author:
PER CURIAM.
      ERVIN, Judge,

text:
    EAST COAST TIRE COMPANY and the Home Insurance Co., Appellants, v. Charlie J. DENMARK, Appellee.
    No. PP-482.
    District Court of Appeal of Florida, First District.
    March 25, 1980.

      Robert C. Cooper, of Cooper & Rissman, Orlando, for appellants.
    Edward H. Hurt, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeals a worker’s compensation order entered October 17, 1979, approving a retainer agreement between the claimant and his attorney. Standing to appeal is based on the fact that the appellant carrier is required to control the method of payment. The appeal presents issues of first impression and requires judicial construction of § 440.34, Fla. Stat. (1979).

Claimant was injured on September 12, 1979, and consulted and retained counsel on September 28, 1979. A claim was filed for compensation at a rate higher than that at which temporary disability benefits had already been furnished, and the carrier scheduled claimant’s deposition. On those facts, without other evidence, the order now appealed was entered, requiring appellant/carrier to retain and pay periodically to claimant’s attorney a percentage of “all monies paid to the claimant.”

Appellants contend that the order imposing that burden on them should be reversed on several grounds: (1) it is premature and void under § 440.34(1), Fla.Stat., because it approves a fee agreement “in advance of the prosecution of the claim and the obtention of benefits”; (2) the contract should not have been approved because the fee was excessive and illegal; (3) the contract violates public policy because it makes no distinction as to benefits not in controversy on which the percentage fee is based; and (4) the statute does not provide or permit the order’s provision for continuing administrative duties by the appellant carrier in remitting fees to the attorney. We reverse on grounds 2 and 4, and on point 1 our construction of § 440.34(1) rejects both appel-lee’s contention that it is inapplicable and appellants’ contention that it forbids approval of any fee agreement before successful prosecution of a claim. We find no necessity for treatment of the policy argument on point 3, and remand for further proceedings in compliance with our construction of the statute.

Section 440.34(2), Fla.Stat. (1979), now provides that “a claimant shall be responsible for the payment of his own attorney’s fees” except in three specific instances not affecting the issue in this case. Another subsection also provides a misdemeanor penalty for any person who “receives any fees . . . unless such consideration . is approved by the deputy commissioner.” § 440.34(4). The 1979 legislative act repealed the former provision of § 440.34(2) that “in awarding a reasonable attorney’s fee, the judge . . . shall consider only that portion of the award to the claimant that the attorney is responsible for securing." It also repealed the specific requirement for “the successful prosecution of the claim” by an attorney claiming a fee. Section 440.34(1) now states:

No fee . . . shall be paid for services rendered for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the deputy commissioner . Except as provided by this subsection, any attorney’s fee approved by a deputy commissioner shall be equal to 25 percent of the first $5,000 of the amount of the benefits secured, 20 percent of the next $5,000 of the amount of the benefits secured, and 15 percent of the remaining amount of the benefits secured. However, the deputy commissioner shall consider the following factors in each case and may increase or decrease the attorney’s fee if in his judgment the circumstances of the particular case warrant such action :
(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude employment of the lawyer by others or cause antagonisms with other clients.
(c) The fee customarily charged in the locality for similar legal services.
(d) The amount involved in the controversy and the benefits resulting to the claimant.
(e) The time limitation imposed by the claimant or the circumstances.
(f) The nature and length of the professional relationship with the claimant.
(g) The experience, reputation, and ability of the lawyer or lawyers performing services.
(h) The contingency or certainty of a fee. (emphasis supplied)

Prior to 1977, § 440.34(1), Fla.Stat., provided that in certain circumstances, if the claimant “shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation, be awarded reasonable attorney’s fee, to be approved by the judge of industrial claims . . .” and paid by employer/carrier. The statute itself did not provide any standards to aid the judge in his determination of reasonableness. However, Lee Engineering & Construction v. Fellows, 209 So.2d 454 (Fla.1968), enunciated certain criteria to be considered; the amount of the benefits obtained constituted the foundation of the fee, but the various other Lee Engineering criteria were also relevant considerations. Leaks v. National Pulpwood Corp., 9 FCR 189 (1975), cert. denied, 325 So.2d 6 (Fla.1975). Compare Dept. of Commerce v. Fields, IRC Order 2-3140 (April 21, 1977), with Sherrill v. McKenzie Trust, IRC Order 2-3127 (March 22, 1977). And as to the benefits considered, the percentage fee was to be predicated only on those benefits obtained through the efforts of the claimant’s attorney. C. E. Domes Construction Co. v. Hilaire, IRC Order 2-3096 (Jan. 27, 1977). In 1977 the legislature amended § 440.34(1) so as to codify the various Lee Engineering criteria, followed by amendment in 1978 to visit 25% of the fee upon claimant, and amendment in 1979 as above set forth.

The claimant and attorney are now clearly free to enter into a fee agreement at any time; § 440.34(1), Fla.Stat. (1979), merely requires approval of the agreement upon payment. Unlike the prior statute, § 440.34(1), Fla.Stat. (1979) relates to “any attorney’s fee approved” and omits the former restriction to fees awarded upon the “successful prosecution of the claim.” Such a substantive omission is presumed intended to alter the statutory meaning. See Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). While § 440.34(2), Fla.Stat. (1979), provides for the assessment of costs “[i]f the claimant should prevail in any proceedings,” this requirement is explicitly not applicable to attorney’s fees. Since a rule that fees are payable under contract only if “the claimant should prevail” would be in derogation of the common law, we must conclude that the claimant need not “prevail,” and approval of a fee payable by claimant is not dependent upon “the successful prosecution of the claim.”

While the order on appeal recites consideration of subsection (1) above quoted, no evidence was presented on the pertinent factors and the order makes no findings on such factors. The record also reflects the deputy’s stated view that although “they put in the guidelines and the Lee Engineering [Lee Engineering & Construction v. Fellows, 209 So.2d 454 (Fla.1968)] factors, in my mind that pertains to a contingent fee basis rather than a contractual fee basis and would apply only where the exceptions under (2) 440.-34(2) are applicable [to require a fee payable by carrier].” That is also the position argued by appellee in defense of the order. We are unable to accept this view that subsection (1) does not apply to determine whether contract fees are reasonable, because that section expressly governs “any attorney’s fee approved” for “services rendered for a claimant in connection with any proceedings arising under this chapter.”

We agree, however, with the deputy’s apparent conclusion that the fee agreement before him was one for services in connection with proceedings arising under Chapter 440, Fla.Stat., and that the statute as noted above no longer requires the successful prosecution of a claim before a fee is approved. It is reasonable also to conclude that “benefits” need no longer refer only to controverted monetary compensation benefits obtained by completing a successful prosecution of a claim. Instead, for example, the consideration of “benefits resulting to the claimant” under factor (l)(d) of the statute may encompass benefits, monetary or otherwise, reasonably accruing to a claimant who seeks legal advice on his rights under the statute. We do not reach the question of whether a fee for such service might be measured on any basis other than time required.

In the present case, the deputy commissioner approved the retainer agreement fixing an attorney’s fee “in the amount of 20% of the first $10,000.00 of any and all compensation benefits paid . . . and 15% of any and all compensation paid . in excess of $10,000.00.” Even under the former law, an interim fee could be awarded before all the “benefits secured” were ascertainable. Perez v. Carillon Hotel, 272 So.2d 488 (Fla.1972); Tampa Aluminum Products Co. v. Watts, 132 So.2d 414 (Fla.1960). However, consideration of the various § 440.34(1), Fla.Stat. (1979), criteria suggests that the blanket agreement in the present case is speculative and unreasonable in view of the minimal services thus far provided. We also note the apparent impropriety of the agreement’s measurement of the fee by a share of “any and all compensation benefits” paid, rather than those in connection with which the attorney’s services had been or would be rendered.

The language from the former statute remaining in § 440.34(1) with respect to the presumptive scale for percentage fees, based on the “amount of the benefits secured,” is now preceded by the words “Except as provided by this subsection, . ” The exceptions are the prescribed factors designated (a) through (h) by which a fee may be either increased or decreased from the standard percentage for “benefits secured,” or increased above a zero level if specific monetary benefits are not yet “secured” at the time a fee agreement is presented for approval. All of the relevant prescribed factors must be considered “in each case,” but clearly there is no intent that every fee agreement must in fact involve every factor. The reference in paragraph (d) to consideration of the amount in “controversy” would (along with many other listed factors) clearly be pertinent to the agreement in question here, which at the time of the hearing apparently involved a claim for an increase in compensation rate. Equally clear, however, is the fact that the amount of the fee approved in this case was not determined by applying statutory standards, and reversal is required for performance of that duty by the deputy.

Neither is the amount of the agreed fee substantiated by the Code of Professional Responsibility for attorneys in Florida EC2-19, cited by appellee, even if we assume its applicability. But implicit in our application of § 440.34(1), supra, is a rejection of appellee’s argument that the revision was intended to require resort to the Code to determine a reasonable claimant’s contract attorney fee, while retaining the statutory framework solely for fees paid by carriers. Our conclusion instead is that the prescribed factors, to the extent that circumstances permit, shall apply to “any attorney’s fee approved” as the new language requires (e.s.). Evidence on those factors should provide some basis for determining whether a fee agreement is reasonable for past or future services, to the extent such can be predicted and a measure of payment defined. See Lee Engineering, supra; Florida Silica Sand Co. v. Parker, 118 So.2d 2 (Fla.1960).

