author: LETTS, Chief Judge.

text:
    TOMBERG REALTY, INC., and Saul Tomberg, Appellants, v. BOARD OF REAL ESTATE, Appellee.
    No. 79-2085.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.

      Edna L. Caruso, and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellants.
    Frederick H. Wilsen, Tallahassee, for ap-pellee.
   LETTS, Chief Judge.

This is an appeal from a final order entered by the Board of Real Estate, adopting the hearing officer’s findings of fact and conclusions of law and suspending the appellant Broker’s license for two years. We affirm.

The facts reveal that there were more buyers for condominium units in Century Village than there were apartments readily available. Apparently, speculators would sign purchase and sale contracts to buy more than one apartment and then agree to assign their rights under the contracts to subsequent purchasers seeking apartments, but unable to obtain them, for sums ranging between $500 and $1,500 per assignment.

The instant case basically involves four such transactions where subsequent purchasers actually closed on the apartments, paying monies in excess of the contract price, said excess being the sum necessary to buy out of the original contract purchaser and assume his contract. These excess sums were paid by check directly to the Broker in order to buy out the “options” held by the original contract purchasers. It is undisputed that the Broker did not deposit these checks in his escrow account, but instead deposited them in his personal account. However, it is also undisputed that the Broker did later distribute the sums represented by these excess checks to the proper recipients, i. e. the original contract purchasers who had sold their contracts.

Notwithstanding, the Board of Real Estate found the actions of the Broker (who was actively engaged in selling these condominiums in Century Village) in depositing these checks to his personal account were in violation of Section 475.25(l)(i), Florida Statutes (1977) which requires a broker to immediately place all sums entrusted to him in his capacity as a broker, in an escrow account until disbursement thereof is properly authorized. We agree.

Basically the Broker, in the words of his counsel, argues on appeal as follows:

First, the monies which [The Broker] passed on to the option-holder had nothing to do with the real estate transaction itself which took place between the buyer and the seller. The buyer in this case was buying at the seller’s price. We are not concerned with a deposit on the purchase price, which admittedly would have to be deposited into an escrow account. Rather, we are concerned with monies going from the potential buyer to a person holding the option to purchase. This was an agreement separate and apart from the real estate transaction. [The Broker] simply passed the payment from potential buyer to option-holder. [The Broker] was merely acting as a conduit. This is particularly important since the Commission did in fact find that [The Broker] did in fact convey the monies on to the people who held the options to purchase, and personally realized nothing from the transactions.
Secondly, the monies did not have to be placed in escrow because disbursement was authorized immediately. Section 475.25(l)(i), Florida Statutes (1977) provides that funds must be placed in escrow “until disbursement ... is ... authorized.” That requirement is to protect parties dealing with a broker or salesman to the extent that monies, which will not be disbursed until some later date, are required to be placed in an escrow account (such as with a down payment).... In this case [The Broker] was authorized at the moment he received the payments from the potential buyers to convey the money on to the option-holders. Certainly he was not required to place the monies in escrow and then get permission to disburse the funds to the option-holders. This was simply not the type transaction that falls within the requirement of Section 475.25(l)(i), Florida Statutes that monies be placed in escrow until “disbursement is properly authorized.”

We can think of no better arguments than the above quoted, but the inescapable facts show that the Broker acted as the broker in all four transactions, commencing with the original contract and culminating in the eventual closing to the subsequent purchasers who purchased the “options.” These excess checks to buy out the “options” were an essential part of the final culmination. They were entrusted to the Broker and he was not entitled to any of the proceeds therefrom. All this being so, the cited statute appears apropos and any “option” funds had no business being commingled in the Broker’s personal account, no matter how immediately the disbursement was authorized.

As to the penalty imposed, we agree that two years suspension appears unduly harsh. No one was cheated, no secret commissions were earned and the sums in question were trifling compared to the sales price of the apartments. However, the penalty imposed was within the permissible range established under the statute which the Broker violated. Accordingly, under the authority of Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978) we must affirm it.

We find no merit in the remaining point on appeal.

AFFIRMED.

MOORE and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TESHER & TESHER, P. A., a Florida Professional Association, Appellant, v. Ira ROTHFIELD and Ira Rothfield, D.D.S., P. A., Appellee.
    No. 79-2188.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Sheldon Evans of Freeman & Evans, P. A., Miami, for appellant.
    Jonathan J. Davis of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee.
   PER CURIAM.

We have for review a directed verdict after two mistrials.

As indicated in our previous opinion in this case, Tesher & Tesher, P. A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980), a directed verdict should not be entered unless no proper view of the evidence could sustain a verdict for the party moved against. Sun Life Ins. Co. of America v. Evans, 340 So.2d 957 (Fla. 3d DCA 1976).

It is also firmly established that trial by jury is an organic right that under no circumstances should be denied. Orr v. Avon Florida Citrus Corporation, 130 Fla. 306, 177 So. 612 (Fla.1938).

Our review of the trial transcript and matters in evidence impel us to conclude that the directed verdict was improvidently entered. Despite the presumption of correctness which clothes the order from which this appeal is taken we are unable to conclude that as a matter of law no view of the evidence could sustain a verdict for the appellant.

Accordingly, we reverse and remand for a new trial.

REVERSED AND REMANDED.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


text:
    Lillie HAMILTON, Appellant, v. Jerry Lene TRAPP, Appellee.
    No. 79-2278.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    William M. Holland of Holland & Smith, West Palm Beach, for appellant.
    Arthur P. Villwock and Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

In this suit for conversion of funds from a joint bank account the trial court found in favor of the appellee based upon conflicting evidence. Appellant claimed one-half of the account belonged to her, thus justifying her withdrawal of the funds in question. Appellee, on the other hand, contended that the funds were hers exclusively and that appellant's name had been placed on the account pursuant to an agreement between the parties that upon appellee’s death appellant would use the funds in the account for the care and maintenance of appellee’s granddaughter.

The trial court’s findings indicate the ap-pellee’s version of the facts was accepted by the court. The record fully supports those findings.

Accordingly, the judgment appealed from is affirmed.

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


author: HERSEY, Judge.

text:
    GOLD COAST RACEWAY, INC., a Florida Corporation, Petitioner, v. Howard EHRENFELD and Monica Ehrenfeld, Respondents.
    No. 80-1202.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Lawrence Bernard, Jacksonville, and Allan L. Hoffman, West Palm Beach, for petitioner.
    Robert E. Gordon of Farish & Farish, West Palm Beach, for respondents.
   HERSEY, Judge.

We have for review by petition for writ of certiorari a protective order issued by the lower tribunal significantly limiting discovery.

At issue in the case pending in the circuit court is the validity of a written lease alleged by respondent lessor to be unenforceable because of failure of consideration in that a rental payment was not made. Petitioner, on the other hand, has alleged timely tender to respondent’s attorney of the rental payment in question.

Petitioner’s attempts to take discovery on this issue, first by deposition of respondents’ counsel and subsequently by deposition upon written questions submitted to him proved futile. Ultimately, counsel for respondent, relying on the defenses of “attorney-client privilege” and “settlement negotiations” obtained a protective order effectively insulating the issue of the purported tender of payment from further discovery.

We have held that certiorari is a permissible method of seeking review of orders involving discovery under appropriate circumstances. Murray Van and Storage, Inc. v. Murray, 343 So.2d 61 (Fla.4th DCA 1977).

Respondent relies upon the attorney-client privilege as shielding from discovery matters within his own particular knowledge pertaining to a payment allegedly made to him for his client. As the court said in Silverman v. Turner, 188 So.2d 354 (Fla.3d DCA 1966), followed by this Court in Mogul v. Fodiman, 315 So.2d 108 (Fla.4th DCA 1975):

[ W]here the attorney acts in any other capacity than as an attorney, such as a depository, or trustee, the attorney-client relationship does not obtain, and that the subject matter must relate' to the subject matter of the attorney’s employment. See: Tillotson v. Boughner, N.D.Ill.1965, 238 F.Supp. 621.

We think that rule applies here. We further determine that the protective order “does not conform to the essential requirements of law and to proceed without immediate review may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal is inadequate.” Chalfonte Development Corporation v. Beaudoin, 370 So.2d 58, 59 (Fla.4th DCA 1979).

The petition for writ of certiorari is granted; the protective order is quashed; and the cause is remanded for further proceedings.

MOORE and BERANEK, JJ., concur.


text:
    Sherry HOAG, Appellant, v. Bruce H. JAMES and Peggy M. James d/b/a Tropicana Motel, Nick Hamze and Cheryl Ann Hamze, his wife; Indiana Insurance Company, a foreign corporation authorized to do business in the State of Florida and Tropicana Properties, Inc., a dissolved Florida Corporation, Appellees.
    No. 80-1296.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Peter N. Hanna, Ford Lauderdale, for appellant.
    Eugene L. Heinrich and Mark A. Norden of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., and E. E. Jordan, Fort Lauder-dale, for appellees.
   PER CURIAM.

