author: DOWNEY, Judge.

text:
    Joseph Horace WRIGHT, Appellant, v. Isabel Anita WRIGHT, Appellee.
    No. 81-283.
    District Court of Appeal of Florida, Fourth District.
    March 17, 1982.
    Rehearing Denied April 26, 1982.

      Robert J. O’Toole, Fort Lauderdale, for appellant.
    Larry Klein, West Palm Beach, and DiGi-ulian, Spellacy & DiChiara, Fort Lauder-dale, for appellee.
   DOWNEY, Judge.

Joseph H. Wright, respondent in a domestic relations case, seeks review of a final judgment awarding the appellee, Isabella A. Wright, alimony, child support, and the division of certain property.

The parties initially lived in Maryland, where they owned a home by the entireties. They also had a home in Pompano Beach where they spent time during the winter. Eventually, the appellee became ill and she, her mother, and the minor daughter of the parties came to live permanently in Florida in 1976. The appellant commuted from Maryland until April 1977, when the parties ceased living together. In May 1977, the appellee filed in the Broward County Circuit Court this suit for dissolution of marriage and for alimony, child support, and a division of the property owned by the parties. The appellant successfully evaded service of process until December 1977, when personal service of process was obtained upon him in Broward County. In the interim, however, the appellant had brought a suit for divorce in Nevada and had process served upon the appellee in Florida. The appellee did not appear in the Nevada proceedings and the judgment entered therein simply dissolved the marriage.

In the final judgment entered in the present proceedings the trial court found that the Nevada judgment dissolved the marriage between the parties but left unresolved all other questions pertaining to alimony, child support, and the existing property rights. Accordingly, the court awarded the wife alimony and child support retroactive to the date suit was filed in Florida and title to the Pompano Beach home. Appellant was awarded title to the Maryland home.

Appellant contends the trial court erred in entering the judgment for appellee in that the court lacked jurisdiction over the parties and the questions raised were res judicata in view of the Nevada judgment. The appellant further contends the amount awarded as alimony was error because the trial court made a distribution of the parties’ property under the auspices of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), which, in fact, “short changed” appellant.

We reject the appellant’s first two points. Appellant’s reliance upon Overly v. Overly, 66 So.2d 706 (Fla.1953), is misplaced. In that case Mr. Overly was served with process in the Wisconsin divorce action and filed an answer therein before he instituted a divorce action in Florida. The Wisconsin trial court entered final judgment before the Florida trial court did; thus the Florida Supreme Court held the Wisconsin judgment precluded an adjudication by the Florida trial court of matters already adjudicated in the Wisconsin forum.

Appellee was served in the Nevada proceedings by means of constructive service; she was never personally served with process in Nevada, nor did she ever participate in the Nevada proceeding. Thus, we hold that Nevada never had in personam jurisdiction over appellee and could not (and did not) adjudicate the alimony, child support, and property rights between the parties. See, e.g., Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); Pawley v. Pawley, 46 So.2d 464 (Fla.1950); Storer v. Storer, 305 So.2d 212 (Fla. 3d DCA 1975). Recognizing this to be the law, the learned trial judge proceeded to adjudicate the property rights of the parties in the Broward County litigation.

During the progress of this case appellant never paid appellee any alimony, and he paid only $50 per week pursuant to a Maryland Uniform Reciprocal Enforcement of Support Act (URESA) order. Appellant contends the trial court erred in awarding the wife child support and periodic alimony retroactive to the date appellant filed suit because the Nevada action and the URESA order barred such awards.

We hold the Nevada judgment and the URESA order do not preclude the award of retroactive alimony and child support. URESA by its terms has no effect upon such an award made by a court of this state. See Section 88.281, Florida Statutes (1979). Furthermore, as above indicated, the Nevada court had no jurisdiction to, and did not, adjudicate the issue of alimony and child support. But the appellant argues that there is no Florida authority for a court to award alimony and child support retroactively to the time of filing suit. We recognize that there is no such authority; we also recognize that there is no Florida authority prohibiting such an award. Moreover, courts of other states have spoken approvingly of awards of alimony that are retroactive to the date suit is filed. See Lowe v. Lowe, 28 A.D.2d 212, 284 N.Y.S.2d 227 (1967); Brown v. Brown, 34 A.D.2d 907, 311 N.Y.S.2d 467 (1970); Abrusci v. Abrusci, 79 A.D.2d 980, 434 N.Y.S.2d 722 (1981); Guy v. Guy, 27 N.C.App. 343, 219 S.E.2d 291 (1975). On balance, we can see no reason not to allow a court in an appropriate case to make an award of alimony and child support retroactive. The failure to obtain a temporary award pendente lite may constitute a waiver or create an estoppel because of circumstances that transpire in the interim. However, absent such reasons we believe the trial court has that power.

Appellant also complains that the award of alimony was excessive and beyond his ability to pay. The trial court relied to some extent upon appellant’s life style both prior to and during the litigation to make that award. We cannot say the amount set by the court constituted an abuse of discretion.

Finally, appellant does not attack the distribution of property as being beyond the trial court’s authority; he simply contends the distribution was not equitable in that it gave appellee too much. We disagree.

In view of the foregoing, the judgment appealed from is affirmed.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    Leamon ANDREWS, Grace Hughes, Dennis Dorsey, William Wood, and Mark Foley, as and constituting the City Commission of the City of Lake Worth, Florida, Appellants, v. GULFSTREAM VENTURES, INC., a Florida corporation d/b/a the Moorings Restaurant, and George Michael, Appellees.
    Nos. 81-765, 81-2079.
    District Court of Appeal of Florida, Fourth District.
    March 17, 1982.
    Rehearing Denied April 26, 1982.

