author: HOBSON, Acting Chief Judge.

text:
    FLORIDA GULF COAST SYMPHONY, INC., Petitioner, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, etc., Respondents.
    No. 79-1240.
    District Court of Appeal of Florida, Second District.
    March 21, 1980.

      6. Kristin Delano of Harris, Barrett & Dew, St. Petersburg, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, for respondents.
   HOBSON, Acting Chief Judge.

Petitioner Florida Gulf Coast Symphony, Inc. seeks review of a final agency order rendered by the Department of Labor and Employment Security. The contested order approved a jeopardy tax lien and jeopardy assessment against petitioner and found that both the individual musicians and the symphony conductor are employees of petitioner and not independent contractors. Petitioner was ordered to file corrected reports and pay contributions to the employment compensation fund of Florida in the amount of $28,495.54. We reverse.

After the Division of Employment Security filed a jeopardy assessment and jeopardy tax lien, petitioner filed a written protest asserting that the musicians were independent contractors and requesting a formal hearing which was duly held before a special deputy of the Department of Commerce. The report and recommendation of the special deputy found that the musicians and the conductor were employees of petitioner and not independent contractors. The final order of the acting director of the Division of Employment Security sustained the special deputy’s report and recommendation.

Special Deputy’s Findings of Fact:

The report and recommendation, as adopted in the final order, made the following findings of fact:

Petitioner engages musicians, after auditions by the conductor, to perform professional services in the area of their expertise. Petitioner establishes the time, place and length of rehearsals for all musicians and rents the rehearsal and concert halls. The musicians consider themselves independent contractors and are engaged through a written contract. The contract covers services for a concert season running from November 1 to April each year.

Under the terms of the written contract:

1) The musician agrees to appear and play in each concert on the dates and at the places arranged by the petitioner.
2) The musician agrees to rehearse for a period not to exceed three hours at such times and places as the association directs.
3) The musician must, throughout the term of his contract, be a member in good standing of the American Federation of Musicians and abide by its rules and regulations. If a musician fails to abide by all its rules, petitioner may terminate the services of the musician without any obligation other than to pay to the musician all sums due to the date of termination.
4) The musician must notify the petitioner of his inability to appear for any given reason either at a concert or rehearsal.
5) The contract between the petitioner and the musician may be cancelled by either party if fourteen days written notice is provided.
6) The remuneration received by each musician is individually negotiated by the musician and the petitioner.

The report further found that petitioner handles all advertising and promotion for the concerts, provides a conductor who decides what music will be played and has complete authority over the musicians while he is on the podium directing rehearsals and concerts. Petitioner’s executive director is responsible for the musicians’ promptness for concerts and their stage deportment.

Although petitioner owns some musical equipment valued at approximately $100,-000, the musicians provide their own instruments, the value of which far exceeds petitioner’s investment. Petitioner has the right to discharge a musician if he fails to appear in accordance with the contract. A majority of the musicians who perform under contract with petitioner are gainfully employed elsewhere and receive a majority of their earnings from areas other than the petitioner. The musicians maintain an extremely high skill level and are free to negotiate other contracts for similar services with musical associations other than petitioner.

The report and recommendation approved by numerical reference several proposed findings of fact submitted by petitioner:

The musicians receive musical scores one week in advance of the first group rehearsal of that score. They are expected to have achieved a high degree of technical proficiency in playing the score prior to the first rehearsal. The personal practice necessary to achieve that proficiency is accomplished by the individual musician in his personal residence and not under the direction of petitioner.

Each musician determines the means by which the musical effect will be achieved in his individual practice session and petitioner has no control over this activity. The musicians practice three to four hours per day in their own homes or work places, not only on the off weeks but during rehearsal and concert weeks, as well as during the six months between seasons.

Petitioner does not attempt to regulate the time in which the individual musicians conduct their personal practice. This practice time constitutes substantially more than two-thirds of the time which the musician expends in satisfying his obligation to petitioner. The only control which conductor exercises over the musicians is related to the musical result produced and not to the means of producing it. Discussion:

There are two issues before us in this case:

I. Whether the matter of the conductor’s status was properly before the special deputy at the formal hearing, and
II. Whether the agency correctly applied the law to the instant facts in order to determine the status of the musicians.

As to the first issue, the notice of hearing advised petitioner to be “ready to present evidence on whether individuals performing services as ‘musician’ are in employment. . . This statement was insufficient to give petitioner notice that the conductor’s status would be at issue. A “musician” is generally understood to be one who performs or composes music. American Heritage Dictionary, 865 (1969). Although the conductor may be a musician, this is not the primary duty associated with that position. In other words, a conductor is not hired to perform or compose music but to direct and interpret the music composed and performed by others. Therefore, we hold that the notice of hearing was insufficient to allow petitioner properly to prepare its argument, and the issue of the conductor’s status was improperly considered by the special deputy and the agency. We set aside that portion of the final order which held that the conductor is an employee and not an independent contractor.

Regarding the question of the individual musicians’ status, we approve the criteria used by the special deputy, but disapprove the application of that criteria to the instant facts. The accepted criteria are found in Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941) as follows:

In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer; and
(i) whether or not the parties believe they are creating the relationship of master and servant.

Recognizing that professional persons require special consideration in the area of “control”, the special deputy cited Kay v. General Cable Corp., 144 F.2d 653 (3d Cir. 1944), and Carnes v. Industrial Commission, 73 Ariz. 264, 240 P.2d 536 (1952). The Kay opinion deals with a medical doctor and notes the particular difficulty of showing “control” over the activities of a highly trained professional. In that case, the court attributed less importance to the degree of direct control over the details of the doctor’s professional activities and placed greater weight on the surrounding circumstances. The fact that the doctor had no discretion as to which patients he treated; used the facilities and instruments of his employer; was subject to termination at any time, and was considered by the company to be an ordinary employee were the key factors in the court’s determination that the doctor was an employee.

The Carnes decision was concerned with the status of a highly skilled welder. The court concluded that in the case of a skilled laborer, if the alleged employer has the right to direct the time and the place in which the services are to be rendered, the person to or for whom the services are to be rendered and the degree and amount of said services, then the relationship is that of employer/employee, despite the fact that the employer does not closely direct the details of the performance. “The controlling factor is: For whom is the work being performed, and who had the power to control the work and the employee?” 240 P.2d at 539.

Applying the law of Magarian, Kay, and Carnes, the special deputy found that:

1) The extent of control that the petitioner has over the musicians is considerable especially when viewed in light of Carnes v. Industrial Commission, supra, and Volume 1A of Larson’s Workmen’s Compensation Law, Section 45.32.
2) The musicians are engaged in a distinct occupation and in many cases perform services for others.
3) As a rule, musicians are not ordinarily considered independent.
4) The musicians achieve a high level of skill but then again so do the doctors, the lawyers, the nurses, the dentists, and myriads of others. This in and of itself will not label one as an independent contractor.
5) It is true that the musicians provide their tools; that is to say, their instruments; however, this practice is common among other professionals.
6) With regard to the method of payment, the musicians are paid for the service they perform an amount agreed upon for the contract season.
7) In the instant case as was stated before, the petitioner has no business without depending upon the musicians. So, in this case then, the musicians and the conductor constitute the petitioner’s ability to stay in business, a totally dependent relationship.
8) With regard to whether the parties believe they are independent, it is apparent from the record that both the petitioner and the musicians consider that there is an independent contractual relationship between the parties. Be that as it may, an independent contractor status depends not on the statements of the parties but upon all the circumstances of their dealings with each other.

The agency in its final order noted two specific areas of control which were most persuasive to the agency director: the right to fire and the interdependent relationship of the symphony and the musicians.

As an example of the “right to fire” the acting director referred to the provision in the written contract which stated that if the musician does not remain a member in good standing of the American Federation of Musicians and abide by its rules and regulations, petitioner may terminate the services of that musician without obligation other than the payment of sums due to the date of termination. We interpret this contract provision to mean that the musicians’ contracts may be terminated, but certainly not without cause. This example of the “right to fire” disregards the portion of the agreement which states that the contract may be cancelled if either party gives written notice to the other fourteen days after the final concert of the next scheduled series of subscription concerts. Obviously petitioner has the right to fire a musician who violates the terms of a contract, but not without cause or proper notice. A failure by either party to abide by the terms of the contract would give the other party a cause of action for breach of contract. The cases relied on by the special deputy and the agency deal with situations where the alleged employee could be fired at any time without cause and without liability. Kay v. General Cable Corp., supra; Carnes v. Industrial Commission, supra; Mangarian v. Southern Fruit Distributors, supra.

As to the interdependent relationship that exists between petitioner and musicians, we agree that the services of the musicians constitute work in the course of petitioner’s regular business. Although this element is persuasive on the issue, it is not inconsistent with the interdependent relationships which may exist between a principal and an independent contractor. For that reason, we do not agree that an interdependent relationship, in and of itself, establishes control sufficient to show an employer/employee relationship.

Although the final agency order did not set out with specificity any other bases for its final determination, we may adduce the agency’s reasoning by reference to the report and recommendation of the special deputy. That report, while concluding that the musicians are employees, sets out several conclusions which we interpret as indications of an independent contractor status. The most noteworthy are the conclusions that the musicians are engaged in a distinct occupation; are considered by petitioner to be independent contractors; spend more than two-thirds of their time in activities over which petitioner has no control whatsoever; are responsible for the manner in which the musical effects are achieved; supply their own instruments; receive the bulk of their income from sources other than petitioner; are paid on a per job basis, and are free to pursue other job opportunities in the music field at their discretion.

Applying the accepted criteria to the facts of the instant case and viewing the totality of the circumstances, we conclude that the musicians who perform services for petitioner meet the test for independent contractor status. Therefore, we grant the petition for review, set aside the final agency order, and remand this cause to the agency for further action not inconsistent with this opinion.