Because the agreement in this case must be reconsidered on remand, and because further evidence may be submitted in compliance with the statutory standards, we do not determine the extent of the fee which might be approved in the present case. However, nothing in the statute compels limitation of approval to agreements for services already performed. To imply that limitation for a claimant’s contract attorney fees over a period of time would

unnecessarily result in multiple fee hearings and the unreasonable requirement of full performance of a contract for fees before any opportunity for an attorney to know if the contract will be approved. The language of the statute provides no basis for such a limitation, but would instead permit approval of contracts for future services under a fee formula properly based on the prescribed factors, as for example an agreed rate per hour of legal service contemplated or a share in the value of results ultimately achieved by the attorney.

We find no necessity for disposition of appellee’s various constitutional contentions with respect to a right to counsel, except to observe that our construction of the statute would appear to afford some protection of those rights. See Holt v. Commonwealth of Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 (1965); Cash v. Culver, 120 So.2d 590 (Fla.1960); Florida Silica Sand Co. v. Parker, 118 So.2d 2 (Fla.1960); Thatcher v. Industrial Commission, 115 Utah 568, 207 P.2d 178 (1949); Prudential Insurance Co. of America v. Small Claims Court of City and County of San Francisco, 76 Cal.App.2d 376, 173 P.2d 38 (1946); Cline v. Warrenberg, 109 Colo. 497, 126 P.2d 1030 (1942).

However inconvenient the results may be, we are unable to read into the provision for a lien “upon compensation payable to the claimant,” § 440.34(3), Fla.Stat., any authority for the continuing duties required from the appellant carrier under the order appealed. The lien may be protected by providing for periodic payments of compensation jointly to claimant and counsel to whatever extent necessary to secure payment of any. fees found to be reasonable, or by other means involving minimal burden.

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

SHAW and WENTWORTH, JJ., concur.

ERVIN, J., concurs and dissents.

ERVIN, Judge,

concurring and dissenting.

I concur in the majority’s opinion that this case must be reversed because the deputy commissioner’s approval of a retainer agreement, obligating claimant to pay an attorney’s fee based upon a percentage amount of certain compensation benefits paid claimant, is not supported by evidence showing the fee reasonable. I agree also with the majority’s opinion that Section 440.34(1), Florida Statutes (1979), does not require, as did its predecessor, that a fee award be conditioned upon the claim’s successful prosecution. Finally, I agree that the burden for payment of fees has been transferred from the nonprevailing party to the claimant. I disagree, however, with the majority’s interpretation that the statute permits a commissioner to enter a final order approving in advance a fee contract when no benefits have as yet been secured the claimant through the intervention of his attorney.

A fair reading of the statute, in my view, compels the conclusion that whether or not a claimant successfully prosecutes a claim, attorney’s fees may be approved only if the attorney aids his client in obtaining benefits which were not furnished before the attorney’s involvement. Chapter 440 obviously contemplates many instances whereby a lawyer may secure benefits to his client without the necessity for prosecuting the claim to its successful conclusion; yet, without evidence showing that the attorney secured benefits not voluntarily furnished by the employer/carrier, I fail to see how a fee award can be approved as reasonable.

I do not consider unreasonable a statutory construction permitting interim, orders approving partial fees for benefits already secured by the claimant’s attorney, nor do I interpret the statute as precluding an attorney and his client, in doubt about the reasonableness of the fee agreed upon, from requesting conditional approval of the contemplated fee and later seeking final approval once benefits have been secured. In the present case, though, the deputy would be unable on remand to make any final determination from this record that the fee contract is reasonable. As observed by the majority, the lawyer’s services were minimal, and the only benefits provided the claimant were those volunteered by the employer/carrier. Perhaps on remand the attorney may be able to present evidence showing how his efforts accomplished benefits to his client not already furnished by the carrier. Until he makes such showing, however, the deputy commissioner in my view is simply unable to determine the reasonableness of the contract fee, which requires the client to pay the fee regardless of whether the lawyer’s efforts obtained benefits for the client.

To summarize: Until benefits have been secured, no fee contract can be unconditionally and finally approved as reasonable. I would reverse the order entered without prejudice to the attorney’s right to present evidence at a later hearing showing how he secured benefits to his client.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sara B. COOPER, Appellant, v. PALM BEACH ATLANTIC COLLEGE and Ohio Casualty Ins. Co., Appellees.
    No. QQ-96.
    District Court of Appeal of Florida, First District.
    March 25, 1980.

      Lawrence M. Kukey of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Richard J. Olack of Jones, Paine & Foster, West Palm Beach, for appellees.
   PER CURIAM.

We affirm the award of 12% permanent partial disability compensation in this case based on claimant’s physical impairment rating. The order was entered March 1, 1979, at which time claimant was 80 years old. She had worked at her regular job for two of the three years intervening between her accidental shoulder injury and the date of hearing. The record adequately supports the deputy’s finding that “it was only a reconstitution of the library that eliminated her position.” Rivera v. Pumpernicks of Hallandale, IRC Order 2-3670 (Jan. 29, 1979); cf., Ivey v. Margolin, IRC Order 2-3472 (July 12, 1978).

Claimant’s age was not disabling at the time of her injury, and we find no basis for application of any doctrine of merger between her compensable disability and subsequent physical or economic disability from advancing age. Poston Bridge & Iron v. Newcombe, IRC Order 2-3363 (Feb. 22, 1978). See also § 440.49(5)(b)l, Florida Statutes.

The order is accordingly affirmed.

SHAW and WENTWORTH, JJ., concur.

SHIVERS, J., dissents.


author: SCHWARTZ, Judge.

text:
    Richard JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1463.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.

      Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

After a jury trial, the defendant-appellant was adjudicated guilty of possession of heroin and of over five grams of marijuana. We affirm the heroin conviction but order that the felony marijuana charge be reduced to a misdemeanor.

Johnson and two females were all occupying a three-room apartment in a motel in Key West when police officers arrived to serve a subpoena duces tecum on him. In an admittedly proper manner, the officers found inside the apartment: (a) 67 packets of heroin and less than a gram of marijuana in a bag within an opened suitcase in the' bedroom; (b) 1.6 grams of marijuana contained in three cigarettes on a night stand; and (e) 45.8 grams of marijuana in an “Avon” bag located in the kitchen, near one of the women. In this proceeding, the defendant does not dispute the sufficiency of the evidence of his possession of the heroin or the marijuana cigarettes. He claims otherwise, however, as to the marijuana in the Avon bag. We agree with this position.

Simply stated, the evidence is entirely inadequate to establish that Johnson had both (1) knowledge of, and (2) the ability to control the “Avon” cannabis, as required to establish criminal possession. See Cohen v. State, 125 So.2d 560 (Fla.1960); Winchell v. State, 362 So.2d 992 (Fla.3d DCA 1978); State v. Scarborough, 170 So.2d 458 (Fla.2d DCA 1965). Both these elements must be established by some' specific sufficient proof when, as in this case, contraband is found on premises which are not within the defendant’s exclusive possession but are shared with others. See the recent and comprehensive opinion in Thompson v. State, 375 So.2d 633 (Fla.4th DCA 1979), and cases cited. Apart from relying upon inferences from circumstantial evidence which we consider woefully insufficient, the state contends that the requisite evidence concerning the Avon cannabis is to be found in statements made by the defendant after his arrest that, for example, “all this narcotics here is all mine.” See Frank v. State, 199 So.2d 117, 121 (Fla.1st DCA 1967). A close analysis of these statements, as related by the officers and by Johnson himself in a video-taped confession, reveals, however, that each referred only to the heroin and the marijuana cigarettes. There was no evidence that, at the time these incriminating remarks were made, Johnson knew anything at all concerning the quantity of cannabis now in question; to the contrary, he expressly disclaimed any responsibility for it when its existence was brought to his attention. In other words, Johnson’s generalized comments about owning everything in the apartment were rendered entirely valueless by the absence of any indication that he knew that the Avon cannabis was there, and by his affirmative statement that he didn’t. See McArthur v. State, 351 So.2d 972, 976, n. 12 (Fla.1977). Since neither the admissions nor anything else in the record provides competent, substantial evidence of guilt as to the possession of any marijuana besides the cigarettes and the trace in the suitcase, which totalled less than two grams, the felony conviction cannot stand. See also Daudt v. State, 368 So.2d 52 (Fla.2d DCA 1979); Falin v. State, 367 So.2d 675 (Fla.3d DCA 1979).

There is no error presented by the defendant’s other point, which seeks reversal of both convictions because of alleged Williams rule violations at the trial. The record shows that these incidents were invited, harmless or both;

Accordingly, the judgment and sentence for possession of heroin are affirmed, the felony marijuana conviction is reversed and the cause remanded with directions to adjudicate the defendant guilty of the misdemeanor of possession of less than five grams of cannabis and for re-sentencing accordingly.

Affirmed in part, reversed in part and remanded.

      . See Mayo v. State, 71 So.2d 899 (Fla.1954).

      . The same is true of a statement attributed to Johnson by one of the women in the apartment. (The other, near whom the Avon bag was found, did not testify.)

      . Williams v. State, 110 So.2d 654 (Fla. 1959).


author: BASKIN, Judge.

text:
    David Lee HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1131.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   BASKIN, Judge.

The issue to be determined by this court is whether the trial court incorrectly refused to give an alibi instruction to the jury upon request. The trial court found that uncorroborated testimony of the defendant was insufficient to merit an alibi instruction. We disagree and reverse.