      Frank A. Kreidler, Lake Worth, and Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    Timothy P. McCarthy of Perry & McCarthy, P. A., West Palm Beach, for appellees.
   BERANEK, Judge.

Appellants, members of the City Commission of Lake Worth, appeal the final judgment entered in a breach of contract action filed by the appellees, Gulfstream Ventures, Inc., and George Michael. In December, 1976, the parties signed a lease agreement for the operation of a restaurant concession in the clubhouse of the Lake Worth Municipal Golf Course. The lease was for a term of five years with two additional five-year option periods. On the strength of this lease, appellees financed the endeavor through two bank loans plus other capitalization, including the use of personal assets. They invested heavily in the renovation of the clubhouse, purchased equipment, and hired 'a European chef. The restaurant, known as The Moorings, opened in the early part of 1977.

Questions of fact existed as to whether the appellees fulfilled all the terms of the lease agreement. On January 16, 1977, at the urging of a group of angry golfers attending a Commissioners’ meeting, the Commissioners moved to cancel the lease. The mayor initially ruled that the motion was out of order. The City attorney also warned against taking action without notice to the lessee. Nevertheless, the Commissioners voted 4-1 to cancel the lease. The City’s action received substantial publicity in the local news media which adversely affected the restaurant. The appel-lees sought injunctive relief barring the City from immediately terminating the lease. The injunction was granted and remained in effect until the restaurant closed in September of 1978. Appellees filed their suit alleging damages for breach of contract and eventually proceeded to trial after extensive discovery.

The factual statements in the opposing briefs are in substantial conflict; it is hard to believe that counsel are describing the same trial. What is apparent from the transcript is the existence of a basic conflict between use of the facility as a commercial restaurant and its use as a golf club open to the public and to “card” members. There was obvious hostility against the restaurant operation by a substantial number of golfers. The evidence was in sharp conflict but there was clearly a factual basis for concluding that many users of the golf course were opposed to the restaurant from the beginning and took bizarre measures to make operations difficult if not impossible. Appellees presented evidence of vandalism and harassment such as rolls of toilet paper being stuffed into toilets and frozen bluefish being found in a punch bowl. (The restaurant served no bluefish or frozen fish.) After the vote to cancel the lease, road signs barring entry mysteriously appeared on the only access road. Complaint to the City council by persons using the golf course caused City council members to become embroiled in the controversy. On appeal it is asserted that there was no direct evidence of City involvement in the harassment but this was basically a jury issue. Also, no argument is made that the evidence of harassment was inadmissible.

Both parties presented complex and extensive evidence as to damages. Plaintiffs introduced a balance sheet over six feet long describing the ten-month operation of the restaurant. This document contained thousands of entries and was subject to varied expert interpretations. After a six-day trial, the jury awarded $430,000 to Gulf stream Ventures representing damages for lost future profits and $2500 to Michael.

Appellants raise six points on appeal primarily concerning jury instructions and damages. On the issue of instructions, appellants contend that three of the jury instructions were misleading in that they lacked explanatory definitions of certain terms, they improperly stated the law, and they did not address jury issues. A reading of the transcript reveals that appellants’ objections to two of the instructions were on different grounds from those asserted on appeal and their objection to the third was a mere general objection. Furthermore, no curative or explanatory instructions were requested by appellants. We find that appellants have not demonstrated reversible error with respect to the jury instructions.

As to appellants’ various arguments on damages, we feel compelled to comment on only one — the issue of present money value. Appellants maintain that the verdict was excessive because the jury did not reduce the award to present money value. As noted above, both parties presented the testimony of numerous witnesses and extensive documentary evidence on the issue of damages. However, not one word of testimony or argument was given concerning present money value. At the behest of appellants, the jury was instructed as follows: “Any amounts which you allow for future damages ... should be reduced to their present money value and only the present money value of such amounts should be included in your verdict.” Appellants did not request nor provide any explanation of how to reduce damages to present money value. The verdict form, which was submitted by appellants, did not mention present value and merely provided a blank to be filled in for the “total amount of any damages sustained by plaintiffs.”

Only after the jury returned a verdict for $430,000 did appellants attempt to introduce an affidavit of their accountant in a motion for a new trial. This affidavit, upon which the court correctly refused to rely, detailed the calculations required to arrive at present money value. According to the affidavit, appellants argued the present money value of the award should be $117,-000. It is unfortunate that appellants called the same accountant as a witness at trial and failed to question him for the jury’s benefit on an issue which resulted in an award differential of over $300,000. The affidavit explaining the calculations was hardly simplistic. It made reference to published tables constructed so that one need not work out the present value on a year-by-year basis. Further, the interest rate was a key factor in any formula used. Appellants never apprised the jury of this interest rate. How did appellants expect the jury to arrive at appellant’s interpretation of present money value without the charts, a formula, or an interest rate?