This is an appeal from a final summary judgment entered against appellant on her claim against appellees for personal injuries sustained as a result of a dog attack. The record reflects that the appellant was a tenant of a motel owned, operated and managed by the appellees. Although it is undisputed that the attack took place on the motel premises, the facts as to how the attack occurred and the appellees’ responsibility therefore are in dispute. Under these circumstances we believe it was error for the case to have been decided by summary judgment.

Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

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


author: ANSTEAD, Judge.

text:
    Carmine John GIGLIO, Petitioner, v. Honorable Stanton S. KAPLAN, as Judge of the Circuit Court of the 17th Judicial Circuit, In and For Broward County, Florida, Respondent.
    No. 80-1623.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Alan H. Schreiber, Public Defender, and Robert Julian, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for respondent.
   ANSTEAD, Judge.

Petitioner was arrested on January 18, 1980, for the forgery of a Burdines credit card receipt. In custody, he was read his Miranda rights. During interrogation, petitioner confessed not only to the credit card forgery, but to an automobile burglary which had occurred a day earlier. The credit card had been stolen from the automobile.

Petitioner was not formally charged with the burglary until March 18, 1980, and he was not taken into custody on that charge until April 19. On July 19, petitioner filed a motion for discharge, alleging that the speedy trial rule should have commenced on January 18, the date of his confession. The respondent subsequently denied the motion for discharge and these proceedings followed.

Petitioner’s claim is that speedy trial time should have started to run on January 18, when, while he was in custody for a separate offense, he confessed to the burglary. Petitioner claims, in effect, that it is the date from which there is probable cause to charge a defendant, and not the actual date on which a charge is filed or custody secured, which should be dispositive. This is not the law.

Florida Rule of Criminal Procedure 3.191(a)(1) provides that the time period provided by the speedy trial rule begins to run when the accused “is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” It is undisputed here that the petitioner was taken into custody on January 18 solely on the forgery charge. The police were not aware of his participation in the burglary until he confessed thereto. Further, we do not believe the burglary and the forged use of the credit card stolen in the burglary were part of the same criminal episode for purposes of commencement of the time period provided in the speedy trial rule. In our view the speedy trial rule requires the timely prosecution of all charges arising from a single criminal episode. Here, the burglary on January 17 and the subsequent forgery of the credit card on January 18 constituted two separate and distinct criminal episodes.

Notwithstanding the provisions of the speedy trial rule, the state is not totally free to unreasonably delay the filing of charges for which probable cause to prosecute exists. The defendant’s constitutional right to a speedy trial and the spirit of the speedy trial rule prohibit the state from acting in such a manner. Thomas v. State, 374 So.2d 508 (Fla.1979). However, general due process concerns rather than specific provisions of the speedy trial rule attach to that period before a defendant has been taken into custody and charged. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In Lovasco, an eighteen month delay between the commission of the crime and the actual filing of charges was found to be reasonable, since the time was used to conduct an investigation. Here, the delay was only two months. While there is no evidence that this time was used to investigate petitioner, a two-month delay does not appeár to be per se unreasonable. More importantly, however, petitioner’s claim in the trial court and here is predicated on the provisions of the speedy trial rule rather than on the broader assertion that the state has unreasonably and unconstitutionally delayed the filing of charges as discussed in Lovasco, supra.

The petition is denied.

MOORE and HERSEY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: DANIEL S. PEARSON, Judge. SCHWARTZ, Judge

text:
    PEDRO REALTY, INC., Appellant, v. Jesus M. SILVA and Olga Silva, his wife, Appellees.
    No. 80-2166.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 1981.

      Manuel Oliver, Hialeah, for appellant.
    Irma V. Hernandez and Fernando E. He-ría, Hialeah, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

DANIEL S. PEARSON, Judge.

We are asked to decide whether an order denying a motion to vacate a default is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). We hold that such an order, because it determines liability in favor of a party seeking affirmative relief, satisfies the jurisdictional requisites of this rule and is appealable.

We adopt the reasoning found in Judge Hersey’s special concurring opinion in Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla.4th DCA 1980). We find some further, but slight, support in Overholser v. Overstreet, 383 So.2d 953 (Fla.3d DCA 1980), a case in which we specifically accepted jurisdiction under Rule 9.130(a)(3)(C)(iv) of an appeal from an order denying a motion to set aside a default, but in which our jurisdiction was apparently not questioned.

We find completely distinguishable cases which hold that an order granting a motion to vacate a default is not appealable, see, e. g., Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla.5th DCA 1980); Praet v. Martinez, 367 So.2d 657 (Fla.3d DCA 1979), since such an order does not determine liability in favor of a party seeking affirmative relief and, therefore, does not activate Rule 9.130(a)(3)(C)(iv). We find unpersuasive cases which, without any consideration or discussion of Rule 9.130(a)(3)(C)(iv), hold that an order denying a motion to vacate a default is not appealable. See, e. g., Moody v. Moody, 371 So.2d 553 (Fla.2d DCA 1979).

The motion to dismiss the appeal is denied.

SCHWARTZ, J., dissents.

SCHWARTZ, Judge

(dissenting).

I cannot agree that an order which denies a motion to vacate a default is one which, in any meaningful sense, “determines[s] .. . the issue of liability in favor of a party seeking affirmative relief” under Fla.R. App.P. 9.130(a)(3)(C)(iv). It seems to me that the order “determines” only that the defendant-movant has not established his right to have a duly entered default set aside, and that the fact that this ruling has the consequential effect of foreclosing a liability defense does not bring the order within the narrowly-defined and limited class of non-final orders which are subject to interlocutory review. I therefore concur with the decisions in Moody v. Moody, 371 So.2d 553 (Fla.2d DCA 1979) and Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla.4th DCA 1980) that the rationale of Praet v. Martinez, 367 So.2d 657 (Fla.3d DCA 1979), holding that the granting of a motion to vacate is unappealable, applies directly to the present situation. I would dismiss the appeal.

      . Despite being labeled a concurrence, Judge Hersey’s opinion is, in fact, a dissent.

      . As Judge Hersey points out, Praet begat Moody, and Moody begat the majority’s opinion in Caribbean Agencies. Caribbean Agencies is but a continuation of Moody’s misapplication of Praet.

      . As the author of Praet, I consider Moody and Caribbean Agencies as its legitimate children, not, as note 2 of the court’s opinion suggests, as offspring of another type.


author: COWART, Judge.

text:
    Edward STARCHK, Appellant, v. Nancy Kelley WITTENBERG, Secretary of the Florida Department of Professional Regulation, Appellee.
    No. 80-495.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 1981.
    Richard J. R. Parkinson, of Parkinson & Pyle, Orlando, for appellant.
    Deborah J. Miller, Staff Atty., Dept, of Professional Regulation, Tallahassee, for appellee.
   COWART, Judge.

This is an appeal from an order holding that “Nancy Kelley Wittenberg, Secretary of the Department of Professional Regulation” was the proper party plaintiff in an action in which appellant was enjoined from doing acts constituting the practice of dentistry.

The authority for bringing this action is section 455.227(3), Florida Statutes, which provides in part that “the department [the Department of Professional Regulation created by section 20.30, Fla.Stat. (1979)] may file a proceeding in the name of the state seeking issuance of an injunction ....”

Section 20.05, Florida Statutes (1979), provides that each head of a department of the executive branch of state government shall execute the powers, duties and functions vested in that department. This general statement of the authority of a department head to exercise the authority of a governmental agency authorizes neither the disregard of the clear language of the above statute that such action be brought in the name of the state nor the bringing of a legal action in the personal name of the department head.

Appellee is one individual being and is not the State of Florida, a sovereign body politic, and entity embodying the organized government and people of the state in their collective capacity. The phrase “Secretary of the Florida Department of Professional Regulation,” is but descriptio personae of the individual Nancy Kelley Wittenberg and she, as an individual, has no right of action against the appellant. See Thomas v. Martin, 129 So. 602, 100 Fla. 146 (1930).

The order denying dismissal of the petition is reversed, the injunction is dissolved and the petition dismissed.

COBB and SHARP, JJ., concur.


text:
    James E. DODSON and Lorraine L. Dodson, Appellants, v. Charles L. PERSELL and United States Fidelity & Guaranty Co., Appellees.
    No. 78-449.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1981.
    Colson & Hicks and Bill Hoppe, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on December 5,1978, 365 So.2d 413, affirming the order of the Circuit Court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed November 20, 1980, 390 So.2d 704, and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on February 2, 1979 is withdrawn, the judgment of this court filed December 5, 1978 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded with directions to grant a new trial. Costs allowed shall be taxed in the trial court (Rule 3.15(b), Florida Appellate Rules).


text:
    Stephen G. TUCKER, Appellant, v. Joanne Coraggio TUCKER, Appellee.
    No. PP-59.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    H. Randolph Fallin, Jacksonville, for appellant.
    Barry L. Zisser, of Zisser, Robison & Spohrer, Jacksonville, for appellee.
   PER CURIAM.