After receiving his salary, Kendral Watts went to Gene’s Barbecue, ordered a sandwich at approximately 2:30 p. m., and while walking to his car, was knocked down from behind and robbed. He did not see his attackers. Rose Rawls testified at trial that she had given Watts a sandwich at the take-out window and saw him being robbed by three people, two of whom she knew as regular customers. One of those two was the defendant. She ran into the lounge to call for help and told several people that Green was the perpetrator but did not mention defendant Hudson. Another employee, Jerome Boyd, testified that Green and Hudson came in around 1:00 p. m. to shoot pool. About ten to fifteen minutes before the robbery, Green and Hudson left the lounge. According to Boyd, Rawls mentioned Hudson’s involvement only when told that Hudson had been with Green earlier. Another employee, a barmaid testified that fifteen minutes before the robbery Hudson and Green left together.

A witness testified that he had seen a man lying on the ground and then saw Green leaving the lounge. He did not see Hudson near the scene. Defendant Hudson testified that he lives five blocks from Gene’s and that he left at 2:00 p. m. on the date to visit a Paul White about a job. He testified that at 2:30, the time of the robbery, he was several blocks away at Paul White’s house.

Defendant’s notice of alibi was filed a month prior to trial.

After the jury was instructed, the attorneys approached the bench. Defense counsel requested an alibi instruction, indicating that he had forgotten to make the request earlier. The trial court refused to give an alibi instruction stating as its reason that defendant’s alibi testimony was uncorroborated. The jury returned a verdict finding defendant guilty of robbery.

Defendant contends that Rose Rawls did not have an opportunity to observe the robbery and that her identification of Hudson is incorrect. He argues that she implicated Hudson because he had been with Green earlier and that these facts support his alibi testimony.

The standard jury instruction on alibi states as follows:

One of the defenses in this case is an alibi; that is to say, that at the time of the alleged crime the defendant was not at the place of' the crime and that he was so far away that he could not have been at the place where the crime was committed.
Where an alibi is claimed as a defense, it is not necessary that the alibi be proved beyond a reasonable doubt. It is sufficient as a defense if you have a reasonable doubt as to the presence of the de- . fendant at the scene of the alleged crime. If there is such a reasonable doubt it is your duty to find the defendant not guilty.

Fla.Std.Jury Instr. (Crim.) 2.11(a).

This instruction explains that in Florida it is not necessary for the defendant to prove the defense of alibi beyond a reasonable doubt. Watson v. State, 200 So.2d 270 (Fla. 2d DCA 1967); Flowers v. State, 152 Fla. 649, 12 So.2d 772 (Fla.1943); Blakes v. State, 133 Fla. 12, 182 So. 447 (1938); Long v. State, 42 Fla. 509, 28 So. 775 (1900); and Adams v. State, 28 Fla. 511, 10 So. 106 (1891).

The state contends that defendant’s uncorroborated testimony is insufficient to merit an alibi instruction. This contention contradicts the provisions of Florida Rule of Criminal Procedure 3.200, which permits a defendant who has failed to file a notice of alibi to testify when the court has excluded other evidence as a sanction. Furthermore, a notice of alibi is not required to be filed when a defendant intends to be the sole witness in regard to an alibi. White v. State, 356 So.2d 56 (Fla. 4th DCA 1978). In those circumstances, a defendant would still be entitled to a requested alibi. instruction.

A defendant’s testimony may not be totally disregarded merely because he is the defendant. His testimony must be weighed just as that of any other witness. Odom v. State, 109 So.2d 163 (Fla.1959); G.C.O. v. State, 309 So.2d 608 (Fla. 2d DCA 1975); Darty v. State, 161 So.2d 864 (Fla. 2d DCA 1964); and Peel v. State, 154 So.2d 910 (Fla. 2d DCA 1963).

The state argues that since the jury received an instruction on presumption of innocence, the court’s failure to give the alibi instruction was, at most, harmless error. We disagree. In the absence of an instruction delineating the burden of proof required of the defendant, the jury could well have held the defendant to a standard beyond that required'by law. Where evidence is inconclusive, the trial judge has a duty to provide standards for the jury to follow. Barnes v. State, 93 So.2d 863 (Fla.1957) and Laythe v. State, 330 So.2d 113 (Fla. 3d DCA 1976). But see: Stanley v. State, 93 Fla. 372, 112 So. 73 (Fla.1927).

It is not the function of the trial judge to weigh the evidence and select some cases in which to give the alibi instruction. The instruction should be given in every case where there is sufficient evidence to take the issue to the jury. Davis v. State, 254 So.2d 221 (Fla. 3d DCA 1971).

Adams v. State, 28 Fla. 511, 542, 10 So. 106, 114 (Fla.1891), holds:

. evidence in support of an alibi need not be absolutely clear. It is sufficient if there is enough to produce in the minds of the jury a reasonable doubt as to the presence of the prisoner at the scene of the killing. Neither do we think that the evidence of an alibi should in any case make it absolutely impossible for the prisoner to be present at the killing. It is sufficient if it raises a reasonable doubt in the minds of the jury .

All evidence relating to an alibi defense is for the jury’s consideration. Proof of the alibi depends on the credibility of the witnesses. The jury is the sole judge of whether the evidence suggests reasonable doubt. Watson v. State, supra.

For the foregoing reasons, we hold the trial court committed reversible error in failing to instruct the jury on alibi upon request by the defendant. We reverse the decision of the trial court and remand for new trial.

Reversed and remanded.


text:
    Rafael Jose ARRAUT, Appellant, v. Titus Dorsey TILLMAN and Industrial Fire and Casualty Insurance Company, Appellees.
    No. 79-1476.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    McMahon & Goldstein and David M. Goldstein, North Miami, for appellant.
    Jeanne Heyward, Goodhart & Rosner, Miami, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Warriner v. Ferraro, 177 So.2d 723 (Fla.3d DCA 1965).


text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Ceasar A. Pietri GARCIA and Boca Rent-A-Car, Appellees.
    No. 79-2180.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    High, Stack, Lazenby, Bender, Palahach & Lacasa, Miami, and Robert Scott Boundy, for appellant.
    Papy, DuVal & Poole and Sheridan K. Weissenborn, Coral Gables, for appellees.
    Before SCHWARTZ and NESBITT, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977).


author: SHIVERS, Judge. SHAW, Judge,

text:
    Henry J. PALARDY, Appellant, v. DURA-CLAD SYSTEMS and U. S. Fidelity & Guaranty, Appellees.
    No. QQ-144.
    District Court of Appeal of Florida, First District.
    March 26, 1980.
    J. Joseph Hughes, of Eddy & Hughes, Pompano Beach, for appellant.
    C. Randal Morcroft and Anthony J. Beis-ler, Fort Lauderdale, for appellees.
   SHIVERS, Judge.

This is an appeal from an order denying appellant’s claim for workmen’s compensation benefits on the grounds that claimant failed to establish a causal relationship within a reasonable degree of medical probability between two incidents on his job and his emphysema. We reverse and remand for further findings.

The claim was for all benefits to which appellant was entitled including medical benefits, temporary benefits, and permanent benefits.

Claimant was exposed to a strong solution of chlorine while working in an enclosed area. He developed a cough. After his cough worsened, he was examined by a doctor. His condition was diagnosed as emphysema. Claimant returned to work. After welding in a confined area, claimant developed a severe breathing problem which required hospitalization.

The medical testimony comes from the depositions of Dr. Kesden and Dr. Goodman. Dr. Goodman rated claimant as having 50 percent partial disability to the body as a whole because of his emphysema. In response to a question as to the aggravation of his preexisting problem caused by the chlorine and welding incidents, Dr. Goodman stated:

“I would say that 90 percent of this must be ascribed to his prior problems. Not less than 90 percent. And I do not believe that I can ascribe more than 10 percent to the precipitating and aggravating factors that we’ve described here.”

Dr. Kesden also considered the chlorine and welding incidents as having aggravated the preexisting disease, but was unable to assign any percentages to the aggravating factors: “The' degree to which this (exposure to chlorine) has exacerbated his underlying lung disease is very difficult to say. I’m sure it didn’t help it, but I can’t give you an exact idea of how much it would have aggravated it.”

The finding that “the medical evidence does not establish a causal relationship within a reasonable degree of medical probability between an incident on the job and the claimant’s emphysema” is contrary to the medical evidence. Although the evidence is clear that claimant’s emphysema preexisted the chlorine and welding incidents, the record is also clear that both Dr. Kesden and Dr. Goodman considered these incidents as aggravating factors.

The order is reversed and the cause is remanded for a determination as to whether claimant is entitled to permanent partial, temporary partial, temporary total, and medical benefits. Claimant’s entitlement to a reasonable attorney’s fee should be reconsidered in light of benefits obtained.

ERVIN, J., concurs.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

• The majority opinion correctly observes that the medical testimony relative to causality comes from Dr. Kesden and Dr. Goodman. When questioned relative to this issue, Dr. Kesden testified as follows:

A Undoubtedly he had preexisting lung disease before his exposure to chlorine. However, he apparently was exposed to it considerably more than the usual concentration of chlorine by history, and chlorine Can cause chronic lung disease, although it does more frequently cause acute respiratory symptoms.
Prolonged exposure to it can lead to chronic respiratory insufficiency. The degree to which he has — this has exacerbated his underlying lung disease is very difficult to say.
I’m sure it didn’t help it, but I can’t give you an exact idea of how much it would have aggravated it.

