September 21, 1980. If the speedy trial time on the marijuana charge commenced on September 21, 1980, the period had run and the trial judge was correct in discharging appellant. The state argues that the trial court erroneously discharged appellant because two separate transactions and two separate speedy trial periods were involved.

Florida Rule of Criminal Procedure 3.191(a)(4) provides as follows:

Custody. For purposes of this Rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest, (emphasis added)

At the hearing on his motion for discharge, appellee successfully argued that the arrest on the attempted murder charge and the discovery of the marijuana involved a single criminal episode. In granting ap-pellee’s motion to discharge, the court relied upon Deiches v. Kaney, 375 So.2d 584 (Fla. 5th DCA 1979) and Crain v. State, 302 So.2d 433 (Fla.2d DCA 1974). In Deiches, a police officer responded to a call that a suspect may be trying to pass a forged prescription at a particular drug store. The officer went to the drug store and was told by the pharmacist that the individual walking out of the store was the one who had tried to pass the forged prescription. The individual was apprehended by the officer and charged with loitering and prowling and carrying a concealed weapon. The defendant, however, was not charged with unlawfully attempting to acquire possession of a controlled substance by attempting to pass the forged prescription until more than two months after his initial arrest.

Claiming that the 180-day time limitation had begun to run on the date of his initial arrest and had since elapsed, the defendant moved for discharge. The trial court denied the motion. In determining that the speedy trial time had run and that the motion for discharge should have been granted, this court stated:

Rule 3.191(a)(1) provides that speedy trial time commences when a person is “taken into custody as a result of the conduct or criminal episode giving rise to the crime charge.” Here, the criminal episode was the attempt to pass the forged prescription. The officers pursued the defendant from the scene of this crime and might well have arrested him for the crime when they trapped him in the dead-end alley. The fact that he was actually arrested for loitering and prowling does not change the situation.

Deiches at 585.

In Crain, the defendant was arrested at the scene of an accident and charged with driving while under the influence of a prohibited drug. While investigating the accident, police discovered what appeared to be marijuana in the defendant’s vehicle. The defendant, however, was not charged with possession of contraband until a month later after laboratory tests confirmed the nature of the substance. He was subsequently arrested on the possession charge.

Some two hundred days after his initial arrest, the defendant moved for discharge. The motion was denied. In reversing, the court rejected the state’s argument that two separate criminal episodes were involved. The court noted that the marijuana involved in the possession charge was the same marijuana found at the scene of the accident.

In both Deiches and Crain, the same conduct or criminal episode gave rise to two sets of charges: those resulting in the initial arrest and those forming the basis for the subsequent arrest. In both cases, the subsequent charges could have been filed at the time of the initial arrest. In contrast, appellee was arrested for attempted murder, a charge which was unrelated to his subsequent arrest for possession of a controlled substance. The discovery of the marijuana during an authorized search for the weapon allegedly used in the attempted murder led at most to a subsequent investigation which in turn resulted in the possession charge.

Appellee, however, argues that the test in Crain is whether the crime is complete at the time of the initial arrest. He argues that when police discovered the field of marijuana on September 21, 1980, the possession charge was a completed offense. As was discussed above, Crain involved only one criminal episode: the act of driving while under the influence of drugs which gave rise to two charges, the subsequently filed one being the possession charge. Thus, while it is true that the possession offense was complete at the time of Crain’s initial arrest, the speedy trial time started at that date not because the offense was completed but because only one criminal episode was involved.

Unlike the situation in Crain, two separate criminal episodes are involved here. In State v. Beasley, 392 So.2d 980 (Fla. 4th DCA 1981), the court concluded that where the crimes charged are totally distinct, the arrest for one crime does not require the state to bring charges on a totally separate crime even though the state may have probable cause to do so. Quoting from United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the court stated:

It requires no extended argument to establish that prosecutors do not deviate from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. To impose such a duty would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself.

Beasley at 981.

In Beasley, the defendant was under investigation for several thefts including the burglary of a dwelling in Martin County and the theft of a motorcycle. Beasley was arrested for dealing in stolen property (the motorcycle) in St. Lucie County on November 3, 1978. On March 21, 1979, an information was filed. The state eventually nolle prossed this charge.

On July 20, 1979, the state filed an information charging Beasley with burglary of a dwelling in Martin County. This crime as alleged occurred at a different time and place from the previous charge. Beasley moved for discharge under rule 3.191 arguing that the state had sufficient probable cause to arrest for burglary of the dwelling at the time he was arrested for dealing in stolen property. The motion was granted.

In reversing, the court noted that the Martin County information charging burglary of a dwelling was based upon a separate criminal episode from that set forth in the nolle prossed St. Lucie County information which charged dealing in stolen property. The court concluded that as the alleged crimes involved different times, locations, property, and victims, they were not based on the “same conduct or criminal episode” under the speedy trial rule.

Likewise, the two crimes charged here, attempted murder and possession of a controlled substance, involve different times, locations, and victims. As the crimes do not involve the “same conduct or criminal episode,” speedy trial time for the possession charge began to run from February 2, 1981, when appellee was arrested on that charge and not from September 21, 1980, when he was arrested for attempted murder. The trial court therefore erred in discharging appellee under the speedy trial rule.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.


author: ORFINGER, Judge.

text:
    Joseph P. GALLO and Five Hundred N. Atlantic, Inc., Appellants, v. Rodney ESSER and Strout Realty, Inc., Appellees.
    No. 81-658.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 1981.
    John R. Godbee, Jr., of Coble, McKinnon, Rothert, Bohner, Barkin & Godbee, P. A., Daytona Beach, for appellants.
    William E. Loucks of Fink, Loucks & Sweet, Daytona Beach, for appellee Esser.
    No appearance for appellee Strout Realty, Inc.
   ORFINGER, Judge.

In this interpleader action, and pursuant to Florida Rule of Civil Procedure 1.420(b), the trial court dismissed appellant’s amended cross-claim and counterclaim, for willful failure to comply with a previous order of the court. Appellant’s answer to appellee’s cross-claim was not affected. Since both appellant and appellee are the defendants in this interpleader action, and one or the other of them will prevail, the dismissal of appellant’s cross-claim and counterclaim is not dispositive of the issue of which of them is entitled to the interpleaded funds. Thus the order is non-final and non-appealable. North Indialantic Homeowners Association v. Bogue, 390 So.2d 74 (Fla.1980).

The appeal is dismissed.

SHARP and COWART, JJ., concur.


author: HOBSON, Judge.

text:
    KENWORTH OF TAMPA, INC., a Florida corporation, Appellant, v. TURNKEY DEVELOPMENT CORPORATION, a Florida corporation, Appellee.
    No. 81-791.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Tom Ross of Sumner, McKnight & Ross, Dade City, for appellant.
    John H. Rains, III of Shackleford, Farri- or, Stallings & Evans, P.A., Tampa, for appellee.
   HOBSON, Judge.

We affirm that portion of the judgment on appeal which awarded Turnkey Development Corporation (Turnkey) the sum of $10,000.00 from Kenworth of Tampa, Inc. (Kenworth). We reverse that portion which awarded interest on the $10,000.00 sum from the date of judgment.

Where a claim is liquidated, prejudgment interest should be allowed. Town of Longboat Key v. Widell, 362 So.2d 719 (Fla.2d DCA 1978).

Turnkey made demand on Kenworth by letter dated June 26, 1978 for exactly $10,000.00. Moreover, Turnkey alleged in its complaint that Kenworth had retained the $10,000.00 unlawfully. It appears to us that the claim was certain and known to Kenworth even before suit was filed.

We, therefore, hold that Turnkey is entitled to interest on the $10,000.00 award from the date of the demand (June 26, 1978) to the date of the final judgment (March 18, 1981). On remand, the trial court shall enter an order to this effect, computing interest at the statutory rate.

AFFIRMED in part, REVERSED in part, and REMANDED.

SCHEB, C. J., and BOARDMAN, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Larry Clinton DRAFFEN, Appellant, v. ALLSTATE INSURANCE COMPANY and Ronald Atherton, Appellees.
    No. 81-550.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.

      Jeffrey H. Willis, Tampa, for appellant.
    Frank H. Gassier and Barbara J. Paulson of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellee Allstate Ins. Co.
   BOARDMAN, Acting Chief Judge.

Larry Clinton Draffen, defendant/cross-plaintiff in the trial court, appeals final judgments in favor of appel-lee/cross-defendant Allstate Insurance Company and plaintiff/appellee Ronald Atherton. We affirm.

Atherton filed a complaint against appellant and Allstate, under whose homeowner’s policy appellant was insured, for damages caused when appellant, “while being chased by the Plaintiff, negligently and carelessly caused a gun to fire, striking the Plaintiff with a projectile in his neck and back.” Appellant filed a cross-claim against Allstate. Allstate raised the affirmative defenses that the incident in question was not an occurrence as defined in the policy, that the gun was not fired negligently and carelessly, and that the policy did not apply “ ‘to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.’ ” The trial court granted Allstate’s motion for directed verdict and entered final judgments in favor of Allstate against Atherton and appellant. This appeal followed timely.

The facts are that on May 2, 1980, appellant robbed three women at gunpoint in the parking lot of the Sea Wolf Restaurant in Tampa. He stopped one Robert Clark and asked him to act as lookout while appellant robbed the women, but Clark refused and went into the restaurant to report the incident. Clark found Atherton, and the two of them went outside to look for appellant. When appellant saw them, he ran around the back of the restaurant and into a corner of the yard bordered by a chain link fence. It was very dark in that corner.

