author: McCORD, Judge.

text:
    Eugene BAKER, Appellant, v. Blondell F. BAKER, Appellee.
    No. AL-354.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1982.

      Owen N. Powell, Bonifay, for appellant.
    Clinton E. Foster and Richard D. Ogburn, Panama City, for appellee.
   McCORD, Judge.

Appellant husband appeals the denial of his motion to vacate the final judgment of dissolution of marriage, in which the trial judge awarded to appellee wife a percentage of appellant’s veteran’s disability and social security benefits as permanent periodic alimony. We affirm.

In Higgins v. Higgins, 408 So.2d 731 (Fla. 1st DCA 1982), and Cullen v. Cullen, 413 So.2d 1196 (Fla. 1st DCA 1982), this Court has ruled that federal law does not preclude a Florida court from awarding permanent periodic alimony based on a percentage of military retirement pensions. For purposes of the question presented, we find no material distinction between military retirement pay and veteran’s disability compensation benefits or social security benefits. Therefore, we conclude that the instant case is governed by the reasoning and rulings of the Higgins and Cullen decisions. Compare Miller v. Miller, 96 N.M. 497, 632 P.2d 732 (1981), in which the Supreme Court of New Mexico concluded that a trial court did not abuse its discretion in awarding alimony where the sole sources of payment were disability compensation benefits payable by the Veteran’s Administration and Social Security.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Steven Sam FREDERICK, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2461.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1982.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James and William P. Thomas, Asst. Attys. Gen., for appellee.

      Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Frederick appeals from an order which revoked the probation imposed pursuant to a 1978 nolo plea and resentenced him to consecutive five-year terms for burglary of a structure and grand theft. Despite a clerk’s notation which indicates otherwise, the transcript of the colloquy clearly reveals that the defendant pled only to burglary and did not do so to the count charging grand theft. The subsequent adjudication and sentence on that charge were therefore nullities and are consequently vacated and set aside. Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). The burglary judgment is affirmed.


author: SHARP, Judge.

text:
    CITY OF LAKE MARY, Appellant, v. COUNTY OF SEMINOLE, State of Florida, Jeno Paulucci, Lois Mae Paulucci, Michael J. Paulucci, Trustee, Cynthia J. Soderstrom, a/k/a Cynthia J. Paulucci, Gina J. Paulucci and Roy H. Jones, Guardian of the Estate of Gina J. Paulucci, Appellees.
    No. 81-257.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1982.
    Gary E. Massey, of Massey, Alper & Walden, P. A., Altamonte Springs, for appellant.
    Nikki Clayton, County Atty. for Seminole County, and Robert A. McMillan, Asst. County Atty. for Seminole County, Sanford, for appellee, Seminole County.
    Nicholas A. Pope, of Lowndes, Drosdick, Doster & Kantor, P. A., Orlando, for appel-lees, Jeno Paulucci, et al.
   SHARP, Judge.

Pursuant to Florida Rule of Appellate Procedure 9.040(c) (1982), we elect to treat this appeal by the City of Lake Mary as a petition for writ of certiorari to review an order of the trial court quashing an annexation ordinance because it creates islands of incorporated and unincorporated areas in violation of section 171.044, Florida Statutes (1977). We deny the writ.

In 1977, various landowners, some of the appellees in this case, voluntarily petitioned the City of Lake Mary to annex their property pursuant to section 171.044. Despite the objections of Seminole County, also an appellee, that the described property could not be annexed because the property was not “reasonably compact” as required by section 171.044, the City of Lake Mary passed an ordinance annexing the property. Pursuant to section 171.081, Florida Statutes (1977), the County petitioned the circuit court for a writ of certiorari quashing the annexation ordinance. Finding that the annexation was not reasonably compact because it created at least two enclaves, the circuit court declared the ordinance invalid.

Appellants contend that the circuit court lacked jurisdiction to review this matter by certiorari. They claim section 171.081 is unconstitutional because it conflicts with Article V, Section 5 of the Florida Constitution as adopted March 14, 1972. Article V, Section 5(b), Florida Constitution reads as follows:

The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and ha-beas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the State. They shall have the power of direct review of administrative action prescribed by general law. (Emphasis added).

The City argues that this section prohibits the Legislature from providing review of annexation proceedings, which is legislative action, by certiorari in the circuit court. The City claims that the last sentence of section 5 is inapplicable because this proceeding is not “administrative” in nature. The City would have us construe “and jurisdiction of appeals when provided by general law” as requiring appellate review by appeal in the circuit court except for review of administrative proceedings. If we accept that line of reasoning, the City further contends that because quo warranto was the only form of action available to invalidate an annexation at common law, the circuit court could not quash the ordinance by issuing an unconstitutional statutory writ of certiorari.

We find no merit to either argument. Where a court has acquired jurisdiction of the subject matter and the parties, and the relief sought is within the general jurisdiction of the court, any objection as to the vehicle used to grant the relief, whether statutory certiorari or writ of quo warran-to, is subject to waiver if not timely raised. Since no objection was raised below, we will not consider it on appeal.

We think the City’s argument based on the terms “appeal” and “certiorari” is misplaced. Section 171.081 shows affirmatively that the Legislature intended to create by general law a limited right of appeal to the circuit court in annexation proceedings. The Legislature also intended to limit the scope of review in these proceedings to that normally associated with “certiorari.” The use of the term “certiorari” in the statute is merely a shorthand means of articulating the standard of review intended to be afforded. In support of this interpretation we note the title of section 171.-081 reads: “Appeal on Annexation or Contraction.” If the Legislature has the power to create a right of appeal in the circuit court for a proceeding where none previously existed, it is incongruous to assert that it cannot limit the scope of that review. Procedural due process was afforded the parties below, and we find the circuit court considered the substantive issues raised consistent with essential requirements of law.

PETITION FOR WRIT OF CERTIORA-RI DENIED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Section 171.044(1), Florida Statutes (1977) provides:
      The owner or owners of real property in an unincorporated area of a county which is contiguous to a municipality and reasonably compact may petition the governing body of said municipality that said property be annexed to the municipality.

      . This section provides:
      No later than 30 days following the passage of an annexation or contraction ordinance, any party affected who believes that he will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction or to meet the requirements established by annexation or contraction if they apply to his property may file a petition in the circuit court for the county in which the municipality or municipalities are located seeking review by certio-rari. In any action instituted pursuant to this section, the complainant, should he prevail, shall be entitled to reasonable costs and attorney’s fees. § 171.081, Fla.Stat. (1977).

      . The respective enclaves are referred to by the parties as parcel one and parcel three. Parcel one is annexed property which is completely surrounded by unincorporated property. Parcel three is unincorporated property completely surrounded by property annexed by the City in the challenged ordinance.

      . City of Auburndale v. Adams Packing Assoc., 171 So.2d 161 (Fla.1965).

      . City of Orlando v. Orange County, 309 So.2d 16 (Fla. 4th DCA 1975), cert. dismissed, 327 So.2d 7 (Fla.1976).

      . Cf. Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926) (When a court has general jurisdiction of civil actions both at law and in equity and the subject matter is within the general jurisdiction of the court the issue whether the relief sought sounds in equity or at law is a question of procedure and must be timely raised).

        .See, e.g., State ex rel. City of Casselberry v. Mager, 356 So.2d 267 (Fla.1978).


author: DAUKSCH, Judge.

text:
    John WELLER and his wife, Kathleen Weller, Appellants, v. Edward REITZ and Prudential Property and Casualty Insurance Company, an insurance company authorized to do and doing business in the State of Florida, Appellees.
    No. 81-1111.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1982.