OTT, J., and HENSLEY, ROBERT E., Associate Judge, concur.

      . Petitioner’s notice of hearing stated:
      The issue is whether the Jeopardy Assessment and the Jeopardy Tax Lien executed on March 1, 1978, are correct as provided in § 443.15(2)(a)3 and § 443.15(3)(g), Florida Statutes. (To determine correctness, Petitioner should be ready to present evidence on whether individuals performing services as “musicians" are in employment pursuant to § 443.03(5), Florida Statutes, Annotated 1975.) (Emphasis added)

      . The testimony reveals that each musician negotiates his contract with petitioner’s executive director. The amount of remuneration depends on the result of these individual negotiations.

      . The special deputy was incorrect in stating that 14 days notice is required under the contract. The time limit is actually closer to 28 days.

      . The special deputy specifically adopted petitioner’s proposed finding of fact which stated:
      6. If the Florida Gulf Coast Symphony attempted to fire a musician rather than terminate the musician in accordance with the terms of paragraph 5 of the agreement, the symphony would be liable to the musician for an action of breach of contract, and the musi-
      cian would be entitled to receive breach of contract damages equal to the amount he could have earned under the contract for a period of not less than one month which is one-sixth of the entire concert season,

      .These adopted facts were mentioned in the special deputy’s report by number. The final agency order stated that these facts were reviewed by the agency director but were not as convincing as the facts more fully set out in the report and recommendation.


source: Caselaw Access Project

author: PER CURIAM. MELVIN, WOODROW M. (Ret.), Associate Judge,

license: Public Domain

text:
    Wilbert THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-513.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    Rehearing Denied Aug. 1, 1980.

      Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender and Bart Eagle, Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAYERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Wilbert Thompson, appeals his convictions for involuntary sexual battery, false imprisonment and unlawful possession of a weapon while engaged in a criminal offense. The evidence presented was as follows:

Ms. “D”, the victim, was walking through a park in the early morning hours when she was approached by the defendant, Wilbert Thompson, who was carrying a knife. He took her to a park bathroom, ordered her to undress, placed his penis in her vagina three times and had her perform fellatio. Thompson then had her get dressed. They left the bathroom and walked back through the park toward her apartment. As they approached her husband’s car which was parked in the driveway, Thompson asked Ms. “D” if she had the keys and if she could drive the car. She answered she had the keys but did not know how to drive the car because it was a stick shift. Thompson took the keys from her and as he unlocked the car and began to get into it, she ran up the stairs to the apartment building and screamed to her neighbors to call the police. Thompson jumped out of the car and fled. The neighbors summoned the police who later that day picked up Thompson who was positively identified by Ms. “D” as her assailant. Officer Fleites transported Thompson to the Miami Police Department where Thompson was read his Miranda rights. Fleites began to question Thompson who denied being in the area and raping Mrs. “D”. When questioned further about attempting to steal the car, Thompson again denied involvement and answered “besides . I don’t know how to drive a four-speed”. Fleites then asked Thompson how he knew the car in question was a four-speed as he (Fleites) did not mention it. At that point Thompson became belligerent and would not talk any further.

Thompson was charged with involuntary sexual battery, robbery, false imprisonment, and unlawful possession of a weapon while engaged in a criminal offense. Following his jury trial, he was acquitted of the robbery charge and found guilty on the other three counts.

On appeal, Thompson first urges as reversible error the denial of his motion for mistrial on the ground that the prosecutor in his opening statement to the jury commented upon his right to remain silent during custodial interrogation.

This point is based upon the following remarks of the prosecutor in his opening statement with regard to the testimony which would be given by Officer Fleites who interrogated Thompson after he was placed under arrest:

Detective Fleites asked him, “Mr. Thompson, were you in that park that night?
“No.
“Were you in that area?
“No.
“Do you know the victim, [Ms. ‘D’]?
“No.
“Did you rape her?
“No.
“Did you know that this victim said that the man who raped her tried to take her car? Do you know anything about that?”
And at that point the Defendant did make a statement. He said, “No, I don’t know. I didn’t try to steal any car. Besides, I wouldn’t try to steal her car. I don’t know how to drive a four-speed.”
Detective Fleites will tell you that when he questioned the Defendant he did not mention that car that the Mustang was a four-speed.
So, Detective Fleites said to him, “How did you know it was a four-speed? I didn’t tell you that. How do you know that?”
At this point the Defendant got belligerent, Detective Fleites will tell you, and would not talk any further — (Emphasis Supplied)
MR. LAMEL: Your Honor, I am going to object.
MR. EADE: —with Detective Fleites.
MR. LAMEL: I am going to request permission to approach the Bench.
THE COURT: Kathy.
[Thereupon, respective counsel and the reporter approached the Bench and the following proceedings were had out of the hearing of the jury.]
MR. LAMEL: Your Honor, based on the Prosecutor’s last comment, I am going to move to strike those comments; request a curative instruction. However, I don’t think that’s sufficient. So, I am also going to move for a mistrial. The grounds for these motions are that he’s violated the Defendant’s right to remain silent after receiving his Miranda Rights. The fact that Mr. Thompson may have said some things to the police officer does not to take away his right to cut off questioning at any time and invoke his Fifth Amendment privilege.
By Mr. Eade commenting that the Defendant did, in fact, reinvoke his right he’s prejudiced that right to remain silent in front of the jury.
MR. EADE: Your Honor, I would disagree. I would simply submit that once the Defendant started talking with the police the jury has every right to know what was said. He decided to remain silent once he’s already spoken to the police and has given some statements to the police.
MR. LAMEL: Excuse me. I am sorry. I didn’t mean to interrupt you. Are you finished?
MR. EADE: They have a right to know everything that occurred after he started speaking to the police and that it did terminate.
MR. LAMEL: Judge, the law says that the person has the right to cut off questioning at any time and invoke his Fifth Amendment at any time.
THE COURT: I am going to deny the motion for mistrial. However, I am also going to deny the request for a curative instruction at this moment. When that witness takes the stand, make sure it doesn’t happen again. You can bring out that he becomes belligerent and what he said. But I don’t want anything further about he remained silent and he wouldn’t talk any more, and that kind of thing.
MR. EADE: Okay. If that’s the Court’s instruction.
* * * * * *

The established law is that if an individual, after Miranda warnings have been given, indicates in any manner at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease because at this point he or she has demonstrated that he intends to exercise his Fifth Amendment privilege. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Gamble v. State, 210 So.2d 238 (Fla.2d DCA 1968). Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant’s exercise of his right to remain silent in the face of accusation. Clark v. State, 363 So.2d 331 (Fla.1978). Any comment upon a defendant’s remaining silent or refusing to testify in the face of accusation is an error of constitutional dimension requiring a new trial without consideration of the doctrine of harmless error. Shannon v. State, 335 So.2d 5 (Fla. 1976); Thomas v. State, 342 So.2d 991 (Fla.3d DCA 1977).

In the case at bar, when Officer Fleites questioned Thompson as to how he knew the car in question was a four-speed (in that Fleites had not previously mentioned that fact), Thompson became belligerent and refused to talk any further. At that point, Thompson obviously had invoked his right to remain silent in the face of accusation. See Davis v. State, 356 So.2d 1252 (Fla.4th DCA 1978). We, therefore, conclude that the prosecutor’s remarks to the jury with regard to Thompson becoming belligerent and refusing to talk any further constituted an improper comment upon Thompson’s right to remain silent. See Knight v. State, 374 So.2d 1065 (Fla.3d DCA 1979). Although there are exceptions to the prohibition of commenting on a defendant’s right to remain silent, the facts of this case do not fall within those exceptions. See e. g., Ragland v. State, 358 So.2d 100 (Fla.3d DCA 1978) and U. S. v. Fairchild, 505 F.2d 1378 (5th Cir. 1975).

The State argues that Thompson’s refusal to answer the question of how he knew the car was a four-speed was an admission rather than an exercise of his right to remain silent. This argument is based upon the principle of law that an admission may be inferred from silence, where such silence is improper or unnatural. Martinez v. United States, 295 F.2d 426, 429 (10th Cir. 1961); Falin v. State, 367 So.2d 675 (Fla.3d DCA 1979). Nevertheless, our Supreme Court has clearly held that “all ‘admissions’ derived from a defendant’s silence in the course of a custodial interrogation are absolutely barred from the defendant’s trial”. Brown v. State, 367 So.2d 616, 624 (Fla.1979).

Last, we note that the trial judge recognized that the prosecutor had commented upon Thompson’s exercising his right to remain silent as evidenced from the colloquy set out above.

Accordingly, the convictions herein appealed are reversed and the cause remanded for a new trial.

Reversed and remanded.

Before SCHWARTZ and DANIEL S. PEARSON, JJ„ and MELVIN, WOODROW M. (Ret.), Associate Judge.

ON PETITION FOR REHEARING

Rehearing denied.

MELVIN, WOODROW M. (Ret.), Associate Judge,

dissenting.

Upon consideration of appellee’s motion for rehearing, I would recede from the original opinion and affirm the judgment and sentence appealed from. It is my view that the opinion of the Supreme Court of Florida in Antone v. Florida, 382 So.2d 1205 (1980), is authority for such affirmance.

The opinion in Antone reveals that he had hired a killer to assassinate a Tampa police officer. It was the contention of Antone, on appeal, that a comment made Agent Arwine, during the course of his trial, was a constitutionally .impermissible comment on Antone’s decision to remain silent. Antone had been advised of his rights under Miranda, had voluntarily made several statements, and had agreed to talk to Marlow Haskew (the hired killer) over the telephone. During that conversation Antone continuously asked, “Marlow, why did you do this to me?” Antone then had a mild heart attack and was carried to a hospital. Later, with permission of attending physician, Agent Arwine went into Antone’s hospital room and gave testimony concerning the occurrences of that visit.