The trial judge erred when she required appellant to make all future mortgage payments on the marital home, yet allowed appellee to retain her full one-half interest in the home without providing appellant a credit against appellee’s half of the proceeds if the jointly owned property is sold. Smith v. Smith, 390 So.2d 1223 (Fla. 1st DCA 1980); Rabino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979).

The judgment appealed as amended by this opinion, is otherwise affirmed.

ROBERT SMITH and THOMPSON, JJ., and WOODIE A. LILES, (Ret.) Associate Judge, concur.


text:
    WHITE ELECTRICAL CONSTRUCTION COMPANY and The Travelers Insurance Company, Appellants, v. Victor BLACKER, Appellee.
    No. UU-335.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    H. George Kagan, Miller, Hodges & Ka-gan, Miami, for appellants.
    Peter S. Schwedock, Pelzner, Schwedock & Finkelstein, Miami, for appellee.
   PER CURIAM.

The employer and carrier contend that the deputy commissioner erred in awarding an attorney’s fee to Blacker because there was insufficient evidence to support the deputy’s finding that they declined to timely pay Blacker’s claim for permanent total disability. We agree and reverse.

Blacker concedes in his brief that the deputy did not admit into evidence any reports of the treating physician, that the physician’s testimony was not taken, and that the record does not contain any other evidence that would indicate Blacker reached maximum medical improvement more than twenty-one days before the carrier voluntarily accepted him as permanently totally disabled. This evidence was required before the employer and carrier were liable for Blacker’s attorney’s fee as provided in Section 440.34(1), Florida Statutes.

Accordingly, the judgment of the deputy commissioner is reversed.

MILLS, C. J., and ROBERT P. SMITH, Jr. and WENTWORTH, JJ., concur.


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

text:
    BREVARD COUNTY SCHOOL BOARD and The Hartford Insurance Group, Appellants, v. Carl D. McCORMICK, Appellee.
    No. UU-343.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1981.
    Donna C. Wyatt of Cooper & Rissman, P. A., Orlando, for appellants.
    Joseph H. Williams of Troutman, Parrish & Williams, P. A., Winter Park, for appel-lee.
   ROBERT P. SMITH, Jr., Judge.

The employer and carrier appeal a compensation order awarding benefits for a 25% permanent partial disability of the body as a whole based on impaired earning capacity, as a result of an on-the-job injury. Appellants complain of the deputy commissioner’s finding that McCormick’s anatomic low back impairment is due 50% to the subject May 1978 injury rather than entirely to congenital low back defects and a 1976 back injury, sustained while in the same employment, and for which a compensation settlement was paid and received; and, assuming the correctness of the compensation order on the first point, they urge that the deputy erred in failing to allow a Section 440.15(5)(c) credit against compensation payable for the present disability in the amount of compensation paid after the 1976 injury, the consequences of which merged with the present disability (say the employer and carrier) to produce more disability than would otherwise have resulted from the subject May 1978 injury. We affirm.

Contending that McCormick’s present anatomic impairment is due entirely to his 1976 injury and congenital back defects, the employer and carrier rely on the testimony of a treating physician who thought McCormick’s 1978 injury was only a “temporary aggravation” of a condition the doctor assumed was almost continuously painful up to that time. But even assuming that the doctor’s testimony and appellants’ hypothesis are equivalent, the deputy was entitled to rely instead on the credible testimony of claimant McCormick and others who observed him vigorously at work before the 1978 injury and significantly handicapped afterward. Tropicana Pools, Inc. v. Truex, 287 So.2d 71 (Fla.1973). Substantial competent evidence supports the deputy’s finding that half of McCormick’s anatomic disability, rated at 10% of the body as a whole, is attributable to the May 1978 injury.

Section 440.15(5)(c), which is set out in the margin, provides for a credit against disability compensation otherwise payable for a recent industrial injury, in the amount of compensation paid for a prior industrial injury, when the disabling effects of the two merge to produce disability greater than that which would have resulted from the recent injury alone. But there is a proviso, namely, that compensation for the recent injury and disability shall not be less than would have been allowed for that injury had the previous disability not existed.

In this case the deputy found, on substantial competent evidence, that McCormick’s loss of wage-earning capacity wholly resulted from the subject 1978 injury, and that his earning ability was unaffected by the 1976 injury and any congenital defect. In other words, while claimant’s 10% anatomic disability is attributable 50% to previous conditions and 50% to the subject injury, the greater loss of wage-earning capacity resulted entirely from the recent industrial injury. Because Section 440.15(5)(c) forbids that the compensation for this injury be less than that which would have been allowed had the previous anatomic impairment not existed, the deputy’s order is

AFFIRMED.

MILLS, C. J., and WENTWORTH, J., concur.

      . Section 440.15(5)(c), Florida Statutes (1977), provides in relevant part:
      [I]f an employee who has received compensation under this chapter for a previous permanent partial disability, impairment, or disease incurs a subsequent permanent partial disability from injury ... arising out of and in the course of his employment which merges with the preexisting permanent partial disability, impairment, or disease to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury or occupational disease alone, the compensation received for the previous permanent partial disability, impairment, or disease shall be deducted from the compensation payable for the subsequent permanent partial disability. However, in no event shall the compensation for the subsequent permanent partial disability be less than that allowed for the degree of disability that would have resulted from the subsequent injury ... if the previous disability had not existed. (Emphasis added.)


text:
    David VIRGIS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1488.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Bennett H. Brummer, Public Defender and Brian Hal Leslie, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., and Michael A. Van-detty, Certified Legal Intern, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Bush v. State, 369 So.2d 674 (Fla. 3d DCA 1979); Gibson v. State, 368 So.2d 667 (Fla. 3d DCA 1979); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977); see also, K. G. v. State, 338 So.2d 72 (Fla. 3d DCA 1976); Section 776.051, Fla.Stat. (1979).


author: ORFINGER, Judge.

text:
    Mitchell Alan KANE, Appellant, v. STATE of Florida, Appellee.
    No. 79-5.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    Richard L. Jorandby, Public Defender, and James K. Green of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted of the lesser included offense of trespass of an occupied structure after a jury trial on a charge of burglary of a structure. He appeals, contending that the trial court had no jurisdiction to try him because of an insufficient information. We affirm.

The information filed against appellant alleged that he:

did, in violation of Florida Statute 810.-01(3), enter or remain in a certain structure, to-wit: a dwelling, ... the property of Pamela Ann Gee or Stephanie Lee Trippleton, as owner(s) or custodian(s) thereof, with the intent to commit an offense therein, (emphasis ours).

Since criminal intent is an essential element of the crime of burglary, it is necessary to allege such intent. The rule is well established, however, that it is not sufficient to aver generally an intent to commit “an offense”; rather, the particular offense must be specified. Charles v. State, 36 Fla. 691, 18 So. 369 (1895); 13 Am.Jur.2d, Burglary, § 36, p. 341.

In charging an entering with intent to commit an offense, the intent cannot be laid in mere general words, that is, it is not sufficient to say that the defendant entered with intent to commit an offense. The kind of offense must be specified, although the specification need not be as minute as would be necessary in an indictment for the commission of that offense.

16 Fla.Jur.2d, Crim.Law, § 1338 (1979). Therefore, the information against appellant is clearly deficient, and should have been dismissed upon motion.

Appellant, however, did not object to the information in the court below. Thus, any objection to the information is waived, unless the defect is fundamental. Rule 3.190(c), Fla.R.Crim.P.; Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974), cert. denied 314 So.2d 585 (1975); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971).

Although there is no disagreement among courts of other jurisdictions as to the need to specify the offense in order to properly charge intent, there is disagreement on the effect of a deficient charge. Some courts hold that the deficiency is fundamental, creating a jurisdictional void, even in the absence of a motion to dismiss the information or to otherwise object to it. Others hold that the omission to specify the particular offense intended to be committed is a defect in form and is not fundamental.

We choose to follow the latter view and agree with the decision of our sister court in State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980), where, in a similar situation involving the same statute, Judge Hurley, speaking for the court pointed out that

there is a significant distinction between an indictment or information which completely omits an essential element of an offense and one which imprecisely or incompletely alleges an essential element of a crime. In the former situation, the total omission is fatal. State v. Dye, 346 So.2d 538, 541 (Fla.1977). In the latter category, however, an imperfect allegation, unless timely challenged by a motion to dismiss, shall be deemed to have been waived. Rule 3.190(c), Fla.R.Crim.P.

As did the court in Fields, we agree that the information was defective, but not fatally so. The judgment of conviction is therefore

AFFIRMED.

COBB and COWART, JJ., concur.

      . § 810.02(1), Fla.Stat. (1979):
      “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

      . See, e. g., U. S. v. Thomas, 444 F.2d 919 (D.C.Cir.1971).