Dr. Goodman was equally vague on the issue:

Q (By Mr. Hughes). . . . And what I’m going to ask you is, if you’re able to, using the 50 percent as the overall condition, what percentage or what amount of that 50 percent would you attribute to the chlorine gas incident and the welding torch incident, if any? And this would be based on reasonable medical probability, if you’re able to relate any of it, within reasonable medical probability?
A (By Dr. Goodman) All right. In view of the relative time involved, in other words, that he indeed began to have these complaints around the time of the incidents — and he certainly did have, I think, clearly with the chlorine incident — we did have, at least a temporary problem of the cough, I think that that’s clear, to me. I think the plumbing thing is somewhat less clear to me, both because I am not sure that this material is actually toxic to the lung and because I’m not quite sure of whether we’re talking about an incident or what happened or whether there was something unusual about the soldering. I would say that 90 percent of this must be ascribed to his prior problems. Not less than 90 percent. And I do not believe that I can ascribe more than 10 percent to the precipitating and aggravating factors that we’ve described here. That is, 90 percent of the 50 percent and 10 percent of the 50 percent.
Q Now—
A I think you recognize that this type of calculation has its particular problems in medicine and this is a judgment that would be open to some difference of argument by other physicians or other people. I think you recognize that.
Q Now, with regard to his overall condition — and I’m not going to break it down any further — but can you, within reasonable medical probability, relate these incidents to the condition or do you — are you speculating on the causal relationship or are you stating that it is in your opinion related?
A I think that it might be possible to attribute a small amount of the aggravation of this to these illnesses, and that indeed is partially speculation, also, because as I say, the chlorine itself appeared to have been a minor episode, appeared to create a cough which lasted only until January. Whether this has permanent damage, there is little evidence that chlorine itself has permanent damage.
The — again, the soldering incident, I’m not sure that this material has any effects on the lung. Granted only that he began to have trouble about that time, or at least began to be aware of trouble about that time.

Based upon the equivocal nature of the testimony, the deputy commissioner determined:

“The medical evidence does not establish a causal relationship within a reasonable degree of medical probability between an incident on the job and the claimant’s emphysema. Dr. Kesden and Dr. Goodman establish only a medical possibility of a causal relationship. I must therefore find the claimant has failed to overcome his burden of proof and deny the claim.”

Taking into consideration the ambiguous nature of the medical evidence I am reluctant to reverse the trier of fact. In my opinion, the deputy’s finding is based upon competent substantial evidence and should be affirmed.


author: SHARP, Judge.

text:
    Robert M. GIBSON et ux., Appellant, v. Sam D. BUICE et al., Appellee.
    No. 79-1056/T2-34.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.

      Gene H. Auvil, of McGee & Auvil, P. A., Brooksville, for appellant.
    Joseph F. Johnston, Jr., Brooksville, for appellee.
   SHARP, Judge.

The question posed in this appeal is whether the trial court abused its discretion in denying the appellant’s motion for relief, pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure. We conclude that under the circumstances in this case an abuse of discretion occurred, and that the trial court should have granted the appellant’s motion.

The Buices, plaintiffs in the trial court, ■ sought to establish a prescriptive easement over the defendants’ lands. After a trial of the matter, the court announced its ruling in favor of the plaintiffs. Plaintiffs’ counsel submitted a proposed judgment to the court and to defendants’ counsel. The defendants’ counsel wrote a letter to the court objecting to specific problems with the judgment. The court signed the final judgment on February 22,1979, and filed it with the clerk’s office on February 23, 1979. However, it failed to mail copies of the judgment to either attorney, nor did it direct anyone else to do so. The judgment contains a notation by the clerk dated February 23, 1979, that no copies were furnished to him. .

Upon learning of the entry of the final judgment on March 30, 1979, the defendants’ attorney filed a motion for relief from judgment pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure on the grounds that “mistake or inadvertence” had occurred due to the court’s failure to mail copies of the judgment to the parties. Florida Rules of Civil Procedure 1.080(h). In support of the requested relief the defendants’ counsel attached to the motion an affidavit alleging he had not received copies of the judgment, nor had he received notice that the judgment was entered from any source or person prior to March 30, 1979. Counsel for the plaintiffs filed a counter-affidavit stating that he told defendants’ attorney about the entry of the judgment sometime in early March, while they were passing in the courthouse corridors, attending to other matters. The lower court denied the motion, and the defendants brought this appeal.

Rule 1.540(b) provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; .

Generally, it is the duty of the trial court to determine whether the facts in each case constitute excusable neglect. Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978). Where the excusable neglect relied upon is lack of notice of the rendition of a final judgment and ensuing failure to take a timely appeal, trial courts have discretion to grant relief pursuant to Rule 1.540(b) or pursuant to Rule 1.540(a).

In this case the failure to send the defendants’ counsel a copy of the judgment was caused by the trial court’s disregard of Rule 1.080(h)(1) which provides:

A copy of all orders or judgments shall be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment.

Neither plaintiff nor defendant received a copy. Therefore Rule 1.540(b) should be liberally applied here. “While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.” Rogers v. First National Bank at Winter Park, 232 So.2d 377, 378 (Fla.1970).

Kash N’ Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969) and Bennett v. Halper, 248 So.2d 522 (Fla. 3d DCA 1971) are distinguishable from this case because the secretary of the judge in Bennett and the secretary to the opposing counsel in Kash N’ Karry alleged they mailed conformed copies of the judgments to the party seeking to take an appeal belatedly. Further, both of those cases predate Rule 1.080(h)(1).

Here, the only allegation which tended to show notice by defendants’ counsel of the “rendition” of the final judgment was a passing conversation in the courthouse when the attorneys were attending to other matters. It is not inconceivable that both affidavits were true. The plaintiffs’ attorney told the defendants’ attorney about the judgment being entered, but the defendants’ attorney did not hear him, or misunderstood what he said. Such informal conversations are no substitute for the formal notice requirement imposed by Rule 1.080(h)(1).

For the reasons stated in this opinion, we reverse and vacate the trial court’s order, and remand this cause to the trial court for entry of an order as authorized by Rule 1.540(b), which will provide the appellant with an avenue for a direct appeal.

REVERSED and REMANDED.

ORFINGER and COBB, JJ., concur.

      . Smith v. Garst, 289 So.2d 774 (Fla. 2d DCA 1974) and Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971).

      . Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla.1979).


text:
    Stacy Clyde JOLLIE, Appellant, v. STATE of Florida, Appellee.
    No. 78-2415/T4-286.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

ORFINGER, COBB and UPCHURCH, JJ., concur.


text:
    RESIDENTIAL COMMUNITIES OF AMERICA, INC., etc., Appellant, v. Johnie H. WIMBERLY and Elizabeth R. Wimberly, his wife, Appellees.
    No. 78-2713/T4-339.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.
    Harry N. Jacobs of Jacobs, Goodman & Goldstein, P. A., Altamonte Springs, for appellant.
    Arthur B. Friedman of James P. Pánico & Associates, P. A., Maitland, for appellees.
   PER CURIAM.

AFFIRMED.

Sailboat Key, Inc. v. Gardner, 378 So.2d 47 (Fla. 3d DCA 1980). In addition, both pending motions for attorney fees are denied.

ORFINGER and COBB, JJ., and WATSON, RICHARD 0., Associate Judge, concur. .


author: COBB, Judge.

text:
    Curtis Bell HOFMEISTER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1252/T2-36.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.

      Ray Sandstrom of Sandstrom & Haddad, Ft. Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Appellant was charged with felony possession of marijuana in violation of Section 893.13, Florida Statutes. He initially pled not guilty, filed a demand for discovery pursuant to Florida Rule of Criminal Procedure 3.220(a), and filed a motion to suppress the evidence. The prosecutor filed a response to the discovery demand which stated that a Florida Department of Criminal Law Enforcement (FDCLE) report would be furnished upon its receipt by the state attorney’s office.

After a hearing on the motion to suppress, the trial court denied the motion. The trial was set for that same day. Appellant then orally made an “objection to trial” on the ground that the state had violated the rules of criminal procedure by failing to send the appellant a copy of the FDCLE report. After hearing argument on this motion, the trial court denied it.

Appellant then withdrew his plea of not guilty and pled nolo contendere, specifically reserving the right to appeal the trial court’s denial of his motion to suppress and his objection to trial. Subsequent to judgment and sentencing, appellant brought this appeal seeking review of those two rulings.

We find that there was testimony that established sufficient facts to justify a stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Section 901.151, Florida Statutes; and to justify the subsequent warrantless search of the vehicle. Therefore, we affirm the order denying the motion to suppress the evidence.

The appellant could have gone to trial and objected to an attempt by the state to offer the FDCLE report on the basis of the state’s violation of the discovery rule. This would have initiated an inquiry by the court into the circumstances surrounding the breach, with the state having the burden of showing that there was no prejudice to the defendant. Cumbie v. State, 345 So.2d 1061 (Fla.1977); Richardson v. State, 246 So.2d 771 (Fla.1971). Instead, appellant made the objection to trial, which we construe as a motion for continuance. We do not believe the denial of that motion has been preserved for appeal. A conditional nolo contendere plea made pursuant to State v. Ashby, 245 So.2d 225 (Fla.1971), is permissible only if the legal issue to be appealed is dispositive of the case. Brown v. State, 376 So.2d 382 (Fla.1979). The denial of the motion for continuance was not dispositive of this case. Therefore, we also affirm the denial of the “objection to trial.”

AFFIRMED.

ORFINGER, J., and WATSON, RICHARD O., Associate Judge, concur.


author: COBB, Judge. SHARP, Judge,

text:
    Claude B. NORRIS et al., Appellants, v. EDWIN W. PECK, INC., etc., et al., Appellees.
    No. MM-14/T1-15.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.

      Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for appellants.
    Dean Bunch of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellees.
   COBB, Judge.

Appellee/developer constructed a condominium with a restaurant/lounge on the 29th floor. The original declaration of condominium provided that the parking areas were common elements and that an unstated number of parking spaces would be reserved for the use of the 29th floor invitees. Subsequently, the developer entered into subscription agreements with prospective owners which provided that the developer could make changes in the declaration of condominium prior to the closings if the changes did not materially affect rights of the purchasers or the value of the purchasers’ units.