Appellants urge us to follow Pinillos v. Cedars of Lebanon Hospital Corporation, 403 So.2d 365 (Fla.1981). In that case, the jury was given a formula to aid it in making the appropriate reductions. At a post-trial hearing, the defendant hospital, which had failed to produce any evidence at trial on the method of reducing the future damages to present value, contended that the formula was incorrect and produced expert testimony of the proper formula. The trial court then entered judgment for this amount rather than for the amount which the jury computed using the erroneous formula. The Supreme Court held that plaintiffs should have been granted a new trial on damages because the trial court erred in making the reductions based on a post-trial formula. The present case is distinguishable. Here, the jury was given no information on the meaning of present money value much less a formula to use in computation. The only argument is that the amount of the verdict is very close to the amount suggested to the jury by plaintiffs’ counsel. From the actual verdict it is impossible to tell that the jury did not attempt a reduction to present value. The instruction given by the trial court on present worth was correct and was all either appellees or appellants requested. Even in closing argument, appellants did not explain or even mention present worth or value to the jury. The appellants were not required to present evidence on present value but, in the absence of evidence or other explanation under the complex facts here, they substantially weaken their ability to urge error on appeal in this respect. There is nothing here which shows the jury did not follow the court’s minimal instruction as best they could in reducing damages to present value.

We have reviewed the other points argued on appeal and find no merit in them. Accordingly, we affirm.

AFFIRMED.

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


author: WIGGINTON, Judge.

text:
    CITY OF GAINESVILLE, Appellant, v. SEABOARD COASTLINE RAILROAD COMPANY, Appellee.
    No. AD-199.
    District Court of Appeal of Florida, First District.
    March 18, 1982.
    Rehearing Denied April 23, 1982.

      David La Croix of Sieg, Comfort, Hawk, La Croix & Reid, Gainesville, for appellant.
    Charles G. Felder of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee.
   WIGGINTON, Judge.

This cause comes before us on appeal for the second time, challenging the final judgment of the trial court invalidating a special tax assessment levied by the City of Gainesville on industrial property owned by Seaboard Coastline Railroad Company for paving improvements. We reverse.

The pertinent facts of this case are set forth in this Court’s initial opinion reported at 385 So.2d 1069. That appeal was brought by the City to challenge the trial court’s finding that the City’s action in assessing the tax amounted to fraud and was confiscatory. This Court, respectfully disagreeing with the trial court’s conclusion of law, held that the City’s actions would only be confiscatory if the Railroad’s property “is not benefitted by the improvement to the extent of the assessment or if only incidental benefit results to the property improved and the primary benefit is to the public.” Id. 385 So.2d at 1072. In so holding, this Court found the trial court made no findings on the question of benefits. Accordingly, we reversed and remanded with directions to the trial court to reevaluate the evidence on that question.

On remand, the trial court, pursuant to its discretionary authority, received additional testimony. See, e.g., Tampa Electric Co. v. Crosby, 168 So.2d 70 (Fla.1964). Again, in holding in favor of the Railroad, the trial court found that the paving of N.E. 31st Avenue resulted in primary benefit to the general public. Any benefit to the Railroad property abutting the paved road was found to be insignificant. Consequently, the trial court invalidated the special assessment. Once more, this Court must respectfully disagree with the trial court’s conclusion of law as applied to the facts.

The courts in this state are not powerless to review objections to special assessments. However, in this case, the trial court misconstrued both its role in evaluating the evidence and the Railroad’s burden of proof. In the area of special assessments for local improvements, there is a presumption that the findings of the local government as to benefits are correct and this presumption can be overcome only by strong, direct, clear and positive proof. Rosche v. City of Hollywood, 55 So.2d 909, 913 (Fla.1952). The apportionment of assessments is a legislative function, so if the evidence as to benefits is conflicting, as is generally the case, and is predicated on the judgment of expert witnesses, the findings of the city officials will not be disturbed. Id.; see also Meyer v. City of Oakland Park, 219 So.2d 417 (Fla.1969); and City of Hallandale v. Meekins, 237 So.2d 318 (Fla. 4th DCA 1970).

The burden of proof is therefore on the Railroad to rebut the presumption of correctness. However, a review of the record reveals that it has failed to sufficiently rebut that presumption. The Railroad’s argument is premised on its contention that the City, in making its determination of benefits, should have taken into account the offsetting costs to the Railroad in order for it to realize those benefits. The Railroad presented testimony by an expert appraiser stating that those offsetting costs precluded it from receiving any real benefit from the paving.

The Railroad’s position is that its planned use of the property is its best possible use to the exclusion of all others, and that the Railroad would not derive benefits which would outweigh its share of the assessment costs. The rule of special benefits necessarily envisions broader horizons, that is, the potential or added use and enjoyment of the property. The approach taken by the Supreme Court of Florida as to the question of “best possible use” is a determination of what could be done with the property by improvements reasonably attainable, which improvements would enhance not only the value of the property under all present circumstances but under those foreseeable in the very near future as well. Meyer, 219 So.2d at 420. Pursuant to that approach, we agree with the view adopted by our sister court in Meekins, in which it was held:

. .. the present special use to which property is voluntarily put is not all determinative of whether such property has either greater or less benefits accruing than other property in the improvement district... The proper measure of benefits accruing to property from the improvement is not limited to the use which is made of the improvement at that time, but extends to the use which could be made of the improvement in the future upon the property being devoted to any use which reasonably might be made of it... The special benefit is the availability of the system and is permanent, but the use to which the property is put is usually temporary and changes from time to time.

237 So.2d at 321, 322. We adopt that view in an effort to avoid the inequitable result of exempting certain property from an otherwise uniform assessment because of the use to which it is voluntarily put, when that use may be changed at any time after the assessment and upon completion of the improvement, to benefit from the improvement. Such opportunity for windfall benefits must not result.