      . See, e. g., State v. Lora, 213 Kan. 184, 515 P.2d 1086, 1090 (1973).


text:
    STATE of Florida, Appellant, v. George Louis UPTON, Appellee.
    No. 79-265.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Judge.

The State appeals the dismissal of an information pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure. We reverse.

The appellee and a co-defendant had been charged with burglary of a structure and grand theft. The trial court dismissed the information because it concluded from the motion that the State’s case was circumstantial and did not exclude every reasonable hypothesis of innocence. The State orally traversed the motion, and there was no objection to the form of the traverse.

The function of a “(c)(4)” motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused. State v. Davis, 243 So.2d 587 (Fla.1971). Where the undisputed material facts do not legally constitute the crime charged, or they affirmatively establish a valid defense, a motion to dismiss should be granted. Where, however, the undisputed facts permit the conclusion that the defendant could be found guilty, the motion must be denied. State v. De Jerinett, 283 So.2d 126 (Fla.2d DCA), cert. denied 287 So.2d 689 (Fla.1973).

Unlike the standard to be employed by a jury when it considers the evidence, on a “(c)(4)” motion all inferences are resolved against the defendant. De Jerinett, supra. Here, while much of the evidence is circumstantial, it cannot be said that the recited “facts” do not establish a prima facie case of guilt against the defendant. In considering such a motion, the trial court should not determine fact issues or consider the weight of conflicting evidence or the credibility of witnesses. State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980). If the State’s evidence is all circumstantial, then whether it has carried its burden of excluding all reasonable hypotheses of innocence must be decided at the close of all the evidence. To withstand a motion to dismiss, the State need show only a prima facie case. State v. Cramer, 383 So.2d 254 (Fla.2d DCA 1980). See also Ritter v. State, 390 So.2d 168 (Fla. 5th DCA 1980). The State orally traversed the key allegation of defendant’s motion, and there was no objection to the form of the traverse. Although the rule undoubtedly requires the traverse to be in writing, this requirement can be waived. Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980). The motion as filed did not require dismissal even in the absence of a traverse.

Although the foregoing is sufficient basis for our decision here, we must point to a further serious flaw in the motion. A motion to dismiss under Florida Rules of Criminal Procedure 3.190(c)(4) must specifically allege the facts on which the motion is based and the motion must be sworn to. The motion sub judice was a narrative of “facts” by the attorney and much of it consisted of a recitation of his interviews with witnesses and what he believed these witnesses would say. The attorney then swore that the motion was true “to the best of his knowledge.” This does not satisfy the requirement of a “sworn motion” as required by the Rule.

To “swear” means to declare on oath the truth (of a pleading, etc.). Black’s Law Dictionary, 5th Ed. (1979). This requires that the declarant state on oath that the fact alleged is true, to his knowledge, not that he believes it to be true because someone else has told him that it is. As the court said in State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979):

The trial court could have and should have denied Huggins’ motion to dismiss for its failure to comply with Rule 3.190(cX4). The motion was not sworn to by Huggins....

Id. at 120. See also Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA), cert. denied 352 So.2d 175 (Fla.1977), and State v. Kling, 335 So.2d 614 (Fla.2d DCA 1976). A motion to dismiss under this rule should be summarily denied when it is not sworn to by the defendant who, by taking the oath, thus subjects himself to the penalties of perjury if his recitation of “undisputed facts" is false.

The order dismissing the information is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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

      . Rule 9.140(c)(1)(A), Florida Rules of Appellate Procedure.


text:
    DESERET RANCHES OF FLORIDA, INC., a Florida Corporation, Appellant, v. STATE of Florida, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF ANIMAL INDUSTRY, Appellee.
    No. 79-341.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    George T. Eidson, Jr., of Akerman, Sen-terfitt & Eidson, Orlando, for appellant.
    Robert A. Chastain, Gen. Counsel, and Leslie McLeod, Jr., Resident Counsel, Florida Dept, of Agriculture and Consumer Services, Tallahassee, for appellee.
   PER CURIAM.

Appellee tested appellant’s horses for the disease Equine Infectious Anemia (EIA), pursuant to Chapter 5C-18, Rules and Regulations of the State of Florida. One hundred twenty-four horses had positive reaction to this test and were quarantined. This caused appellant to institute the underlying action for declaratory and injunc-tive relief, alleging the rules pertaining to EIA are unconstitutional. Appellant also challenges section 585.671, Florida Statutes, as being an unlawful delegation of legislative authority to an administrative agency and an unlawful exercise of the state’s police power. There has been no showing that there exists an administrative remedy which could grant appellant the requested relief. Therefore, the doctrine that administrative remedies must first be exhausted does not apply. Cherry v. Bronson, 384 So.2d 169 (Fla. 5th DCA 1980). See E. T. Legg & Co. v. Franza, 383 So.2d 962 (Fla. 4th DCA 1980). It would be pointless to require appellant to endure the time and expense of a full administrative proceeding. Franza at 964. See Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla.1978).

We quash the order dismissing appellant’s complaint and remand this matter to the trial court for further proceedings.

ORDER QUASHED AND REMANDED.

ORFINGER, COBB, JJ., and CLARK, HAROLD R., Associate Judge, concur.


text:
    Vincent N. VAN NESS, Jr., and Donnie Van Ness, Appellants, v. INDEPENDENT CONSTRUCTION COMPANY et al., Appellees.
    No. 79-407.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    Rehearing Denied March 9, 1981.

      Marcia K. Lippincott, Sanford, and Roy B. Dalton, Jr., of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
    J. Lester Kaney of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for appellee Sears.
   ORFINGER, Judge.

This appeal is from a summary final judgment entered in favor of Sears, Roebuck & Company (Sears), one of the defendants below. We affirm.

The record reveals that Sears contracted with Independent Construction Company (Independent) to build a Sears store in Day-tona Beach. Independent sub-contracted with the James Wilson Company to perform a portion of the construction. Appellant Vincent N. Van Ness, Jr. was employed by James Wilson as a worker on the project. While at work, a scaffolding upon which Van Ness was standing collapsed and a wall partially or totally fell on him, causing serious injuries. It appears that the wall fell because Independent did not follow the plans and tie the walls of the building with a continuous beam or bond. The complaint charged that Sears was (1) negligent in failing to provide Van Ness with reasonably safe working conditions; (2) negligent in failing to provide reasonably safe and proper supervision of the construction of the building.

The building was a duplicáte of one previously designed for Sears and built elsewhere and the basic drawings and specifications prepared for the first building were also used for this one. The contract between Sears and Independent was for a fixed contract price and required Independent, as general contractor, to provide all materials and perform all the design and construction work shown on the plans and specifications previously drawn by the Atlanta architectural firm of Cooper, Carry & Associates, Inc.

Sears did not retain the architectural firm which had originally designed the building to do any work on this one. Instead, the contract required Independent to retain an architect to make design changes and other alterations needed to meet local building codes. Consequently, a provision of the standard contract relating to supervision, reading:

ARTICLE 2 — DIRECTION OF THE WORK:
The work included in this contract is to be done under the direction of said Architects, or their representatives, and their decision as to the true construction and meaning of said plans and specifications shall be final and binding upon the General Contractor and upon the Owner,

was footnoted as follows:

Any reference to Architect in this standard construction agreement form shall be changed to Owner or Owner’s representative for the purpose of approval, acceptance or direction.

Appellant contends that by virtue of the foregoing footnoted change, Sears retained control of the work and was an active participant in the construction to the extent that it directly influenced or had the right to influence the manner in which the work was performed. The trial court found that the record revealed, without contradiction, that Sears was a passive non-participant and did not actively participate in the construction to the extent that it directly influenced the manner in which the work was performed, and entered a final summary judgment in favor of Sears, which is the subject of this appeal.

The record is clear that Sears did little, if anything to supervise the work. One of appellant’s points on appeal contends that if Sears had actually supervised the job, it would have discovered the absence of the required tie-beam, so its failure to do so is evidence of negligence sufficient to create an issue of fact. Consequently, appellant relies on the recited contract provision to show that Sears, by substituting itself for the architect had the legal right to control the job, irrespective of its actual exercise of the right. Apparently the trial judge did not read the contract to give Sears that right, nor do we. Made a part of the contract are printed “General Conditions of the Contract of Construction”, AIA Document A 201. It is clear that the supervisory function of the architect contemplates the duty to see to it that the owner gets what he contracted for. There is nothing in the contract or the general conditions which gives the architect the right to control the work. On the contrary, the general conditions clearly recite that the contractor “shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract.”

As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in their work. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976), cert. denied 344 So.2d 323 (1977). In Conklin v. Cohen, 287 So.2d 56 (Fla.1973), the Supreme Court reversed the district court of appeal which had held that the owner was protected under the independent contractor’s umbrella of immunity provided by the worker’s compensation law. The Supreme Court there held that the compensation law did not determine the owner’s immunity in such case, because the owner was under no duty to secure compensation for the contractor’s employee, nor did the owner there qualify as a “contractor” or “statutory employer”. Instead,

the owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed. Conversely, if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable. To impose liability upon an owner who is not an employer as defined by the statute, one or more specific identifiable acts of negligence, i. e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee, must be established.