The statement of Agent Arwine that was complained of, was:

“I thereafter went into the room and was, during this period, from 1:10 until 1:20, the time I left the room, there was a nurse in and out of the room and Mr. Antone did not volunteer any information except he made one statement. Mr. Antone told me that he was a hundred percent Sicilian and Sicilians do not fink.” (emphasis supplied)

In the case here considered, the Appellant, Thompson, had voluntarily answered several questions while he was being interrogated. The prosecutor, in his opening statement to the jury, advised the jury that the State expected to prove that the only information that Thompson had that the automobile in possession of “Mrs. D.” was a stick-shift type, was given to Appellant by “Mrs. D”; that during interrogation Appellant denied that he had raped “Mrs. D”, denied being in the area, denied attempting to steal the car, and stated, “besides . I don’t know how to drive a four-speed.”

The prosecutor proceeded in his remarks to the jury by stating that the Appellant, having made such statement, was then asked by the officer how he knew the car was a four-speed type, because the officer had not mentioned that subject to him. It was then, according to the prosecutor, that the Appellant became belligerent and “would not talk any further.”

As a matter of practical even-handed justice, I am unable to perceive any difference between “would not talk any further” made by the prosecuting attorney in the case here under consideration, and the statement in Antone that “Mr. Antone did not volunteer any information except he made one statement.”

Mr. Thompson did not, obviously, receive a perfect trial, but he wasn’t entitled to one. He was entitled to a fair trial, and he received that.

I would affirm the judgment and sentence appealed from.

      . In Ragland, defendant, after having been given his Miranda warnings, voluntarily answered a series of questions, only one of which he did not answer. This fact was brought out at trial. The court concluded that the defendant never had invoked his right to remain silent by virtue of the fact that he continued to answer questions after the question he did not answer. Therefore, no error was found.

      . In Fairchild, defense counsel had given the jury the impression that the defendant had cooperated with the police. The prosecution was then permitted to introduce evidence that the defendant remained silent and refused to answer police questions in order to dispel the impression of cooperation.


author: PER CURIAM.

text:
    Gerard E. LEE, Petitioner, v. CITY OF WINTER HAVEN, Respondent.
    No. 80-730.
    District Court of Appeal of Florida, Second District.
    May 2, 1980.
    David Rubman, Florida Rural Legal Services, Inc., Winter Haven, for petitioner.
    Donald T. Ryce, Jr. of Hogg, Allen, Ryce, Norton & Blue, Coral Gables, for respondent.
   ORDER

PER CURIAM.

The notice of appeal in this case was forwarded to this court without a filing fee but accompanied with a certificate of petitioner’s attorney that he has investigated petitioner’s affidavit of insolvency and believes it to be true, that petitioner’s claim is meritorious as a matter of law and that said attorney intends to act as attorney for petitioner without compensation from him. This affidavit fully complies with Section 57.081, Florida Statutes (1979), which provides for the waiver of clerk’s filing fees in civil cases. However, the question remains as to whether the statute applies to appellate filing fees at all. This court has previously asked for and received from the parties herein written memoranda addressing that question.

The relevant portion of Section 57.081 reads as follows:

(1) Insolvent and poverty stricken persons having actionable claims or demands shall receive the services of the courts, sheriffs and clerks of the county in which they reside without charge .

We would have no hesitancy in determining, in addition to the circuit court sitting in its trial and appellate capacities, that “courts ... of the county in which they reside” include district courts of appeal. Although the headquarters of the Second District Court of Appeal is in Polk County, this court is the appellate court for all of the counties within this district.

The question of whether “actionable claims or demands” applies to potential appeals gives us more trouble. This court has previously docketed notices of appeal complying with the statute without a filing fee. Further, at least one case can be read as implying that the statute does apply to appellate situations. In Harrell v. Dept. of HRS, the court held that the statute does not apply to give an appellant a free transcript in an appeal because court reporters’ services are not mentioned in the statute. If that court thought the statute did not apply to appeals, it would not have had to reach the question of the transcript. The only case directly on point is Hillman v. Federal National Mortgage Association. In that case the court stated that “[a]s we construe Section 57.081, Florida Statute (1977), it applies only to proceedings in trial courts.” However, the court did not give any reason for so construing the statute.

As mentioned above, whether or not “actionable claims or demands” includes appeals is arguable. Although not mentioned by the parties herein, the statutory history of this section (formerly Section 58.09) reveals that at one time the statute included a paragraph which provided that:

The provisions of this section shall also be applicable to any appeal or other proceeding in the supreme court that originated in said county.

This provision was added in 1955 and omitted in 1957. We can find no indication of whether the omission by the legislature was deliberate but we must presume that it was so. Therefore, we construe Section 57.081 as not applying to appellate cases. Petitioner shall have until May 20, 1980 to pay the appellate filing fee to this court or the appeal will be dismissed.

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.

      . The judicial officers of this court stand before the electors of each county within this district for retention to office.

      . 361 So.2d 715 (Fla. 4 DCA 1978). See also Adams v. Powers, 278 So.2d 598 (Fla.1973).

      . 375 So.2d 336 (Fla. 4 DCA 1979).

      . Ch. 29615, Laws of Fla. (1955). See also note, “Proceedings in Forma Pauperis,” Vol. IX, University of Fla.Law Review, 65 at 72 (1956).

      . Ch. 57-251, § 58.09, Laws of Fla. The title to this act mentions various changes made in the statute but does not mention omitting the section relating to appeals.


text:
    S. Alfred PUSEY, Jr., Appellant, v. Joan S. PUSEY, Appellee.
    Nos. 79-1297, 79-1512.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Revised Opinion On Denial of Rehearing June 30, 1980.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   REVISED OPINION

PER CURIAM.

In these consolidated appeals, S. Alfred Pusey, Jr. seeks reversal of an order denying his petition for modification of alimony and granting the counterpetition of his former wife, Joan Pusey, for an increase in alimony and a subsequently entered order awarding her costs and attorney’s fees.

On March 5, 1976, a final judgment was entered dissolving the marital bonds between Alfred and Joan Pusey. The judgment incorporated a property settlement agreement which provided the following with respect to Alfred’s obligation to pay alimony:

“8. ALIMONY PAYMENTS TO WIFE. The Husband agrees to pay to the Wife, and the Wife agrees to accept, permanent periodic alimony payments in the sum of One Thousand Four Hundred ($1,400.00) Dollars per month, which sums shall be paid to the Wife by the Husband on a regular periodic basis as he receives his pay from his employer. Said alimony payments are to cease upon the death or remarriage of the Wife, or the death of the Husband, whichever event shall first occur.
“The parties agree that the alimony paid by the Husband to the Wife shall be reduced as follows:
“(a) By such sum as the Wife receives or becomes eligible to receive on a monthly basis from the family trust under the Will of Ralph A. Elmore, deceased.
“(b) If the Wife secures a lump sum rather than monthly trust income payments the reduction shall be the sum that would be produced monthly on said lump sum at the highest bank interest rates payable on such sum on deposit.
“(c) If the Wife secures employment the alimony shall be reduced by Vs (one-third) the amount of her monthly salary. (For example, if Wife makes $600.00 per month from gainful employment, her alimony shall be reduced by $200.00).”

In December 1978 the family trust under the Will of Ralph A. Elmore, deceased, was established and all payments which Joan received therefrom were credited to Alfred’s obligation to pay alimony. Nevertheless, previous to December 1978, Joan received payments from the estate of her deceased uncle Ralph Elmore unconnected with the family trust. In August 1978 Alfred filed a petition for modification seeking a reduction in alimony payments and in support thereof primarily argued that all monies received by Joan from the estate of her deceased uncle Ralph Elmore, not just those monies under the Elmore family trust, should be credited against his alimony payments. Joan responded and counterpet-itioned for an increase in alimony payments. She alleged 1) the increase in Alfred’s income and his ability to pay, 2) her poor health, and 3) the increase in the cost of living. After an evidentiary hearing, the trial court entered an order denying Alfred’s petition for modification and granting Joan an increase in alimony from $1,400 to $1,700 per month. Subsequently, the court entered an order awarding Joan $8,795.20 as reasonable attorney’s fees and costs. Alfred appeals these orders.

Alfred Pusey first urges as reversible error the denial of his petition for modification and basically argues that the court erred in not allowing him to testify regarding the meaning of the alimony provision of the property settlement agreement relating to the payments to be made to Joan under the estate of her deceased uncle Ralph El-more. We cannot agree.

A property settlement agreement like any other agreement must be given a realistic interpretation based on its plain everyday meaning as conveyed by its terms unless its context unmistakably shows that the parties intended that it be given some peculiar interpretation not readily apparent on its face. Schwebke v. Schwebke, 347 So.2d 645 (Fla. 3d DCA 1977); Sosnowitz v. Sosnowitz, 342 So.2d 524 (Fla. 3d DCA 1977). The agreement in this case clearly provides that Alfred’s alimony payments are to be credited for only those monies that Joan receives from the family trust under the Will of Ralph A. Elmore, deceased. Therefore, in the instant case, the proper test of the meaning and intention of the parties was the content of the written instrument itself. Thus, we find no error in the denial of Alfred’s petition for modification. We likewise conclude as the trial court so determined that Alfred failed to prove that Joan’s living expenses have been reduced and that she is employable, which constituted the additional grounds argued in his petition for reduction of alimony.

Alfred for his second point on appeal contends that the court erred in granting Joan an increase in alimony payments and awarding her attorney’s fees. We find this point well taken.

The agreement in the case at bar appears to be in the nature of a final property settlement not subject to modification. See Gilbert v. Gilbert, 312 So.2d 511 (Fla. 3d DCA 1975); Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976). Furthermore, the agreement provides that it may not be modified without the written consent of each of the parties. No such consent either written or oral appears in this record. Compare Wiener v. Wiener, 343 So.2d 1319 (Fla. 3d DCA 1977).