Considering the evidence in the light most favorable to appellant, as we must, appellant could not see his pursuers once he had run into the corner. However, he knew he was being chased and heard the voices of his pursuers. He shot his gun six times in their direction, jumped the fence, and made good his escape. Of the six shots fired, four met their mark. One struck Clark in the ribs. One hit Atherton in the face and knocked him to the ground, and then two more bullets struck him in the back.

The insurance policy issued by Allstate here provided in pertinent part:

Allstate agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because, of bodily injury or property damage, to which this insurance applies, caused by an occurrence.
This policy does not apply:
1. Under Coverage X — Family Liability and Coverage Y — Guest Medical Payments :
(f) to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.

The term “occurrence,” is specifically defined in the definitions portion of the policy, which provides: “ ‘[Occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage.”

We agree with the trial court that one “would simply have to take leave of [one’s] senses to conclude . . . that this was an accident.” If appellant had intended merely to frighten his pursuers, he could have fired at the ground or into the air. He did neither. Instead he fired in the direction of his pursuers with what in different circumstances might be termed commendable accuracy. It is clear that appellant most certainly did intend to kill or injure one or more of his pursuers, although he may not have expected as much success as he actually had.

We find Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla.3d DCA 1977), analogous. Spreen held that there was no coverage under a homeowner’s liability insurance policy for injuries sustained by a plaintiff who had been struck by the insured following an altercation. In that case, the insured (Spreen) and his wife were guests at a party at which William King and his wife were also present. Spreen was dancing with another woman when King approached him and announced that he was going to make love to Spreen’s wife. Spreen stopped dancing and struck King in the left eye, fracturing the orbital floor of King’s eye. Spreen later testified that he intended to strike King, but not to damage King’s face or eye and that he was reacting to King’s crude remark.

Spreen was insured by a homeowner’s liability policy, which covered the insured’s legal obligation to pay damages for bodily injury caused by an occurrence. The policy defined “occurrence” as an “accident.” The Third District reviewed the case law in this area and stated:

Running through all of these cases is an act of negligence by the insured, sometimes gross or even culpable negligence. But never has coverage been found under such policies where the insured’s act was deliberately designed to cause harm to the injured party.

Id. at 651. See also Darragh v. Brock, 366 So.2d 801 (Fla. 1st DCA 1979). The cases relied on by appellant are inapposite.

Accordingly, the final judgments appealed are AFFIRMED.

OTT and RYDER, JJ., concur.


author: PER CURIAM.

text:
    Raphael Roy LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 81-728.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Appellant raises for the first time on appeal the issue of whether his sentence is illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Because Villery suggests that this issue be brought to the attention of the trial court in the first instance, we do not consider it on this appeal. However, this affirmance is without prejudice to appellant’s raising this issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    Richmond Willie GREEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-917.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

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


author: GRIMES, Judge.

text:
    Paul LEACH, Appellant, v. STATE of Florida, Appellee.
    No. 81-1095.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant, a juvenile at the time of the offense with which he was charged, was prosecuted and convicted as an adult. He contends on appeal that the trial court erred in sentencing him without following the procedures set out in section 39.111(6), Florida Statutes (1979).

Section 39.111(6)(a) requires that a trial court, when imposing adult sanctions on a juvenile convicted of a crime, receive and consider a predisposition report prepared by Department of Health and Rehabilitative Services. The record here reveals that the trial judge failed to receive and consider such a report, and the statute clearly states that the guidelines to be followed are to be deemed mandatory. § 39.111(6)(j). The existence of a PSI prepared by the Department of Corrections did not suffice because the purpose of a predisposition report is somewhat different than that of a PSI, and the two reports are prepared by different departments having different perspectives.

We affirm the judgment of the trial court but vacate the sentence and remand for resentencing pursuant to the provisions of section 39.111(6)(a), Florida Statutes (1979). Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979).

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


author: BERANEK, Judge.

text:
    DICO COMPANY, INC., and Dyneer Corporation, Appellants, v. MEEKINS, INC., a Florida corporation, and Concrete Equipment, Inc., a Florida corporation, Appellees.
    No. 81-836.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Gerald B. Wald of Murai, Wald & Biondo, Miami, for appellants.
    Steve E. Moody of Moody & Jones, Fort Lauderdale, for appellee, Meekins, Inc.
   BERANEK, Judge.

Defendants, Dico Company, Inc., and Dy-neer Corporation, appeal from an order denying their motion to dismiss plaintiff’s complaint for lack of jurisdiction under the long arm statute. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).

Plaintiff, Meekins, Inc., filed suit against Dico and Dyneer for breach of warranty and design negligence involving two block unloaders which Meekins had purchased. The complaint alleged that the unloaders had been furnished, installed, and mounted by Concrete Equipment, Inc., a Florida corporation. Defendant Dico, a foreign corporation with its principal place of business in Iowa, allegedly manufactured the unloaders and was doing business in Florida through its distributor, Concrete Equipment. Dico was further alleged to be a wholly owned subsidiary of defendant Dyneer who subsequently sold Dico to a corporation outside the United States.

Both defendants moved to dismiss the complaint for lack of jurisdiction maintaining they were foreign corporations not doing business in Florida and were not subject to service of process. In support of their motion, the defendants furnished a memorandum and two affidavits. In response, the plaintiff filed the deposition of the manager of Concrete Equipment, Inc., and an agreement between Dico and Concrete Equipment whereby the latter was appointed a distributor of Dico products. The trial court denied the motion to dismiss and both defendants appeal.

Generally, the burden of pleading under the long arm statute rests first with the plaintiff to allege sufficient jurisdictional facts to show compliance with the statute. The burden then shifts to the defendant to make a prima facie showing of the inapplicability of the long arm statute. Thereafter, the plaintiff is required to substantiate the jurisdictional allegations. Pace Carpet Mills v. Life Carpet & Tile Co., 365 So.2d 445 (Fla. 4th DCA 1978). Defendant Dyneer affirmatively demonstrated its lack of contacts with Florida. We find that the plaintiff did not substantiate the jurisdictional allegations as to Dyneer and the trial court erred in denying its motion to dismiss. As to Dico, it is clear that the plaintiff did substantiate its jurisdictional allegations through the deposition and dealership agreement between Dico and Concrete Equipment. To establish jurisdiction over a non-resident defendant under the ■long arm statute there must be a showing of control by the defendant over the distributor or over the property in the hands of the distributor. AB CTC v. Morejon, 324 So.2d 625 (Fla.1975); Pace Carpet Mills, supra. The plaintiff demonstrated several instances of control by Dico over the dealer and the product. We believe the court’s jurisdiction was adequately established and the motion to dismiss was properly denied as to Dico.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY and ANSTEAD, JJ., concur.


text:
    Leroy SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-915.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Leroy Smith, Belle Glade, pro se.
    No appearance' on behalf of appellee.
   PER CURIAM.

Affirmed on the authority of Clements v. State, 340 So.2d 1182 (Fla. 4th DCA 1976) and Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981).

LETTS, C. J., and ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Nathaniel MILLER, Appellant, v. Gerald TOLES, Director, Palm Beach County Jail, Appellee.
    No. 81-1453.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Catherine L. Dickson, Asst. General Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   ON MOTION TO ADOPT BRIEFS AND TO CERTIFY QUESTION

PER CURIAM.

The appellant has filed a motion seeking this court’s permission to adopt the briefs filed in another case involving the same legal issue raised herein and further requesting that we immediately certify the issue involved to the Florida Supreme Court as one of great public importance. Because the appellee concedes most of the allegations contained in the appellant’s motion and the record supports a conclusion that this case is controlled by our recent decision in State v. Sylvester, 401 So.2d 1123 (Fla. 4th DCA 1981), we have elected to treat the motion as one to expedite the appeal and we do so herein by affirming the order of the trial court denying appellant’s petition for writ of habeas corpus.

We expressly acknowledged in Sylvester that our decision therein directly conflicted with a decision of the First District in Carson v. Bishop, 378 So.2d 882 (Fla. 1st DCA 1979). We also acknowledge that our decision herein expressly conflicts with the Carson decision. We deny the appellant’s request to certify the issue herein as one of ereat Public importance.

The order of the trial court is affirmed.

ANSTEAD, BERANEK and DELL, JJ., concur.


author: DELL, Judge.

text:
    Donald SANDERS, Appellant, v. The FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 81-1245.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.

      Paul J. McDonough of McDonough, Beyer, Phillips & Rogers, P.A., Coral Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John J. Rimes, III, Asst. Atty. Gen., Tallahassee, for appellee.
   DELL, Judge.

This is an appeal from a decision of the Florida Elections Commission finding the appellant guilty of violating § 106.143 Fla. Stat. and fining him $500.