      Seymour H. Rowland, Jr., Ocala, for appellants.
    Wayne C. McCall, of Ayres, Cluster, Curry, McCall & Briggs, P. A., Ocala, for appel-lees.
   DAUKSCH, Judge.

Appellant appeals from a final summary judgment entered against him by the Circuit Court of Marion County, Florida. Appellant Weller and appellee Reitz were both employees of Marion Tire & Battery. Appellant sought recovery from appellee Reitz and his personal automobile liability carrier, Prudential Property and Casualty Insurance Company, for injuries sustained at his place of employment due to the alleged negligence of appellee Reitz. Worker’s Compensation benefits had already been paid to appellant as a result of his injuries.

Weller was engaged in tune-up work on a truck as part of his employment. As Weller was finishing the tune-up, he heard an unusual noise emanating from the engine. Weller asked Reitz, his good friend and fellow employee, to step over to Weller’s stall and aid him in locating the source of the noise. Weller asked Reitz to tighten some transmission bolts underneath the truck. The truck was then started; the noise continued and additional efforts were made to find the source. Shortly thereafter, Reitz was called away to do other work. Later that afternoon, Weller again asked Reitz to step over and listen to the engine, as Weller believed he had found the problem. Weller was standing in front of the truck’s raised hood leaning over the engine; directly behind him was the stall wall. Weller asked Reitz to start the truck. Reitz leaned in through the open window and turned the key. The truck lurched forward, striking Weller’s legs and pinning him to the wall. Both of Weller’s legs were broken.

Appellant claims that his affidavit in opposition to the summary judgment was sufficient to show the existence of a material fact issue; namely, that the negligence of appellee Reitz constituted gross negligence. The summary judgment was granted on the basis of section 440.11, Florida Statutes (1979), which provides immunity from tort liability to a fellow employee when that employee was acting in furtherance of the employer’s business except when the employee was acting with gross negligence or willful and wanton disregard of the interests of the victim or when the victim and fellow employee were assigned primarily to unrelated works within private or public employment. McCarroll v. Reagan, 396 So.2d 239 (Fla. 2d DCA 1981). Section 440.-11 does not abrogate a cause of action for gross negligence. Iglesia v. Floran, 394 So.2d 994 (Fla.1981).

Appellant’s affidavit in opposition to the motion for summary judgment stated that appellee Reitz told appellant that he (Reitz):

1. Started the vehicle without getting inside it.
2. Started the vehicle without knowing what gear it was in.
3. Started the vehicle while appellant was in front of it.
4. Started the vehicle without checking to see if the brake was on.
5. Was sorry the accident happened and in effect, he should have known better, although not in those exact words.

Viewed in a light most favorable to appellant, along with the pleadings and the deposition of appellant, there is no indication of any circumstances or facts sufficient to constitute gross negligence on the part of ap-pellee. The concept of “gross negligence” has often been defined by Florida courts:

[Sjimple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons or property whereas gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property. To put it another way, if the course of conduct is such that the likelihood of injury to other persons or property is known by the actor to be imminent or “clear and present” that negligence is gross, whereas other negligence would be simple negligence. Carraway v. Revell, 116 So.2d 16 (Fla.1959); Bridges v. Speer, 79 So.2d 679, 682 (Fla.1955). [Gjross negligence consists of a conscious and voluntary act or omission which is likely to result in grave injury when in the face of a clear and present danger of which the alleged tortfeasor is aware.... Accordingly, to establish a case submissible to a trier of fact there must be a prima facie showing of a composite of circumstances, which, together, constitute a clear and present danger; there must be a prima facie showing of an awareness of such danger; and there must be a prima facie showing of a conscious, voluntary act or omission in the face thereof which is likely to result in injury. Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970).

The circumstances and facts support the conclusion that appellee was guilty of simple negligence. Appellant has not met the burden of showing facts from which gross negligence could reasonably be inferred. Thus the statute applies to provide immunity for appellee since appellant has already received his worker’s compensation benefits.

AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . Section 440.11, Florida Statutes (1979) provides in pertinent part:
      1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of the employment, or that the injury was due to the comparative negligence of the employee. The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when

        each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.

      (Emphasis supplied).


text:
    Thomas E. (Gene) HOOD, Appellant, v. Walt CONNORS, Appellee.
    No. 81-1280.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1982.
    A. P. Gibbs, of Gibbs & McAlvanah, P. A., Dade City, for appellant.
    Richard S. Fitzpatrick, of Fitzpatrick & Fitzpatrick, P. A., Inverness, for appellee.
   SHARP, Judge.

Hood appeals from the dismissal of Count I of his First Amended Complaint. Hood sued Connors for slander because of remarks made by Connors about Hood at political rallies during their 1980 campaign for elective office in Citrus County. The trial court dismissed Count I because it ruled Connor’s remarks were slander per quod, and not slander per se, since their defamatory character required some explanation of the circumstances during which they were made and the identity and status of Hood. It also ruled punitive damages were inappropriate. We disagree on both points.

Slander “per se” is actionable on its face, but slander “per quod” requires additional explanation of the words used to show they have a defamatory meaning or that the person defamed is the plaintiff. The primary difference between them is that for per se actions general damages will be presumed, but for per quod actions the plaintiff must allege and prove special damages. Older Florida cases also held that in per se cases, malice was presumed, and need not be pled or proved. However, this aspect of the Florida common law of defamation has been altered by the Federal cases which require that actual malice be alleged and proved when the plaintiff is a public figure, here a candidate for public office. See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Times Publishing Company v. Huffstetler, 409 So.2d 112 (Fla. 5th DCA 1982).

In this case we think Count I stated a cause of action for slander per se. Hood alleged that he and Connors were running for political office (clerk of the county court), that he had previously served on the Board of County Commissioners, and that Connors was the incumbent. At five different political rallies, and during one radio broadcast, Connors accused Hood of using public funds to pave parking lots for a private business and to pave the streets of a subdivision in which Hood owned an interest while Hood was county commissioner. The allegations were:

Gene Hood had the parking lot of the W-D Pub paved with County funds when he was in office.
Gene Hood paved their parking lot while he was in office and he paved Sunrise Estates with taxpayers [sic] money before he left office.

The alleged statements accuse Hood of dishonest acts committed while holding public office, and the substance of the remarks directly impacts on his character and trustworthiness to hold public office. Such remarks usually constitute slander per se. Campbell v. Jacksonville Kennel Club, 66 So.2d 495 (Fla.1953); Lundquist v. Alewine, 397 So.2d 1148 (Fla. 5th DCA 1981); Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980). They could not be much more direct had Connors called Hood a thief and plunderer of the taxpayers of the County.

Connors argues the slander was not per se because it was necessary for Hood to explain in his complaint that he was a former office holder seeking public office, that the remarks were made at rallies during a political election contest between them, and that the alleged paving was done to further Hood’s private business interests. However, the circumstances, time, and place of the defamatory statement and the situation of the person defamed should always be considered in determining what the average person who heard the remarks thought upon hearing them. That does not make a per se slander per quod. This is not a case where the defamatory nature of the remark is unclear without such explanations. Here the substance of the slander—lack of honesty and abuse of public trust—was obvious. See Harwood v. Bush, 223 So.2d 359 (Fla. 4th DCA 1969).

Also, in Count I Hood alleged that Connors made these false remarks either knowing they were false or “with a reckless disregard for the truth and without reasonable grounds for the Defendant” to believe they were true. He further alleged Connors made these remarks with intent to injure and defame him. These allegations are sufficient to charge actual malice and we also think they are sufficient to support a demand for punitive damages. Accordingly, this case is

REVERSED AND REMANDED.

ORFINGER, C. J., and COWART, J., concur.

      . Campbell v. Jacksonville Kennel Club, Inc., 66 So.2d 495 (Fla.1953).