Given the financial position of the respective parties, we also conclude that the trial court erred in awarding Joan attorney’s fees. See Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978) and cases cited therein.

In light of the above disposition, we deem it unnecessary to determine Alfred’s third point on appeal with regard to the jurisdiction of the trial court to enter an award of attorney’s fees subsequent to the filing of the notice of appeal.

For the reasons cited, the denial of Alfred’s petition for modification is affirmed. The granting of an increase in alimony for Joan Pusey and award of attorney’s fees is reversed.

Affirmed in part, reversed in part.

      . Even if Joan was gainfully employed, the settlement provided that Alfred be credited for ‘/3 of all sums that Joan receives as a result of securing employment.

      . Except if both parties consent thereto,


author: ANSTEAD, Judge.

text:
    Anita C. THOMAS, as personal representative of Randolph R. Thomas, Deceased, Appellant/Cross-Appellee, v. SPORTS CAR CLUB OF AMERICA, INC., Florida Region-SCCA, Inc., Gold Coast Raceway, Inc., d/b/a Palm Beach International Raceway et al., Appellees/Cross-Appellants.
    Nos. 78-2472, 79-432.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied Aug. 19, 1980.
    John A. DeVault, III and William C. Gentry of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellant/cross-appellee.
    Majorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appel-lees/cross-appellants.
   ANSTEAD, Judge.

This is an appeal from a final judgment entered after the court granted a motion for directed verdict against the appellant on her action for the wrongful death of her deceased husband.

The deceased was killed while driving in a sports car race at Palm Beach International Raceway. Before the race started the deceased executed a release in favor of the appellees and others. The release provided:

IN CONSIDERATION of being permitted (1) in racing events, to enter for any purpose the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit areas and racing surface, including walkways, concessions and other appurtenances therein), or (2) in non-racing events, to compete, officiate, observe, work for or for any purpose participate, each of the Undersigned, for himself and personal representatives, assigns, heirs and next of kin, agrees, and on the direct representation that he has, or will immediately inspect such RESTRICTED AREA and he does further warrant that his participation in the scheduled event and his entrance upon the RESTRICTED AREA, constitute an acknowledgment that he has inspected the RESTRICTED AREA and that it is safe and reasonably suited for the purposes of the program for which this Release and Waiver applies:
1.HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Sports Car Club of America, Inc., SCCA Regions, their officers and members; officials, car owners, drivers, pit crews, participants, racing associations, persons in the Restricted Area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event, and each of them, their officers and employees, all for the purposes herein referred to as RELEASES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damage, and any claim or demands therefor, on account of injury to the person or property or resulting in death of the Undersigned, whether caused by the negligence of Releasees or otherwise while the Undersigned is in or upon the Restricted Area, and/or competing, officiating in, working or for any purpose participating in such event;
2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of Undersigned in or upon the Restricted Area and whether caused by the negligence the Releasees or otherwise; and
3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK of bodily injury, death or property damage due to negligence of Releasees or otherwise while in or upon the Restricted Area, and/or while competing, officiating in, working or for any purpose participating in such event;
Each of the Undersigned expressly agrees that the foregoing Release, Waiver and Indemnity Agreement is intended to be as broad and inclusive as is permitted by the law of the state in which the event is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THIS RELEASE AND WAIVER OF ALL LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representation statements or inducements apart from the foregoing written agreement have been made.

In the subsequent wrongful death action, the appellant sought to avoid the release on the theory that the release was latently ambiguous and that the parties to the release actually intended that the release only apply to claims in excess of one million dollars, which was the amount of event liability insurance that the appellee, Foremost Insurance Company, issued to protect the appellees, the deceased and other race participants. The appellees relied on the release as a complete defense and denied that the release was ambiguous or that the parties intended that it only apply to claims in excess of one million dollars.

At trial the court ruled that the release was ambiguous and allowed the appellant to present parol evidence as to the intention of the parties. However, at the close of the appellant’s case, the trial court granted appellees’ motion for directed verdict on the grounds that the appellant had presented no competent evidence which would allow the jury to conclude that the parties agreed the release applied only to claims in excess of one million dollars. We have reviewed all the evidence presented at trial and find no error by the trial court in directing a verdict.

The appellant also contends that the release is void because it is against public policy. Although numerous jurisdictions have upheld the validity of similar releases, we do not believe the appellant has preserved this issue for appeal since the issue was not properly raised in the trial court. The trial court was never given a proper opportunity to consider this issue and we do not believe this is a matter of fundamental error which need not be asserted in the trial court.

At the time the motion for directed verdict was argued, the appellant also sought to amend her pleadings to allege other matters in avoidance of the release. At that time the trial court reviewed the lengthy pretrial proceedings that had taken place and the numerous opportunities presented to appellant to amend her pleadings and denied the motion to amend. The court also noted that the appellees had not tried any such issues of avoidance by consent. We find no abuse of discretion in this ruling by the trial court. Fearing v. De Lugar Nuevo, 106 So.2d 873 (Fla. 2d DCA 1958).

We also find no abuse of discretion in the rulings by the trial court on the appellees’ motion to tax costs which the appellees have challenged in a cross-appeal. Cohn v. Florida National Bank of Orlando, 223 So.2d 767 (Fla. 4th DCA 1969).

In accordance with the opinion set out above the judgments of the trial court are hereby affirmed.

HURLEY, J., and RIVKIND, LEONARD, Associate Judge, concur.

      . Gross v. Sweet, 64 A.D.2d 774, 407 N.Y.S.2d 254 (1978); Tope v. Waterford Hills Road Racing Corporation, 81 Mich.App. 591, 265 N.W.2d 761 (1978); Johnson v. Thruway Speedways, Inc., 63 A.D.2d 204, 407 N.Y.S.2d 81 (1978); LaFrenz v. Lake County Fairboard, 360 N.E.2d 605 (Ind. 3d DCA 1977); Trumbower v. Sports Car Club of America, Inc., 428 F.Supp. 1113 (W.D.Okl.1976); Kotary v. Spencer Speedway, Inc., 47 A.D.2d 127, 365 N.Y.S.2d 87 (1975); Gore v. Tri-County Raceway, Inc., 407 F.Supp. 489 (M.D.Ala.1974); Morrow v. Auto Championship Racing Association, 8 Ill.App.3d 682, 291 N.E.2d 30 (1972); Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 821 (1972), cert. denied 266 Md. 744 (1972); Gervasi v. Holland Raceway, Inc., 40 A.D.2d 574, 334 N.Y.S.2d 527 (1972); Seymour v. New Bremen Speedway, Inc., 31 Ohio App.2d 141, 287 N.E.2d 111 (1971); Solodar v. Watkins Glen Grand Prix Corporation, 36 A.D.2d 552, 317 N.Y.S.2d 228 (1971); Theroux v. Kenenburg Racing Assoc., Inc., 50 Misc.2d 97, 269 N.Y.S.2d 789 (1965); Corpus Christi Speedway v. Morton, 279 S.W.2d 903 (Tex.Civ.App. 1955).


author: HOBSON, Judge.

text:
    Murial H. FURLOTT, Petitioner, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Fox & Rahter, Respondents.
    No. 79-1210.
    District Court of Appeal of Florida, Second District.
    May 28, 1980.

      Ronald E. Fox, Ocala, for petitioner.
    Dana C. Baird, Staff Atty., James R. Parks, Gen. Counsel, Tallahassee, for appel-lee Unemployment Appeals Commission.
   HOBSON, Judge.

An unemployment compensation appeals referee held that Murial H. Furlott, the petitioner, voluntarily left her employment with the law firm of Fox & Rahter, without good cause attributed to the employer. The referee found that Furlott was not, therefore, entitled to receive unemployment compensation benefits. Upon review, the unemployment appeals commission affirmed the referee and adopted his decision. Because we find the decision is not supported by competent substantial evidence, we grant Furlott’s petition for review and remand this case with directions to enter an order allowing Furlott’s claim.

The referee’s decision was based upon findings that Furlott had left her employer for personal reasons and that there was continued work available for Furlott with her employer. The uncontroverted evidence, however, establishes that Furlott was the personal secretary of Ronald E. Fox, the senior partner in Fox & Rahter. Fox decided to withdraw from the firm, and a meeting was held between Fox, Fur-lott, and J. Richard Rahter, the remaining partner. During this meeting it was established that Fox was leaving the firm. Rahter, as the remaining partner, advised Furlott that the sooner she left the better. Additionally, during the examination of Rahter by the referee, the referee questioned Rahter as to whether there was work available for Furlott. Rahter did not directly answer the question, but simply stated that he “would not have kept her.”

There is no support in the record for the referee’s decision. To the contrary, the evidence clearly establishes that Furlott is entitled to unemployment compensation benefits. We grant Furlott’s petition for review and set aside the order of the commission. The case is remanded with directions to enter an order allowing the benefits.

GRIMES, C. J., and OTT, J., concur.


author: PER CURIAM. PER CURIAM.

text:
    John P. McCALL, Appellant, v. Martha C. McCALL, Appellee.
    No. 79-2020.
    District Court of Appeal of Florida, Second District.
    May 28, 1980.
    Rehearing Denied July 23, 1980.

      James H. Titus of Titus & Titus, Sarasota, for appellant.
    Carrol F. Dillon of Dillon & Dillon, Sarasota, for appellee.
   PER CURIAM.

Affirmed.

SCHEB, Acting C. J., and OTT and DAN-AHY, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

This is but another of the many cases decided without the benefit of the guidelines and nomenclature established by our supreme court in Duncan v. Duncan, 379 So.2d 949 (Fla. 1980) and Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). The trial court arrived at an eminently equitable and appropriate result under the facts and circumstances of this case — the recital of which would serve no useful purpose. The court’s only error (we now know) was in declaring that Mrs. McCall had a “special equity" in the family home, entitling her to a conveyance of the husband’s undivided one-half interest therein. The award, however, would have been quite proper had it been denominated “lump sum alimony.”