In 1980, appellant was a candidate for the City Commission of Coral Springs. He ordered sample ballots printed. The ballots were delivered to his office in a wrapped package. The appellant, without opening the package, asked his wife to deliver them to a campaign worker for distribution later in the week. The ballots were distributed without the language required by § 106.143 Fla.Stat., “Paid political advertisement paid for by .... ”

§ 106.143(4) Fla.Stat. states:

“Any person who willfully violates the provisions of this section is subject to the civil penalties prescribed in § 106.143.” (Emphasis added.)
The Florida Elections Commission found: “Based upon the facts and circumstances in this matter the Commission believes that had the Respondent exercised reasonable diligence and due care as required of candidates, and possible public officials, such oversight would not have occurred. Voluntary actions and inac-tions in allowing the distribution of materials without the disclaimer, without any review prior thereto, considered in conjunction with all other circumstances herein was a careless and negligent disregard by the Respondent of his responsibilities. It is the Florida Elections Commission’s view that such constitutes a willful violation s. 106.143(1), F.S., (1979), in this instance.”

The court held in County Canvassing Board v. Lester, 96 Fla. 484, 118 So. 201, 202 (1928) that

Every voluntary act of a person is intentional, and therefore in a sense willful, but generally speaking, and usually when considering statutes of the character mentioned, a voluntary act becomes “willful” in law only when it involves some degree of conscious wrong on the part of the actor, or at least culpable carelessness on his part, something more than a mere omission to perform a previously imposed duty.

A careless and negligent failure to comply with § 106.143 Fla.Stat. does not constitute a “willful” violation as required by the statute. Therefore, the Order of the Florida Elections Commission is reversed.

REVERSED.

DOWNEY and GLICKSTEIN, JJ., concur.


author: PER CURIAM. BERANEK, Judge,

text:
    Lewis Keith FIRESTONE, Appellant, v. STATE of Florida, Appellee.
    No. 81-109.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.

      Robert T. Adams, Jr., Marianna, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Laura R. Morrison and Joy B. Shearer, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction for trespass with a firearm and battery. We affirm.

The factual setting involves three people: the defendant/former boyfriend who arrived at the home of his former girlfriend, Essie Cagle, only to discover that she was with another man, John Sczymanski. The jury concluded that the defendant, armed with a pistol, trespassed into the home of Ms. Cagle and committed a battery upon her. On appeal, the defendant asserts that since Ms. Cagle did not testify at trial, there is a critical void as to proof of non-consensual entry and thus, he claims, the trespass conviction must be set aside. We disagree.

Defendant’s legal contention is that his conviction for trespass with a firearm is dependent upon ambiguous circumstantial evidence which could just as easily support a finding of innocence. The record, however, reflects that the evidence, albeit circumstantial, is not equivocal; it permits but one reasonable inference: that the defendant entered the premises without Ms. Ca-gle’s consent.

The defendant testified that he was invited onto the premises by Ms. Cagle and that she, in turn, asked John Sczymanski to leave. Sczymanski, on the other hand, offered a totally different version of the night’s events. Thus, the jury was faced with a basic credibility question and, in accord with Standard Criminal Jury Instruction 2.13(e)4, “Impeachment — Some False Testimony,” the jury was well within its province to reject all of the defendant’s testimony. Moreover, we believe that the testimony about the defendant’s conduct immediately before and after his entry onto the premises ineluctably established an inference of non-consensual entry.

The time was somewhere around 10:00 p. m. John Sczymanski and Essie Cagle were inside the home; Lewis Firestone was outside. Sczymanski testified, “We were laying there and we heard a large or heavy banging on the doors .... [I]t wasn’t a knocking, it was like somebody hammering on the building with force.” Next there was the breaking of glass. This was followed by a brief, inaudible exchange between Essie Cagle and the defendant. Then, almost instantly, the defendant, followed by Cagle, entered the living room. He started toward Sczymanski and Ms. Ca-gle said, “ ‘Don’t’ or ‘No,’ or something. It was happening fast.” The defendant turned and hit Essie Cagle hard — so hard that her mother later described Essie Cagle as having been beaten to a pulp. Then the defendant took a gun from his pants and began firing at Sczymanski.

The near instantaneousness of the transaction coupled with the consistent aggressive and assaultive conduct of the defendant, in our view, firmly establish an inference of nonconsensual entry. Accordingly, we affirm the judgment of guilty as to both crimes.

DOWNEY and HURLEY, JJ., concur.
BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting.

Under my interpretation of the record, the relevant events were not quite so instantaneous as the majority suggests. Moreover, when viewed in context, defendant’s version of the events is very plausible.

John Sczymanski testified that he heard loud banging at the front door of the house, but he stayed in the bedroom while Essie Cagle answered the knocking. Sczymanski heard the sound of glass breaking and loud voices coming from the front part of the house. He could not, however, relate what was said.

The defendant testified that the breaking glass resulted from his heavy banging when there was no initial response to his knocking. He stated that when Essie Cagle finally approached, she told him to go to a side door and she admitted him. Defendant did enter through the side door which was not broken or forced open. It was not until after he entered that he discovered the other man in the house. The State intended to call Essie Cagle as a witness but, at the time of trial, she did not appear. Thus, there was no direct evidence as to whether he entered with or without her consent. Under the circumstances, I believe both consensual and nonconsensual entry are reasonable conclusions and, therefore, the construction indicating innocence should be accepted. Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975).


text:
    D.A.D., INC., a Florida corporation, Appellant, v. Willie M. POOLE, etc., et al., Appellees.
    No. 80-1067.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Edwin B. Arnold, Fort Pierce, for appellant.
    Richard M. White of White & Brown, P. A., Miami, for appellee-Fuch Baking Co.
    James T. Vocelle of Vocelle & Gallagher, Vero Beach, for appellees-Willie M. Poole, et ux.
   PER CURIAM.

This is an appeal from an order on motion for distribution of proceeds of sale entered by the trial court following a mortgage foreclosure.

On October 9, 1979, Ryall Grows, Inc., filed a complaint to foreclose a mortgage alleging as inferior interests the final judgment of General Finance Corporation of Florida, recorded August 17, 1978, the final judgment of Southeast Bank of Sebastian, recorded September 11, 1978, the mortgage of D.A.D., Inc., recorded September 26, 1978, the final judgment of Fuch Baking Company recorded October 15, 1978, and the final judgment of Willie M. Poole and Alice C. Poole, his wife, recorded December 6, 1978.

'Defendant/appellant, D.A.D., Inc., filed its answer admitting its interest in the property by virtue of the recorded mortgage but denying that interest to be inferi- or to the interest of plaintiff. Answers were also filed by appellees, Fuch Baking Co., Willie M. Poole and Alice C. Poole, his wife, Southeast Bank of Sebastian, and the mortgagor. A default was entered against General Finance Corp. of Florida.

Summary final judgment of foreclosure was entered by the trial court. The judgment included a directive that any proceeds of sale remaining after payment of the sum due plaintiff and all costs of foreclosure were to be retained by the Clerk pending further order of the court. The property was sold and after the first mortgage was satisfied in full and all costs of foreclosure paid, there remained in the registry of the court a surplus of $6,943.81. Appellees, Willie M. Poole and Alice C. Poole, his wife, filed a motion for distribution of proceeds and responses to the motion were filed by appellees, Fuch Baking Co. and Southeast Bank of Sebastian, as well as appellant, D.A.D., Inc., each asserting priority of its lien.

A hearing was held on the motion for distribution of surplus and the responses thereto. Thereafter, the trial court entered its order holding that as between judgment creditors with properly recorded judgments (appellees) and a mortgagee holding an un-foreclosed although earlier recorded mortgage (appellant), the judgment creditors were senior and thus entitled to priority over the appellant’s unforeclosed mortgage.

Prior case law held that the filing of a cross claim for foreclosure by an inferior mortgagee was improper and that the remedy of the junior mortgagee joined as a party defending in the foreclosure of a senior mortgage was after foreclosure and sale when the second mortgagee could have the trial court adjudicate his rights to any surplus proceeds from the sale. Jackson v. Dutton, 46 Fla. 513, 35 So. 74 (1903); Dunham v. Smith, 97 Fla. 386, 120 So. 761 (1929); and Riggs v. East Coast Grocery Co., 101 Fla. 1048, 132 So. 693 (1931). Currently, Florida Rule of Civil Procedure 1.170(g) states:

A pleading may state as a crossclaim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. . . .

Appellant contends that this rule is permissive rather than mandatory and that it was not required to foreclose its mortgage by a cross claim in order to assert priority to the surplus funds. While the better practice certainly dictates the filing of a cross claim, we agree with appellant that the rule is permissive. Furthermore, here the parties filed pleadings making priorities to the surplus funds an issue post judgment and the trial court erred in not holding an eviden-tiary hearing to determine these priorities. Although based on the facts of that case, we might not go. as far as the Second District in Schroth v. Cape Coral Bank, 377 So.2d 50 (Fla.2d DCA 1979), we believe that under the facts of this case a similar holding is proper. We reverse and remand to the trial court for an evidentiary hearing to determine priorities.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., and RUTTER, R. WILLIAM, Jr., Associate Judge, concur.

      . Having made no appearance in the initial foreclosure action, Schroth made a motion to establish priority in the surplus proceeds which was denied. In reversing, the Second District held that the trial court should have determined the interest of all the parties at an evidentiary hearing.


author: DOWNEY, Judge.

text:
    Isaac BROWN, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 80-99.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant/cross-appellee.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee/cross-appellant.
   DOWNEY, Judge.

Appellant Brown was identified by two women whom he allegedly robbed at gun point. In addition to the victims’ identification of appellant as the robber, the police found a gun and the victims’ purse in the white pick-up truck which appellant drove away from the robbery scene.