287 So.2d at 60. Appellant’s contention that Sears retained control of the work is based on the uncontradicted showing that Sears did not hire an architect to supervise the construction, and the language of the contract which substituted Sears for the architect “for the purpose of approval, acceptance or direction.” There is nothing in the contract which requires Sears to hire an architect to supervise the construction, and appellant directs us to no such requirement outside of the contract. An owner has the right to inspect the work of an independent contractor to determine that the work conforms to the contract and to reject unsatisfactory work and demand that it be made satisfactory. Reservation of this right, whether through an architect or by the owner, is not a usurpation of control and does not change an owner from a passive non-participant to an active participant in construction. To impose liability on the owner for retention of control over an independent contractor, there must be such right of supervision or direction that the contractor is not entirely free to do the work his own way. Restatement of Torts (Second), section 414, comment (c).

Here the record is clear that Sears extended virtually no supervision to the construction. In fact, appellant relies on this very lack of supervision as the basis for the assertion that Sears was negligent, but appellant has failed to demonstrate either a contractual or a common-law duty on the part of Sears to supervise the construction.

But, says appellant, since Sears personnel did visit the site occasionally, it is possible that they did issue an order or make a suggestion which directly influenced the manner in which the work was performed. The Sears supervisors testified without contradiction that they neither directed nor supervised the work of the contractor, and the contractor’s job superintendent agreed and also testified that he would not have responded to any directions from them. Thus appellant’s contention of a possibility of interference is speculative and is not sufficient to create a factual issue. This principle is not altered by any showing that the contractor was behind schedule and the owner was insisting that the building be completed on time. When the party moving for a summary judgment makes a pri-ma facie showing of the absence of any issues of fact, the non-moving party then has the burden of coming forth with some factual showing that an issue does exist, failing which a summary judgment is proper. Landers v. Milton, 370 So.2d 368 (Fla.1979).

Appellant having failed to demonstrate error, the judgment appealed from is AFFIRMED.

DAUKSCH, C. J., and EVANS, VERNON, W., Associate Judge, concur.

      . Cf. State ex rel. Auchter Co. v. Luckie, 145 So.2d 239 (Fla. 1st DCA), cert. denied, 148 So.2d 278 (1962), where the owner, although a licensed construction company built the building on its own property to be later leased to a tenant and was actively engaged in the project as owner, was not entitled to immunity from suit for negligence by employee of a “sub-contractor”.


author: SHARP, Judge.

text:
    Howard YATES, Appellant, v. STATE of Florida, Appellee.
    No. 80-179.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Yates pled nolo contendere to the charge of “escape,” and reserved the right to challenge in this appeal the sufficiency of the criminal information filed against him. The information charged Yates with leaving the Kissimmee Community Correctional Center without permission, after having been committed to the Department of Corrections and sentenced to serve the remainder of his probationary term because he had violated the terms of his probation. We agree with the trial judge that Yates was charged with a violation of the “escape” statute.

Initially Yates argues he did not flee from a penal institution described in the statute. Section 944.40, Florida Statutes (1979) provides:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county or municipal, .. . who escapes ... from such confinement shall be guilty of a felony of the second degree, ....

Although the statute does not specify “community correctional centers,” its use of the terms “prison,” “jail,” and “road camp” are not exclusive, because it clearly says “or other penal institution(s).” This statute applies to various kinds of correctional facilities, including those unforeseen and nonexistent at the time the statute was adopted, where the liberty of a person is restricted and he is in the lawful custody of the Department of Corrections because of his conviction of a criminal statute.

Yates also argues that he was not subject to the “escape” statute because he was not serving a “sentence of imprisonment” when he escaped. As charged in the information, pursuant to section 948.01(6), Yates had been committed to the Department of Corrections and he was serving the balance of his probation in the community facility after having violated the terms of his probation. He was at that time a “prisoner” within the meaning of the criminal law and he was a person under sentence of imprisonment. Peek v. State, 395 So.2d 492 (Fla. 1980).

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . § 944.40, Fla.Stat. (1979).

      . The information provided:
      ROBERT EAGAN, State Attorney of the Ninth Judicial Circuit prosecuting for the State of Florida in Osceola County, CHARGES that on the 3rd day of November, 1979 in said County and State, HOWARD CURTIS YATES did, in violation of Florida Statute 944.40 unlawfully and feloniously while in the lawful custody of the Department of Corrections Kissimmee Community Correctional Center, after having been found guilty by the Circuit Court of Suwannee County, Florida, and having been committed to the Kissimmee Community Correctional Center pursuant to an Order of Modification of Probation on July 16, 1979 by the Circuit Court of Suwannee County for burglary, constituting a felony under the laws of the State of Florida, escape from such incarceration and confinement.

      . § 944.40, Fla.Stat. (1979).

      . See Schleman v. Guaranty Title Co., 153 Fla. 379, 15 So.2d 754 (1943); Pompano Horse Club, Inc. v. State, 93 Fla. 415, 111 So. 801 (1927); Children's Bootery v. Sutker, 91 Fla. 60, 107 So. 345 (1926).

      . Section 944.02(5), Florida Statutes (1979) defines “prisoner” as:
      any person who is ... convicted or sentenced by any court and committed to any municipal or county jail or state prison, prison farm or penitentiary, or to the custody of the department, as provided by law.

        Watford v. State, 353 So.2d 1263 (Fla. 1st DCA 1978); State v. Akers, 367 So.2d 700 (Fla. 2d DCA 1979).


text:
    STATE of Florida, Appellant, v. Phillip John CASESA, Phillip A. Casesa, Kevin Fister, Isaac Flood Arnow and Ronald Bruce Houser, Appellees.
    No. 80-278.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    J. Cheney Mason and Donald A. Lykke-bak, Orlando, for appellees.
   ORFINGER, Judge.

The State of Florida appeals the dismissal of the information by the trial court. We reverse.

The amended information filed by the State alleged that appellees:

did, on the 26th day of March, 1979, and continuously thereafter to and including the 2nd day of July, 1979, in Orange County, Florida, in violation of Florida Statute 777.04, agree, conspire, combine and confederate together and with one another, to sell, manufacture, deliver or bring into the State of Florida: (a) in excess of 100 pounds of cannabis, a substance controlled by Florida Statute 893.-03(l)(c), which act is prohibited and declared to be a felony by Florida Statute 893.13(l)(a)(2) and in furtherance of said conspiracy to bring into Florida and sell or deliver in excess of 100 pounds of cannabis, said conspirators did certain acts, including, but not limited to the following acts, to-wit: between the above-stated dates engaged in numerous telephone conversations among each other and other persons with the purpose of discussing, agreeing, and conspiring to obtain in excess of 100 pounds of cannabis, arrange shipping and off-loading for said cannabis, discuss price, quantity and quality of said cannabis, to procure and arrange for off-loading sites and personnel, to arrange for land vehicles for transportation of said cannabis after its off-loading, to arrange for weapons to protect against the theft of said cannabis, and to arrange or discuss the sale or delivery of said cannabis after its importation; and other calls, conversations, planning, negotiations and arrangements to otherwise enable the importation, sale and delivery of said cannabis.

Rule 3.140(o), Florida Rules of Criminal Procedure, says:

No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoin-der of defenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

An indictment or information for conspiracy must contain a statement of the facts relied on as constituting the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in such a manner as to enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a separate indictment or information based upon the same facts. State v. Smith, 240 So.2d 807 (Fla.1970).

Appellees contend that this case is controlled by State ex rel. Kelly v. Whisnant, 80 So.2d 611 (Fla.1955) where the dismissal of a conspiracy information was affirmed because of the omission of essential facts to show the conspiracy. Appellees also rely on cases such as State v. Barnett, 344 So.2d 863 (Fla. 2d DCA 1977), where the court held an information charging a conspiracy to engage in a common bookmaking scheme insufficient because it merely tracked the language of the statute without alleging the facts and circumstances concerning the manner in which the crime was committed. While we recognize the principles of law set forth in those cases, we do not find them applicable here.

The test of the sufficiency of the information is found in Rule 3.140(o). Is the amended information here so vague, indistinct and indefinite as to mislead the accused and embarrass them in the preparation of their defense or expose them to substantial danger of a new prosecution for the same offense? We think not. While it does not have the detail of the information upheld in State v. Segura, 378 So.2d 1240 (Fla. 2d DCA 1979), neither does it contain the flaws of alternative type or shotgun pleading condemned in Goldberg v. State, 351 So.2d 332 (Fla.1977).