      . Tip Top Grocery Co. v. Wellner, 135 Fla. 518, 186 So. 219 (1938).

      . Wolfson v. Kirk, 273 So.2d 774 (Fla. 4th DCA 1973).

      . Even if we concluded that the Connors’ remarks were slander per quod, Count 1 should not have been dismissed because Hood did allege items of special as well as general damages.

      . Stewart v. Codrington, 55 Fla. 327, 45 So. 809 (Fla.1908).

      . Campbell v. Jacksonville Kennel Club, Inc., 66 So.2d 495 (Fla.1953).

      . id.

      . New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

      . Lundquist v. Alewine, 397 So.2d 1148 (Fla. 5th DCA 1981); Matthews v. Deland State Bank, 334 So.2d 164 (Fla. 1st DCA 1976).


author: COWART, Judge.

text:
    Warren T. CURRY, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. 82-834.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1982.
    Warren T. Curry, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for respondent.
   COWART, Judge.

The first district, not this district, is the proper venue for a petition for mandamus seeking to require the Florida Parole and Probation Commission to give credit for time served in computing petitioner’s presumptive parole release date. Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982); Lyden v. Wainwright, 307 So.2d 258 (Fla. 2d DCA 1974). Since the petition does not contain definite allegations that if the presumptive parole release date were properly computed, petitioner would be entitled to immediate release, this court cannot treat the petition as one for habeas corpus, as was done in Taylor and Lyden.

Accordingly, the cause is hereby transferred back to the First District Court of Appeal.

DAUKSCH and SHARP, JJ., concur.


text:
    Elijah KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1251.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 1982.
    Elijah Kearse, in pro. per.
    No appearance for appellee.
   DAUKSCH, Judge.

Appellant has appealed an order denying his motion for post conviction relief. Fla.R. Crim.P. 3.850. As grounds he alleges he was sentenced to five years in the penitentiary for a misdemeanor. If this is true he is entitled to relief because only upon conviction for a felony may a person be sentenced to prison, or be given more than one year incarceration.

The trial judge merely denied the motion and we have no way of knowing what the record will show in support of or in derogation of the allegations of the petition.

It is the trial judge’s duty to either hold a hearing and enter findings and an order or attach to his order denying a hearing a record sufficient to show the petitioner is not entitled to a hearing. Meeks v. State, 382 So.2d 673 (Fla.1980); VanBever v. State, 405 So.2d 474 (Fla. 5th DCA 1981); Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980).

The order denying the motion for post conviction relief is reversed and this cause is remanded for compliance with Rule 3.850 and this opinion.

REVERSED AND REMANDED.

SHARP and COWART, JJ., concur.


text:
    ROBERT C. MALT & CO., Appellant, v. Edward C. COLVIN, Government Employees Insurance Company and Valentine Gabaldon, Appellees.
    No. 80-831.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.

      Garry M. Glickman of Glickman & Witters, West Palm Beach, for appellant.
    Valentine Gabaldon, West Palm Beach, for appellee Gabaldon.
   OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

Due to a clerical error, the writ of garnishment in this case directed the garnishee to disclose indebtedness to or possession of property of the party who was the judgment creditor (rather than the party who was the judgment debtor). The writ was dissolved on the garnishee’s speaking motion disclaiming indebtedness to or possession of property of the judgment creditor. The latter appeals. We reverse.

Edward C. Colvin brought an action for breach of contract against appellant Robert C. Malt & Co. (“Malt”). The latter prevailed on its counterclaim, recovering a judgment against Colvin in the amount of $4,218.00. Appellee Valentine Gabaldon, Colvin’s attorney in the contract case, also represented Colvin in a personal injury case. Subsequent to the entry of the Malt judgment, the personal injury case was settled out of court favorably to Colvin.

While the proceeds of the personal injury settlement were in his possession or control, Gabaldon was served with a writ of garnishment issued pursuant to motion filed by Malt. Unfortunately, the writ of garnishment named Robert C. Malt & Co. as the defendant and debtor instead of naming Colvin. Gabaldon, understandably concerned with the duty which he owed to his client, elected to respond to the literal command of the writ; thus, he filed an answer to the writ denying any indebtedness to Malt, denying possession of any funds belonging to Malt and denying any knowledge of a debt to Malt. An amended answer was filed a day later admitting knowledge of Colvin’s indebtedness to Malt. Gabaldon then disbursed $8,309.00 to Colvin and filed a motion to dismiss the writ of garnishment on the grounds that he did not represent Robert C. Malt & Co. and did not have nor anticipate having any property to disburse to Robert C. Malt & Co. Malt filed a reply to the amended answer of the garnishee, alleging that a day or two after service of the writ, in a telephone conversation with Malt’s attorney, Gabaldon had admitted that (1) he had the personal injury settlement check in his possession, (2) he knew the garnishment applied to Malt’s judgment against Colvin, and (3) Colvin’s share would satisfy the debt. The reply demanded a trial by jury on the issues. The court treated the garnishee’s motion to dismiss as a motion to dissolve and granted the same on the basis of the record. In doing so, the court necessarily accepted the allegations of the reply as true.

We are aware that generally the provisions of the garnishment statute, being in derogation of the common law, should be adhered to with strictness. We are also sensitive to the unique circumstance of the attorney-client relationship which existed between the garnishee and the judgment debtor whose assets were sought to be reached. Nonetheless, the law looks to substance, not form. We hold that when Ga-baldon knew the writ of garnishment contained a known and obvious clerical error, 1.e., identifying Malt as the “defendant” whose assets were sought to be garnished by Malt, and knew the writ was obviously intended to garnish assets of the judgment debtor (his own client), neither a strict adherence to the letter of the writ’s command nor the attorney’s duty to his client will permit Gabaldon to ignore with impunity what he knew the writ clearly and obviously intended to command.

If Gabaldon had a good faith doubt as to whether the writ required him to include in his answer the property of or indebtedness to his client, he could have availed himself of the exculpatory provisions of Section 77.-06(3), Florida Statutes. He chose not to do so at his risk.

A judgment creditor who is not satisfied with the garnishee’s answer may serve a reply denying the allegations of the answer (Section 77.061) and demanding a jury trial on the issues made (Section 77.08). That is what appellant did. Because we hold the reply set forth facts which, if true, would make the garnishee liable for the amount of the Malt judgment, it was error to dissolve the writ without a jury trial on the issues. The order is reversed and this cause remanded for further proceedings.

REVERSED.

HERSEY and WALDEN, JJ., concur.

      . How the mistake could have occurred is easily explained. A post-judgment garnishment proceeding, ancillary to the original action, bears the same caption. Malt was the original defendant. Although the motion for writ of garnishment properly identified the parties as defendant/counterplaintiff and plaintiff/coun-terdefendant, the writ (following Florida Rule of Civil Procedure 1.907) named Robert C. Malt & Co. as the defendant whose assets were garnished.

      . See, e.g., Florida Power & Light Co. v. Crabtree Construction, Inc., 283 So.2d 570 (Fla. 4th DCA 1973); Thompson v. Commercial Union Ins. Co. of New York, 267 So.2d 18 (Fla. 1st DCA 1972); Pleasant Valley Farms v. Carl, 90 Fla. 420, 106 So. 427 (1925); Robinson v. Robinson, 18 So.2d 29 (Fla.1944).


author: DOWNEY, Judge.

text:
    Robert H. VAWTER, Appellant, v. Marie A. VAWTER, Appellee.
    No. 81-2054.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 1982.

      Howard S. Gaines, Fort Lauderdale, for appellant.
    Jimmie R. McDonald, Plantation, for ap-pellee.
   DOWNEY, Judge.

The appellant husband seeks reversal of a final judgment in a dissolution of marriage case wherein the trial court awarded the husband’s undivided half interest in the marital home to the wife.