Appellant articulates three points for our consideration on appeal but only one has any merit.

Appellant requested a Tascano instruction on the maximum and minimum penalties for the crime charged. The trial court denied the request and appellant objected to the denial. Although appellant’s counsel did not then state the grounds for the requested instruction she had clearly done so earlier during a colloquy between herself and the trial judge. Counsel fully apprized the trial judge of her contention that current decisions of the Supreme Court of Florida required the trial court upon request to instruct the jury on the penalties attached to the crime in issue. Understandably in view of the state of the flux existing in the law on this question at that time, the trial judge disagreed with counsel and refused to give the requested instruction.

It is clear now that upon request such an instruction must be given. Tascano v. State, 393 So.2d 540 (Fla.1980). The provisions of Rule 3.390 Fla.R.Crim.P. are mandatory. It also seems clear that the harmless error rule set forth in Section 924.33, Florida Statutes (1979), cannot be resorted to in order to cure the error because as the Supreme Court held in Murray v. State, 403 So.2d 417 (Fla.1981):

The district court of appeal in the case sub judice held that Rule 3.390 had a mandatory meaning, but affirmed the conviction of the defendant on the basis of harmless error. If this mandatory duty could be circumvented on the basis of the harmless error rule, the effect of the mandatory provision in the rule would be negated. (Emphasis added.)

See, too, Williams v. State, 399 So.2d 999 (Fla.3d DCA 1981); Palmer v. State, 401 So.2d 1177, (Fla. 4th DCA 1981).

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded for a new trial.

ANSTEAD and HURLEY, JJ., concur.


text:
    Thomas Craig ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1056.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This appeal deals solely with two technical defects involved in the revocation of appellant’s probation: (1) costs and fees were assessed against the indigent appellant; (2) the written order of revocation states that appellant is guilty of burglary with an assault, but the court had orally found that the evidence was insufficient to establish the assault.

The State concedes the defects and admits that correction is required. In such a situation, we fail to see the necessity of an appeal and suggest that the better procedure would have been to allow the trial court to simply correct its apparent clerical errors. We now vacate the order and remand for this purpose. The revocation of probation is affirmed and the matter remanded for correction of technical errors.

AFFIRMED AND REMANDED.

BERANEK, GLICKSTEIN, and HURLEY, JJ., concur.


text:
    Donald Charles BALDINO, Appellant, v. Jo-Ann BALDINO, Appellee.
    No. 81-469.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.

      Robert W. Sidweber of Law Offices of Stephen W. Toothaker, Fort Lauderdale, for appellant.
    Roger G. Stanway, Hollywood, for appel-lee.
   PER CURIAM.

The marriage between the parties hereto was dissolved September 18, 1980. During the pendency of the dissolution proceeding appellant conveyed his interest in the marital domicile to appellee. Approximately six weeks later appellant instituted this action to set aside that conveyance. The trial judge dismissed the complaint with prejudice and this plenary appeal ensued.

We agree with the trial judge’s conclusion that the allegations of the complaint fail to state a cause of action. However, we feel the trial judge should not have dismissed the complaint with prejudice without allowing appellant even an opportunity to amend. Blue v. Weinstein, 381 So.2d 308 (Fla. 3rd DCA 1980). From our study of the record and briefs we cannot conclude that appellant will be unable to state a cause of action in an amended complaint.

Accordingly, the judgment appealed from is reversed and the case is remanded with directions to allow appellant to file an amended complaint.

REVERSED AND REMANDED with directions.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. William Francis GARDNER, Appellee.
    No. 81-245.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance by appellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

HERSEY and HURLEY, JJ., and OWEN, WILLIAM C, Jr., Associate Judge, concur.


text:
    Richard KEEN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1753.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Philip G. Butler, Jr., 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 on the authority of State v. Tsavaris, 394 So.2d 418 (Fla.1981).

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Jeff KRAMMES and Mary Krammes, his wife, Appellants, v. Michael GLESSMAN, Appellee.
    No. 81-526.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Nancy Little Hoffmann and Walter G. Campbell, Jr., of Krupnick & Campbell, P.A., Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY and DELL, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

This is an appeal from a summary judgment exonerating a homeowner from liability for the consequences of an attack by a bee on the employee of a painting contractor. I agree with the majority that the record is void of evidence of actionable negligence against the homeowner.


text:
    Robert and Anna PERKS, Appellants, v. Adolfo KAPLUN, Graciela Kaplun, Orkin Exterminating Company, Inc., a Delaware Corporation, d/b/a Orkin Pest Control, Neil Masnikoff, and Master Realty, Inc., a Florida corporation, Appellees.
    No. 81-712.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1981.
    Steven W. Effman, Lauderhill, for appellants.
    Donald W. Eakin, Fort Lauderdale, for appellees-Kaplun.
   PER CURIAM.

AFFIRMED.

HERSEY and DELL, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

This is an action based on fraud in the sale of a house. I agree that the trial court’s entry of summary judgment was proper because there is no evidence of any fraudulent conduct on the part of the sellers, here the Kapluns, unlike the situation present in Queenan v. Flynn, 347 So.2d 686 (Fla. 4th DCA 1977).


author: WENTWORTH, Judge.

text:
    Joseph WILSON, Appellant, v. STATE of Florida, Appellee.
    No. YY-262.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Michael Allen, Public Defender, and David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant Joseph Wilson challenges the propriety of an order revoking his probation for failure to make restitution to the victim of his crime. He asserts that he was unable to make payments due to insolvency and the court did not expressly find to the contrary and did not previously set the amount of restitution due. We affirm.

Appellant entered a plea of guilty to a charge of grand theft. In September 1978, the lower court placed him on probation for two years contingent upon his compliance with 10 conditions, one of which required him to make full restitution to the victim of his crime. The court did not set the amount of restitution due. The appellant made no objection to any of the conditions or their content. His probation officer then determined that he would be responsible for making restitution in the amount of $329.26.

The record indicates that the appellant was employed during 1979 and up until May 16, 1980. Thereafter he was apparently unemployed. During the entire probation period he made one $10 payment toward restitution. His probation officer advised him that he would have to make efforts to fulfill the conditions of his probation. Upon appellant’s continuing failure to do so, his probation officer sought revocation of probation and an order of revocation was entered.

The law requires that a defendant shall be given notice of a proposed restitution order and allowed to be heard as to the amount of damages or loss caused by his offense. Fresneda v. State, 347 So.2d 1021, 1022 (Fla.1977). The defendant may be notified prior to the sentencing hearing that restitution is a possibility and allowed to be heard at the hearing, or the issue of restitution as a probation condition may be raised by the judge at the sentencing hearing. If the defendant contests the proposed restitution condition at that time, he is entitled to continuance of the hearing for a reasonable time in order to allow adequate preparation to be heard on the issue. Goodson v. State, 400 So.2d 791, 793 (Fla. 2d DCA 1981).

Although appellant did not object to the conditions imposed, he now asserts the absence of judicial prescription of amount of restitution in defense against his probation revocation for violation of that condition. Decisions cited are those which reverse an order imposing a probationary condition of restitution without setting the amount, and remand so that the amount of restitution can be properly set. Hamm v. State, 403 So.2d 1155 (Fla. 1st 1981); Buford v. State, 376 So.2d 479 (Fla. 1st DCA 1979). Those cases, however, obviously involve direct and timely appeals from a trial court order setting the conditions of probation.

While the court in this case should have specified the amount of restitution due, it is clear that appellant made no objection to the condition of restitution at the time it was set by way of the procedures set forth in Fresneda and Goodson. Additionally we note that he made one payment toward restitution, and presents no evidence that he ever objected on the point in question to his probation officer or during the probation revocation hearing. His concession to the propriety of the condition and the amount of restitution is implicit. Appellant has failed to demonstrate any prejudice.

At the probation hearing the court determined that appellant was employed from 1979 until May 15, 1980; that he was financially able to make restitution payments during that period; and that he failed to do so. Upon consideration of those findings, which are supported by competent substantial evidence, we affirm. I.P.J. v. State, 402 So.2d 1373 (Fla. 1st DCA 1981); Coxon v. State, 365 So.2d 1067, 1068 (Fla. 2d DCA 1979).

ERVIN and JOANOS, JJ., concur.

      . While appellant complains that his probation was improperly revoked due to a violation of other conditions, we find no evidence to support these allegations.


text:
    UNITED STATES SUGAR CORPORATION and Gallagher Bassett Insurance Service, Appellants, v. Edward R. HAYES, Appellee.
    No. ZZ-110.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.

      Michael A. Edwards, Law Offices of Charles L. Rowe, West Palm Beach, for appellants.
    Charles W. Musgrove and Don Donaldson, West Palm Beach, for appellee.
   PER CURIAM.

In this workers’ compensation appeal the employer challenges a finding of 50% permanent partial disability based upon loss of wage earning capacity. We find that the Deputy Commissioner improperly took notice of surrounding economic conditions and reverse.

The claimant was employed as a foreman by U.S. Sugar in its farming operations. In September, 1977, while adjusting a plow, the claimant felt a pain in his lower back. The pain persisted and worsened, expanding into his back and legs. The claimant underwent a variety of medical procedures with no relief from the pain. Finally on April 30, 1979, Dr. Hoover, an orthopedic surgeon, found that the claimant had reached maximum medical improvement with a 5-8% PPD. No organic reason for the claimant’s pain had been found. In November 1979 the claimant, at his own expense, received back surgery at Duke University. Although no physical reason is known, this surgery resulted in almost complete relief from the pain.