In the instant case, contrary to the testimony presented by the Railroad’s expert witness, evidence adduced at the rehearing by the City revealed that the paving of N.E. 31st Avenue resulted in an increase in value of the Railroad’s property of approximately $35,600.00; that the highest and best use for the property would be development in the same fashion as the industrial center to the south of N.E. 31st Avenue, and not as that originally contemplated in the Railroad’s 1967 plan; that the paving made available to the Railroad alternative methods of developing its property, thereby having an additional effect on the market value of the property; and finally, that as a result of traffic and market surveys conducted by expert appraisers, the primary benefit of the paving of N.E.-31st Avenue was not to the public, but to the adjoining and nearby properties and businesses. Again, there is a presumption that the City’s resolution, coupled with competent substantial evidence as to benefits, are correct. The evidence to overthrow the presumption must be clear, cogent and conclusive.

After considering the evidence in this case, we conclude that the Railroad failed to carry its burden of proof and that the property involved did receive benefits sufficient to justify the special assessment. Accordingly, the trial court’s judgment is reversed and remanded for entry of final judgment in favor of the City.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur.


author: ERVIN, Judge.

text:
    John V. PHILPOT, Appellant, v. Edwin L. BOUCHELLE, Jr., Appellee.
    No. AC-357.
    District Court of Appeal of Florida, First District.
    March 22, 1982.

      Marlin M. Feagle, Lake City, for appellant.
    Frederick L. Koberlein of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellee.
   ERVIN, Judge.

Philpot (the lessor) appeals from a final judgment entered in accordance with a jury verdict finding him in breach of a lease/option to purchase contract. Philpot contends that the trial court erred in refusing to grant his motions for directed verdict. We agree and reverse.

First, we reject the appellee’s argument that the appellant did not properly preserve the issue for review. The record reveals that the appellant made a motion for directed verdict both at the close of the appellee’s case-in-chief and at the close of the case. Additionally, he renewed his motion at the charge conference after all the the evidence had been presented. Therefore, the issue has been preserved. See 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958).

As to the merits of the appeal, the record reveals that on or about June 10, 1979, the parties entered into a 12-month lease agreement providing for the rental" of Philpot’s condominium unit, which agreement, by its terms, extended from June 15, 1979 to June 14, 1980. The appellee agreed to pay the annual sum of $5,400, in increments of $450 per month, beginning the 15th day of each month. Paragraph 14 of the lease provided that appellee could exercise his option to purchase from November 15, 1979 to April 15, 1980. The appellee was to provide $1,000 in consideration in the form of personal note that was payable within 90 days to the appellee. It was also provided that the lessee/appellee was to spend a minimum of $2,500 for the purpose of installing carpeting, window tint, sun shading, interi- or painting, double glass thermal, and noise resistant windows within five months after the execution of the lease. And the lessee was required as of November 15, 1979, to furnish the lessor with “satisfactory evidence” of $2,500 worth of completed improvements. If these improvements were not documented by that date, the option was to be null and void.

Paragraph 15 of the contract provides: The rights of the lessor under the foregoing shall be cumulative and the failure on the part of the lessor to exercise properly any rights given hereunder shall not operate to forfeit any of the said rights.

(e.s.)

Paragraph 16 of the contract further provides: “It is understood and agreed between the parties hereto that time is of the essence of this contract and applies to all terms and conditions contained herein.”

The appellee wrote to the appellant on April 11, 1980, informing him that he desired to exercise the option. The appellant replied by letter dated April 16, 1980, that the appellee had not satisfied the conditions precedent to the permissible exercise of the option due to his failure to pay timely the monthly rental amounts, and to install no less than $2,500 in improvements to the unit pursuant to the terms of the agreement. The appellee, under threat of eviction, moved out of the condominium on June 23, 1980. Shortly thereafter, the appellee sued for breach of contract. The case then proceeded to a jury trial.

The appellee’s case-in-chief at trial consisted primarily of his testimony. He testified that he substantially accomplished all the conditions of the lease and the option. Although he admitted that his rent payments and the payment on the note had been late, he stated that the appellant had accepted all of his late payments “graciously.” He also admitted that all of the $2,500 worth of improvements had not been completed by November 15, 1979, but that he did have all the improvements under contract at that time. He testified that he had replaced the carpets in the condominium, which constituted the major share of the $2,500 by the time he moved into the condominium in June, 1979, and that he had returned the old carpets to the appellant. He admitted, however, that the appellant did not actually see the new carpet installed inside the condominium, or know its exact cost. The appellee’s wife nevertheless testified that the appellant’s wife had seen it within the unit. The appellee also testified that he ultimately made over $2,500 worth of improvements to the condominium, and he furnished documentation of these improvements when requested by the appellant in his letter of April 16, 1980. The other improvements consisted of vinyl tiling work and new curtains. According to the appellee, the appellant never warned him that his late performance caused a forfeiture of the option until the appellee received the April 16 letter from the appellant. The appellee, moreover, testified that he did not notice the appellant had endorsed the reverse side of his rent payment checks with limited endorsements to the effect that the payments were accepted under protest; that the option was considered null and void; that the lease had been broken and that the appellant now considered the rental to be on a month-to-month basis. Although he did not scrutinize the endorsements, he admitted that his accountant normally processed his checks and thoroughly reviewed them.