This marriage endured for five years and produced no children, though each of the parties had children by a previous marriage. During the marriage, a home was acquired with each party contributing to the purchase thereof either through the down payment or mortgage payments. In addition, the wife contributed heavily toward the day to day family expenses.

The husband’s monthly income was $2,623. The wife earned approximately $1,400 per month by renting two bedrooms in the marital home and by conducting music lessons therein. The evidence showed that the parties had an equity of approximately $26,000 in the marital home. The propriety of the trial court’s action in awarding the husband’s interest in the marital home to the wife is the focal point of this appeal.

Although the trial judge did not state the ground upon which the award of the home was based, we believe the record supports such an award as lump sum alimony. Clearly, this marriage was not of long duration. However, there is no fixed minimum period which a marriage must endure before lump sum alimony can be appropriately awarded. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) recognizes the trial court’s discretion to award lump sum alimony where there is justification therefor. As we view this record, the fact that the husband’s income was nearly twice that of the wife and that her income, inadequate as it is, was produced through her use of the marital home was justification for the award. Under these circumstances, we cannot say that awarding the husband’s $13,-000 interest in the home to the wife constituted an abuse of the trial court’s discretion. For the foregoing reasons, the judgment appealed from is affirmed.

In passing, we note that a statement of the reasons or grounds for making awards in dissolution judgments is most helpful in appellate review. It immediately directs the appellate court’s attention to what the trial judge had in mind; perhaps more importantly, it obviates the necessity of the parties’ briefing and arguing various other possible reasons for the trial court’s action. Thus, we highly recommend that trial judges follow that format whenever possible in preparing final judgments in such cases.

AFFIRMED.

HURLEY, J., concurs.

BERANEK, J., dissents without opinion.


author: BOARDMAN, Judge.

text:
    Howard Lee BRICE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1948.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1982.
    Philip M. Gerson, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Howard Lee Brice appeals the denial of his motion to tax costs. We dismiss the appeal due to the unexcused and unexplained failure of his counsel to comply with this court’s order of July 2, 1982, that he file the certified copy of the trial court’s written order that is necessary to vest appellate jurisdiction in this court.

Appellant is a defendant in several criminal cases in Collier County. The trial court adjudged appellant to be indigent, entitling him to the services of the public defender. Appellant did not utilize the services of the public defender, however, but elected to retain private counsel, Philip M. Gerson of Miami, whose fees were paid by appellant’s relatives. After tendering a conditional plea of nolo contendere, appellant moved to tax the costs of his defense to Collier County. The trial court orally denied the motion, and this appeal was filed.

In his directions to the clerk, which specified the limited documents he wished included in the record on appeal, Mr. Gerson did not list the order he purported to be appealing. Accordingly, no such order was included in the record on appeal filed in this court. When we became aware that the order appealed from, alleged in the notice of appeal to have been “rendered” on August 24, 1981, was not in the record, we ordered Mr. Gerson to file a certified copy of it and certain other record documents necessary to a proper review which also were not included in the record on appeal. A supplemental record was filed, but the order appealed from was not included therein, again because Mr. Gerson had not requested it. Nor has Mr. Gerson favored this court with any reason for his failure to comply with our order. Our subsequent order that he show cause within ten days why his appeal should not be dismissed was completely ignored.

It may well be that the trial court’s oral ruling was never reduced to writing. However, Mr. Gerson specifically stated in his notice of appeal that appellant was appealing “the Order of this Court rendered by Judge Brousseau on August 24, 1981. The nature of the Order is a Final Order denying a motion to tax costs.” (Emphasis supplied.) We presume that Mr. Gerson is familiar with the definition of “rendition” contained in Florida Rule of Appellate Procedure 9.020(g): “Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal.” (Emphasis supplied.) Given the further fact that Mr. Gerson has never requested the lower court’s clerk to include in the record on appeal the order referred to in his notice of appeal, we must assume Mr. Gerson simply chooses not to provide it to us.

If it is in fact the case that the trial court’s oral order has never been reduced to writing, making it impossible for Mr. Ger-son to comply directly with our order to supply us with a written order, he had only to advise us of that fact. Instead, Mr. Gerson totally ignored our orders concerning this problem, leaving this case, which was filed in this court nearly a year ago, lying in limbo for an additional two months. It is not infrequent that delay by attorneys slows disposition of appellate cases, but seldom is this court treated with such flagrant disrespect as Mr. Gerson’s complete failure to respond to our efforts to move this case to final disposition.

It is well settled that it is the appellant’s duty to provide an adequate record to the appellate court. E.g., Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980). Florida Rule of Appellate Procedure 9.200(f)(2) provides that a party must be given an opportunity to supply any omitted parts of the record before a proceeding may be determined adversely to him or her because the record is incomplete. Appellant, through his counsel, has been afforded that opportunity, but counsel has seen fit not to avail himself of it.

Here, of course, the omission from the record of the order appealed leaves this court without appellate jurisdiction. The order appealed must be a written order. Allied Fidelity Insurance Co. v. State, 384 So.2d 727 (Fla. 3d DCA 1980); Sparks v. State, 262 So.2d 251 (Fla. 4th DCA 1972). While our supreme court has held that an appeal from an oral ruling that has not yet been reduced to writing is to be considered premature and is not to be dismissed solely on the ground that it is premature, but is to be deemed to exist in a state of limbo until a written order is rendered, Williams v. State, 324 So.2d 74 (Fla.1975); see also Allied Fidelity Insurance Co. v. State, supra, we do not believe that the supreme court intended that an appeal remain dormant indefinitely due to the appellant’s wilful and wanton neglect of his or her duty to comply as best he or she can with a lawful order of the appellate court regarding furnishing it with a copy of the order appealed. In the Allied Fidelity case, when the appellant was given such an order, the appellate court was informed of the reason for the appellant’s inability to comply. No such ■courtesy has been extended to this court by Mr. Gerson.

Furthermore, in this case, we cannot ascertain from the record before us whether the appeal is premature. On the basis of the record before us, we can only speculate.

We decline'to speculate further or to wait indefinitely for Mr. Gerson to favor us with a copy of the order appealed or an explanation for his failure to do so. Mr. Gerson having disregarded our order to supply us with a copy of this essential document and our subsequent order to show cause why this case should not be dismissed, we have no alternative but to dismiss this appeal.

APPEAL DISMISSED.

OTT, C. J., and DANAHY, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    Rickey JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2269.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1982.

      Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant pled nolo contendere to charges of grand theft and dealing in stolen property. He reserved the right to appeal the denial of his motion to suppress evidence.

At the hearing on the motion to suppress, Officer Miller of the St. Petersburg Police Department testified that he received a call from an anonymous citizen who told him that an individual was sanding rental trailers at a location which turned out to be appellant’s residence. When Miller arrived, he observed, from the vantage point of the street, two rental trailers in the appellant’s back yard. Without obtaining a search warrant, Miller and Officer Ginsmer entered the back yard to take a closer look at the trailers. Upon close inspection, they noticed that the trailers had been partially sanded and the stenciling and license tags had been removed. While the police were looking at the trailers, the appellant came out of his house to talk to them. During the conversation, Officer Ginsmer located a serial number on one of the trailers. After running a check on the number, Ginsmer verified that the trailer had been stolen. Appellant was subsequently arrested and the trailers were seized.

Appellant argues that without a search warrant the police officers’ entry upon his property and the subsequent inspection and seizure of the trailers were unlawful. We agree.