The employer maintained the claimant on its payroll until April 30,1979. Then, when the physician reported MMI but the claimant still complained of disabling pain, the claimant was given a choice of a year’s leave with no promise of a job upon return or termination. He chose termination. The claimant at the time of the hearing was employed as a truck driver with a different employer.

To award PPD on the basis of lost earning capacity a Deputy Commissioner must find a lessened earning capacity caused by the accident. Post-accident wages may be found only following a diligent job search. The record here does support findings of a 50% lower wage and an adequate job search. The Deputy Commissioner further found, with adequate support in the record, that the claimant’s employment had been terminated, and further sugar company employment had been denied because of his medical problems resulting from the industrial accident. However, regarding employment conditions in the area, the Deputy made the following finding:

I take notice of the fact that the LaBelle-Clewiston area is essentially a one-industry town in which the major sugar processors and producers pay wages far in excess of those commonly available. Thus, taken on a purely loss of wages basis, the claimant has suffered a 50% loss of earnings as a consequence of this injury. The fact that he was terminated by U.S. Sugar and essentially denied employment from the sugar industry means that the claimant must take work at a much lower pay scale since that is the only work available in the community outside of the industry.

Although the accuracy of these statements may not be subject to question, we find it was error for the deputy to take judicial notice of surrounding employment conditions. While a worker may be compensated for the aggravation of an injury by economic factors, the findings of the Deputy Commissioner as to these factors must be based on record evidence. City of Hollywood v. Castora, 380 So.2d 1148 (Fla. 1st DCA 1980). This is true regardless of the accuracy of the noticed facts. Wesley’s, Inc. v. Caramello, 156 So.2d 853 (Fla.1963). Apparently the deputy treated the economic conditions of the LaBelle-Clewiston area, and the nature of one-industry towns, as facts not subject to dispute because they are generally known within the territorial jurisdiction of the Deputy Commissioner, Section 90.202(11), Florida Statutes (1979). Employment market conditions are not noticeable as generally known facts nor does a Deputy Commissioner have any special expertise which would allow him to take such notice. E & A Concrete v. Perry, IRC Order 2-3421 (May 3, 1978).

There is another reason why the taking of judicial notice was error. Section 90.204, Florida Statutes (1979), requires that the parties be given a reasonable opportunity to “present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.” This requirement of the evidence code was not complied with here.

With the judicially noticed facts eliminated from consideration, as they must be, the order does not contain sufficient findings to support an award of 50% PPD based on lost wage earning capacity. On remand the deputy shall hold hearings, receive evidence, and make such additional findings as may be necessary as to economic and employment conditions as they relate to claimant’s loss of earning capacity.

The order is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion.

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


text:
    FLORIDA POWER & LIGHT CO., Appellant, v. Frederick MONKS, Appellee.
    No. AB-37.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    George F. Taylor, Jr. of Spencer & Taylor, Miami, for appellant.
    Robert H. Schott of Gamba, Junod & Schott, Palm City, for appellee.
   PER CURIAM.

In this workers’ compensation action the employer/carrier urges two points on appeal which we agree should be reversed and remanded. As to Point I, we agree with the appellant that the deputy commissioner erroneously included the claimant’s earnings from self-employment as an independent contractor in computing the average weekly wage. See Randell, Inc. v. Chism, 404 So.2d 175, (Fla. 1st DCA, 1981); Jay Livestock Market v. Hill, 247 So.2d 291 (Fla.1971); Parrott v. City of Ft. Lauderdale, 190 So.2d 326 (Fla.1966).

Point II requires reversal because the deputy’s inaccurate and inconsistent findings on permanent impairment, apparently stemming from his confusing one medical opinion for another, precluded meaningful appellate review of his legal conclusions. On remand, the deputy should clarify his findings on which an award of temporary partial disability may be based.

The point on cross-appeal is unripe until the findings on permanent impairment are clarified on remand.

Reversed and remanded for proceedings consistent with this opinion.

ERVIN, BOOTH and THOMPSON, 33., concur.


author: McCORD, Judge.

text:
    FLORIDA STATE BANK OF TALLAHASSEE, Appellant, v. Curtis HONEY and Hearl Brogan, Appellees.
    No. AB-90.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    L. Lee Williams, Jr., of Peeples, Earl, Moore & Blank, Tallahassee, for appellant.
    R. Lee Dorough, Tallahassee, for appellee Honey and Neil H. Butler of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appellee Brogan.
   McCORD, Judge.

Appellant, Florida State Bank (Bank), appeals the trial court’s denial of its claim against appellees in Count III of its complaint against several defendants. We reverse.

In Count III, appellant sought judgment against appellees on the basis of their execution of an unconditional guaranty in favor of appellant wherein they guaranteed “all existing and future debts, whether absolute or contingent” of Honey Lease/Rental/Sales, Inc. to the Bank. The guaranty was executed at a time when Honey Lease/Rental/Sales borrowed $5,000 from appellant. Appellant submitted that the debt for which it seeks recovery arose when appellant paid checks on Honey Lease/Rental/Sales’ corporate checking account maintained at the Bank which resulted in an overdraft in the amount of $43,103.

In their answer, appellees admitted that Honey Lease/Rental/Sales maintained the checking account, and they admitted their execution and delivery of the guaranty. The answer raised several affirmative defenses, one of which was that the guaranty was only meant to guarantee loans made by the Bank to appellees which would not include overdrafts. The trial court denied appellant’s motion to strike that affirmative defense.

In its final judgment, the trial court found that there is no ambiguity in the language of the guaranty and that the debt created by the overdraft is included under the terms of the guaranty. The court stated further, however, that even over the objections of appellant that parol testimony would alter the unambiguous terms of the written guaranty, the court accepted parol testimony that neither party anticipated at the time the guaranty was executed that a corporate overdraft would occur creating a corporate indebtedness and, consequently, no one anticipated that individual liabilities resulting from an overdraft would arise. The court thereupon ruled that appellant was not entitled to recovery of the overdraft amount from appellees.

The trial court correctly found no ambiguity in the guaranty and that the overdraft was a debt which was included in the language of the guaranty. Consequently, the trial court erred in allowing parol testimony to contradict the unambiguous terms of the guaranty. See Smith Engineering and Construction Company v. U. S. Fidelity and Guaranty Company, 199 So.2d 302 (Fla. 1st DCA 1967), and E. A. Turner Construction Company v. Demetree Builders, Inc., 141 So.2d 312 (Fla. 1st DCA 1962).

Foster v. Terenio, 158 Fla. 883, 30 So.2d 531 (1947), relied upon by appellees, is distinguishable. In Foster, the court ruled that:

Where a party admits that a written instrument does not voice the entire agreement (as the sellers did here), it is clear that he cannot rely on the principal of law that parol evidence will not be allowed to vary the terms and conditions of a contract in writing.

Appellees relate that one of appellant’s vice presidents testified that when the corporate checking account (on which the overdraft was made) was opened, no guaranty was required by the Bank; that the guaranty was executed in conjunction with the $5,000 note; that the guaranty would not have been required except for execution of the note; that the only purpose of the term “unlimited” in the guaranty was to cover any future borrowings by the corporation. This testimony was not an admission that there was an additional agreement or there were additional agreements between the parties that were not put into the contract as was the situation in Foster. The testimony here related only to the intent of the parties at the time the guaranty contract was executed. Such parol evidence of intent was not admissible. Parol evidence may not be used to create ambiguity in an unambiguous agreement. The court erred in admitting parol evidence to vary and contradict the unambiguous terms of the guaranty.

REVERSED.

MILLS, J., and AGNER, ROYCE, Associate Judge, concur.


text:
    Gene Raymond BROOKS, Appellant, v. Duane O. BROOKS, Sr., Appellee.
    No. AB-205.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Steven E. Rohan of Vickers & Rohan, P.A., Jacksonville, for appellant.
    David M. Wiesenfeld of Dawson, Galant, Maddox, Sulik & Nichols, P.A., Jacksonville, for appellee.
   PER CURIAM.

Gene R. Brooks appeals from a summary judgment declaring his father, Duane 0. Brooks, sole owner of 357 shares of General Motors stock. The son alleges that the shares were an inter vivos gift to him from his father, and that genuine issues of material fact remain to preclude summary judgment in the suit filed by his father to determine ownership of the shares.

It is undisputed that the father acquired 357 shares of General Motors stock as an employee of that corporation. The father attempted twice to transfer his shares to the son, apparently in anticipation of the son dividing the shares with his three siblings upon the father’s death. In 1975, the father signed an Irrevocable Stock Power of Attorney, allegedly transferring the shares to the son, but there is no undisputed evidence that the father delivered the stock certificate or that the son exercised the power in order to consummate the transfer. In 1978, the father had the certificate reissued in his name and that of his son as joint tenants. The father alleged in his complaint that he retained continuous possession of the certificate after reissuance, received all dividends, and made all decisions regarding the shares. The son denied the allegations and swore in an affidavit that he possessed the certificate from 1978 until it was taken from him in 1980. Questions of delivery and control of the stock prevent determination that a gift was completed.