There may be cases where such an error would require reversal, but we can discern no prejudice from letting the present award stand. We are satisfied that no result more favorable to Mr. McCall could result from returning the case to the court below. The only possible consequence of reversal would be an unnecessary imposition on some court calendar already crowded with real controversies. We therefore affirm the award of the husband’s interest in the jointly titled real property as an appropriate lump sum alimony award although erroneously designated as a “special equity.”

The motion for rehearing is therefore denied.

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


author: McCORD, Judge.

text:
    James L. PETTY, Jr., as Personal Representative of the Estate of Lori Denise Petty, Deceased, Appellant, v. HOUSTON HOMES, INC., a Florida Corporation, Appellee.
    No. MM-322.
    District Court of Appeal of Florida, First District.
    June 6, 1980.
    Rehearing Denied Aug. 18, 1980.

      William Bruce Harper, Jr., and James B. Tilghman of Frates, Floyd, Pearson, Stewart, Riehman & Greer, Miami, for appellant.
    W. C. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellee.
   McCORD, Judge.

This appeal is from a final summary judgment entered in favor of appellee Houston Homes, Inc. We affirm.

Appellant James L. Petty, Jr., as personal representative of the estate of Lori Petty, his deceased minor daughter, brought this action for wrongful death against John Breeden, Robert Phelps, and appellee Houston Homes, Inc., alleging that Lori died as a result of negligence of Breeden, Phelps and appellee in treating appellant’s home with aldrin poison to destroy termites.

The pertinent evidence as shown by the record in the light most favorable to appellant is as follows: In 1972, appellee, a general contractor and home-builder, sold a home he had constructed to appellant and his wife. Phelps, a defendant but not a party to this appeal, was the masonry contractor on the job. Breeden, doing business as Breedens Pest Control, also a defendant but not a party to this appeal, contracted to treat the home which appellee was building and which appellant later bought, for subterranean termites and issued a guarantee and termite service policy dated December 5, 1972. Under the policy, Breeden agreed for a period of five years to give additional treatment if subterranean termite infestation was found at no additional cost to the owner. It further provided that the transfer of ownership of the property would not in any way affect the contract’s provisions.

Pursuant to the contract, Breeden had treated the building site with poison before the concrete slab floor was poured. Appel-lee had procured Breeden for that purpose because termite treatment was required by the lending agency financing the house. After completion of the house, appellee sold it to appellant and turned the guarantee and termite service policy, which had been furnished to him by Breeden, over to appellant. Approximately two years later, appellant and his wife noticed termites in the home. Appellant’s wife called Houston, and he told her that Breeden had done the termite work on the house and to contact Breeden. She had no further contact with Houston but called Breeden, and he came out on two occasions and sprayed at the point where the termites were found. This did not get rid of the termites, and appellant’s wife then called Florida Pest Control. They came out and inspected the home and told appellant’s wife that the spraying which Breeden had done would not get rid of the termites and that it would be necessary to do what they call “rod and flood the foundation.” Appellee then called Breeden and gave him that report, and he then came out and rodded and flooded the foundation with aldrin poison. Shortly thereafter, appellant’s 8-month-old child, Lori, became sick and ultimately died. Appellant alleges the death resulted from aldrin poisoning through the negligence of Breeden.

We are concerned on this appeal only with the question of whether or not the trial judge erred in granting summary judgment in favor of appellee, Houston Homes. Appellant contends that although Houston did not actively participate in the rodding and flooding of his home, Houston is responsible for Breeden’s alleged negligence because Houston employed Breeden as an independent contractor; that one who employs an independent contractor is liable to third persons for injuries caused by the negligence of the independent contractor when the work contracted for is inherently dangerous, citing Channell v. Musselman Steel Fabricators, Inc., 224 So.2d 320 (Fla. 1969). Appellant also contends that the trial court erred in finding as a matter of law that Houston is not strictly liable to appellant for the consequences resulting from Breeden’s alleged abnormally dangerous activity. In addition, appellant contends that the trial court erred in holding as a matter of law that appellant did not have a claim for punitive damages against Houston.

We do not find the law relating to liability of the owner to third parties because of the negligence of his independent contractor applicable to the facts of this case. Here, the initial termite work for which appellee had employed Breeden was completed before the house was sold to appellant. There were no strings attached to the sale in relation to termites. Appellant simply acquired the benefits of Breeden’s guarantee and termite service policy which contained the provision that transfer of ownership of the property will not in any way affect the provisions of the contract (Bree-den’s five-year guarantee). Upon sale of the property, Breeden ceased to be the independent contractor of appellee and became appellant’s contractor when appellant called upon him to rid the house of termites under Breeden’s guarantee to the owner of the premises, who was then appellant. The doctrine of strict liability would likewise, therefore, have no application to this situation.

AFFIRMED.

SHIVERS, J., and MASON, ERNEST E., Associate Judge (Retired), concur.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Allen Lee ROGERS, Appellee.
    No. 79-1822.
    District Court of Appeal of Florida, Second District.
    June 11, 1980.
    Rehearing Denied July 15, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Marc H. Saltón of Rock & Saltón, Holiday, for appellee.
   SCHEB, Judge.

The state charged Rogers with second degree murder. The trial court granted Rogers’ motion to dismiss the information. In so doing, the court improperly determined the issue of Rogers’ intent. We reverse.

The state’s information alleged that: ALLEN LEE ROGERS . . . on the 8th day of June [1979] . . . by an act imminently dangerous to another, and evincing a depraved mind, regardless of human life, but without a premeditated design to effect the death of any particular person, did strike one Steven Gadoury, a human being, in the neck with a glass, thereby inflicting upon him mortal wounds, of which said mortal wounds, and by the means aforesaid and as a direct result thereof, Steven Gadoury died; contrary to Chapter 782.04(2) Florida Statutes .

Rogers moved to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) alleging the following undisputed facts which he contended did not establish a pri-ma facie case of murder in the second degree:

1. On the evening of June 8, 1979 the Defendant Allen Rogers, was present in the Crown Lounge with his brother and a few friends.
2. The Defendant was sitting on a bar stool, with his back to the bar, and facing the dance floor.
3. The deceased, STEVEN GADOURY, was dancing with one or more females in the vicinity of the Defendant.
4. While the Defendant was sitting on the bar stools, watching people dance, the deceased leaned toward the Defendant and flicked his cigarette at the Defendant, striking the Defendant in the forehead.
5. The Defendant stood up and inquired of the deceased what he was doing.
6. As the Defendant got up from the bar stool he held his mixed drink glass, which had been positioned between his thighs as he was sitting, in his right hand.
7. As the Defendant inquired of the deceased what he was doing, the deceased balled up his fists.
8. According to witness JAMES KENNEDY, the deceased raised his fists in front of himself.
9. According to witness SANDRA WILSON, the deceased extended his arms down and out from his body, with his fists clenched, and stated “you want to do it now”.
10. After the deceased balled his fists, the Defendant ALLEN ROGERS, struck the deceased just under the left side of his chin, with the Defendant’s right hand.
11. The Defendant’s right hand was holding the mixed drink glass, said glass shattering on impact and cutting the deceased’s carotid artery and jugular vein, resulting in the death of STEVEN GADOURY.

The state demurred under Florida Rule of Criminal Procedure 3.190(d), adding the following facts:

1. After flicking his cigarette at Defendant, Steven Gadoury stepped back approximately two steps, held his fists by his side and asked Defendant, “want to do it now?”
2. Defendant, holding his glass in his right hand, stepped toward Steven Gadoury, swung at him with Defendant’s right hand and smashed his glass into the left side of Steven Ga-doury’s neck, thereby inflicting the mortal wounds.
3. At Defendant’s location at the bar, there appeared to be no physical obstructions blocking Defendant’s retreat, if Defendant had desired to retreat.
4. After inflicting the mortal wound and as blood gushed forth from the neck of Steven Gadoury, Defendant turned and promptly exited the bar and departed the area altogether.

After reviewing Rogers’ motion and the state’s demurrer, the trial judge concluded that Rogers could not be found guilty of any crime greater than manslaughter and dismissed the state’s information.

Section 782.04(2), Florida Statutes (1979), defines second degree murder as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual

The thrust of Rogers' motion was that his actions did not indicate “a depraved mind regardless of human life.” As this court explained in State v. J.T.S. and G.R.W., 373 So.2d 418 (Fla. 2d DCA 1979), intent or state of mind is not an issue to be decided on a motion to dismiss under Rule 3.190(c)(4). Instead, it is usually inferred from the circumstances surrounding the defendant’s actions. Since the trier of fact has the opportunity to weigh the evidence and judge the credibility of the witnesses, it should determine intent or state of mind.

We hold the trial court erred by resolving the issue of whether Rogers’ actions “evinc[ed] a depraved mind regardless of human life” on a motion to dismiss the information. Therefore, we reinstate the information and remand to the trial court.

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


author: BERANEK, Judge.

text:
    Idali M. AGUIAR, Appellant, v. Carlos W. AGUIAR, Appellee.
    No. 78-1551.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Rehearing Denied Aug. 20, 1980.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, and Thomas W. Johnston of Fischer, Moran & Johnston, Pompano Beach, for appellant.
    Harry Hipler and James H. Walden of Walden & Walden, Dania, and S. Robert Zimmerman, Pompano Beach, for appellee.
   BERANEK, Judge.

This is an appeal by the wife from a final judgment of dissolution. The parties were married for almost 40 years. They were married shortly after the wife graduated from high school in Puerto Rico and have lived in the continental United States since 1939. Three children were born to the marriage, and the wife occupied her time as mother and homemaker. The wife does not speak English, does not drive a car, and was never employed during the marriage.

While the wife has been the homemaker, the husband has always been employed outside the home. At the time of the final hearing, he was approximately 61 years old and working as a machine designer for the IBM Corporation. His salary was in the vicinity of $26,000 per year. The husband had also been employed at other part-time jobs.