The appellant testified in defense that the purpose of the conditions of the options, which was communicated to the appellee at the time of the execution of the lease, was to provide assurances to appellant by November 15, 1979, that the appellee intended to exercise the option in order for appellant to purchase other property in New Port Richey. He did not deny that he allowed tardy performance on the early rent payments and on the note; however, in January, 1980, he informed the appellant that the option in the lease had been broken because of the appellant’s untimely payments. At that time, the appellee tendered late checks for the October, November and December rental months. The appellant also admitted that while he suspected the appellee had placed new carpeting in the condominium, he did not have any actual knowledge of this prior to April, 1980.

If not for paragraph 15 of the parties’ contract, we would agree that the issue as to whether the appellant waived the conditions necessary to the exercise of the option was a jury question and that there was competent, substantial evidence supporting the jury’s decision. The law is clear that a lessor is estopped to assert a forfeiture for a breach of covenant or condition in a lease, or waives his right to such a forfeiture, if, after the breach of covenant, he accepts rent from his tenant with knowledge or full notice thereof. Farmers' Bank and Trust Co. v. Palms Pub. Co., 86 Fla. 371, 98 So. 143 (1923); Moskos v. Hand, 247 So.2d 795 (Fla. 4th DCA 1971). Even when time is made of the essence of a contract, such provision can also be waived by the party to whom the benefit inures. Shouse v. Doane, 39 Fla. 95, 21 So. 807 (1897).

The difficulty in applying the above rule to the case before us is that the parties contractually agreed in paragraph 15 that the acceptance of late performance by the lessor would not constitute a waiver of the lessor’s rights. Thus, the lessor, by accepting appellee’s late performance, can hardly be considered as dealing inconsistently with the terms of the contract.

We consider that the parties contractually modified the common law rules of waiver and estoppel, and their modification does not conflict with any public policy. We have found no Florida cases, nor have the parties cited any, which deal with a clause such as the one provided in paragraph 15 of the lease. Other jurisdictions, however, have upheld the validity of clauses similar to those stated in paragraph 15. See Karbeinig v. Brothwell, 244 Cal.App.2d 333, 53 Cal.Rptr. 335 (1966); In re: Wil-Low Cafeterias, Inc., 95 F.2d 306 (2d Cir. 1938), cert. denied, 304 U.S. 567, 58 S.Ct. 950, 82 L.Ed. 1533; Vintaloro v. Pappas, 310 Ill. 115, 141 N.E. 377 (1923); U. S. A. Petroleum Corp. v. Jopat Building Corp., 343 So.2d 501 (Ala.1977). Karbeinig v. Brothwell, supra, is particularly instructive. There a lower court held that the lessor’s acceptance of the lessee’s late payment of rent constituted a waiver of the contractual terms regarding breach. The lower court arrived at this conclusion even though paragraph 27 of the lease contract provided as follows:

WAIVER. A waiver by Lessor of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Lessor shall not be deemed to be a waiver of any preceding breach by Lessee of any term, covenant or condition of this lease, other than the failure of lessee to pay the particular rental so accepted, regardless of Lessor’s knowledge of such preceding breach at the time of acceptance of such rent.

In its reversal, the California appellate court concluded:

The express agreement on the part of the lessees, which was binding upon the assignees, to the effect that the acceptance of rent by the lessor after knowledge of the breach of a covenant should not be deemed a waiver of such breach, is tantamount to a relinquishment of the right of the lessees and their assignees, to assert a waiver of estoppel, unless there has been an express waiver on the part of the lessor of the right reserved, or there has been conduct on the part of the lessor, other than the acceptance of rent, upon which the lessees or their assignees could lawfully assert an estoppel or declare a forfeiture.

Karbeinig, supra, at 53 Cal.Rptr. 341.

The court found that the lessor had not expressly waived his rights and had done nothing — other than the acceptance of the late rent — upon which an estoppel could be asserted.

Similarly, in the instant case, the appellant/lessor did not expressly waive any of his rights, and the only substantial evidence of implied waiver was his acceptance of late rental payments, and acceptance of improvements to the condominium unit — actions which were not inconsistent with the language of paragraph 15 of the contract. That language is arguably broader in its effect than the language provided in paragraph 27 of the lease involved in Karbeinig, as the former applies to the non-forfeiture of “any rights” — not just the acceptance of untimely rent.

To conclude, because Philpot acted consistently with paragraph 15 of the contract, he cannot be deemed to have waived the appellee’s failure of performance. Therefore, Philpot was correct in his position that the conditions of the option to purchase had not been satisfied. Accordingly, the trial court should have granted Philpot’s motion for directed verdict as he was not in breach of contract.

Because of our holding on the above point, appellant’s third point concerning rejected jury instructions is now moot.

Reversed and remanded for further consistent proceedings.

McCORD and SHAW, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Norman Wesley BOSTON, Appellant, v. STATE of Florida, Appellee.
    No. AG-15.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Rehearing Denied April 23, 1982.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

We affirm appellant’s conviction for possession of a weapon by a state prisoner.

Appellant’s first point asserts error in the trial court’s denial of his requested jury instruction on attempted possession of a weapon, as a lesser included offense. The record discloses that appellant’s counsel requested an instruction on attempted possession, which the court denied. The jury was instructed on the offense of possession of a weapon only, as charged. After the jury retired to consider its verdict, the trial judge reopened the proceedings to allow appellant’s counsel to place on record his objection to the court’s denial of his requested instruction on attempted possession. The court acknowledged this objection, and further stated that the request for the instruction had been denied because, under the circumstances of the case, it was felt that “there would be no crime for an attempt to possess a weapon.”