Prior to the closings, the developer did record a first amendment to the declaration of condominium which provided that a storage room and 55 designated parking spaces were limited common elements appurtenant to the 29th floor. It also provided a designated parking space as a limited common element for each condominium unit.

After the closings, a minority of the unit owners filed suit to quiet title to the parking areas and storage room, claiming that the first amendment to the declaration of condominium violated their subscription agreements by being material adverse changes. After reviewing extensive evidence, the trial court found that the first amendment carried out the general plan contemplated by all parties, was valid, and denied the relief sought. We affirm.

The trial court also found that the 55 parking spaces that were limited common elements appurtenant to the 29th floor are available for use, and are used, by the unit owners, when not in use by the 29th floor customers, and ordered the continuation of this agreed upon practice. This portion of the final judgment has not been appealed by any party. At oral argument on appeal, counsel for the developer conceded that the developer does not object to such use of the 55 parking spaces. Although such use may contravene the statutory definition of limited common elements, this court should not address portions of orders which have not been raised on appeal and about which the parties are not complaining.

AFFIRMED.

UPCHURCH, J., concurs.

SHARP, J., concurs in part, dissents in part with opinion.

SHARP, Judge,

dissenting and concurring specially.

The trial court’s final judgment should be affirmed. However, certain portions of the judgment should be stricken as surplusage because they exceed the scope of the pleadings and impose on this condominium a sharing of uses, expenses, and maintenance for limited common elements not provided for by the Declaration of Condominium, any amendment thereto, or the Florida Condominium Law (Ch. 718, Fla.Stat.1979). Lee v. Cloverleaf, 130 Fla. 435, 177 So. 722 (Fla.1937).

The appellants, owners of condominium units and the condominium association filed a suit to quiet title to certain items claimed as “common elements” of the condominium: parking spaces 1-55; a storage room on the second floor; and the roof area, which was leased to a tenant for an antenna. The appellee, the developer, claimed the Declaration was amended to make the disputed areas “limited common elements” appurtenant to the restaurant unit or that they were “common elements” reserved for the developer’s use in the original Declaration. The trial court found the first amendment to the Declaration was valid and binding. It made parking spaces 1-55 and the storage room “limited common elements” appurtenant to the restaurant unit. The trial court also found the developer reserved the use of the roof in the original Declaration, although it was a common element. There is ample support for his finding in the record.

However, the lower court stated in paragraphs 3 and 4 of the final judgment that the parking spaces 1-55 when not in use by the restaurant must be available for use by the condominium owners; that the condominium association shall pay for the electricity to light the spaces; and that the owner of the restaurant unit shall pay all the maintenance on the 1-55 parking lots. These paragraphs are surplusage and should be stricken.

The Florida Condominium Law is á comprehensive complex statute, intended to create and delineate a new form of property ownership. Section 718.103(14), Florida Statutes (1979) defines “limited common elements” as “those common elements which are reserved for the use of a certain condominium unit or units, to the exclusion of other units as specified in the declaration of condominium.” If, parking spaces 1 — 55 are limited common elements appurtenant' to the restaurant, it is a contradiction to require or allow their use by any other unit owner. It is as anomalous as concluding that Mr. and Mrs. Jones own their home as a tenancy by the entireties, but great uncle Harry has survivorship rights.

The Condominium Act also specifies how maintenance for common elements shall be borne. Maintenance for limited common elements may be assessed to the unit owner entitled to use them, if the Declaration so provides. Sec. 778.113(1), Fla.Stat. (1979). If there is no such provision, and there was none in this case, then expenses and maintenance for limited common elements as well as the common elements, must be shared as provided in the Declaration. Sec. 718.115, Fla.Stat. (1979). The unit owners in this condominium are each made proportionately liable for the expenses and maintenance of the common elements by a formula set out in the Declaration, the business units bearing a larger pro-rata share. The method of sharing common expenses can be altered only by an amendment to the Declaration. Pepe v. Whispering Sands Condominium Assoc., Inc., 351 So.2d 755 (Fla. 2d DCA 1977). Absent such an amendment, the trial court lacks any basis upon which to alter the obligations of unit owners to share common expenses. Thiess v. Island House Association, Inc., 311 So.2d 142 (Fla. 2d DCA 1975). There is no such amendment in this case.

Less than one third of the condominium owners remained in this suit as plaintiffs at time of the trial, many having opted out of the class. It would be anomalous to allow a small group of owners or the developer to amend the Declaration by quiet title suit under circumstances not permitted by the Declaration or the condominium statute. I agree with the views expressed by the Fourth District Court of Appeal in Welch v. Point of American Condominium Aparts, 373 So.2d 60 (Fla. 4th DCA 1979):

. on principal, it seems to us a dangerous precedent to allow the maintenance of a suit to quiet title and ejectment under these circumstances . To hold that every unit owner can sue to quiet title to various portions of the condominium property based upon unrecorded representations and have those areas declared common elements could lead to havoc as far as the stability and integrity of condominium titles are concerned.

Id. at 64.

The status of limited common elements, or common elements and the method of allocating common expenses must be based solely on validly recorded declarations or amendments thereto; and absent such a basis, no. judicial elaborations or variations are sustainable.


author: FARRINGTON, OTIS, Associate Judge.

text:
    FOLIAGE CORPORATION OF FLORIDA, INC., Appellant, v. Daniel E. WATSON and Wilma B. Watson, Appellees.
    No. 78-207/NT4-76.
    District Court of Appeal of Florida, Fifth District.
    March 26, 1980.

      Thomas B. DeWolf and Terrell Griffin, Orlando, for appellant.
    Maxwell W. Wells, Jr., Orlando, for ap-pellees.
   FARRINGTON, OTIS, Associate Judge.

This is an appeal from an Amended Final Judgment based on a jury verdict awarding damages to the lessors of a nursery for waste to the leased property and conversion of stock plants which under the terms of the lease remained the property of the lessors.

On April 1, 1975, appellees Daniel E. Watson and Wilma R. Watson, leased their nursery property to appellant Foliage Corporation of Florida, Inc., for three years commencing June 1, 1975, by written lease, containing a clause permitting termination by the lessee on any yearly anniversary date by giving ninety days prior written notice to the lessor. The lessee gave timely notice and thereby exercised its option to terminate the lease at the end of the first year.

During the term of the lease the stock plants were kept in beds on raised benches in an area covered with shade cloth which was referred to during the trial as “E” area. The stock plants supplied by the lessors, which had previously been kept in another building, were divided and planted in beds in “E” area. In addition to the stock plants supplied to it by the lessors, Foliage Corporation planted in beds in “E” area some stock plants which it purchased from outside sources and some which it grew from vine cuttings received under the terms of the lease.

Between May 5, 1976, and May 8, 1976, while in the process of vacating the nursery, Foliage Corporation began removing some of the stock plants from “E” area. A bitter dispute arose between plaintiff Daniel E. Watson and the principals of Foliage Corporation, over which plants in “E” area were the property of the lessors and should remain in the nursery, and which were the property of the tenant and could be removed. Plaintiffs conceded that Foliage Corporation was entitled to remove any stock plants purchased from outsiders or grown by it from vine cuttings, but both lessors, and lessee claimed the additional stock plants resulting from division of the lessors’ original stock plants. Also there was dispute as to which of the stock plants in “E” area were lessors’ original plants.

The dispute became aggravated to the extent that lessor Daniel E. Watson blocked the Foliage Corporation’s truck which was removing stock plants from the nursery, accused the principals of Foliage Corporation of stealing his stock plants, called a deputy sheriff to the premises and demanded the arrest of the Foliage Corporation personnel, and threatened to kill John Crosby, the secretary of Foliage Corporation. In an effort to settle the dispute, a meeting was arranged at the office of an attorney employed by Daniel E. Watson on May 10, 1976.

At the trial the defendant, Foliage Corporation, proffered testimony in the absence of the jury that an oral settlement of the dispute was reached at this meeting, and that as a part of the settlement Daniel E. Watson on behalf of the lessors agreed that Foliage Corporation could have all the stock plants located in “E” area and could remove them during the remainder of the lease term, which would end May 31, 1976, without interference by the lessors. The trial judge sustained the objection of attorney for plaintiffs to this proffered testimony, and no testimony of the alleged oral settlement of the dispute was heard by the jury.

The testimony was undisputed that following this meeting and during the last three weeks of the lease term Foliage Corporation removed the balance of the stock plants located in “E” area from the leased property except for a few that were in poor condition and of little value, without objection by the lessor. Since the lease specifically provided that the growing stock should remain the property of the lessors, the rejection of the proffered testimony that the tenant removed the stock plants pursuant to an oral settlement agreement with the lessors left the defendant without any effective defense; and the trial resulted in a jury verdict for the plaintiffs in the amount of $72,500.00, plus attorney’s fees.

Appellant contends that it was'error for the trial judge to refuse testimony of the alleged oral agreement reached by the parties in settlement of the dispute between the parties. We agree, that evidence of the alleged oral settlement agreement should have been received and reverse the judgment.

Appellees contend that the evidence concerning the oral settlement agreement was properly rejected (1) by reason of the provisions of Florida Rule of Civil Procedure 1.030(d) ; (2) because the proffered settlement agreement constituted an attempt to modify the terms of the written lease by parol; (3) because the written lease was within the Statute of Frauds and could not be modified or compromised except in writing; and (4) because there was no consideration for the proffered oral settlement agreement.