At the time of the dissolution, the parties owned two homes, one located in Orlando and the other in Pompano Beach. The wife resided in the Pompano Beach home and the Orlando home was rented. The parties jointly owned $20,000 in IBM stock. The wife also had approximately $13,000 in cash, representing an $8,000 personal injury recovery and a $5,000 inheritance.

The final judgment of dissolution provided that (1) the two jointly owned homes should be sold and the parties were to split the proceeds, (2) the husband was awarded a special equity in the wife’s interest in the IBM stock, and (3) the wife was awarded $75 per week permanent periodic alimony.

On appeal, the wife asserts (1) that husband should not have received a special equity in her IBM stock, (2) that the amount of permanent periodic alimony was insufficient, and (3) that wife should have received a special equity in the Pompano home for mortgage payments she has made since the separation or alternatively she should receive the Pompano home as lump sum alimony.

We deal initially with the award to the husband of a special equity in the form of the wife’s interest in the jointly owned stock. It is clear that this stock was purchased during the marriage from payroll deductions out of the husband’s salary. In Duncan v. Duncan, 379 So.2d 949 (Fla.1980), the Supreme Court stated at page 952:

A special equity in property held as tenants by the entirety will not arise when the property is acquired from funds generated by a working spouse while the other spouse performed normal household and child-rearing responsibilities.

Here, the wife was performing household duties and raising children while the husband worked. His earnings were certainly not an extraordinary contribution nor were they from a source outside the marital relationship. In accordance with Duncan v. Duncan, supra, and the rule laid down in Ball v. Ball, 335 So.2d 5 (Fla.1976), the trial court erred in awarding the husband the wife’s interest in the stock. Also see Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979).

The wife also contends that the $75 per week in alimony was insufficient. Employing the test of reasonableness set out in Canakaris v. Canakaris, 382 So.2d 1197, 1980, we conclude that this minimal award of alimony constituted an abuse of discretion and same is therefore reversed. The husband has income of approximately $26,000 per year and the wife has no income. The wife is beyond an age where she can compete in the labor market and is certainly beyond the age for rehabilitative alimony. She cannot drive a car or speak the English language and has been married for almost 40 years, during which time her role was that of a homemaker. She is clearly entitled to permanent alimony under McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), and Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). As stated in both Brown and Canakaris, the parties to a marriage are partners and basic fairness requires that the wife receive sufficient alimony to compensate her for her contribution to the marriage. We find as the Courts did in Brown and Canakaris that the wife has been “shortchanged.” The uncontested evidence demonstrates an ability on the part of the husband to pay an amount in excess of $75 per week and the clear need on the part of the wife to receive more than this amount. We conclude that the wife is entitled to permanent periodic alimony but reverse and remand for a redetermination as to the amount.

The wife also asserts error in the trial court’s denial of her request for a special equity in the marital home for the monthly mortgage payments she made since the separation of the parties. The wife correctly relies on Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977). It is clear from the evidence that after the separation of the parties the wife made the mortgage payments on this home from her own funds. These funds were from a source totally unconnected with the marriage and we can see no reason why the wife was not entitled to a special equity or at least some adjustment recognizing her payment of this mortgage obligation. We therefore conclude that the trial court abused its discretion in failing to award a special equity under the circumstances and remand for further consideration of this point also.

The wife’s final point urges that the trial court erred in failing to grant her title to the marital residence as lump sum alimony. This may well be a case appropriate for lump sum alimony. We do not however decide this point because the issues concerning alimony are interrelated and the entire judgment should be reconsidered as was held in Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976). We thus find it necessary to vacate the entire final judgment as it relates to financial matters between the parties and remand for full reconsideration of all such issues in conformance with this opinion.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Wayne AKERS and his wife, Kathryn J. Akers, Appellants, v. PALM BEACH NEWSPAPERS, INC., Bill Hetland, Peter Cooke, Ken Walker, Raymond Mariotti, R. H. Kirkpatrick, Thomas Kelly, Carl Bretz and Anthony Ucellini, Appellees.
    No. 78-2743.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Rehearing Denied Aug. 21, 1980.

      Joseph D. Farish, Jr. and Bob Romani of Farish, Farish & Romani, West Palm Beach, for appellants.
    Richard W. Glenn of Albury, Webb, Park & Glenn, West Palm Beach, for appellees.
   PER CURIAM.

The plaintiffs in a libel action appeal from an order granting the defendants’ motion for new trial. Appellants contend that the order fails to sufficiently delineate the lower court’s reasons for granting a new trial and, further, that the reasons which are stated in the order are not supported by the record. We affirm.

In the order granting the new trial, the court lists three grounds for its decision. Admittedly, the first ground listed is a cursory statement that the verdict was rendered contrary to the law and the evidence. However, this finding is further amplified by the other two grounds listed in support of the granting of a new trial. In these latter two grounds, the court specifies how the jury’s verdict is inconsistent and how the court erred in permitting the jury to consider presumed damages. Consequently, in light of these specific findings, we have reviewed the record and have determined that no abuse of discretion has been demonstrated. See, Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (1980).

The order granting the new trial is affirmed.

MOORE, BERANEK and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Appellant, v. Robert Anthony DeSIMONE, Jr., Appellee.
    No. 79-311.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Rehearing Denied Aug. 20, 1980.
    Michael J. Satz, State’s Atty. and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Edward M. Kay, of Kay, Roderman & Silber, P. A., Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

The State appeals an order of discharge. We reverse.

The trial court, in entering its order, made findings of fact which included inter alia:

1. The Defendant is before the Court having been informed against for the felony offense of Possession of a Firearm by a Convicted Felon, Case No. 77-5462 CF.
2. The Defendant was arrested June 29, 1977 on a series of charges, including the instant offense, as a result of a single criminal episode.
3. On July 20, 1977, the Defendant was informed against in Case No. 77-4007 CF on other charges arising from the June 29,1977 criminal conduct or episode, to-wit: Delivery of Cocaine, Conspiracy to Deliver Cocaine, and Possession of a Firearm During the Commission of a Felony.
4. On September 20, 1977, the Defendant was granted a Defense Continuance on Case No. 77-4007 CF.
5. On September 30, 1977, the instant charge was filed as Count II of Case No. 77-5462 CF (Count I being Attempted Murder), and assigned to this division.
6. On October 17, 1977, Case No. 77-5462 CF was consolidated with Case No. 77 — 4007 CF in front of Judge Burnstein on the State’s Motion and by stipulation of the Defendant.
7. On November 28, 1977, a Court Continuance was ordered on the now consolidated Case Nos. 77-5462 CF and 77-4007 CF.
8. On or about December 26, 1977, the 180 day period from June 29, 1977 elapsed.

It then concluded that the defense continuance of September 20,1977, did not apply to Case No. 77-5462 CF, that the 180-day requirement of Florida Rule of Criminal Procedure 3.191(a)(1) was not met because the defendant had not been brought to trial by December 26, 1977, and that the defendant was entitled to discharge. We reverse.

We are aware that Florida Rule of Criminal Procedure 3.191(a)(1) requires that one charged with a felony be brought to trial within 180 days of being taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. However, when appellee moved for a continuance and it was granted on September 20, 1977, he waived his right to speedy trial within 180 days of being taken into custody. As a result, trial need only commence within a reasonable time. State, ex rel., Butler v. Cullen, 253 So.2d 861 (Fla.1971).

Appellee argues that the continuance of September 20, 1977, had no effect on the time limitation because the new information was a new case with a different file number before a different judge than the case in which the continuance was granted. He contends that a Pandora’s box of speedy trial problems and prosecutorial abuses will result from permitting a continuance in one case to affect the time limitations in another, separate case although both arise out of the same criminal episode. Appellee, of course, paints with a broad brush.

While there is no decision directly on point, a number of cases have established a limited principle that a continuance which results in a waiver of the time limitations under the speedy trial rule is not vitiated by the filing of new or amended charges under certain circumstances. In Godoy v. State, (Fla. 4th DCA Case No. 79-1312, Opinion filed May 7, 1980), we held that defendant’s waiver of speedy trial on a first information applied to a second information for a different crime based upon the same criminal episode. In Clark v. State, 318 So.2d 513 (Fla. 4th DCA 1975), the defendant, charged with petit and grand larceny, sought a continuance and waived his right to be tried within the time periods set forth in the rule. The State entered a nolle prosequi on the charges and on the same day filed a new information with a new case number, charging defendant with embezzlement. We held that the new charges arose out of the same conduct or criminal episode as the original charges, and that his waiver applied to the new indictment. In State v. Stanzione, 315 So.2d 500 (Fla. 4th DCA 1975), we held the defendant’s waiver of the time limitation applied to a second amended information arising out of the same conduct as the original charge but remanded the cause to determine whether any unreasonable delay arose from the prosecution’s negligence without the accused’s consent or fault. In State v. Luck, 336 So.2d 464 (Fla. 4th DCA 1976), we similarly applied a waiver of the rule’s limitations of time to an amended information arising out of the same criminal episode. See also, Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980); State v. Corlew, 382 So.2d 787 (Fla. 2d DCA 1980); Homer v. State, 358 So.2d 1176 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 886 (Fla.1978).

We view the filing of the information in a separate case, per se, insufficient to vitiate the waiver of the rule’s time limitation in the earlier case when both cases arose out of the same criminal episode. Instead, each case must be examined separately to cull out any facts which could be said to prejudice an accused. We find none sub judice. Seventeen days after the new information was filed as a separate case, the two cases were consolidated. Accordingly, we reverse.

REVERSED and REMANDED.

MOORE and HERSEY, JJ., concur.


text:
    Louis RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-837.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Louis Russell, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from the denial of a post conviction motion filed pursuant to Rule 3.850, Fla.R.Crim.P. Appellant was placed on probation for a term of fifteen years with the special condition that he be incarcerated in the State prison for three years. He contends this “sentence” is illegal.