We find that the disputed evidence before the trial judge precluded determination that either attempt did or did not constitute a valid transfer of the shares. Therefore, we reverse the summary final judgment and remand for resolution of the remaining issues of material fact touching upon ownership of the shares of stock.

REVERSED.

SHAW and JOANOS, JJ., and WILLIS, BEN C., Associate Judge, concur.


text:
    Ennis D. SYKES, Appellant, v. STATE of Florida, Appellee.
    No. AD-139.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Michael E. Allen, Public Defender, and Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant Ennis D. Sykes seeks reversal of his conviction of obtaining unemployment compensation benefits by fraud due to the State’s failure to comply with the provisions of the speedy trial rule applicable to individuals incarcerated within the State and in effect in 1978. See Rule 3.191, Fla. R.Crim.P. (1977). We reverse.

For violation of probation, Sykes was sentenced to three years in the state prison on December 6, 1977. Shortly thereafter, the Florida Bureau of Unemployment Security began demanding that Sykes make restitution for unemployment compensation benefits previously obtained by fraud. Due to his incarceration, Sykes was unable to respond with a repayment, but the State continued sending demands to Sykes’ prison cell and to his relatives. On October 5, 1978, an information was filed against Sykes for obtaining unemployment compensation by fraud, a felony.

Sykes was never advised of the charges until March 9,1981, and he was not brought to trial until April, 1981. By written motion citing the speedy trial rule, Rule 3.191, supra, Sykes moved to dismiss the charges, because the State failed to bring him to trial within one year of the date on which the information was filed. At the hearing on the motion, his counsel argued the motion on the basis of constitutional right to a speedy trial but presented the lower court with a copy of his earlier motion citing the applicable criminal rule of procedure. The motion was denied, because Sykes had failed to show that he had been prejudiced by the delay, whereupon Sykes pled nolo contendere, reserving the right to appeal the denial of the motion.

At the time that the information was filed in 1978, Rule 3.191(b)(1), Florida Rules of Criminal Procedure, stated that any person imprisoned in a state prison and who is charged by information shall be brought to trial within one year, if the crime is a nonviolent felony. The one-year period commenced on the date that the information was filed, according to the terms of the rule. By its terms, the rule is mandatory upon the State, since it requires that an affected person “shall without demand be brought to trial within one year....” Compare Tascano v. State, 393 So.2d 540, 541 (Fla.1980).

The record indicates that a proper motion was made citing Rule 3.191. That Sykes’ counsel may have extensively argued in favor of the motion on constitutional grounds is immaterial, because his attorney brought the written motion to the lower court’s attention during the motion hearing, and the motion clearly referred to Rule 3.191, supra. In changing his plea to nolo conten-dere the record indicates that Sykes properly preserved his right to appeal the denial of the motion which is dispositive of the result in this case.

Because the State failed to comply with the applicable provisions of Rule 3.191(b)(1), Florida Rules of Criminal Procedure, we REVERSE and REMAND with directions that the information be dismissed.

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

      . U.S.Const.Amends. VI, XIV, Sec. 1; Art. I, Sec. 16, Fla.Const.

      . See Jackson v. Green, 402 So.2d 553 (Fla. 1st DCA, 1981).


text:
    FLORIDA PAROLE AND PROBATION COMMISSION, Appellant, v. Frank J. BARANKO, Appellee.
    No. AD-229.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Catherine L. Dickson, Asst. Gen. Counsel for Florida Parole and Probation Commission, Tallahassee, for appellant.
    Frank J. Baranko, Starke, in pro. per.
   PER CURIAM.

The Florida Parole and Probation Commission appeals from a- trial court order denying its motion for rehearing of a writ of mandamus and requiring it to conduct a de novo parole hearing for the benefit of appellee. „

The only question presented is whether notice of a meeting of the Florida Parole and Probation Commission published in the Florida Administrative Weekly is sufficient public notice under the “sunshine law,” Section 286.011, Florida Statutes. We hold, as a matter of law, that it is.

The Florida Parole and Probation Commission is subject to both the sunshine law and the administrative procedures act. Accordingly, the Commission must provide public information, including notice of scheduled meetings, as required by Section 120.53, Florida Statutes. The method for providing such information is established by Section 120.55, Florida Statutes, which provides for the publication and distribution of the Florida Administrative Weekly.

The Commission presented evidence that it had complied with the sunshine law for the first time with its motion for rehearing. While we recognize that the decision to grant rehearing to consider additional evidence is within the sound discretion of the trial judge, we hold it was an abuse of discretion to require the Commission to conduct a de novo public hearing, once it became apparent that the original hearing was public.

The trial judge was apparently somewhat outdone with the dilatory actions of the Commission in this case, and we share his concern. While we recognize that a certain amount of confusion naturally attends a change in the law governing the activities of an agency, we are not convinced that administrative confusion excuses the excessive delay in this case.

The order denying the Commission’s motion for rehearing is reversed and the writ of mandamus is vacated.

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

      . Turner v. Wainwright, 379 So.2d 148 (Fla. 1st DCA 1980), affirmed 389 So.2d 1181 (Fla.1980).

      . Florida Institutional Legal Services v. Florida Parole and Probation Commission, 391 So.2d 247 (Fla. 1st DCA 1980).

      . Maryland Casualty v. Murphy, 342 So.2d 1051 (Fla. 3rd DCA 1977).

      .Appellee originally filed a petition for writ of habeas corpus, which the trial court treated as a petition for writ of mandamus. Mandamus is an extraordinary writ and should not be granted when it will achieve no beneficial result, such as when the act sought to be compelled has been performed. City of Winter Garden v. Norflor Construction Corporation, 396 So.2d 865 (Fla. 5th DCA 1981).


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant, v. James Wesley FRAZIER, Appellee.
    No. 81-200.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.

      Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the trial court’s order which granted Frazier’s motion to dismiss the information charging second-degree murder. The .motion, to which the State demurred, asserts that under either of Frazier’s statements to the police, viewing the facts and inferences therefrom most favorably to the State, the State would be unable to establish the defendant’s guilt or defeat his claim «of self-defense. We disagree.

In the defendant’s first statement given immediately after the stabbing, he told the police that he and Betty Thomas, his common-law wife, had been drinking all day and that thereafter, he fell asleep on the couch in the living room of their apartment. The defendant woke and “observed the deceased walking toward him. In the past he had been assaulted numerous times by Betty Jean Thomas with a knife and he was afraid. When he observed Ms. Thomas walking toward him, he did not know if she had anything in her hand. Mr. Frazier did not know how he came about getting the knife. The next thing he knew, Ms. Thomas was stabbed.”

Six days later, Betty Thomas died. Frazier was arrested and gave a second account of the incident. Again, he related that he and the victim engaged in an all-afternoon outdoor drinking bout of rum and beer. The deceased accused him of having an affair with another woman, and he denied his involvement. They argued, went into their apartment, and the defendant dozed off on the couch to the sound of the deceased’s continued accusations. In this version, Frazier “recalled opening his eyes and . . . observed Ms. Thomas coming towards him. She had a knife in her hand. He did not really recall what occurred after that. He believes that somehow he got the knife, and swung at her one time, striking her in the neck area. Mr. Frazier also stated that Betty Thomas had cut him numerous times before. He cut her because he knew she was coming back to cut him.”

A man, fearless enough to repair with his common-law wife to the apartment he shares with her and go to sleep despite the asserted fact that in the past the woman had directed violence towards him, who awakes to observe his wife coming toward him and either not knowing whether she is armed or how he came into possession of the knife with which he slays her; or, under his post-arrest version of the event, who sees her with a knife, disarms her, and cuts her “because he knew she was coming back to cut him,” does not, under either circumstance, have such a reasonable basis to fear for his life that, as a matter of law, he cannot be found guilty of homicide so as to warrant a dismissal of the charge against him. See Sanders v. State, 359 So.2d 899 (Fla.3d DCA 1978); Bristow v. State, 338 So.2d 553 (Fla.3d DCA 1976); Jones v. State, 286 So.2d 29 (Fla.3d DCA 1973); Gil v. State, 266 So.2d 43 (Fla.3d DCA 1972).

Moreover, even if, arguendo, one of Frazier’s versions of the stabbing were to warrant a dismissal of the charge, a separate inconsistent, but not thoroughly exculpatory, version of the event is evidence of the falsity of the completely exculpatory statement, which not only justifies the rejection of the completely exculpatory statement, but can be used to affirmatively show consciousness of guilt and unlawful intent. United States v. Pistante, 453 F.2d 412 (9th Cir. 1971). See Brown v. State, 391 So.2d 729 (Fla.3d DCA 1980).

Reversed and remanded.

      . The quoted statement is certainly susceptible of the interpretation that the defendant stabbed Ms. Thomas to put an end to any future threat.