We disagree with appellees’ contention that the proffered oral settlement agreement was rendered unenforceable by the provisions of Florida Rule of Civil Procedure 1.030(d). The Florida Rules of Civil Procedure are applicable to practice and procedure of litigants in court, but have no application to an oral settlement agreement of a dispute reached by the parties to the dispute prior to the commencement of any court action. The case of Moore v. Gunning, 328 So.2d 462 (Fla. 4th DCA 1976) relied on by appellees held that by reason of Florida Rule of Civil Procedure 1.030(d) an oral settlement agreement between litigants in a pending personal injury case was unenforceable. The holding in Moore is inapplicable to the situation in the instant case because in this case the parties were not in court at the time of the alleged settlement agreement. The case of National Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24 (1931) held “that, in the absence of statutory requirement, no particular form of agreement is essential to the validity of a compromise; and it need not be in writing unless it is so required by special statute.” National Surety remains the law of Florida applicable to an oral compromise agreement between parties not involved in any court action.

We also reject appellees’ contention that the proffered settlement agreement was inadmissible because it constituted an attempt to modify the terms of the written lease by parol. A written contract can be modified by a subsequent oral agreement when the oral agreement has been accepted and acted upon by the parties. The defendant proffered testimony to the effect that the parties accepted and acted upon the settlement agreement modifying the terms of the written lease.

Appellees’ contention that the proffered oral settlement agreement was properly rejected by reason of being within the statute of frauds should not have been considered. The defendant pleaded the settlement agreement as an affirmative defense in its answer. Plaintiffs filed their reply denying that any settlement agreement had been reached, but did not plead the statute of frauds in avoidance. Under the Florida Rules of Civil Procedure a plaintiff who seeks to avoid an affirmative defense is required to file a reply containing the avoidance. By failing to plead the statute of frauds in avoidance of defendant’s affirmative defense of settlement, plaintiffs waived their right to raise it.

Appellees’ contention that there was no consideration for the proffered settlement agreement was not a proper basis for rejecting evidence of the agreement. The settlement of a disputed claim may constitute valid consideration for a settlement agreement. The issue of want of consideration should have been submitted to the jury under proper instruction.

Appellant contends that the court should have rejected the testimony of Ted Arthur, a real estate broker who testified as an expert on the issue of damages. He had appraised the nursery, including land, buildings, benches and stock plants for listing purposes in February 1976, when the stock plants were in “E” area, and arrived at a valuation of $400,000.00. He again appraised the nursery for listing purposes in May 1976, after the stock plants had been removed, and arrived at a valuation of $250,000.00. He estimated plaintiffs’ damages at the difference between these valuation amounts, or $150,000.00. When called upon to explain $150,000.00 difference between the two appraisals, he testified that this difference was based on:

(1) His estimate that there were 40,000 . stock plants in “E” area at the time of his February appraisal.
(2) His estimate that these stock plants were of the value of $2.25 each for a total of $90,000.00.
(3) His assumption that these 40,000 stock plants were the property of plaintiffs.
(4) His assumption that all these stock plants were wrongfully removed by defendant prior to his appraisal in late May 1976.
(5) His estimate that plaintiffs would suffer loss of one year’s pre-tax profits or $60,000.00 by reason of having no stock plants from which to propagate plants for sale.

It was error to permit this expert witness to testify over defendant’s objection to a damage figure based on the assumption that all the stock plants in “E” area were the property of the plaintiffs. Although the percentage of the stock plants in “E” area owned by the tenant was in dispute, there was no dispute that the tenant owned some of the stock plants in “E” area. The expert witness should have been required either to base his damage estimate upon a number of stock plants within the range of the conflicting claims of the parties as to the percentage of the stock plants in “E” area owned by each, or to indicate to the jury that his total estimate of damage for the wrongful removal of stock plants should be reduced by a percentage figure equivalent to the percentage of stock plants in “E” area which the jury might find to have been owned by the tenant.

Since the case will have to be retried, we will discuss appellant’s objection to the portion of the damage instruction relating to damages for the alleged wrongful removal of stock plants belonging to the lessors from the nursery, although the point was not properly preserved by specific objection at the trial. The instruction given erroneously stated that the measure of damages for wrongful removal of the stock plants was the difference in the market value of the leased property before and after the wrongful removal, and erroneously included business damages as an item to be considered in determining market value.

The stock plants, which were planted in beds on raised benches rather than in the ground, were personal property. The proper measure of damages for their wrongful removal from the leased premises would be the reasonable market value of the stock plants wrongfully removed or, if the stock plants had no determinable market value, their actual value at the time of removal, with interest to the date of the verdict. In addition plaintiffs would be entitled to recover business damages including loss of profits for the period reasonably required for replacement of wrongfully removed stock plants.

REVERSED AND REMANDED, for a new trial.

DOWNEY, JAMES C., and MOORE, JOHN H., II, Associate Judges, concur.

      . The specialty of the leased nursery was the growing of foliage plants known as variegated nephthytis. These plants were propagated by cutting off vines which are put out by mature plants called stock plants. The vines are cut into segments and planted in prepared beds. New plants grow from eyes at the joints or leaves of the cut-up vines, which are rooted in the prepared beds. A plant is mature enough to put out vines suitable for propagation after about one year. Vines for propagation are cut from the stock plants about three times a year. The rooted cuttings are generally sold commercially as foliage plants, but some from selected stock plants are permitted to mature into additional stock plants. After about two and one-half years a stock plant is split or divided, and the separate portions are replanted in fresh soil to maintain productivity.

      . The pertinent lease provision provided:
      11. The leased premises are to be used for the growing of nursery stock. Lessor agrees to maintain vines and plants of stock for Lessee as long as the stock remains in raised benches, and all such growing stock shall remain the property of Lessor, PROVIDED, HOWEVER, cuttings therefrom shall be made by Lessor for the sole use of Lessee, and the Lessor shall be responsible for maintaining said growing stock and caring for the same in a growing area not to exceed ten thousand (10,000) square feet.

      . Both parties were represented by attorneys at the meeting. On May 11, 1976, the day following the meeting, the attorney for Foliage Corporation wrote a letter to the attorney for Daniel E. Watson and his wife setting forth his understanding of the terms of the agreement and asking that Mr. and Mrs. Watson confirm the settlement in writing on a copy of the letter and return the copy. The attorney for Mr. and Mrs. Watson forwarded the letter to his clients, but they made no reply and did not return the copy of the letter.

      . Florida Rule of Civil Procedure 1.030(d) in pertinent part provides:
      Stipulations. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged .

      . Doral Country Club, Inc. v. Curcie Brothers, Inc., 174 So.2d 749 (Fla. 3d DCA 1965).

      . Fla.R.Civ.P. 1.100(a); Sorensen v. Eshelman, 202 So.2d 597 (Fla. 3d DCA 1967); Tax v. Keiser, 328 So.2d 517 (Fla. 4th DCA 1976).

      . The instruction was as follows:
      It is your duty to determine and assess the damages which resulted from the removal of the stock plants which is the difference in the market value of the leased property immediately before and after the wrongful removal. In determining the market value you may consider (a) the use of the property for the growing of foliage plants and the productivity of the stock plants which were removed including the profits therefrom; and (b) the cost and expenses of replacing the stock plants; (c) the loss of business continuity and ability to service existing customers; and (d) the inherent value of the stock plants.
      In addition to the quoted instruction the court correctly charged the jury that the measure of .damages for defendant’s alleged failure to keep and maintain all physical structures in the same condition as at the commencement of the lease term except for normal wear and tear would be the reasonable cost of restoring the structures on the leased premises .to the condition required by the lease.

      . 9A Fla.Jur., Damages, §§ 71, 73; 12 Fla. Jur.2d, Conversion and Replevin, § 20.


author: HERSEY, Judge.

text:
    Richard Allen NEWELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-597.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.
    Richard L. Jorandby, Public Defender, and John M. Conway, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Richard Allen Newell, having entered a plea of nolo contendere to a charge of possession of a controlled substance, appeals an order denying a motion to suppress the evidence upon which the conviction was based. That evidence consisted of a cube of cannabis resin found in a pocket of the clothing that appellant was wearing at the time of his arrest. The events leading to appellant’s arrest are pertinent to this issue.

The record indicates that Detective Skovsgard of the Fort Pierce Police Department received information from a confidential informant that Richard Allen Newell was the perpetrator of a certain burglary. The reliability of the confidential informant was not established. On the basis of this information Detective Skovsgard signed an affidavit for the pickup or arrest of Newell. The contents of the affidavit were made known to members' of the Police Department, specifically including Officers Sciadi-ni, Franzen and Reed. Sometime later, Officers Franzen and Reed received a communication from a reliable confidential informant that appellant, Newell, would be in a certain location, driving a red pickup truck, with a paper or temporary license tag. The two officers later testified that the confidential informant further advised them that appellant would be in possession of a cube of “hash.” On the other hand, the confidential informant, who also testified, indicated that the information concerning possession of “hash” was not given to the officers until later, at the scene'of the arrest.

Officers Franzen and Reed proceeded to the area specified by the informant and, locating appellant in the vehicle that had been described by the informant, removed him from his truck and frisked him for a weapon. At this point Detective Sciadini arrived at the scene, identified appellant Newell, and advised him that he was under arrest for the burglary charge. Officer Franzen then proceeded to search the vehicle. When the vehicle search failed to reveal narcotics, Officer Franzen searched appellant’s person and discovered a cube of “hash” in his pocket.