This case is much like State v. Morsman, 394 So.2d 408 (Fla.1981), in which the police, acting on a double hearsay report, seized some marijuana plants in the defendant’s back yard. The supreme court held that since the plants were not visible from outside the defendant’s property, the officer had no right to go into the back yard to seize them without a search warrant. Here, while the officers could see the trailers from the street, they were unable to determine whether the trailers were stolen until after they entered appellant’s back yard. Inasmuch as there was no showing of exigent circumstances, they did not have a right to enter the appellant’s back yard to inspect the trailers without a search warrant. Hence, the motion to suppress' should have been granted.

We reverse the judgment of guilt and remand the case for further proceedings.

SCHEB and SCHOONOVER, JJ., concur.


author: SCHEB, Judge.

text:
    Walter Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-2529.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

. Defendant Walter Lee Johnson appeals from a final order revoking his probation.

On February 17, 1975, defendant was adjudged guilty of aggravated assault and aggravated battery and was sentenced to concurrent five-year terms of imprisonment. On March 4, 1975, he was found guilty of both forcing and conspiring to force one to become a prostitute. For these offenses he was placed on concurrent three-year terms of probation to begin at the expiration of the five-year prison sentence. Defendant began his prison sentence on February 17, 1976, and was placed on parole on January 31,1978. His parole expired on January 31, 1980.

On April 2, 1981, defendant’s probation officer executed an affidavit alleging three violations of probation. On November 20 the trial court found defendant in violation of his probation and sentenced him to concurrent five-year prison terms on the prostitution offenses. This appeal ensued.

Defendant’s only argument is that his term of probation began from the day he was placed on parole and expired prior to his being charged with a violation of his probation. If this were true, the court would have been without jurisdiction to entertain proceedings for revocation. Bouie v. State, 360 So.2d 1142 (Fla. 2d DCA 1978). We disagree, however, with defendant because a person cannot be on probation and parole at the same time, as probation and parole have separate identities and must be treated separately. See Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981). Thus, defendant’s term of probation began on January 31, 1980, when his parole expired, not when he was released on parole from prison.

Defendant cites State v. Tavel, 407 So.2d 953 (Fla. 3d DCA 1981), to support his argument that his probation began immediately upon release from prison and not upon termination of parole. In Tavel the defendant’s probation began immediately upon his release from prison. There, however, it is not clear whether the defendant was actually on parole when his probation commenced. Thus, we do not believe our decision is in conflict with Tavel.

Accordingly, we hold that the trial court had jurisdiction, and we affirm the revocation of defendant’s probation and the sentence imposed by the trial court.

GRIMES, Acting C.J., and SCHOON-OVER, J., concur.


text:
    STATE of Florida, Appellant, v. Larry R. SPILLANE, Appellee.
    No. 82-922.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Glenn E. Brown, Asst. Public Defender, Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The Hillsborough County state attorney charged appellee with several offenses involving cannabis and with carrying a concealed firearm. Following the denial of a motion to dismiss, appellee pled nolo con-tendere to the charge of trafficking and guilty to the charge of delivery. The state nolle pressed the balance of the charges. Thereafter, the appellee moved to reconsider his motion to dismiss. Following another hearing, the court permitted the appellee to withdraw his pleas and dismissed the information against him.

The basis for the motion to dismiss was alleged misconduct on the part of the police. With the knowledge of the state attorney’s office, arrangements were made for appel-lee to furnish information to Pasco County deputies in exchange for the possibility of more lenient treatment on the Hillsborough County charges. Essentially, appellee contended that the Pasco County deputies told him that he ought to change attorneys and that he should not tell his attorney of the substance of their conversations. The Pas-co County deputies insisted that it was ap-pellee, rather than themselves, who did not want to divulge the conversations to his attorney. However, since the court granted the motion to dismiss, for purposes of this appeal we shall assume the truth of appel-lee’s assertions. The issue before us is whether the dismissal of the information was too drastic a sanction.

The trial judge relied heavily upon United States v. Morrison, 602 F.2d 529 (3d Cir. 1979), in which the court held that law enforcement’s wilful and unjustified interference with the defendant’s sixth amendment right to counsel mandated the dismissal of an indictment without regard to a showing of prejudice. This case has now been reversed by the United States Supreme Court. United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). In a unanimous decision, the court held that absent demonstrable prejudice or a substantial threat thereof, the dismissal of an indictment is inappropriate even though there has been a deliberate sixth amendment violation.

In the instant case, the appellee failed to demonstrate the kind of prejudice which would warrant the abatement of prosecution against him. Since appellee’s attorney continued to represent him in the trial court and ultimately obtained a dismissal of the charges, the deputies obviously failed in their efforts to poison the relationship between appellee and his attorney. Certainly, appellee is in no position to complain that he may have implicated other persons. In short, nothing the deputies may have done has vitiated his ability to defend against the state’s charges.

We do not suggest that the court is without recourse to protect the appellee. Since there may be some doubt that appel-lee advisedly entered his pleas, the court has properly allowed him to withdraw them. If during the course of their conversations with appellee the deputies improperly obtained information which might tend to incriminate him, the court can suppress this evidence so as to prevent it from being used against him. The point is that the sanction should be designed to make appel-lee whole, not to provide him with a windfall.

The order dismissing the information is reversed, and the case is remanded for further proceedings.

SCHEB and DANAHY, JJ., concur.


text:
    Michael MAHONEY, Appellant, v. SEARS, ROEBUCK & COMPANY and Crawford & Company, Appellees.
    No. AF-84.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.

      Alex P. Lancaster, Sarasota, for appellant.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
   McCORD, Judge.

On January 8, 1981, Michael Mahoney, an 18-year-old man, was working part-time for extra money to help him through school when he was struck in the eye by a tire iron thrown by a fellow employee. As a result, he has suffered at least an 80% loss of vision in his eye, rendering it, for all practical purposes, useless. He now argues that Section 440.15(3)(a)l, Florida Statutes (1980), which limits his compensation award to $1,200 for the loss of the eye, violates the equal access provision of Article I, Section 21, of the Florida Constitution. We affirm.

We observe that, prior to the 1979 amendments to the Workers’ Compensation Act, Mahoney’s monetary award would have been significantly greater. §§ 440.-15(3)(e) and (p), Fla.Stat. (1978). Nevertheless, “even if we might believe the statute fraught with unfairness, wrong in its intent, and failing to accomplish any of the goals as a reason for passage,” [McKee v. City of Jacksonville, 395 So.2d 222, 224-5 (Fla. 1st DCA 1981)] we cannot conclude that the statute violates the provisions of the equal access clause to the Florida Constitution. To be sure, the 1979 Act drastically limits the amount of compensation one may receive for such an injury. However, the statute still expresses the fundamental purpose of workers’ compensation acts to provide for employees a remedy that is both expeditious and independent of proof of fault and for employers a liability that is limited and determinate. See Clenney v. Walker Hauling Co., 217 So.2d 114 Fla. 1968); McLean v. Mundy, 81 So.2d 501 (Fla.1955). In other words, the certain remedy afforded by the Act is deemed to be a sufficient substitute for the doubtful right accorded by the common law. In return, the employer “may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of employment, or that the injury was due to the comparative negligence of the employee.” § 440.11, Fla.Stat. Moreover, it is presumed that the claim comes within the provisions of the Act, that sufficient notice of the claim has been given, and that the injury was not occasioned by the willful intention of the injured employee to injure or kill himself or another. § 440.26(1), (2), and (3), Fla.Stat.

The mere fact that an employee’s recovery has been limited by the imposition of a dollar cap is not, in and of itself, a constitutional bar. Cf. Abdin v. Fischer, 374 So.2d 1379 (Fla.1979) (limiting liability of owners of public recreation areas).

Further, while Section 440.15(3)(a)l has significantly diminished Mahoney’s recovery, it has not totally eliminated the previously recognized cause of action and, as such, does not offend Article I, Section 21, of the Florida Constitution. See Jetton v. Jacksonville Electrical Authority, 399 So.2d 396 (Fla. 1st DCA 1981).