      . The defendant’s motion requested dismissal, not a reduction of the charge to manslaughter. The State’s demurrer only addressed the defendant’s request. While the facts contained in the defendant’s statements and the circumstances of the assault may not “evince a depraved mind regardless of human life,” there may be additional evidence in the State’s possession which justifies a second-degree murder charge. The State filed no traverse and did not present to the trial court an arguably admissible “dying declaration” of the victim, which it has referred to on this appeal. We do not consider that evidence on this appeal, except to point out that it may show the second-degree charge to be viable.


text:
    Sanford S. BACON, Appellant, v. Leslie J. AUGUST, CPA; Lawrence H. Blum, CPA; Martin Chernoff, CPA; Stanley L. Cohen, CPA; Richard Drath, CPA; and Gary Gross, CPA, et al., Appellees.
    No. 81-347.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Landefeld & Romanik, Hollywood, for appellant.
    Paige & Catlin and Steven H. Hibbe, Miami, for appellees.
    Before SCHWARTZ, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Although the plaintiffs’ attempt to pierce a corporate veil was rejected by an unap-pealed order of involuntary dismissal at the conclusion of their case at the trial, we are unable to find an abuse of discretion in denying the defendant’s motion for attorneys’ fees under Section 57.105, Florida Statutes (1979). Guthartz v. Lewis, 408 So.2d 600 (Fla.3d DCA 1981); Executive Centers of America, Inc. v. Durability Seating & Interiors, Inc., 402 So.2d 24 (Fla. 3d DCA 1981); City of Deerfield Beach v. Oliver-Hoffman Corp. of Deerfield Beach, 396 So.2d 1187 (Fla. 4th DCA 1981); Freeman v. Valdez, 393 So.2d 1173 (Fla.3d DCA 1981); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980), review denied, 392 So.2d 1373 (Fla.1980); see Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


author: BASKIN, Judge.

text:
    Sylvia J. CALFIN, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 81-372.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Larry V. Bishins, Bruce David Green, Ft. Lauderdale, for appellant.
    David M. Maloney and Janice G. Scott, Tallahassee, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ;
   BASKIN, Judge.

We affirm the Division’s denial of appellant’s application for a horse trainer’s license upon our conclusion that its denial is in accord with the decision of the Fourth District Court of Appeal in Calfin v. State, Department of Business Regulation, 391 So.2d 739 (Fla. 4th DCA 1980). On rehearing, the court modified the penalty imposed to revocation of her license and a $400 fine; it held that the “additional penalty” imposed by the Division was unauthorized and could not remain in effect. The additional penalty was contained in an amended order of the Division. It denied appellant privileges of the grounds for the two-year period she had been made ineligible for licensing in the Division’s original order. The appellate court did not, however, alter the provision which declared appellant ineligible for licensing for two years until December 12, 1981.

Affirmed.


author: FERGUSON, Judge.

text:
    W. T. COX, Jr., C. H. Pitts, George Scheidler, I. A. Grodzin and Ben Pekin, Appellants, v. Mason G. O’NEAL, Jr., Appellee.
    No. 81-595.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.

      Maguire, Voorhis & Wells and Ted R. Brown, Orlando, for appellants.
    Harold Peter Barkas, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

In the first appeal of this case, reported at 364 So.2d 528 (Fla.3d DCA 1978), the court framed the issue as “whether, in light of the trust agreement, appellee (O’Neal) was to share solely in the profits of the joint venture or be susceptible to losses incurred by the venture, as well.” In resolving the dispute this court looked only to the trial court’s finding of fact that O’Neal was not a general partner subject to any losses or liabilities resulting from the venture and found competent and substantial evidence to support that fact.

Following that opinion, appellants contracted to sell parcels of the venture property. After sale of the property at a loss, no proceeds were distributed to appellee— appellants interpreting the final judgment as entitling beneficiaries to share only in profits. Pertinent language from the final judgment is found in the trial court’s first factual finding:

1. Plaintiff, O’Neal, entered into a joint venture with Defendants whereby he conveyed his contract rights to purchase a unique parcel of acreage located in Deso-to County, Florida for which the other participants agreed that he would receive for such conveyance the return of his deposit .. . plus a thirty percent interest in the profits of the trust enterprise ....

Appellee, O’Neal, filed a motion for in-junctive relief, enforcement, attorney’s fees and costs seeking to share the proceeds of the sale. The trial court entered an Order Denying Contempt and Construing Final Judgment, holding that it was not the court’s intent that O’Neal only participate in 30% of the profits, but further construing the judgment as entitling O’Neal to a “30% interest in the gross [sale] price.... ”

The issue raised in this second appeal is whether appellee is entitled to not only profits of the joint venture but to “30% of the gross proceeds” even where the partnership assets are sold at a loss. This question was not expressly raised in the first appeal, nor could it have been, as contended by appellee, since the present controversy derives from the trial court’s new interpretation of the judgment after our affirmance.

We have reviewed the entire record of these proceedings, particularly the trust agreement, and find that it will not support the commercially incredible construction that the appellants, all businessmen, agreed that appellee as a non-liable participant in the venture, would be entitled to thirty percent of the gross proceeds from the sale of the assets even if the assets were disposed of at a loss. On this record, the rule which precludes the appellate court from reevaluating the evidence would have no application. Howell v. Blackburn, 100 Fla. 114, 129 So. 341 (1930). By terms of the trust agreement no beneficiary, at any time, had any right, title or interest to any portion of the real estate as such, either legal or equitable, but only an “interest in the earnings, avails and proceeds” of the venture. In this context the terms more reasonably mean profit either from (1) excess of income over and above operating expenses in the ongoing venture, or (2) gains realized on the sale or exchange of investment assets. Cf. Associated Electric Co. v. United States, 97 F.Supp. 821 (Ct.Cl.1951). There is evidence of neither in this record.

Reversed and remanded for proceedings consistent with this opinion.

JORGENSON, J., dissents.

      . The deposit was returned and is not an issue in this appeal.


text:
    KENDALL ACRES WEST CONDOMINIUM ASSOCIATION, INC., a Florida corporation not for profit, Appellant, v. Lynn O’BRIEN, Appellee.
    No. 81-645.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Myers, Kaplan, Levinson, Kenin & Richards and Susan Walker Schehr and Bruce J. Berman, Miami, for appellant.
    Edward C. Vining, Jr., Miami, for appel-lee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Upon consideration of the appeal and cross-appeal, we affirm the judgment and denial of injunction on the merits of the issues presented but reverse the trial court’s denial of attorney’s fees and costs to appel-lee. § 718.125, Fla.Stat. (1979).

Remanded for hearing to determine attorney’s fees and costs.


text:
    GAMBRO LATIN AMERICA, INC., Appellant, v. Antonio FASANO, Appellee.
    No. 81-802.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Shutts & Bowen and Edmund T. Henry, III, Miami, for appellant.
    Andrew C. Pavlick, Miami, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Helman v. Seaboard Coast Line R. R., 349 So.2d 1187 (Fla.1977); Haiman v. Gundersheimer, 130 Fla. 109, 177 So. 199 (1937); Placet, Inc. v. Ashton, 368 So.2d 404 (Fla.3d DCA 1979), cert. denied, 378 So.2d 347 (Fla.1979); Linton v. Pension Services Corp., 389 So.2d 247 (Fla.2d DCA 1980).


text:
    Anna GAUTY and Mia Leah, Inc., d/b/a Commercial Insurance Agency No. 2, Appellants, v. PENINSULAR FIRE INSURANCE COMPANY and Jose R. Cepero, Appellees.
    No. 81-811.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Welbaum, Zook, Jones & Williams and Alan B. Baybick, Miami, for appellants.
    George, Hartz & McNary and Mitchell L. Lundeen, Miami, Arnold R. Gellman and Harry Hipler, Jacksonville, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment entered against the appellants, who negligently failed to procure workmen’s compensation coverage for Cepero as an employee of his partnership, is affirmed. See Key v. Goley, 402 So.2d 80 (Fla. 1st DCA 1981); Sheridan v. Greenberg, 391 So.2d 234 (Fla.3d DCA 1980). However, the trial court is directed to reduce the judgment by $911.82, the amount which Cepero would have paid as an additional premium had the coverage he sought for himself been obtained. Derby v. Blankenship, 217 Ark. 272, 230 S.W.2d 481 (1950); Greenfield v. Insurance Inc., 19 Cal.App.3d 803, 97 Cal.Rptr. 164 (1971).

Affirmed as modified.


text:
    PACRE CORPORATION, Appellant, v. J. F. SOULARY CONSTRUCTION CORPORATION, Appellee.
    No. 81-1435.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Mills & London and Minervino Rodriguez, Jr., Miami, for appellant.
    Richard Burns, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Walter Harvey Corp. v. Cohen-Ager, Inc., 317 So.2d 775 (Fla.3d DCA 1975).


text:
    Hubert S. TURNBULL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2527.
    District Court of Appeal of Florida, Third District.
    Jan. 5, 1982.
    Hubert S. Turnbull, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Petitioner Hubert S. Turnbull, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R. Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: PER CURIAM. JOANOS, Judge,

text:
    Joseph Guion WIGGINS and Hilda Wiggins, Appellants, v. Rufus TART, trading as Rufus Tart Transfer, and National Indemnity Company, as a foreign corporation, Appellees.
    No. YY-246.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1982.
    Russell W. LaPeer, of Wahl & Gabel, Jacksonville, for appellants.
    Michael I. Coulson, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for Rufus Tart, appellee.
    William T. Stone, of Webb, Swain & Watson, P. A., Jacksonville, for National In-dem., appellee.
   PER CURIAM.

Count II of appellants’ amended complaint was dismissed with prejudice upon appellees’ motion urging that the amended complaint failed to state a cause of action. Appellants do not challenge the propriety of the dismissal, but urge only that it should have been ordered without prejudice rather than with prejudice. We agree. The trial court should not deny leave to amend unless the privilege to amend has been abused or the complaint is clearly not amendable. Highlands County School Board v. K. D. Hedin Construction, Inc., 382 So.2d 90 (Fla.2d DCA 1980).