The amended information, while lacking the evidentiary detail of the information upheld in Segura, is similar to it. It satisfies the test of State v. Smith, supra, in that it is sufficiently precise to enable a person of common understanding to know what is intended. It supplies the whys, hows and wherefores of the charge. State v. Burkett, 344 So.2d 868 (Fla. 2d DCA 1977).

The order dismissing the amended information is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

      . Fla.R.App.P. 9.140(c)(1)(A).


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

text:
    Howard HADLEY, Appellant, v. DEPARTMENT OF ADMINISTRATION, CAREER SERVICE COMMISSION, and Department of Professional and Occupational Regulation, Appellees.
    No. 80-361.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.

      Harry Zuckerman of Ehrich & Zucker-man, Miami, for appellant.
    Kathleen Villacorta, Asst. Gen. Counsel, Dept, of Administration, Tallahassee, for appellee Career Service Commission.
    Drucilla E. Bell, Staff Atty., Dept, of Professional and Occupational Regulation, Jerry G. Traynham of Patterson & Trayn-ham, Tallahassee, for appellee DPOR.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final order of the Department of Administration, Career Service Commission and Department of Professional and Occupational Regulation rejecting appellant’s appeal of a transfer and demotion.

Appellant, a career service employee, had been Chief Counsel since 1974 for the Florida Real Estate Commission, headquartered in Orlando. He was classified as an Attorney IV. In 1979, the legislature reorganized the Department of Professional Regulation and all commission attorneys became department staff after July 1, 1979. The department determined that all staff attorneys should be located in Tallahassee. Appellant became aware of his transfer and a demotion to Attorney III at a meeting with two department representatives on September 27, 1979. A letter with this information, dated September 26, 1979, was mailed to appellant by certified mail, return receipt requested, and was intended as official notice. Insufficient postage was affixed and the letter remained unclaimed at the post office despite three notices sent to appellant regarding its presence.

By letter dated October 5,1979, appellant sought clarification, quoting from the department’s September 26, 1979 letter and advising that he had been notified of the demotion at the meeting with the department representatives on September 27. On October 22,1979, the department confirmed the transfer and demotion and advised appellant that should he fail to report in Tallahassee on November 19, 1979, the rules governing abandonment of position under the Personnel Rules and Regulations, section 22A-7.10(2)(a), Florida Administrative Code, would be applied.

On November 5,1979, appellant appealed the transfer and demotion to the Career Service Commission. Appellant did not report for work and was subsequently advised by the department that he had abandoned his position. This action was appealed to the Career Service Commission on January 4, 1980.

The state personnel director advised appellant that his appeal of the demotion and transfer was rejected because the notice of appeal was not filed within twenty days of the notice of the proposed transfer and demotion. The director determined that appellant was notified by the September 26, 1979, letter.

Appellant's petition for review of the alleged abandonment was also denied because the personnel director determined that appellant had willfully abandoned his position. This appeal followed.

Appellant first contends that to constitute valid notice required by section 110.-227(4), Florida Statutes, sufficient postage to effectuate delivery is required. We agree, but this is not determinative.

The question here is whether the issue is moot because appellant has voluntarily abandoned his position by failing to report for work in Tallahassee. We agree that it is and affirm the department’s rejection of the appeal.

There is no procedure enunciated in chapter 110, Florida Statutes, or in the Personnel Rules implementing chapter 110 which provides that notice of appeal to the Career Service Commission stays the effect of a department decision ordering a transfer. Appellant’s proper course of action would have been to file his notice of appeal and report as ordered. By failing to report, appellant voluntarily abandoned his position and with it, his right to appeal.

AFFIRMED.

COBB and COWART, JJ., concur.

      . Section 110.227(4), Florida Statutes (1979).
      Any permanent career service employee subject to reduction in pay, transfer, layoff, or demotion shall be notified in writing by the agency prior to its taking such action. Such notice shall be sent by certified mail with return receipt requested. Such actions shall be appealable to the Career Service Commission, pursuant to rules adopted by the department.
      Rule 22A-10.05, Florida Administrative Code, implements the above section and provides in part:
      (2) Each notice of suspension ... transfer ... demotion, or dismissal shall be in writing and such notice shall:
      (a) Be sent to the employee by certified mail, return receipt requested, within 5 workdays from the date the action was taken.
      (b) Advise the employee of the action taken ... and ... of the employee’s right to appeal the action to the Career Service Commission.
      (3) If an employee wishes to appeal ... the employee shall:
      (a) Within 20 calendar days from the date of receipt of notice from the agency, advise the State Personnel Director in writing of the employee’s desire to appeal the agency’s action to the Career Service Commission.

      . In Department of Corrections v. Gandy, 374 So.2d 1081 (Fla. 1st DCA 1979), the court held that even though an employee’s dismissal notice had been delivered personally rather than by certified mail as required by statute, his dismissal could still be effected absent a showing of prejudice. The court disagreed with the view that the mailing requirements were jurisdictional.
      In the case before us, there was no delivery. There was no showing that appellant was even aware of the origin of the letter at the post office.


text:
    Theordore Agustus BASSETT, a/k/a Earl Lee Smith, Appellant, v. STATE of Florida, Appellee.
    No. 80-386.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.

      Flem K. Whited, III, of Hart & Whited, Holly Hill, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

After the jury retired to deliberate, appellant’s trial counsel objected to the failure of the judge to charge the jury on the maximum and minimum sentences which could be imposed for the offense for which appellant was on trial. The trial judge then directed the record to show that the defendants requested the maximum penalty be given and that the court denied that request. In Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980), and Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980), this court held that the failure to give this instruction when requested is error, but not reversible error. Subsequently the Florida Supreme Court, in Tascano v. State, 393 So.2d 540 (Fla.1980) held the rule to be mandatory and a failure to instruct as required to be reversible error. A rehearing in Tascano is still pending.

However, we do not believe Tascano controls the disposition of this case because, while Florida Rule of Criminal Procedure 3.390(a) requires such an instruction, another subsection of the same rule, 3.390(d), prohibits the appeal of a failure to give an instruction unless there was an objection, before the jury retired to consider its verdict, distinctly stating the matter and grounds of the objection. We realize, as did the Second District Court of Appeal in Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), that this is a technical application of this rule. However, subdivision (d) of this rule is as specific and clear as subdivision (a) and it is not unfair for one who claims the advantage of the first part to be required to strictly comply with the latter part and to make a proper and timely objection.

Accordingly, appellant’s appointed counsel’s motion to withdraw is granted, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the judgment and sentence is

AFFIRMED.

ORFINGER, SHARP and COWART, JJ., concur.


text:
    John BRUCE, Appellant/Cross-Appellee, v. Rod HEIMAN and American Home Assurance Company, Appellees/Cross-Appellants.
    No. 80-511.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    Rehearing Denied March 10, 1981.

      James E. Shepherd, Orlando, for appellant/cross-appellee.
    J. David Walsh, Daytona Beach, for ap-pellees/cross-appellants.
   SHARP, Judge.

Bruce appeals from a summary judgment denying him any recovery against Rod Hei-man, manager of Orlando Speed World, and the owner’s insurance carrier, American Home Assurance Company. The appellees cross-appeal from the lower court’s denial of their motion for judgment in accordance with their motion for a directed verdict. The jury returned special verdicts finding Bruce 60% responsible for his injuries suffered at the speedway and appellees 40% responsible, and finding that Bruce knowingly signed a release form. We shall consider the summary judgment entered after the jury verdict as a final judgment following the entry of a directed verdict, and affirm the result.

A motion for directed verdict should be granted when the trial court concludes the evidence, viewed most favorably to the non-moving party, cannot support in the minds of the jurors any reasonable difference as to any material fact or inference. Zilber Cab Company v. Capeletti Brothers, Inc., 303 So.2d 360 (Fla. 3d DCA 1974); Cook v. Estate of Mills, 374 So.2d 599 (Fla. 3d DCA 1979).

Bruce was a racer and had entered his car at the speedway. In order to participate in the race and to gain admission to those areas at the track where spectators were not generally permitted to enter, he had to pay a special fee and sign the following release form:

I ... DO HEREBY:
1. RELEASE, DISCHARGE AND COVENANT NOT TO SUE the track operators, track owners, land owners, racing association, and each of them, their officers, agents, and employees (all hereinafter collectively referred to as ‘releas-ees’) from any and all claims and liability arising out of strict liability or ordinary negligence of releasees or any other participant which causes the undersigned injury, death, damages or property damages. I hereby covenant to hold releasees harmless and indemnify releasees for any claim judgment or expense releasees may incur arising out of my activities or presence in the restricted area.
2. Understand that my entry into the restricted area ... contains DANGER AND RISK OF INJURY OR DEATH, that conditions of the racing surface change from time to time and may become more hazardous, and that there is INHERENT DANGER in racing which I appreciate and voluntarily assume, because I choose so to do. I have observed many races of the type that I seek to participate in, I have inspected the racing surface, access roads, shoulders, equipment, barriers or lack thereof, lighting or lack thereof, and the weather conditions. I further know that other contestants and participants pose a danger to me, nevertheless, I VOLUNTARILY ELECT TO ACCEPT ALL RISKS connected with my entry into the restricted area and/or participation in any racing events.
3. ACKNOWLEDGE that I am aware of all track and equipment safety regulations and I have complied with each regulation. If I have failed so to do, I ASSUME ALL RISK for myself and assume all liability to others for such failure, and I hereby RELEASE releasees for any failure in inspecting my vehicle or others. I am not an agent, servant or employee of releasees and no oral representations or inducements have been made to me to sign this agreement. If any portion of this agreement is held invalid, it is agreed that the balance thereof shall continue in full legal force and effect.. ..