The state urges that since the objection and the grounds for the objection were not brought to the attention of the trial court before the jury retired to consider its verdict, as required by Rule 3.390(d), Florida Rules of Criminal Procedure, appellate review is foreclosed. It appears to us, however, that the trial judge specifically permitted the procedure here followed, without objection by the state. We agree that ordinarily the rule requiring requests for instructions and objections to be made before the jury retires would control. In this instance, however, although the record is not entirely clear, we assume that the trial court allowed defense counsel to reserve the recording of specific objections and the basis for the court’s rulings, as a matter of convenience, until after the jury had been instructed and had retired to deliberate. Accordingly, we hold that the request and objection were sufficiently preserved for review. See Hubbard v. State (Fla. 1st DCA 1982), 7 FLW 483, opinion on motion for rehearing en banc filed February 23, 1982.

Notwithstanding our ruling with respect to appellant’s first point, we nevertheless find no reversible error in the failure to give the requested attempt instruction. We accept appellant’s contention that under a logical extension of rulings by this and other courts in the state, the attempted possession of a weapon by a state prisoner must be recognized as a crime. See, Hall v. State, 400 So.2d 102, (Fla. 1st DCA 1981); Thorpe v. State, 377 So.2d 221 (Fla. 1st DCA 1977); and Porter v. State, 363 So.2d 41 (Fla. 2nd DCA 1978), cert. den. 368 So.2d 1372 (Fla.1979). We agree, however, with the state’s contention that the trial court denied the requested attempt instruction because, in the trial judge’s view, the evidence was not susceptible to an interpretation that an attempt to commit the offense had been committed. We think it cannot be disputed that the evidence in the case would require a finding that either the offense of possession of a weapon by a state prisoner was committed or no offense was committed. Accordingly, we follow Burney v. State, 402 So.2d 38 (Fla. 2nd DCA 1981), and hold that, since upon retrial appellant would not be entitled to the attempt instruction because of changes in the Rules of Criminal Procedure which now provide that the attempt instruction shall not be given if the only evidence proves a completed offense, a retrial would serve no useful purpose. See Rule 3.510, Rules of Criminal Procedure, as amended effective October 1, 1981 (403 So.2d 979 Fla.), and, In the Matter of the Use By Trial Courts of the Standard Jury Instructions In Criminal Cases And the Standard Jury Instructions In Misdemeanor Cases, Nos. 56, 734 and 58, 799 (Fla., April 16, 1981), 6 FLW 305.

We find no error in the court’s denial of appellant’s motion for judgment of acquittal. See, State v. Allen, 335 So.2d 823 (Fla.1976); Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978); Tibbs v. State, 397 So.2d 1120 (Fla.1981); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

AFFIRMED.

MILLS and SHAW, JJ., concur.

      . We have considered and rejected appellant’s ex post facto argument, based on the principles stated in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Further, Jackson v. Green, 402 So.2d 553 (Fla. 1st DCA 1981), does not deal with the same issue as presented here.


author: MILLS, Judge.

text:
    Donesta LAY and Larry Lay, Appellant, v. George KREMER, Jr., Appellee.
    No. ZZ-436.
    District Court of Appeal of Florida, First District.
    April 5, 1982.
    Gail A. Gottardo of Searcy & Facciolo, P. A., Jacksonville, for appellant.
    Earl M. Barker, Jr. of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee.
   MILLS, Judge.

This case, arising from a dispute over a reserved parking space, is making its second appearance here. See Lay v. Roux Labs, 379 So.2d 451 (Fla. 1st DCA 1980). The previous opinion affirmed a dismissal of a count for intentional infliction of emotional distress and remanded for trial on assault and battery counts against both Kremer and his employer Roux Laboratories. On remand the trial court directed a verdict in favor of the defendants at the close of Lay’s case. We feel that the evidence, when viewed in the light most favorable to Lay, reveals a prima facie case for battery. We, therefore, reverse. Roux has subsequently settled with Lay and is not a party to this appeal.

A brief review of the evidence reveals that during a rainstorm Lay parked in a spot marked “Reserved Roux”. Apparently Roux had problems with others using its parking before. Kremer, owner of 998 out of 1000 shares of Roux at the time and an officer of Roux, entered the parking lot and, finding the reserved space taken by Lay, parked behind her. Lay, of course, was unable to leave. While Lay and a coworker, King, were trying to move her car, Kremer saw them and came out of the building. Kremer was coming from in front of the car, King was sitting in the driver’s seat, and Lay was standing by the front left fender between her car and another, also improperly parked in a Roux space.

According to Kremer he approached and inquired who owned the car; he informed Lay she was trespassing and asked her not to do it again. He then moved his car so she could get out, but she refused. At that time heated words were exchanged, and the exchange included others of Lay’s coworkers. He never touched Lay.

According to King, Kremer approached looking enraged. He brushed past Lay with his left arm and talked to King. Upon learning Lay was the owner, he turned and began using abusive language. He called her a “mother-fucking nigger” and a “bitch”. The trial court would not let the witness say “nigger” in front of the jury, substituting “black.”