Accordingly, we direct that the order of dismissal be amended to reflect dismissal of Count II as “without prejudice.”

The order, as amended, is AFFIRMED.

SHAW, J., and BEN C. WILLIS, Associate Judge, concur.

JOANOS, J., dissents with opinion.

JOANOS, Judge,

dissents.

My view of the record supports the conclusion apparently reached by the trial judge that the amended complaint could not be further amended to state a cause of action upon which relief could be granted. That being the situation, I see nothing improper in the dismissal being “with prejudice.”


text:
    CAROLINA CASUALTY COMPANY, Appellant, v. GENERAL TRUCK EQUIPMENT & TRAILER SALES, INC., a corporation, Appellee.
    No. AE-425.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1982.
    Charles T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellant.
    George D. Rotchford of Rotchford & Be-tancourt, Jacksonville, for appellee.
   McCORD, Judge.

Appellant appeals the trial court’s setting aside of its October 21, 1980, order dismissing with prejudice appellee General Truck’s claim against appellant. We reverse.

In April 1979, appellee filed suit against appellant and Catawba Insurance Company, alleging that sometime between November 1, 1977, and April 14, 1978, a vehicle owned by appellee was stolen and that either appellant or Catawba had issued an insurance policy covering the loss. The complaint was dismissed without prejudice to file an amended complaint. Appellee filed several untimely amended complaints which were also dismissed without prejudice. Finally, on October 21, 1980, the trial court entered an order on motions to dismiss the latest amended complaint. In the order, the judge dismissed with prejudice the complaint against appellant and allowed appel-lee to file another amended complaint against Catawba. After obtaining new counsel on the case, appellee voluntarily dismissed its action against Catawba and on May 13, 1981, moved the trial court to set aside the October 21, 1980, order pursuant to Florida Rule of Civil Procedure 1.540(b) on the ground that the trial court mistakenly dismissed with prejudice the complaint against appellant.

The hearing on the motions that were the subject of the October 21, 1980, order was not reported. However, at the hearing on appellee’s motion to set aside that order, the trial judge and the attorney for appellant stated on the record that, in their recollection, at that previous hearing, the then counsel for appellee announced in open court that he would proceed solely against Catawba and that he would agree to a dismissal as to appellant with prejudice. The attorney for Catawba had the same recollection, as shown by his affidavit in the record. In his order on the motion to set aside, the trial judge declared that there was no doubt that the then counsel for appellee agreed to the entry of the October 21, 1980, order dismissing with prejudice the action against appellant and that the order was properly entered and should stand. He ruled, however, that “simply in the interest of justice and to permit the plaintiff to have his day in court and overlooking any errors made in the case by plaintiff’s counsel,” the October order would be modified to read that the cause against appellant is dismissed without prejudice. That ruling was error since Rule 1.540(b), which gives a court the authority to relieve a party from a final order, makes no provision for such relief in the absence of mistake, inadvertence, surprise, excusable neglect or certain other conditions not pertinent here.

Further, according to Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), when a claimant voluntarily dismisses an action pursuant to Florida Rule of Civil Procedure 1.420(a)(l)(i), the trial court loses jurisdiction to set aside that voluntary dismissal under Rule 1.540(b). The evidence in this case supports a finding that appellee voluntarily dismissed its action against appellant pursuant to Florida Rule of Civil Procedure 1.420(a)(2). The reasoning employed in the Randle-Eastern case concerning a voluntary dismissal pursuant to Rule 1.420(a)(l)(i) applies equally to a voluntary dismissal under Rule 1.420(a)(2). Therefore, the trial court in the instant case was divested of jurisdiction over the claim against appellant as of the October 21,1980, order and thus was powerless to relieve appellee from that dismissal.

REVERSED.

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


text:
    Louise ST. AZILE, Appellant, v. KING MOTOR CENTER, INC., and Vernon Woodrow Sjodin, Appellees.
    No. 80-1956.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 1982.
    Charles R. Mindlin of Law Offices of Philip A. Brooks, Miami Beach, for appellant.

      D. Patrick Winburn of Thomas T. Grim-mett, P. A., Fort Lauderdale, for appellees.
   BERANEK, Judge.

Louise St. Azile appeals an adverse final judgment asserting error in trial and in the denial of her motion for new trial. On July 25, 1978, the appellant was a passenger in a car being driven by Dieuseul Louis which was involved in an accident with a van driven by Vernon Sjodin and owned by King Motor Center, Inc. The accident occurred in Broward County on 1 — 95 heading north when Sjodin changed lanes in front of Louis’ car causing Louis to swerve in order to avoid hitting the van. Louis lost control, crossed the median strip, and collided with cars heading south. The appellant sued Sjodin and King Motor Center seeking compensation for her injuries. The appellees filed a third party complaint for indemnification against Louis.

As part of her case in chief, the appellant called Mr. Louis as a witness. Louis, who had previously been deposed, did not testify in accordance with his deposition. Rather than waiting for cross-examination, appel-lees’ counsel rose in the presence of the jury and stated: “. . . I’d like this witness advised of perjury at this time. I have a sworn statement to the contrary. ... I’d like the State’s Attorney brought in here. This is out and out flagrant change of his prior testimony.” The appellant made a motion for a mistrial upon which the court never ruled. When it came time for cross-examination, the appellee asked to offer Mr. Louis’ deposition in lieu of cross-examination declaring in front of the jury: “I’m so hot because I think this man is lying.” The appellant did not object to use of the deposition but rather than normal cross-examination or reading the deposition to the jury, the court, after much discussion, allowed appellees to give each juror a copy to read at his leisure. The appellant strenuously objected on the grounds that the deposition was testimony, not documentary evidence, and that more emphasis would be placed on this evidence than on any other witness’s testimony. The court overruled the objection and allowed each juror to read the deposition during a recess. The jury found for the appellees and the court denied the appellant’s motion for a new trial.

The appellant raises three points on appeal, two of which are meritorious. First, the appellant contends that the trial court erred in denying her motion for a new trial which was based in part on the court’s denial of a mistrial following the remarks made by appellees’ counsel. A motion for mistrial is directed to the sound judicial discretion of the trial judge. Compania Dominicana de Aviacion v. Knapp, 251 So.2d 18 (Fla. 3d DCA 1971). We believe the trial court abused his discretion in this matter. It is clear that appellees’ counsel was grandstanding in a totally improper fashion. The court in Moore v. State, 102 Fla. 1135, 136 So. 888 (1931), made the following remarks concerning the conduct expected of a state prosecutor:

This court has several times held that a state attorney occupies a quasi judicial position, and should conduct the case for the state with perfect fairness to the defendant. He should not unnecessarily take any action in the presence of the jury calculated to prejudice the jury against the defendant or any witness for the defendant, though it is perfectly permissible for him by skillful cross-examination or the introduction of other evidence to reveal either mistakes or falsehoods in the testimony of the defendant’s witnesses pertaining to matters material to the issues. If it develops in the trial of a criminal case that a witness has perjured himself and deserves to be arrested and prosecuted, the state’s attorney can very easily refrain from taking any immediate action in the presence of the jury during the trial of the case, as he can effectively handle the situation in other ways without prejudice to the case then on trial.

Obviously the considerations are slightly different in a civil case but every lawyer, as an officer of the court, has a duty of basic fairness. To accuse a witness of lying, demand a warning as to perjury, and request the state attorney be brought in, all in the presence of the jury is totally improper. Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (1945). It is inconceivable to us that the jury in this case was not prejudiced by counsel’s remarks. This is particularly true in light of the further improper use of the witness’s deposition as bearing upon his credibility.

The appellant’s second point concerns use of the deposition. Appellees argue that appellant made no objection to introducing the deposition. However, it was not the introduction but the manner in which it was introduced and used to which the appellant objected. It is clear from the record that counsel strenuously objected to giving copies to the jurors. The appellant correctly argued at trial that the deposition was testimony, not documentary evidence. Furthermore, the clear import of Fla.R. Civ.P. 1.330(b) is that depositions must be read to the jury. This rule concerns objections to admissibility of depositions and states:

(b) Objections to Admissibility. Subject to the provisions of Rule 1.300(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part of it for any reason that would require the exclusion of the evidence if the witness were then present and testifying.

By allowing each juror to read the deposition in its entirety, appellant’s right to object to any portion was foreclosed. See Schoeppl v. Okolowitz, 133 So.2d 124 (Fla. 3d DCA 1961). Further there are established procedures governing the impeachment of witnesses by use of prior inconsistent statements. A predicate must first be established by calling the attention of the witness to be impeached to the allegedly contradictory statements and to the occasion when it is alleged said statements were made. In addition, opportunity must be given the witness to examine, explain, confess, or deny such contradictory statements. Garcia v. State, 351 So.2d 1098 (Fla. 3d DCA 1977). These procedures were not followed in this case.

We conclude the result of the above errors requires reversal and a new trial. Counsel initially made grossly improper statements before the jury as to the witness’s credibility and thereafter compounded the prejudice by improper use of the witness’s deposition bearing upon the same credibility issue. The cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

GLICKSTEIN and HURLEY, JJ., concur.

      . Although the witness was also a party there is no contention that the deposition was being used for anything other than impeachment by demonstration of a prior inconsistent statement.