It is clear that the arrest warrant was issued without probable cause, since the reliability of the first informant has never been established. We have, then a stop and seizure causally related to an improper arrest warrant. If nothing more were involved, the case would present a clear reversal on the authority of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, the other basis for the stop and search was valid and was based on information received from the reliable confidential informant that appellant was in possession of a controlled substance. Therefore, while the officers at the time of the stop and seizure were in possession of one piece of information, that being the existence of the arrest warrant which in itself would not justify their actions, the information received from the reliable confidential informant provided the requisite probable cause for their actions. Furthermore, exigent circumstances, including the likelihood that the property would be destroyed, made it impractical to first procure a search warrant and made the subsequent search valid.

While the testimony of the officers and the reliable confidential informant appears to be in conflict as to whether the tip by the informant included the fact that appellant was in possession or whether that information was not relayed until a later time, the trial court’s ruling on a motion to suppress comes to this Court clothed in a presumption of correctness. McNamara v. State, 357 So.2d 410 (Fla.1978). That case indicates that all reasonable inferences and deductions capable of being drawn from the facts should be made in favor of the ruling. On this basis we conclude that the trial court accepted the version of the stop and seizure postulated by the police officers and disregarded the conflicting testimony of the confidential informant.

We are then squarely presented with the question of whether or not a stop and seizure may be proper where one basis for the stop is valid and another basis for the stop is invalid. We answer that question in the affirmative and affirm the trial court’s denial of the motion to suppress on the authority of Sheff v. State, 329 So.2d 270 (Fla.1976). In that case, the entry into and search of a motel room was clearly violative of the constitutional rights of the defendant. As the court noted, however, responsible members of the community informed the arresting officer of the presence of marijuana in the defendant’s room and the officer thereafter observed the defendant drive into the parking lot, hesitate, and then drive out of the parking lot upon becoming aware of the presence of the police. The defendant was stopped and one bag of marijuana was found in plain view in the vehicle and another was observed being thrown from the vehicle. The Supreme Court held that the illegality of the initial search of the motel room did not taint the evidence subsequently obtained through lawful means. The court expressed the rule in the following language:

The federal courts have consistently held that a search warrant based upon evidence which was obtained by both legal and illegal means is valid if evidence legally obtained would alone provide probable cause. We can apply that principle here since every detention is but a seizure of the person and no warrant is required where the police reasonably believe a felony is actually being committed by the arrested party. It follows that an officer possessing legally obtained information sufficient to constitute probable cause for an arrest is not barred from making an arrest solely because he also has information which was unlawfully obtained. Sheff was lawfully detained, so there is no basis to exclude from evidence the bag of marijuana thrown from his car. (Footnotes omitted).

Sheff, supra, pg. 273.

We find that reasoning applicable to the facts of the instant case. The officers obtained information from a reliable, confidential informant that the defendant would be at a certain place in a certain vehicle, and that he would be in possession of a controlled substance. It is immaterial that the stated cause for the arrest was the burglary. If the defendant is arrested for the commission of several crimes, it is no impediment to his arrest that he was innocent of one of those crimes, nor would it invalidate the arrest if the crime of which he was later proven innocent was the crime upon which the arrest was actually based. Further, the sole causal relationship between the affidavit based upon improper reliance on an informant and the ultimate arrest of appellant is the fact that, but for the existence of the affidavit, the second confidential informant probably would have not been alerted to look for appellant. Such a tenuous connection seems totally insufficient as grounds for a motion to suppress. Once given the information that appellant would be in a certain location in a described vehicle and in possession of a controlled substance, the officers were justified in making the. stop and the search, as a result of which the evidence was obtained.

Accordingly, we affirm.

AFFIRMED.

MOORE, J., and LAMAR WARREN, Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Melvin Douglas SAYAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1400.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, and Robert J. Fogan, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn and Mary E. Marsden, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This appeal is from a judgment of conviction for first degree murder. The appellant challenges the sufficiency of the evidence and claims the trial court erred in several other respects during the course of his trial.

We have reviewed the entire record including the transcripts of testimony presented at trial; and, although we agree that the state’s case was principally based on circumstantial evidence, we find the evidence is adequate to sustain the verdict of the jury and the ruling of the trial court in denying the motion for judgment of acquittal. Cooper v. Wainwright, 308 So.2d 182 (Fla. 4th DCA 1975); Duran v. State, 301 So.2d 486 (Fla. 3d DCA 1974).

Appellant also claims error by the trial court in giving an Allen or “dynamite” charge. However, we find the record supports the trial court’s action in giving the charge and further find that the failure to object waived any objection appellant may have had to the instruction. As to the claim of error by the trial court in denying appellant’s motion to allow the jury to view the scene where the victim’s body was found, we also find no abuse of discretion and again find no objection by the appellant to the trial court’s statements to the jury concerning the reason for the denial of the motion.

Finally, we find no error by the trial court in failing to dismiss the case because there had been two previous mistrials which occurred when prior juries were discharged due to their inability to reach a verdict. After a mistrial, a case stands as if it had never been, tried and the defendant is subject to being tried again on the same charge. Smith v. State, 135 Fla. 835, 186 So. 203 (1939); State v. Dowling, 91 Fla. 236, 107 So. 267 (1926). There is no claim here as to the propriety of the prior mistrials nor any claim of prejudice by reason thereof insofar as the appellant’s ability to prepare for trial and defend the charges asserted. In the absence of such circumstances the appellant is not entitled to be discharged simply because he must undergo the ordeal of a third trial.

Accordingly, having reviewed the record and the issues raised by appellant and finding no reversible error, the judgment and sentence of the trial court are hereby affirmed.

DOWNEY, C. J., and MOORE, J., concur.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct.154, 41 L.Ed. 528 (1896).


author: HERSEY, Judge. BERANEK, Judge,

text:
    Albert ASHLEMAN, Appellant, v. Judith R. ASHLEMAN, Appellee.
    No. 78-2185.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.

      Stuart, Walker & Jenne, Fort Lauder-dale, and Larry Klein, West Palm Beach, for appellant.
    Monroe Gelb of Gelb & Spatz, Miami, for appellee.
   HERSEY, Judge.

This is an appeal from a final judgment of dissolution of marriage. The issue presented for our review is the correctness of that portion of the judgment awarding custody of the two minor children of the parties to appellee wife.

The record discloses that the parties separated in April of 1976. At that time the court granted temporary custody to the husband and except for visitation periods the children have remained with the husband in the marital home of the parties until the present time.

The parties married in April of 1966 and two children were born of the marriage: a son in 1976 and a daughter in 1970. In April of 1976 the wife experienced emotional difficulties for which she was hospitalized. The record discloses one prior emotional episode of short duration in 1976.

The record is devoid of any suggestion that the husband would not be a fit and proper person to have custody of the children. With the exception of the emotional episodes, the same thing could be said of the wife. The record discloses that she had ostensibly made a satisfactory adjustment and has formulated plans for the children’s future in the event that she regains custody. She has also made plans for improving her own situation by means of educational courses that she has undertaken.

Having said that, we are constrained to indicate that all of the evidence as to the wife’s present ability to cope with day-today living has been gathered during a period not calculated to give a true measure of the wife’s adaptability to stressful situations. She is living at home with her parents; she is attending school and working part time; she does not have the ultimate responsibility for the children while they remain in the custody of the husband, and she is financially dependent on others. Her ability to support the children is premised upon continued financial, help from her parents and appellant and upon appellee’s successful completion of her educational program and implementation of her plan by finding suitable employment. While her plans are commendable, there is scant evidence that she is currently in a better position than the husband to provide a suitable home for the minor children.

The husband, on the other hand, has a proven ability to provide for the needs of the children, having been employed for many years by the same employer and having attended to the daily requirements of the children since temporary custody began. All of the testimony indicates that he has been an exemplary parent during this period of time.

One evaluation of the situation by the Department of Health and Rehabilitative Services which was presented to the trial court contained the following comment:

Based on the report received from Coral Ridge Psychiatric Hospital and statements of references, we do feel it would be helpful for Judith R. Ashle-man to receive a current psychological examination.

This report contained no recommendation as to the ultimate disposition of the custody question. In another report, also by the Department of Health and Rehabilitative Services, containing an evaluation of the wife’s condition based upon current observation also concluded:

Clearly, up-to-date psychological evaluations would be very helpful.

This report similarly did not make a recommendation as to ultimate custody.

We are not unmindful of the well established caveat recently reiterated by this Court in Barnhill v. Barnhill, 353 So.2d 923 (Fla. 4th DCA 1978) to the effect that:

Using the basic guideline of the welfare and best interests of the children, the trial judge is charged with the heavy responsibility of deciding which parent shall have custody. His conclusions come to us with a presumption of correctness. Because the custody issue primarily involves the evaluation of human relationships, the judgment of the trial court, in resolving that issue, must be afforded even greater respect than a judgment involving issues which are capable of resolution based on purely objective considerations. Id. at 924.

We feel compelled on the record before this Court to weigh the presumption of correctness against the welfare and best interests of the children, based upon the criteria set forth in Section 61.13(3), Florida Statutes (1977). Nor can we nor should we ignore the very clear professional opinions disclosed by the record that a current psychological evaluation of the wife is essential to a determination of the question whether the wife is now sufficiently well adjusted and responsible to justify a change in custody after a period of nearly five years. We note that the learned trial judge failed to make any findings of fact on the custody issue. We do not here intend to establish a rule that the trial court is under an obligation to set forth findings of fact in every child custody case. Under the particular circumstances of this case, however, we find that the evidence disclosed by the record is not that substantial and competent evidence which would support the custody award effected by the final judgment. At the very least, the wife should have been required to submit to current psychological evaluation, the report of which should have been available for consideration by the trial court.

Accordingly, we reserve that portion of the final judgment granting custody to ap-pellee wife and remand with instructions that custody remain with the husband until such time as the wife submits an appropriate request for change of custody based upon a current psychological examination and such other evidence as the trial court may deem appropriate in order to make a finding as to the ultimate custody of the children of the parties.