Lay testified that Kremer directed the above language at her and at the same time put both hands on her shoulders and shoved her as he went by toward King. Specifically Lay’s testimony was:

Q. Okay. Now, when you first saw Mr. Kremer, where were you and where was Mr. King?
A. I was about — well, Mr. King was in the car and in the driver’s side. I was standing in front of the driver’s door.
Q. Okay. What happened next?
A. I saw Mr. Kremer and another man coming out of the back door of the building. It was about forty feet away.
Q. What was Mr. Kremer’s appearance when you first saw him?
A. He came out; his face was flaming red; his eyes were bulging out. He terrified me. I didn’t know, you know—
Q. Did he say anything to you as he came towards you?
A. Yes.
Q. What did he say?
A. He started screaming and asking whose car was it. He kept repeating it, whose car was it.
Q. What tone of voice?
A. Hard. Whose car is this, whose car is this (demonstrating). And I told him it was mine. And he asked me my name; what is your name, what is your name (demonstrating). And I told him my name and he asked me where did I work and I told him Amtrak and that’s when I asked why did he need all this information. And that’s when he came towards me.
[A proffer outside the presence of the jury took place.]
Q. All right. Donesta, the last thing the jury heard was that he was coming towards you. What happened?
A. Came towards me, and he pushed me and he called me a “mother fucking black.”
THE COURT: I’m going to ask the jury to step out of the room a moment. Oh, that’s all right? Yes.
BY MS. GOTTARDO:
Q. All right. How much space was there between your car and the car parked next to it?
A. It was enough space for two people to walk through.
Q. Was there enough space where Mr. Kremer could have gotten around you without touching you?
A. Yes.
Q. What happened after Mr. Kremer— first of all, can you describe for the jury the manner in which he shoved you?
A. He came towards me; he shoved me with both hands on the shoulders.

It is clear that a jury could have inferred that Kremer intentionally touched Lay and that the touch was intentionally offensive. A two-handed shove is not likely to be accidental. Kremer’s enraged appearance, as well as his abusive language is evidence which would have supported a jury finding that his intent was to be offensive. The direction of a verdict was error.

The directed verdict on the action for damages for assault was also erroneous. Assault is defined as an intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward another under such circumstances as to create a fear of imminent peril, coupled with the apparent present ability to effectuate the attempt. Lay testified that after the shoving incident Kremer continued to harangue her in very abusive terms, and he continued to appear enraged. While mere words do not constitute an assault, the words coupled with an appearance of rage and with a just completed shove could constitute an assault. The reasonableness of Lay’s apprehension of further contact was properly a jury question. McDonald v. Ford, 223 So.2d 553 (Fla. 2d DCA 1969).

For the guidance of the trial court on remand, we will discuss the remaining points argued on appeal. Two of the arguments raised by Lay have merit. The complaint included a count for punitive damages. In furtherance of that count Lay sought discovery of Kremer’s finances. The trial court refused to compel discovery, instead ruling that a sworn net worth statement by Kremer would be provided if the evidence supported punitive damages. While there is some authority for this position, our Supreme Court has ruled to the contrary. The case of Tennant v. Charlton, 377 So.2d 1169 (Fla.1979), held that a plaintiff was not required to accept on faith a defendant’s financial statement but was entitled to discovery as a check on the defendant’s credibility. We think that Tennant controls this case. Of course, the trial court has discretion to protect Kremer from unduly vexatious discovery and to protect his secrets. Fla.R.Civ.P. 1.280(c).

Finally, the trial court would not allow Lay or other witnesses to quote Kremer as saying “nigger”; instead the word “black” was substituted. A trial court has discretion to control the use of inflammatory language in the courtroom, and indeed should control such language, but the exclusion of the word “nigger” abused that discretion in the instant case. Obviously, the word is inflammatory. Kremer uttered it only because it was inflammatory. It is relevant to this case and in particular to Kremer’s intent only because it is inflammatory. The witnesses should be allowed to repeat Kremer’s statements exactly as they recall them.

The other issues raised by Lay are affirmed and do not require discussion.

For the above reasons, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

WENTWORTH and THOMPSON, JJ., concur.


author: JOANOS, Judge.

text:
    L. J. N., a child, Appellant, v. STATE of Florida, Appellee.
    No. AH-186.
    District Court of Appeal of Florida, First District.
    April 5, 1982.

      Michael Allen, Public Defender, Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appel-lee.
   JOANOS, Judge.

This is an appeal from an order committing a juvenile to the custody of the Department of Health and Rehabilitative Services (“HRS”) because he violated the conditions of his community control supervision. The order itself is deficient and must be reversed and remanded. Several additional arguments raised by appellant require discussion.

The record does not indicate why L. J. N. was originally placed on community control. A petition was filed on August 20, 1981 alleging that L. J. N. had violated those terms of his community control which required him to refrain from using unlawful narcotics or intoxicants and refrain from violating the law, in that he had been found to have 15 grams of marijuana in his exclusive possession. At a hearing held on August 28, 1981, testimony regarding the incident was taken from two police officers and L. J. N.’s counselor from HRS.

In an order dated August 28, 1981, the trial court found that L. J. N. had violated the terms of his community control and committed him to the custody of HRS “for a period of not less than one (1) year or until his 19th birthday, whichever is earlier.” In addition, this order set forth the placement preferences of the court, pursuant to Section 39.09(3)(e) Florida Statutes, as follows: (1) Alyce D. McPherson School; (2) Arthur G. Dozier School; (3) Florida School for Boys at Okeechobee.