We adopt the holding and the rationale expressed in Olcott v. State, 378 So.2d 303 (Fla. 2nd DCA 1979) and reverse the “sentence” imposed upon appellant. We also agree with the Second District that a limitation upon the length of a prison term imposed as a condition of probation is a matter of great public importance and should be determined by the Florida Supreme Court consistent with the legislative scheme for parole as reflected in Chapter 947, Florida Statutes (1979).

The order placing the appellant on probation is vacated to the extent that it imposes a three year period of incarceration as a condition of probation and this cause is remanded for further consideration by the trial court consistent with the opinion in Olcott, supra.

MOORE, HERSEY and HURLEY, JJ., concur.


author: NESBITT, Judge. HUBBART, Judge

text:
    VIC POTAMKIN CHEVROLET, INC., Jim Smith and Walter Ritter, etc., Appellants, v. Stephen A. BLOOM and Donna K. Bloom, Appellees.
    No. 80-259.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    Daniels & Hicks and Mark Hicks, Paige & Gatlin, Miami, for appellants.
    Milton Kelner, Miami, for appellees..
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

By this interlocutory appeal, appellants challenge an order entered by the lower tribunal denying their motion to compel arbitration.

The threshold question to be determined is whether this court has jurisdiction to review the challenged order pursuant to Florida Rule of Appellate Procedure 9.130. Appellants claim the right to interlocutory appeal is conferred by the Florida Arbitration Code, Section 682.20(l)(a), Florida Statutes (1979) and cases decided prior to the adoption of the current Florida Rules of Appellate Procedure wherein similar orders were reviewed pursuant to the former provisions of Section 4.2a. of the Florida Appellate Rules, 1962 Revision, citing Damora v. Givotovsky, 301 So.2d 37 (Fla. 4th DCA 1974); Gersh v. Concept House, Inc., 291 So.2d 258 (Fla. 3d DCA 1974) and Sun Insurance Office Ltd. v. Phillips, 230 So.2d 17 (Fla. 2d DCA 1970).

We have no quarrel with those cases because the Florida Appellate Rules, 1962 Revision, Rule 1.4 formerly provided that: “All statutes not superseded hereby or in conflict herewith shall remain in effect as rules promulgated by the Supreme Court.” We find that this rule has not been carried forth under the current Florida Rules of Appellate Procedure. Specifically, Florida Rule of Appellate Procedure 9.010, in part provides: “[t]hese rules shall supersede all conflicting rules and statutes.” Under Article V, Section 2(a) of the Florida Constitution, our Supreme Court is solely invested with the authority to promulgate rules for the practice and procedure in all courts. Consequently, all statutes that purport to govern the right to appeal are now inoperative. In re Wartman’s Estate, 128 So.2d 600 (Fla. 1961). We therefore reject the argument that Section 682.20(l)(a) confers the right to appellate review.

Section 682.03(1), Florida Statutes (1979) authorizes a party to an arbitration agreement claiming the neglect or refusal of another party to comply therewith to apply to the circuit court for an order directing the parties to proceed with arbitration. Where the right to arbitrate is not in dispute, permitting the parties to litigate the dispute in the courts instead of proceeding by arbitration as agreed would constitute a departure from the essential requirements of law. For this reason, we elect to treat the interlocutory appeal as a petition for common law certiorari pursuant to Florida Rule of Appellate Procedure 9.100. In doing so, we find ourselves in alignment with the Second District in Morton Z. Levine and Associates Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976) and the Fourth District in Lumbermen’s Mutual Casualty Company v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978) and King v. Thompson & McKinnon Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977).

The respondents filed a complaint alleging fraud and deceit by petitioners, Vic Potamkin Chevrolet, Inc., Jim Smith and Walter Ritter, as its agents and employees, arising out of the purchase and sale of a 1979 Chevrolet Corvette wherein they sought compensatory and punitive damages. In their complaint, the Blooms did not seek rescission or cancellation as they might, R.B.F. Management Co. v. Sunshine Towers Apartment Residences Association, Inc., 352 So.2d 561 (Fla. 2d DCA 1977); Watson v. Chase Chemical Corporation, 249 So.2d 53 (Fla. 1st DCA 1971), or place in issue the validity of the entire contract. Caltagirone v. School Bd. of Hernando Cty., 355 So.2d 873 (Fla. 2d DCA 1978). On deposition, respondents admitted that they had made and signed a purchase invoice which contained the following clause:

Any controversy or claim arising out of, or relating to this agreement, or a breach thereof, shall be settled by arbitration under the laws of the State of Florida, in accordance with the rules then in force of the American Arbitration Association, and any judgment upon the award rendered may be entered in any court having jurisdiction thereof.

Petitioners filed a motion to compel arbitration in accordance with this standard arbitration clause, a copy of which was before the court. On the hearing on the motion to compel, the only issue before the court was whether it should compel arbitration. Since the record showed no justiciable issue regarding the contractual right to arbitrate, the motion to compel arbitration should have been granted. Sun Insurance Office Ltd. v. Phillips, supra, at 18; Netherlands Insurance Co. v. Moore, 190 So.2d 191 (Fla. 1st DCA 1966).

The Blooms contend that petitioners, Smith and Ritter, were not parties to the arbitration contract and consequently for that reason arbitration should be denied. The answer to this contention is governed by the breadth and scope of the arbitration provision. In this case, the parties agreed to arbitrate “[a]ny controversy or claim arising out of, or relating to this agreement, . ” which is broad enough to include persons within the respondent superior doctrine. Morton Z. Levine and Associates Chartered v. Van Deree, supra.

Finally, the Blooms contend that the agreement was permeated with fraud in its inducement. In Watson v. Chase Chemical Corporation, supra that court, confronted with a similar contention, resolved it by concluding that it was incumbent upon the plaintiff to sue for rescission or cancellation, citing Lummus Co. v. Commonwealth Oil Refining Co., 280 F.2d 915 (1st Cir.), cert. denied, 364 U.S. 911, 81 S.Ct. 274, 5 L.Ed.2d 225 (1960) for the following proposition:

Of course a contract which has been fraudulently induced is not void but merely voidable, and the injured party need not avoid the contract, but may elect to affirm and seek damages in deceit. This distinction was alluded to by the Court of Appeals in Wrap-Vertiser. We think the inference is clear from that court’s decision that a mere damage claim, even though based on fraudulent inducement, does not put in issue the ‘making of the contract’ and may be arbitrated under a sufficiently broad arbitration clause. Also see Anno. 91 A.L.R.2d 912, 938.

249 So.2d at 54 accord Merkle v. Rice Construction Company, 271 So.2d 220 (Fla. 2d DCA), cert. denied, 274 So.2d 234 (Fla. 1973).

For the foregoing reasons, the order denying the motion to compel in quashed with directions to grant the motion directing the parties to proceed with arbitration in accordance with the terms of the agreement.

HUBBART, Judge

(concurring).

I concur in the opinion and judgment of the court in quashing the order under review and remanding the cause to the trial court with directions to compel the parties to arbitrate. I also agree with the court’s conclusion that we have no jurisdiction to entertain this appeal under Section 682.-20(l)(a), Florida Statutes (1979), and should treat the appeal herein as a petition for a writ of certiorari. Art. V, § 4(b)(3), Fla. Const.; Fla.R.App.P. 9.040(c), 9.100. I cannot, however, subscribe to the reason given by the court for reaching the latter conclusion and would put the result reached on a slightly different legal basis.

A

We deal here with an appeal from an interlocutory order of the trial court, to wit: an order denying a motion to arbitrate. The controlling constitutional provision which governs the jurisdiction of this court to hear an appeal from an interlocutory order entered by a trial court is Article V, Section 4(b)(1), Florida Constitution, which provides as follows:

“District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.” [emphasis added]

It is, therefore, plain that our jurisdiction to entertain appeals from interlocutory or non-final orders entered by a trial court is set exclusively by rule of the Florida Supreme Court; it may not be conferred by statute. Section 682.20(l)(a), Florida Statutes (1979), which purports to create a right to appeal from an interlocutory order denying an application to compel arbitration is, accordingly, inoperative unless otherwise adopted by rule of the Florida Supreme Court. It is undisputed, however, that the Florida Supreme Court in Fla.R.App.P. 9.130 did not include an order denying a motion to compel arbitration as one of the non-final or interlocutory orders which, under the constitution, may be reviewed in this court by appeal. It, accordingly, appears clear that we have no jurisdiction to entertain the instant proceeding as an interlocutory appeal.

B

The court in the instant case reaches the same result, but does so by a different route. The court declares Section 682.-20(l)(a), Florida Statutes (1979), inoperative because (a) it announces a rule of practice and procedure which only the Florida Supreme Court may promulgate under Article V, Section 2(a) of the Florida Constitution, and, (b) the statute, although adopted by implication as a rule of procedure by Fla.R. App.P. 1.4 (1962), is no longer so adopted by Fla.R.App.P. 9.010 (1977). Although I agree with the result reached, I cannot subscribe to the line of reasoning employed as, in my view, the above statute does not announce a rule of practice or procedure.

The Florida Supreme Court in State v. Furen, 118 So.2d 6 (Fla. 1960), held that a statute conferring a right to appeal upon a litigant deals with a substantive right, rather than a rule of practice and procedure. Section 682.20(l)(a), Florida Statutes (1979), confers a right to appeal from an interlocutory order denying a motion to compel arbitration, and, as such, deals with a matter of substance, rather than a matter of practice and procedure. For that reason, the statute could not be adopted by implication under either Fla.R.App.P. 1.4 (1962) or Fla.R. App.P. 9.010 (1977), In Re Wartman’s Estate, 128 So.2d 600 (Fla. 1961), and cannot fall, as the court concludes, because it announces a rule of practice and procedure in conflict with Article V, Section 2(a) of the Florida Constitution; the statute falls, in my view, because it announces a rule of substance on the right to take an interlocutory appeal which, as previously explained, is in conflict with Article V, Section 4(b)(1) of the Florida Constitution.