The testimony showed that Bruce entered the speedway through a special gate across the track from the spectator stand, and he raced his car that night before it developed mechanical problems. Everyone who entered that gate was required to sign the release form and pay a special price for admission to the “pit” area. When his car had to be withdrawn, Bruce joined a group of fifteen to twenty other people near the second turn to watch the concluding races. A wheel came off a race car, was struck by another, and bounced high over a fence to hit Bruce on the head, rendering him unconscious.

The stand where Bruce was injured was neither the “pit” area nor the “spectator” area. But no one gained admission to that area through the spectator gate, and the appellant was unable to show that anyone in that area had not signed the release form. The management had strict rules prohibiting people who entered the spectator area from crossing to the pit area, and the area where Bruce was injured.

We conclude that the evidence conclusively showed that appellant was in the “restricted” area of the track, and therefore he is barred from recovery by the release of liability form. Thomas v. Sports Car Club of America, Inc., 386 So.2d 272 (Fla. 4th DCA 1980); Corpus Cristi Speedway, Inc. v. Morton, 279 S.W.2d 903 (Tex.Civ.App.1955).

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . There is no basis for this kind of proceeding in the rules. A summary judgment should precede a trial, not follow it. Howarth Trust v. Howarth, 310 So.2d 57 (Fla. 1st DCA 1975); Fish Carburetor Corp. v. Great American Ins. Co., 125 So.2d 889 (Fla. 1st DCA 1961). The holding of a trial posits there are questions of fact to be resolved, and this properly precludes entry of a summary judgment.


text:
    Herman PONDER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1659.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant having failed to demonstrate reversible error, we affirm the conviction.

The record discloses that at the sentencing hearing the trial court orally sentenced appellant to five years in prison on Count I, fifteen years in prison on Count II, and five years in prison on Count III, all terms to be consecutive. The written order of June 22, 1979 reflects that appellant was sentenced to five years in prison on Count I and fifteen years in prison on both Counts II and III, all terms to be consecutive. We therefore remand this cause for the entry of an order clarifying the sentence to be served by appellant.

AFFIRMED EXCEPT REMANDED FOR RESENTENCING.

MOORE, BERANEK and HERSEY, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. David Michael COUNCE, Appellee.
    Nos. 79-2227, 80-282.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
   DOWNEY, Judge.

These are consolidated appeals by the State from (1) an order dismissing one count (attempted arson) of a three-count Information filed against Counce (Case No. 79-2227) and (2) an order discharging Counce from custody as to Counts II (extortion) and III (throwing a deadly missile into a building) (Case No. 80-282).

On February 13, 1979, a City of Hallan-dale police officer investigated a case re-gárding an alleged arson. During the course of his investigation the officer retrieved (1) a quart-sized beer bottle containing a liquid that smelled and tasted like gasoline and (2) a charred piece of brown paper. He took the foregoing material to a squadroom at the police station. Because an odor emanated from the squadroom, the station commander directed the officer to get rid of the material the officer had retrieved. The officer complied with his superior’s order and got rid of the bottle, its contents, and the piece of brown paper. All this was done on February 13, 1979, before any analysis of the bottle, the liquid contents of the bottle, or the piece of brown paper could be made.

On February 16, 1979, Counce was taken into custody and charged with attempted arson and extortion. The third charge was added later. All the offenses charged were allegedly committed on February 13, 1979.

On March 23, 1979, the public defender filed a form Demand For Discovery, pursuant to Florida Rule of Criminal Procedure 3.220(a). The State responded to the Demand on April 11, 1979, by supplying the defense with, among other things, the identities and addresses of eleven persons who the prosecutor knew had information relevant to the offenses charged. Six of the eleven persons named were Hallandale police officers; two others were the purported extortion victims. On some date between April 11,1979, and May 25, 1979, the public defender took the depositions of the purported extortion victims.

On May 29, 1979, the Honorable Robert Tyson, Jr., the judge then presiding over the cause, called the cause for trial. The prosecutor announced the State was ready. The public defender informed the court the defense was not ready on the extortion count because the State had failed to comply with a court order “to more clearly indicate what statements, if any, were made by Mr. Counce,” and to give the defense the names of the persons in whose presence a statement had been made. A discussion among counsel and Judge Tyson disclosed that the public defender had deposed the purported victims and had learned that there were policemen present when one purported victim received an allegedly extortionate phone call from Counce; however, neither purported victim knew which policemen were present or whether any policeman had listened in on the conversation. In addition, the prosecutor represented that he did not know whether any policeman had listened in on the telephone conversation. However, the public defender still wanted to know the identity of any policeman who overheard the conversation. He asked Judge Tyson for a continuance and asked that the continuance be charged to the State. Judge Tyson granted the continuance, but he charged it to the defense.

In July 1979 the Honorable Joseph E. Price, Jr., succeeded Judge Tyson as the presiding judge in this cause.

On October 8, 1979, after a hearing on a defense motion, Judge Price entered an order dismissing Count I of the Information on the ground that the destruction of the beer bottle, the contents of the bottle, and the brown piece of paper had denied Counce due process of law. The Hallandale police officers involved in the destruction of the material they obtained on February 13, 1979, were and are agents of the State insofar as their actions relative to that material is concerned. The destruction of the material was thus an action of the State; that action impaired Counce’s right of access to relevant and material evidence necessary to Counce’s preparation of his defense on Count I. The circuit court properly concluded that this impairment of Counce’s right to prepare his defense violated Counce’s right to due process. See Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975). We conclude that under the circumstances of this case, dismissal of Count I was proper. We hold that the order of October 8, 1979, was correct and affirm it.

We turn now to the order discharging Counce from custody as to Counts II and III.

On October 16, 1979, the public defender filed a motion for discharge on the grounds that Counce had not been brought to trial within any time limit prescribed by Florida Rule of Criminal Procedure 3.191. After holding a hearing on the motion Judge Price entered an order in which he found, in sum, that the continuance of May 29th should have been charged to the State rather than the defense since the State violated its duty under Rule 3.220(a)(l)(iii) to (a) furnish the defense with a copy of Counce’s statement (the allegedly extortionate phone call) and (b) inform the defense to whom the statement was made or who was present when the statement was made. Judge Price also found that “Defendant did not request a continuance nor did he want a continuance.”

The State argues that the order discharging Counce from custody should be reversed because Judge Price’s finding that the May 29th continuance was properly chargeable to the State was erroneous.

Counce acknowledges that the order is erroneous in part because the State did furnish the defense with a copy of the statement. However, Counce urges that the order should be affirmed because the State violated its duty to furnish the defense with the names of the persons who were present when the statement was made. We note that the order contains another inaccurate finding, namely, that the defendant did not ask for a continuance; the record clearly shows that Counce did ask for a continuance.

However, and more importantly, Judge Price erred when he ruled that the continuance of May 29th should have been charged to the State. It is true that the State has a duty to furnish demanded discovery material in its possession. However, if the State does not have material demanded, it cannot be guilty of violating Rule 3.220. In the present case the State had possession of Counce’s statement, and it did furnish the defense with a copy of that statement (the transcript of the conversation between Counce and one of the purported extortion victims); it was duty bound to do so. See Davis v. United States, 413 F.2d 1226, 1231 (5th Cir. 1969). However, the State did not have possession of the names of the persons, if any, who might have listened in on the conversation; the good faith representation of the prosecutor to that effect on May 29th shows this lack of possession. It is true that the State had the opportunity to obtain from the policemen involved in the case the information the defense desired. However, and this is crucial to the outcome of this case, the defense had an equal opportunity to obtain from the policemen the information it desired. The State has no duty to do for the defense work which the defense can do for itself. Such a principle is inherent in the following comment of the rules of criminal procedure by the Supreme Court in Cooper v. State, 336 So.2d 1133, 1138 (Fla.1976):

“[ The rules] were not designed to eliminate the onerous burdens of trial practice. Their purpose was to avail the defense of evidence known to the state so that convictions would not be obtained by the suppression of evidence favorable to a defendant, or by surprise tactics in the courtroom.” (Emphasis added.)