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I would hold Section 440.15(3)(a)l, Florida Statutes (1980), unconstitutional as applied in this case and claimant entitled to seek his remedy in an action at law.

The maximum compensation provided under Section 440.15(3)(a)l to this 18-year-old high school student for the loss of his eye is $1,200. Under the previous Workmen’s Compensation Act, claimant would have been entitled to approximately $10,000.

The Legislature may curtail or even abolish a remedy so long as another adequate remedy is afforded. This court, though not substituting its judgment for that of the Legislature, must not abdicate its sworn duty to see that statutory enactments comport with the Constitutions of the United States and of the State of Florida. Fundamental rights of individuals must not be violated.

The question then is whether the 1979 Legislature’s curtailment of workers’ compensation benefits reduces that remedy to such a point that it has become an inadequate substitute for common law remedies relinquished by the worker. I would hold that, as applied in the instant case, the provision of $1,200 for loss of an eye is hardly more than nominal recovery and is constitutionally insufficient. Indeed, if this degree of curtailment of remedy can be condoned, then reduction of compensation to a mythical peppercorn would also be sustainable.

The remedy afforded is tantamount to the elimination of remedy in this case and is unconstitutional. The Legislature, in recognition of that fact, has substantially upgraded benefits in the 1982 amendment of Section 440.15(3)(a)l, and compensation for loss of an eye has been restored to approximately what was available under the old act. Unfortunately, the amendment and its ten-fold increase is not available to the injured workman in this case.

I respectfully dissent.

      . In case of permanent impairment due to amputation, loss of 80 percent or more of vision, after correction, or serious facial or head disfigurement resulting from an injury other than an injury entitling the injured worker to permanent total disability benefits pursuant to subsection (1), there shall be paid to the injured worker the following:
      a. Fifty dollars for each percent of permanent impairment of the body as a whole from 1 percent through 50 percent; and
      b. One hundred dollars for each percent of permanent impairment of the body as a whole for that portion in excess of 50 percent.

      . The court is not called on in this case to evaluate the claimant’s cause of action at law or the possible defenses to such an action.

      . Claimant was working part time (average weekly wage $90) and going to high school when he was accidentally struck in the eye by a weight thrown by a co-employee. He has suffered an 80 to 100 percent loss of vision in the injured eye and is legally blind in that eye. Testimony shows that claimant will not be able to drive any ICC rig, would not be physically fit for the armed services, and would have difficulty doing a great number of jobs. Further, as he gets older, he will tend to develop a cross eye which will drift in an outward direction, an asymmetrical pupil and light sensitivity in the injured eye.

      .Under the old act [§ 440.15(3)(e) and (p), Fla.Stat. (1978)], claimant would have been entitled to approximately $10,000 for the loss of his eye. The award could have reached as much as $25,000 had claimant been working full time making approximately $200 per week at a manual labor job. The 1979 amendment to § 440.15(3)(a)l reduces the allowable compensation to claimant for loss of use of the eye to $1,200. Under both the old and new acts, medical benefits and temporary total disability benefits are payable.

      . Chapter 79-312, Laws of Florida, effective August 1, 1979.

      . Cf., Acton v. Ft. Lauderdale Hospital, 1099 So.2d 418 (Fla. 1st DCA), upholding validity, vel non, of § 440.15(3)(a) and (b), Fla.Stat.

      . Chapter 82-237, Laws of Florida, effective May 1, 1982.


author: BOOTH, Judge.

text:
    STATE of Florida, Petitioner, v. Willie CROMARTIE, Respondent.
    No. AH-140.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.

      Donald S. Modesitt, State Atty., and Joseph’ S. White, Asst. State Atty., Tallahassee, for petitioner.
    Michael Allen, Public Defender, and Thomas S. Keith, Asst. Public Defender, Tallahassee, for respondent.
   BOOTH, Judge.

The petitioner, the State of Florida, seeks writ of certiorari to review a circuit court order affirming a county court order suppressing certain identification evidence, physical evidence, and admissions by the accused, Willie Cromartie. See Fla.R. App.P. Rule 9.030(b)(2)(B); Fla.Const.Art. V § 4(b)(3).

On the morning of December 10, 1980, a police officer was dispatched to a sorority house to investigate the theft of a bicycle. Witnesses at the scene told the officer they had seen a man enter a walled area which abutted the side of the house, take a bicycle from that area, and ride it away.

The walled area adjacent to the house was 60 feet away from the public sidewalk and surrounded by an eight-foot stone wall. This enclosure had one small opening which served as an entrance and exit, and was used for bicycle storage and sitting purposes by the occupants of the house.

Witnesses described the suspect as a slender black male, five feet eight to five feet ten inches in height, about 18 to 20 years old, with short-cropped hair. The witnesses further stated that the suspect was wearing a yellow jacket with a black stripe and dark clothing, and was carrying a pair of brown gloves.

The officer left the scene and drove in the direction the witnesses told him they had seen the suspect riding a bicycle. Less than one mile from the crime scene and approximately ten to fifteen minutes after the officer initiated his report, the officer saw Cromartie walking with two black females. Cromartie matched the description given by the witnesses in every respect. After a brief conversation, during which the officer told Cromartie he was investigating a reported crime and Cromartie matched the description of the perpetrator, Cromartie voluntarily accompanied the officer back to the crime scene. At the sorority house, a second officer stood outside the house with Cromartie while the officer went inside and asked the witnesses if the man outside was the same man they had seen earlier in the day entering the walled area and taking the bicycle. At that time, three witnesses positively identified Cro-martie as the perpetrator. He was then placed under arrest, advised of his Miranda warnings, and told that he could be charged with burglary of the curtilage of a structure, a felony, or with petit theft, a misdemeanor. After further questioning, Cro-martie led the officer to the bicycle in question, which was recovered and returned for identification by the officer.

Cromartie was charged by information with petit theft and filed a motion to suppress all statements made by him, the identification evidence, and evidence relating to the recovery of the bicycle as fruits of an allegedly illegal arrest.

Hearing was held in county court; and, after hearing testimony from the arresting officer and Cromartie, the court entered an order of suppression finding that the “show-up” identification evidence and any evidence or statements made by Cromartie after the arrest must be suppressed.

The State appealed to the circuit court, which affirmed the suppression order of the county court on grounds the arrest for petit theft was illegal because the offense occurred outside the presence of the officer. The circuit court further found that the show-up identification procedure was im-permissibly suggestive.

Section 901.15(1), Florida Statutes, authorizes warrantless arrests for misdemeanors only when the offense is “committed ... in the presence of the officer.” See, e.g., Phillips v. State, 314 So.2d 619 (Fla. 4th DCA 1975). However, Section 901.15(3) provides that warrantless arrests are also valid where the officer “reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.” Here, at the time the officer made the decision to apprehend Cromar-tie, the officer believed that the suspect’s entry of the curtilage of the sorority house with the intent to commit larceny therein constituted burglary, a felony. The facts support the reasonableness of the officer’s belief that a felony had been committed. The State’s subsequent decision to charge Cromartie with a misdemeanor does not affect the reasonableness of the officer’s belief at the time he apprehended the suspect. Further, due to the specificity of the description given by witnesses, the officer also had a reasonable belief that Cromartie was the perpetrator.

The validity of an arrest does not depend on whether the offense ultimately charged is a felony or misdemeanor if the arresting officer reasonably believes at the time of the arrest that a felony has been or was being committed. Chaney v. State, 237 So.2d 281 (Fla. 4th DCA 1970), cert. denied, 242 So.2d 461 (Fla.1970), cert. denied, 403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971); United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978). Accordingly, Cromar-tie’s arrest was not invalid as being contrary to Section 901.15, Florida Statutes.