REVERSED AND REMANDED.

GLICKSTEIN, J., concurs.

BERANEK, J., concurs specially.

BERANEK, Judge,

concurring specially.

Although I concur in the reversal of the trial court’s order herein and although the necessity of a current psychological examination of the wife would be of extreme importance, I would not absolutely condition her application upon such.


author: GLICKSTEIN, Judge.

text:
    Edward STACK, as Sheriff of Broward County, Florida, Appellant, v. STATE of Florida ex rel. Anthony John MORGAN, Appellee.
    No. 78-2393.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, John Cecilian, and Max Rudmann, Asst. Attys. Gen., West Palm Beach, for appellant.
    J. David Bogenschutz of Varón & Stahl, P. A., Hollywood, for appellee.
   GLICKSTEIN, Judge.

This is a timely appeal from an order granting appellee’s petition for writ of ha-beas corpus in an extradition proceeding wherein appellee was served with an executive rendition warrant based on a demand warrant issued from Massachusetts charging him with unlawful possession of a dangerous weapon; namely, a handgun. We reverse.

The trial court granted appellee’s petition on the following findings of fact:

1. That the petitioner herein is charged with the violation of unlawful possession of a handgun pursuant to Chapter 269, Section 10 of the Massachusetts General Laws as amended and required under Chapter 649, Acts of 1974.
2. That in charging the said crime against the petitioner, knowledge is an essential element of said alleged crime and that the State of Massachusetts in its transmitted extradition papers failed to charge that the petitioner, “knowingly” carried or have in his possession a firearm in a vehicle [Commonwealth v. Bennefield (Sup.Jud.Ct.Mass.1977), 367 N.E.2d 832],
3. That a rendition warrant’s sufficiency as respects jurisdictional prerequisites including the essentials of the crime charged against the accused may be inquired into by habeas corpus [State ex rel. Huston v. Clark (Fla.1935) [121 Fla. 161], 163 So. 471] and that the Court needs sufficient information to establish the petitioner’s knowledge of the criminal act in order that the essentials of the alleged crime are stated especially where the petitioner has cited authority that knowledge is, indeed, in the demanding state (Massachusetts) an essential element of the offense. [See also Cossette v. State, ([Fla.] 4[th] DCA 1969) 221 So.2d 427].
4. That the Court finds that the affidavits and transmitting papers from the State of Massachusetts requesting extradition are insufficient in their allegations and essentials to charge that the petitioner herein did commit a crime in the State of Massachusetts.

The role of the court in the asylum state is mandated by Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978):

. Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the' request for extradition; and (d) whether the petitioner is a fugitive.

The foregoing is consistent with Section 941.03, Florida Statutes (1977).

In determining whether appellee was charged with a crime by the affidavit sworn before the committing magistrate in Massachusetts, the demanding state, the trial court erred in concluding that “knowledge” had to be alleged. The affidavit sworn before the committing magistrate in Massachusetts by trooper Stephen L. Gra-velle, a Massachusetts state policeman:

. complains that Anthony J. Morgan of North Miami, State of Florida on the 14th day of September in the year of our Lord nineteen hundred and seventy-seven at Merrimac in said County, in that Anthony J. Morgan did then and there have under control in this motor vehicle, without authority, a dangerous weapon, to wit: á hand gun, Make RG, Model RG-31, Serial # 0061710, in violation of Chapter 269 Section 10 of the Mass. General Laws as amended and required under Chapter 649 Acts of 1974.

The charge against appellee in Massachusetts was an alleged violation of M.G.L.A. c. 269, § 10, which provides, in part, that it is unlawful for one to carry:

. on his person or under his control in a vehicle, a firearm, loaded or unloaded, as defined in section one hundred and twenty-one of chapter one hundred and forty

M.G.L.A. c. 140, § 121 defines “firearm” to include:

. a pistol, revolver or other weapon of any description loaded or unloaded, from which a shot or bullet can be discharged .

In holding that it was unnecessary to allege “knowledge” in charging an accused with a violation of the foregoing statute, the Supreme Judicial Court of Massachusetts in Commonwealth v. Bacon, Mass., 372 N.E.2d 780, 781 (1978), said:

The defendant filed a motion to dismiss the indictments, and a judge of the Superior Court reported the matter without decision, under the provisions of G.L. c. 278, § 30A, addressing to this court the question: “Must an indictment or complaint charging a violation of G.L. c. 269, § 10(a), specifically allege scienter, or is it sufficient that scienter be proved at trial?”
We conclude that it is not necessary that scienter (knowing possession) be alleged, and therefore the motion to dismiss the indictments must be denied. In upholding the constitutionality of the mandatory sentencing provisions of G.L. c. 269, § 10, we have interpreted the statute as requiring, as a necessary element of the offense, proof that the accused knew that he possessed the firearm. Commonwealth v. Albano, 373 Mass. 132, 365 N.E.2d 808 (1977). Commonwealth v. Jackson, 369 Mass. 904, 344 N.E.2d 166 (1976). In those cases we established no requirement that knowledge be alleged in a complaint or indictment, nor do • we establish such a requirement now.
The wording of the statute, together with out interpretation in the Albano and Jackson cases, gave the defendant and all persons in like situations sufficient notice of the nature of the crime. Thus, it is significant that the indictments in this case tracked the statute. The indictments in addition to their assertions as to time and place of the offenses, described the firearms and alleged the unlawfulness of the conduct. This was sufficient notice to the defendant of the charges against him. It precluded double jeopardy occurring by reason of vagueness in the allegations. No specific form of indictment for violations of G.L. c. 269, § 10, is mandated in the gun statute itself, or elsewhere in the General Laws. (Emphasis added; footnotes omitted).

Accordingly, it is our conclusion that the affidavit charged appellee with a crime in Massachusetts.

The second point requiring discussion addresses the language in paragraph 3 of the trial court’s order, which appears to hold that the issue of probable cause should be considered by the court in the asylum state. Such is not the case.

When a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination. Doran, supra, 99 S.Ct. at 536.

We are concerned that our language in Cossette v. State, 221 So.2d 427, 430 (Fla. 4th DCA 1969), may have been interpreted by the trial court in paragraph 3 of its order to mean that the court in the asylum state is to determine the sufficiency of the affidavit by testimony and/or by review of the documents to see:

. that sufficient information is to be presented and recital of some of the underlying circumstances made to enable the magistrate to determine that the charge is not capricious and is supported; and that where reason for crediting the source of the information is given . . .

Said language addresses the issue of probable cause, not whether the affidavit “substantially charge a crime under the laws of the demanding state.” It is the latter only with which the asylum state is concerned. State, ex rel. Dyer v. Wilson, 260 So.2d 241 (Fla. 4th DCA 1972).

To the extent that the foregoing language in Cossette or any other language therein suggests that the courts in Florida, as the asylum state, are to examine affidavits and hear testimony in extradition proceedings to determine if probable cause was established, we recede therefrom and reaffirm the simple test set down by Section 941.03, Florida Statutes (1977), requiring an affidavit to “substantially” charge a crime under the law of the demanding state.

The order granting appellee’s petition for habeas corpus is reversed and the cause is remanded with directions to enter an order delivering appellee to the appropriate agent of the State of Massachusetts.

REVERSED AND REMANDED, with directions.

DOWNEY, C. J., and HURLEY, J., concur.

      . Section 941.03, Florida Statutes:
      No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under s. 941.06, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by an authenticated copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of a warrant supported by an affidavit made before a committing magistrate of the demanding state; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction, or sentence must be authenticated by the executive authority making the demand.

      . In Stack v. State ex rel. Ebbole, 284 So.2d 472, 473 (Fla. 4th DCA 1973), we held:
      . In Chase v. State, 1927, 93 Fla. 963, 113 So. 103, 107, the Supreme Court of Florida, in discussing the sufficiency of an affidavit, observed:
      “. . .In the case of State ex rel Myers v. Allen, 83 Fla. 655, 92 So. 155, it was held, in line with the weight of authority, that it is ' only necessary to consider whether the indictment shows satisfactorily that the fugitive has been in fact, however inartificiaily, charged with crime in the state from which he has fled. See, also, Munsey v. Clough, supra, [196 U.S. 364, 25 S.Ct. 282, 49 L.Ed. 515].” (Emphasis added.)
      See also State ex rel. Huston v. Clark, 121 Fla. 161, 163 So. 471 (Fla.1935).


author: BERANEK, Judge.

text:
    Roger Lee BRACEY, a/k/a Roger Lee Bracy, Appellant, v. STATE of Florida, Appellee.
    No. 79-989.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.
    Richard L. Jorandby, Public Defender, and Gary S. Israel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

In 1972, the defendant/appellant pled guilty to second degree murder and robbery and was sentenced to twenty years on the murder charge and probation for life on the robbery charge. The probationary period was to begin upon defendant’s release from incarceration on the murder charge. While in prison on the murder charge, defendant apparently escaped and committed an aggravated battery. He was again taken into custody and an affidavit was filed alleging a violation of his probation. Defendant moved to dismiss the affidavit urging that since his probation period had not yet begun, it could not be violated. The motion to dismiss the affidavit was denied and the trial court found the defendant guilty of both violations. The court revoked his probation and sentenced him to 99 years in prison on the robbery charge. The robbery sentence and the murder sentence were to run consecutively.

On appeal defendant contends the trial court had no jurisdiction to revoke his probation because the probation period had not yet begun. This issue has been previously dealt with by this Court in Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1979), and Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971), wherein we ruled directly to the contrary. The judgment and conviction below is affirmed.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.