In addition, I cannot agree with the court’s pronouncement in its opinion that “all statutes that purport to govern the right to appeal are now inoperative.” I think it more accurate to state that all statutes which purport to announce rules of appellate practice and procedure in the courts are inoperative unless adopted by rule of the Florida Supreme Court. State v. Furen, 118 So.2d 6 (Fla. 1960); Art. V, § 2(a), Fla.Const.

C

Beyond that, I entirely agree with the court in treating the instant appeal as a petition for a writ of certiorari and in quashing the order under review. Art. V, § 4(b)(3), Fla.Const.; Fla.R.App.P. 9.040(c), 9.100. The petitioners have shown on this record that the trial court acted in excess of its jurisdiction by entertaining the respondents’ complaint and in denying the petitioners’ motion to compel arbitration. Upon such a showing, a petition for a writ of certiorari clearly lies in this court. Santini Bros., Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976).

For the reasons stated above, I concur in the opinion and judgment of the court, save for that portion of the opinion stating the reasons why we have no interlocutory appeal jurisdiction in this cause.

      . Florida Rule of Appellate Procedure 9.010 provides that these rules “shall take effect at 12:01 a. m. on March 1, 1978.”

      . Prior to a court directing the parties to proceed with arbitration the court must be “satisfied that no substantial issue exists as to the making of the agreement or provision . . .” § 682.03(1), Fla.Stat. (1979).

      . To the extent that Damora v. Givotovsky, 301 So.2d 37 (Fla. 4th DCA 1974); Gersh v. Concept House, Inc., 291 So.2d 258 (Fla. 3d DCA 1974); and Sun Insurance Office Ltd. v. Phillips, 230 So.2d 17 (Fla. 2d DCA 1970), reach a different result, I would recede from Gersh and decline to follow Damora and Sun Insurance. In my view, the interlocutory appeal entertained by these cases should more properly have been treated as a petition for a writ of certiorari as we do now in the instant case.


text:
    JENNINGS CONSTRUCTION CORPORATION, a Florida Corporation, and Milton S. Jennings, Petitioner, v. C. H. V. INVESTMENT CORPORATION, a Florida Corporation, Respondent.
    No. 80-695.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Bartel & Shuford and Stanley Jay Bartel, Miami, for petitioner.
    Frank, Strelkow & Gay and Carl A. Schmitt, North Bay Village, for respondent.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This petition for certiorari presents a claimed departure from the essential requirements of law in that the trial court continues to exercise jurisdiction over the defendants, Jennings Construction Corporation and Milton S. Jennings, after they have been dismissed from the cause. We agree that the record does present such a departure, and the writ is granted.

The essential chronology is as follows: (1) The defendants, Jennings Construction Corporation and Milton S. Jennings, were sued and properly served with process. (2) The trial judge entered a final judgment dismissing the cause without leave to amend as to these defendants. (3) A successor trial judge, acting over five months after the final judgment which had become “rendered” and was unappealed, granted leave to the plaintiff to file an amended complaint against the same defendants in the same cause.

We do not determine the possible issue of res judicata but hold that upon the state of the record as above recited the trial court had no jurisdiction over these defendants at the time of the entry of the order granting leave to amend the complaint as to these defendants. See McMullen v. McMullen, 145 So.2d 568 (Fla. 2d DCA 1962). The order of February 25,1980, is quashed insofar as it pertains to the defendants, Jennings Construction Corporation and Milton S. Jennings.

It is so ordered.

      . Although originally filed as an interlocutory appeal, this court has, pursuant to Fla.R.App.P. 9.040(c), determined that the interlocutory appeal should be considered as a petition for certiorari.

      . Fla.R.App.P. 9.020(g).


author: WALKER, GRISSIM H., Associate Judge.

text:
    Clifton JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-422/T4-421.
    District Court of Appeal of Florida, Fifth District.
    July 23, 1980.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.
   WALKER, GRISSIM H., Associate Judge.

Appellant was charged with first degree murder and found guilty by the jury of the lesser included offense of manslaughter.

The state moved for an enhanced penalty under section 775.084, Florida Statutes (1977). The court, following a sentencing hearing as provided in the statute, imposed an enhanced penalty. The appellant contends there were errors in the sentencing proceedings but this court finds none and affirms the sentence except as hereinafter set forth.

Appellant was sentenced to 30 years imprisonment, with the final 10 years suspended and the appellant to be on probation during the 10 years. Condition IV of the probation condition placed upon appellant states:

Search: The Court retains custody over the person of the probationer and authorizes any probation supervisor and any law enforcement officer to search, at any time, the probationer and all vehicles and premises concerning which he has legal standing to give consent to search.

Appellant contests the search condition insofar as it authorizes searches by any law enforcement officer. This provision violates the search and seizure provisions of the Federal and Florida Constitutions. Grubbs v. State, 373 So.2d 905 (Fla.1979); Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980); Smith v. State, 383 So.2d 991 (Fla. 5th DCA 1980).

Therefore, the judgment and sentence are affirmed except the probation condition authorizing a warrantless search at any time by law enforcement officers is hereby ordered stricken.

Affirmed as modified.

ORFINGER and SHARP, JJ., concur.


author: BOARDMAN, Judge.

text:
    Opal CORY, Appellant, v. Charles O. PARKS, Jr., Gardner W. Beckett, Jr., Daniel D. Krass, and Caroline E. Gibbs, Appellees.
    No. 79-2114.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    A. T. Cooper III, Largo, for appellant.
    Gardner W. Beckett, Jr., pro se, of Nelson, Beckett & Nelson, St. Petersburg, for appellees.
   BOARDMAN, Judge.

Opal Cory appeals a final summary judgment in an action she brought to quiet title to certain real property. We reverse.

Appellant raises three points, only one of which we find to have merit, and we will recite only the facts pertinent to this point.

In 1972, Myrtle Wood Krass executed a warranty deed of the property in dispute from herself to herself and appellant as joint tenants. At the time of the conveyance, Myrtle Wood Krass was married to Daniel Krass, and they occupied the property as their marital home. Mr. Krass did not join in the execution of the deed.

The trial court ruled, solely on the basis of the facts set forth above, that “Myrtle Wood Krass was a joint or equal ‘head of a household’ ” within the meaning of the homestead law, that the property was therefore homestead property not subject to alienation, and that the deed • in question was therefore void.

Article X, Section 4(c) of the Florida Constitution provides: “The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift . . . .” (Emphasis added). Section 4(a) defines homestead as certain property “owned by the head of a family.” Thus, the issue before the trial court was whether Myrtle Wood Krass was “the head of a family.”

In Brown v. Hutch, 156 So.2d 683 at 684-685 (Fla. 2d DCA 1963), this court stated:

Generally, a family, for homestead purposes, includes at least two persons living together as one family under direction of one of them, who is recognized as the “head of the family.” Hussa v. Hussa, Fla. 1953, 65 So.2d 759; 16 Fla. Jur., Homesteads, section 28, page 291. For determination of the existence of a family relationship, there are, in Florida,' two basic recognized tests to be met, either singly or in combination: (1) a legal duty to maintain arising out of the family relationship; (2) a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge. Crosby and Miller, Our Legal Chameleon, 2 Fla.L.Rev. 24; Beck v. Wylie, Fla. 1952, 60 So.2d 190; 16 Fla. Jur., Homestead, section 27, page 290.

For homestead purposes there can be only one head of a family. Solomon v. Davis, 100 So.2d 177 (Fla. 1958); Anderson v. Garber, 183 So.2d 693 (Fla. 3d DCA), cert. denied, 188 So.2d 820 (Fla. 1966). The determination of family headship has always involved a factual inquiry, In re Estate of Wilder, 240 So.2d 514 (Fla. 1st DCA 1970); see Beck v. Wylie, 60 So.2d 190 (Fla. 1952), and cases cited therein, and this must certainly be true in the case of a family consisting solely of a husband and wife now that the presumption that the husband is the head of the family has been abrogated by the amendment in 1971 of Section 61.09, Florida Statutes to place a duty of support upon both spouses. There being a genuine issue of material fact to be resolved, summary judgment should not have been granted. Holl v. Talcott, 191 So.2d 40 (Fla. 1966).

We have examined the other points raised by appellant and find them to be without merit.

Accordingly, the order of final summary judgment appealed is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Appellant, v. Carnell SESLER, Appellee.
    No. 80-319.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   SCHEB, Chief Judge.

The state contends that the trial court erred in refusing to impose the mandatory three-year minimum sentence upon Sesler under Section 775.087(2), Florida Statutes (1979). We agree.

In September of 1979, the state charged Sesler with aggravated battery. A jury found him guilty of aggravated assault with a firearm, a lesser-included offense of aggravated battery. The court withheld adjudication and ordered a presentence investigation. At the sentencing hearing, the state requested that the court sentence Ses-ler pursuant to Section 775.087(2). The court declined, explaining that because the victim had been partially at fault, it would be a “miscarriage of justice” to imprison Sesler for three years. The court then placed Sesler on five years probation. The court erred because Section 775.087(2) clearly requires a trial court to sentence a defendant convicted of aggravated assault with a firearm to a minimum of three years in prison. See D’Alessandro v. Shearer, 360 So.2d 774 (Fla.1978); State v. Opitz, 357 So.2d 469 (Fla.2d DCA 1978).

While we recognize the problems inherent in the uniform imposition of a minimum sentence, this area is a matter of legislative prerogative and is nondiscretionary. Accordingly, we have no alternative but to remand to the trial court with directions to vacate the prior sentence and impose sentence as required by Section 775.087(2), Florida Statutes (1979).

BOARDMAN and GRIMES, JJ., concur.