We further hold that the “show-up” identification procedure was not in violation of defendant’s rights. The test for determining the legality of an out-of-court identification procedure is two fold: “(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification.” Grant v. State, 390 So.2d 341, 343 (Fla.1980). Factors to be considered in evaluating, (2) supra, the likelihood of irreparable misidentification under the totality of circumstances include “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 3821, 34 L.Ed.2d 401 (1972). See also, Glas v. State, 329 So.2d 341 (Fla. 3d DCA 1976).

Here, there was no “unnecessarily suggestive” procedure employed. The show-up identification procedure is, by its nature, suggestive in that, unlike a line-up, a witness is presented with only one possible suspect for identification, but is not invalid for this reason if the procedure did not give rise to substantial likelihood of irreparable misidentification under the totality of the circumstances. Grant v. State, supra. In the instant case, three witnesses had the opportunity to view the suspect in daylight removing the bicycle from the cur-tilage of the sorority house, and Cromartie matched the description given by the witnesses. Only a very short time had elapsed since the commission of the offense when Cromartie was returned to be viewed by the witnesses, and he was identified with certainty.

An identification made shortly after a crime is inherently more reliable than a later, in-court identification because the incident is still fresh in the witness’ mind. In State v. Freber, 366 So.2d 426, 428 (Fla.1978), the Supreme Court held:

In our view, an identification made shortly after the crime is inherently more reliable than a later identification in court. The fact that' the witness could identify the respondent when the incident was still so fresh in her mind is of obvious probative value.... It is certainly not unusual for the appearance of a defendant to change in some way between his apprehension and trial. A holding not allowing this sort of testimony as substantive evidence of identity would encourage defendants to change their appearance before trial to avoid being identified in court. Without this proof that the person previously identified by the witness was the defendant, conviction would in some instances be impossible.

We also note that prompt identification of a suspect following the crime allows release of persons wrongly apprehended and immediate continuation of police efforts to capture the real perpetrator. Further, the show-up procedure avoids loss of critical identification information which occurs where victims of offenses succumb shortly after the offense or witnesses become unavailable.

Certiorari is granted, and the order of suppression entered below is REVERSED.

SHIVERS and JOANOS, JJ., concur.

      . The value of the bicycle was approximately $60.

      . See Sections 810.01 and 810.011, Florida Statutes (1979); Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974).

      . In State v. Freber, 366 So.2d 426, the victim of a burglary identified the suspect brought by police to her house “later on morning of the crime.”


author: SHAW, Judge.

text:
    Mildred N. JONES, Appellant, v. Eulus B. JONES, Appellee.
    No. AH-239.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.

      Richard C. McFarlain and David W. Spi-cer of McFarlain, Bobo, Sternstein, Wiley & Cassedy, P.A., Tallahassee, for appellant.
    Edwin B. Browning, Jr. of Davis, Browning & Hardee, Madison, for appellee.
   SHAW, Judge.

This is an appeal from a dissolution order awarding the appellee a 45% special equity in contested property. Appellee cross appeals the denial of a one-half ownership interest in the property and the denial of lump sum alimony. We reverse and remand.

Eulus and Mildred Jones were first married in 1960 while residing in South Carolina. In September of 1964 they moved to Greenville, Florida, where Mildred purchased the Pine Lake Motel in her name, using approximately $6,000 of her personal assets. The motel was not a success and in 1968 Mildred obtained a loan from the Small Business Administration (SBA) for the purpose of opening a nursing home, using the North Florida Development Corporation as a vehicle for the procurement of the loan. Both Mildred and Eulus sold bonds to secure the matching funds required by SBA and the parties agree that in dealings with SBA, Mildred’s name was used because Eulus had a felony conviction and they feared that this would reduce the chances of obtaining a loan. Land was purchased and the Pine Lake Nursing Home was built. Title was put in the North Florida Development Corporation and Mildred was given a lease-purchase agreement. The nursing home opened on March 5,1969, with Mildred as the administrator. In 1970 the Joneses were divorced and a property settlement was incorporated into the final dissolution order. In 1971 the parties remarried and in 1973 Eulus replaced Mildred as the nursing home administrator at a salary of $375.00 per week, this change being occasioned by Mildred’s inability to pass the state examination for nursing home administrators.

In 1980 Eulus petitioned for a divorce seeking, among other things, an adjudication of his interest in the lease-purchase agreement or, in the alternative, periodic, rehabilitative or lump sum alimony. Over objection he was allowed to introduce witnesses and evidence relative to his role in the establishment of the nursing home during the first marriage. Mildred objected on the grounds that the first dissolution conclusively established all property rights of the parties acquired during that marriage. In the final judgment of dissolution of the second marriage, Eulus was awarded a 45% interest in the lease-purchase agreement as a special equity. The trial judge candidly admits that in awarding this special equity he considered contributions that Eulus made during the first marriage.

Mildred argues three points which can be consolidated for the purposes of this appeal, to wit: Does the doctrine of res judicata bar the relitigation of a property interest settled in the final dissolution of an earlier marriage? We find that the argument has merit. The term “special equity” was judicially created to avoid the harshness of the statutory rule that absolutely prohibited alimony for an adulterous wife and to describe a vested interest in property brought into the marriage or acquired during the marriage because of contribution of funds, property, or services over and above normal marital duties. The term should only be used when analyzing a vested property interest of a spouse. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In analyzing these interests in the present case, it is clear that Eulus did not bring into or acquire during the second marriage any vested property interest in the lease-purchase agreement by virtue of contribution of funds, property, or services over and above normal marital duties. Inasmuch as his administrative services were compensated for at the rate of $375.00 per week, we reject the notion that these services entitle him to a special equity in the lease. Any special equity Eulus might have acquired in the lease-purchase agreement during his first marriage to Mildred was subject to the property settlement incorporated into the final dissolution of that marriage. He is now foreclosed from asserting such an interest at this late date based on contributions prior to or during the first marriage. Cooper v. Cooper, 69 So.2d 881 (Fla.1954); Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Holley v. Hayes, 412 So.2d 920 (Fla. 1st DCA 1982); and Pumo v. Pumo, 405 So.2d 224 (Fla. 3d DCA 1981).

Even though the special equity award was incorrect as a matter of law, we recognize that the trial court has broad discretionary authority to consider any factor necessary to do.equity and justice between the parties and to ensure that neither party passes automatically from misfortune to prosperity or from prosperity to misfortune under the totality of circumstances. We recognize also that the various remedies available to the trial court are interrelated and that it would be inappropriate to reverse the special equity award without giving the trial court the opportunity to reconsider other remedies such as lump sum, periodic, or rehabilitative alimo,ny. Accordingly, we reverse and remand with directions that the trial court take such further testimony, if any, that it deems necessary in order to reconsider the apportionment of the marital assets. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).

REVERSED and REMANDED for proceedings consistent with this opinion.

SHIVERS and WIGGINTON, JJ., concur.


text:
    Sandra Rhudy GILL, James Rhudy, John Sutherland and Rob Roy Rhudy, Appellants, v. Robert M. HIERS, as Remainderman and Personal Representative of the Estate of Ada Hiers Rhudy, Appellee.
    No. AI-284.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.
    J. W. Harrell of Harrell & Perrine, Jacksonville, for appellants Rob Roy Rhudy, Horace F. Sutherland and John Sutherland.
    Mary Frances Smart, Palatka, for appellants Sandra Gill and James T. Rhudy.
    John J. Sulik of Dawson, Galant, Sulik, Nichols & Levy, P.A., Jacksonville, for ap-pellee Robert M. Hiers.
   PER CURIAM.