The foregoing statement of principle does not permit the State to evade the discovery rules by a wilful failure to learn that which is available to be learned in order to thwart the purpose of the rules; lack of knowledge resulting from bad faith would not relieve the State of its duty to disclose to the defense material that is otherwise unavailable to the defense. Cf. State v. Coney, 272 So.2d 550, 553 (Fla. 1st DCA 1973).

We therefore hold that, in the situation here, the defense was able to obtain the information it demanded from the State by means other than production by the State, and thus there was no duty on the State to obtain that information and furnish it to the defense. We further hold that if the defense neglects to obtain necessary information from available sources other than the State, any continuance the defense requests because it lacks such information is properly chargeable to the defense.

For the foregoing reasons we reverse the order discharging Counce from custody in Case No. 80-282 and remand the cause for further proceedings.

AFFIRMED IN PART and REVERSED IN PART, and remanded with directions.

BERANEK and HURLEY, JJ., concur.


text:
    BROWARD MARINE, INC., Petitioner, v. John W. McCALL, as Trustee, etc., et al., Respondents.
    No. 80-1506.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Dianne Weaver, Weaver & Weaver, P. A., Nancy Little Hoffmann, P. A., Fort Laud-erdale, for petitioner.
    Ronald FitzGerald, Fleming, O’Bryan & Fleming, Fort Lauderdale, for respondent-Marine Development.
    David R. Canning, Lane, Mitchell & Harris, P. A., Miami, for respondent-McCall.
   DOWNEY, Judge.

By Petition for Writ of Certiorari Bro-ward Marine, Inc., seeks quashal of an order of the trial court requiring petitioner to provide copies of “any and all reports compiled by Frank Dennison, Ken Morris, C. W. Dennision, Anthony Farone and Capt. Tom Smith during the calendar year of 1976 as a result of their attendance at the joint survey on board the yacht ‘SEACHEST’ in that year.” The order also required petitioner to furnish copies of all photographs taken by or on behalf of Broward Marine, Inc.

From our examination of the petition and the responses we hold that there is no basis in this record to support the order to furnish the reports of the various named individuals. They were clearly privileged as work product. Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970); Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426 (Fla.1952); Fiorida Power & Light Company v. Limeburner, 390 So.2d 133 (Fla. 4th DCA 1980). We have not overlooked the unusual feature of this case involving a similar order being entered against respondent on motion of a codefendant requiring production of similar information. However, on the principle that two wrongs do not make a right, we believe the order in question constitutes a departure from the essential requirements of law which justifies the issuance of a writ of certiorari.

With regard to the photographs which were ordered produced, the record would support a finding by the trial court that there was an agreement between counsel to furnish those photographs, and thus that part of the order in question should not be disturbed.

Accordingly, the petition for writ of cer-tiorari is granted and that part of the order requiring production of the reports is quashed.

MOORE and BERANEK, JJ., concur.

      . No review of that order was sought by any of the parties.


text:
    TERRY FORD COMPANY, Petitioner, v. Charles KLINGER, Respondent.
    No. 80-2137.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Peter A. Portley of Portley & Sullivan, Pompano Beach, for petitioner.
    Gordon C. Brydger and E. T. Hunter, P. A., Hollywood, for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is granted and the order of the trial court, rendered November 17, 1980, denying petitioner’s motion to compel arbitration is quashed and the cause is remanded with directions to order the parties to submit this cause to arbitration pursuant to their contract. See Vic Potamkin Chevrolet v. Bloom, 386 So.2d 286 (Fla. 3rd DCA 1980).

DOWNEY, ANSTEAD and MOORE, JJ., concur.


text:
    Clinton M. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2111.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1981.
    Jack O. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Clinton M. Green appeals his conviction and sentence for possession of more than 100 pounds of marijuana, in violation of section 893.13, Florida Statutes (1976 Supp.). We affirm the conviction, but remand for correction of the sentence.

Appellant was given an indeterminate sentence of six months to seven years. However, this court has recently held possession of more than 100 pounds of marijuana to be a third-degree felony, Carvajal v. State, 392 So.2d 287 (Fla. 2d DCA 1980); Reinersman v. State, 382 So.2d 325 (Fla. 2d DCA 1980), for which the maximum term of imprisonment is five years. § 775.082(3)(d).

Accordingly, appellant’s sentence is vacated and the cause remanded for resen-tencing. Having found no merit to the other points raised by appellant, however, we affirm his conviction.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


author: DANAHY, Judge.

text:
    Marilynn TRYLKO, Appellant, v. Frank TRYLKO, Appellee.
    No. 80-581.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1981.
    David L. Anderson, New Port Richey, for appellant.
    William R. Webb of Carlson, Meissner & Webb, New Port Richey, for appellee.
   DANAHY, Judge.

In the final judgment dissolving the marriage of these parties, the trial judge (1) granted custody of the parties’ two minor children to the father, (2) ordered the mother to pay child support, (3) denied her request for alimony, and (4) ordered her to hold the father harmless from and assume responsibility for part of the balance owed on several credit cards held jointly by the parties. We find that each of those portions of the final judgment meets the reasonableness test enunciated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and, thus, is within the permissible scope of the trial judge’s discretion. Grant v. Corbitt, 95 So.2d 25 (Fla.1957). We, therefore, affirm those portions of the final judgment.

The mother also challenges the following limitation on her right of reasonable visitation with her children:

The respondent shall not have her paramour present when she has visitation with the children.

On this record we find that the imposition of the foregoing limitation constitutes an abuse of discretion on the part of the trial judge and, therefore, we reverse the final judgment to that extent.

There had been serious discord in the parties’ marriage for some years. For several months prior to the father’s initiation of these proceedings for dissolution of the marriage, the mother had engaged in an adulterous relationship. The mother and her lover were never together in the presence of the children, although she had been away on trips and out until late hours with him.

The trial judge voiced strong disapproval of the mother’s marital misconduct. He described the mother as being “preoccupied” with her lover and presently unwilling to undertake the day to day responsibilities of the children’s custodial care. It is clear that the father was very upset about the mother’s extramarital relationship. It is equally clear he felt strongly that his children should not be around the man whom he perceived as the cause of the breakdown of his marriage.

We think there is sufficient evidence that the mother’s recent life style, which included absences from the marital home and inattention to parental duties, supported a finding by the trial judge that the welfare of the children would be best served .by placing them in the custody of their father. But those facts alone do not warrant the imposition in turn of the restrictive limitation placed on the mother as a condition of visits with her children. The trial judge stated that he did not feel it would be in the best interest of the children for them to be “involved” with the mother in the presence of her lover while their “meretricious relationship” existed, and that he was imposing the limitation “so that these youngsters will have a healthy and good opinion of their mother.” Thus, the trial judge made a finding that it was in the best interest of the children that the limitation be imposed. The problem with that finding, however, is that nowhere in the record is there competent evidence to support the conclusion that her “paramour’s” presence during the mother’s visits with the children would have such a deleterious effect on them as to require that his presence be prohibited.

It is apparent that, notwithstanding his “best interest of the children" finding, the trial judge imposed the limitation to demonstrate his disapproval of the mother’s marital misconduct and to protect the children from conditions the trial judge deemed morally undesirable. The law sets a different standard. Beaman v. Beaman, 393 So.2d 19 (Fla. 3d DCA 1980); Wambst v. Wambst, 391 So.2d 375 (Fla. 3d DCA 1980). Without competent and substantial evidence of the detrimental effect on the children caused by her lover’s presence during the mother’s visits, the limitation imposed by the trial court cannot stand. Dinkle v. Dinkle, 322 So.2d 22 (Fla.1975); Hackley v. Hackley, 380 So.2d 446 (Fla. 5th DCA 1979). There is no such evidence in this record.

As this court recently noted in a case involving an analogous limitation imposed as a condition of custody, the trial court has continuing jurisdiction to enter appropriate orders to protect the children should events prove that visits by the mother with her lover present are, in fact, detrimental to the welfare of the children. Draper v. Draper, No. 80-646 (Fla. 2d DCA Dec. 24, 1980).

We conclude by observing that even in appropriate circumstances the wording of the limitation in this case is impermissibly broad because it could apply to a different man in the future with whom the mother might become involved or wish to marry. The private lives of the children and the mother may not be so regulated.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

      . The trial judge made it clear he was not placing the children in the custody of their father solely because of the adulterous conduct of the mother. Such conduct, even if committed in a household where the children are present, could not disqualify the mother from consideration as the proper custodial parent if it has no bearing on the welfare of the children. Dinkle v. Dinkle, 322 So.2d 22 (Fla.1975).


text:
    Oliver HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-2274.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1981.
   PER CURIAM.

We reverse and set aside the summary denial of appellant’s Rule 3.850 motion. The lower judge erroneously noted under his denial that the case was on appeal and he apparently denied the motion, believing that he was without jurisdiction to hear it. Because no appeal appears in this case we remand to the lower court for an evidentia-ry hearing on appellant’s Rule 3.850 motion.

REVERSED and REMANDED.

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