AFFIRMED. Robert Holden v. Estate of Mary Lee Gardner, 420 So.2d 1082 (Fla.1982).

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


author: ERVIN, Judge.

text:
    STATE of Florida, Appellant, v. Peter C. VANDERHORST, Appellee.
    No. AK-45.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellant.
    William J. Sheppard, Jacksonville, for ap-pellee.
   ERVIN, Judge.

The state appeals the trial court’s order granting the defendant/appellee’s motion to suppress narcotic contraband seized from a lunchbox on the floor of appellee’s vehicle at the time of his arrest for driving while intoxicated. We affirm.

Appellee was arrested at 6:30 a. m. on December 1, 1981, at the scene of a minor one-car accident which occurred at approximately 4:00 a. m. when he swerved to avoid hitting a dog. As a result of appellee’s evasive action, his car became stuck in the mud, and appellee was forced to walk three miles to his home, returning later to the scene of the accident with a friend in the latter’s four-wheel drive vehicle. The two men were attaching a tow rope to the two vehicles when an officer of the Jacksonville Sheriff’s Office appeared on the scene. While questioning appellee, the officer observed that his speech and balance were impaired and that he smelled slightly of alcohol. A field sobriety test was administered, and its results led to appellee’s arrest for driving while intoxicated (DWI). Ap-pellee was taken into custody and locked in the back of the officer’s patrol car. The officer then entered appellee’s automobile and conducted a search of its interior. Seeing on the floor a closed lunchbox, the officer opened it and found within it four white tablets believed by him to be quaaludes. No attempt was made to secure a search warrant prior to the search of the car, nor to obtain appellee’s consent. The car was locked, and appellee was permitted to leave it at the scene.

Appellee was later charged in a single-count information with possession of meth-aqualone in violation of Sections 893.03(2)(c) and 893.13(1), (3), Florida Statutes (1981). No charge was filed as to the DWI arrest. Following a hearing on the motion to suppress, the trial court ordered the suppression.

Although the order does not state findings of fact or conclusions of law, appellant argued at the suppression hearing below and reiterates on appeal that New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), states a controlling rule of law that would validate the search as it recognizes that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile ... [and] may also examine the contents of any containers found within the passenger compartment ...." 453 U.S. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775 (e.s.). We consider Belton to be inapplicable to the factual pattern before us in that Belton emphasizes that the area of the automobile which may be permissibly searched is the area within the immediate control of the arrestee. The Belton rule’s purpose was simply to extend the Chimel rule (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)) to automobiles.

Chimel’s justification for permitting an arresting officer to conduct a warrant-less search “of the arrestee’s person and the area within his immediate control” was to deter any attempt made by the arrestee to remove any weapons that he might use in order to effect his escape, as well as prevent the concealment or destruction of evidentia-ry items. 395 U.S. at 762-763, 89 S.Ct. 2034, at 2039-2040, 23 L.Ed.2d 685. Because Belton incorporated within its opinion that language from Chimel limiting the scope of an officer’s search which is reasonably incident to a lawful arrest, it follows that unless the arrestee was himself a recent occupant of the vehicle, the Belton rule has no applicability. See 453 U.S. at 457, 101 S.Ct. at 2862, 69 L.Ed.2d at 773. So, if the facts do not reveal that the arres-tee was a recent occupant, it is improper to extend the search beyond that of the “immediately surrounding area” of the person arrested.

Such is the situation here. The record discloses that appellant had not been within his ear for approximately two and one-half hours before he was taken into custody. Thus, as applied to the facts before us, the justification for the Belton/Chi-mel rationale collapses since there was simply no area within the automobile which the arrestee might reach in order to gain possession of a weapon or destructible evidence. Contrast the facts in Chapas v. State, 404 So.2d 1102 (Fla. 2d DCA 1981), and State v. Zimmerman, 413 So.2d 838 (Fla. 1st DCA 1982), where searches of vehicles were sustained in which the arrestees had been recent occupants.

Accordingly, we hold on the facts presented, consideration of the applicability of any “straight-forward, workable rule,” as espoused in Belton, is precluded here because appellee was not a recent occupant of the vehicle searched.

AFFIRMED.

McCORD and JOANOS, JJ., concur.

      . No issue of an inventory search was raised before the trial court.

      . The validity of that arrest was not an issue before the trial court.


text:
    Willie Clyde SOLOMON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AO-36.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.
    Willie Clyde Solomon pro se.
    No appearance for appellee.
   PER CURIAM.

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

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Charles P. FAUCETT, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, and B. A. Greadington, Chairperson, Florida Parole and Probation Commission, Respondents.
    No. AN-98.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1982.
    Charles P. Faucett, petitioner pro se.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Orlando, for respondent.
   PER CURIAM.

On May 18, 1982, this Court published an opinion mandating the Florida Parole and Probation Commission (Commission) to recalculate Faucett’s presumptive parole release date (PPRD), using the most serious conviction as the offense characteristic and applying his lesser convictions as aggravating factors. We also stated that the Commission biennial review action, wherein Faucett’s original PPRD was reduced 12 months for his good institutional conduct, should be reflected in the recalculated PPRD. See Faucett v. Florida Parole and Probation Commission, 413 So.2d 1282 (Fla. 1st DCA 1982). The mandate was issued on June 3, 1982.

On July 2, 1982, Faucett petitioned this Court to compel the Commission to comply with our earlier mandate. We issued an order to show cause, to which the Commission responded that Faucett’s PPRD was scheduled for review on July 28, 1982, the same day the response was filed. Shortly thereafter Faucett replied and moved for an expedited hearing, indicating that the Commission had established a new PPRD by action certified on August 9, 1982. In the reply he alleges that the Commission did not comply with our earlier mandate, did not abide by judicial decisions, and did not comply with its rules when it established the new PPRD.

First, Faucett claims that the Commission failed to credit him with the 12-month reduction of his PPRD that was given at his biennial review and ordered in our earlier opinion to be credited to his newly established PPRD. Indeed, the Commission order before us does not credit him with the reduction. We therefore order the Commission to reduce Faucett’s PPRD 12 months.

Second, Faucett claims that the Commission added aggravations that were known at the time his original PPRD was established, but were not then mentioned. For the Commission to add those aggravations now is allegedly in violation of McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). We disagree. In McKahn we ordered the Commission to correct the inmate’s salient factor score and to reduce his PPRD accordingly. In Faucett’s case, we simply ordered the Commission to recalculate his PPRD using the most severe conviction as the offense characteristic and granted leave to use the other convictions as aggravations. One purpose for applying aggravating factors is to permit the Commission to reflect the actual circumstances of the inmate’s offenses. See Fla.Admin. Code Rule 23-19.01(1). In this case, therefore, it was proper for the Commission to change the previous aggravations. See Zygadlo v. Florida Parole and Probation Commission, 414 So.2d 600 (Fla. 1st DCA 1982), and Wickham v. Florida Parole and Probation Commission, 410 So.2d 989 (Fla. 1st DCA 1982).

Finally, Faucett claims one of the aggravations is cumulative because it is for committing three crimes, each of which was already used to aggravate his matrix time. We disagree. The Commission’s written reason clearly indicates that the aggravation is for committing two robberies and a criminal false imprisonment while Faucett was on escape from incarceration for a conviction of possession of a firearm by a convicted felon. Aggravating for being on escape during the commission of other offenses is appropriate under Fla.Admin.Code Rule 23-19.03.

We therefore find that Faucett’s correct PPRD is November 15, 1982, and order the Commission to reduce his PPRD of November 15, 1983, by 12 months based upon the Commission’s biennial review action. Having found that no further relief is due, we reject the other issues raised in this petition.

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