Counsel for L. J. N. filed a motion for rehearing alleging that the order committed L. J. N. for a determinate period of time in violation of Section 39.11(3) Florida Statutes, and that the placement options listed in the order had been suggested to the court by an assistant state attorney rather than by HRS as required by Section 39.-09(3)(e). The court denied the motion for rehearing, and entered an amended order again committing L. J. N. to the custody of HRS “for a period of not less than one (1) year or until his nineteenth birthday, whichever is earlier.” In addition, this amended order provided: “The Court having received the recommendations of the Department of Health and Rehabilitative Services, attached hereto, recommends that the Department place the child in one of the following facilities of descending priority: (1) Florida School for Boys at Okeechobee, (2) Start Program or (3) Halfway House.” The attachments to the order indicate that HRS had suggested placement in a Halfway House, a Start Center, or a Family Group Home.

We find merit in appellant’s argument that the court erred in committing him for a determinate time period. Section 39.11(3) provides: “Any commitment of a delinquent child to the department shall be for an indeterminate period of time ... . ” In R. J. K. v. State, 375 So.2d 871 (Fla. 1st DCA 1979), this court, relying on B. J. v. State, 374 So.2d 1106 (Fla. 1st DCA 1979), established that a commitment for a period of not less than one year is a commitment for a specific period of time in violation of the statute.

The court also erred in inserting as the number one placement priority an option not suggested by HRS. The statute does not provide for the court’s insertion of its own placement options. Rather, pursuant to Section 39.09(3)(e):

If the court decides to commit a child to the department, the department shall furnish the court, in order of the preference of the department, a list of not less than three options for programs in which the child may be placed. The court shall rank the options presented by the department in order of the preference of the court.

On remand the court should commit L. J. N. for an indeterminate period of time and choose placement priorities from the list of suggestions provided by HRS.

Several other matters raised by appellant required discussion, although they do not serve as bases for reversal in this case. The transcript of the hearing held on August 28, 1981, contains numerous representations by the transcriber of the tape recorded hearing that he could not understand portions of what had been said. The transcriber was not present at the hearing and is not responsible for these omissions. Appellant has directed our attention to a recent case from the Fifth District, J. E. v. State, 404 So.2d 845 (Fla. 5th DCA 1981), in which an adjudication of delinquency was set aside due to the inadequacy of the transcript. We certainly agree that appellant’s “right of appeal should not be frustrated because of some fault in the electronic reporting system provided by the court.” Id. In J. E. the district court determined that “the portion of the transcript which is available does not, in itself, support the adjudication of delinquency, so a new hearing is warranted.” In the instant case, however, despite omissions from the testimony the portions of the hearing which were intelligible are sufficient to support the order finding a violation of L. J. 'N.’s community control program. This conclusion is also supported by our finding no merit in appellant’s argument that a lab report from the Florida Department of Law Enforcement, verifying that the substance obtained from L. J. N. was marijuana, should not have been admitted in evidence.

We note with concern appellant’s argument that the trial judge erred in questioning L. J. N. about the alleged violation without first advising him of his right to remain silent. After the state rested its case defense counsel advised the court that the defense would not put on any testimony. The trial judge immediately began questioning appellant about the circumstances of the violation. Such questioning of the accused by the trial court in absence of advice as to the right to remain silent, particularly when the defense had just announced that it would not put on testimony, was improper. Defense counsel made no contemporaneous objection to the questioning, however, and the information elicited from L. J. N. was cumulative to the evidence previously presented by the state. Thus this case is distinguishable from the cases relied on by appellant in which reversal was based on similar questioning. In those cases the juveniles not only were not advised of the right to remain silent, but they were not advised of their right to counsel and were not represented by counsel at the hearings. See C. G. H. v. State, 404 So.2d 400 (Fla. 5th DCA 1981), R. V. P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981).

AFFIRMED in part, REVERSED in part and REMANDED for entry of an order complying with Chapter 39, Florida Statutes.

BOOTH and SHIVERS, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Derrick GOREE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2491.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Late in the afternoon of the second day of trial, the defendant requested the trial court to postpone the completion of the taking of testimony until the following day. The stated reason for the request was to allow the defendant an opportunity to locate a witness whom the defendant had learned of shortly before the trial began, but the need for whom was apparently not thought to be critical enough to prevent the defendant from announcing his readiness for trial or to cause the defendant to request a continuance before the trial commenced. The trial court refused the requested postponement and gave the defendant an hour to produce and present the witness. The defendant was unable to do so.

Clearly, had the trial concluded, which it did not, on the evening of the second day of trial, the trial court’s action would be well within its discretion. Even conceding, arguendo, the dubious proposition that the witness could have given substantial and significant testimony in favor of the defendant, there was not the slightest showing made by the defendant that it was probable that the witness would be located, subpoenaed, and his testimony procured within a reasonable time or that the defendant, charged with these crimes some five months earlier, had exercised any diligence, much less due diligence, in procuring this witness’s presence. See Moore v. State, 59 Fla. 23, 52 So. 971 (1910); Pittman v. State, 360 So.2d 1138 (Fla. 1st DCA 1978); Whalen v. State, 335 So.2d 631 (Fla. 1st DCA 1976); Gause v. State, 270 So.2d 383 (Fla. 3d DCA 1972); Coney v. State, 258 So.2d 497 (Fla. 3d DCA 1972). And, again, if on the following morning, with final arguments about to commence, the trial court had rejected a defense request for further time to produce and present the testimony of the witness, we would be unable to find error.

Admitting these obstacles, the defendant contends that the arbitrariness of the trial court’s ruling lies in the fact that the ruling precluded the defendant from any further opportunity to obtain the witness’s presence and testimony on the following morning, notwithstanding that the trial was still going on. But the simple fact is that the defendant, rebuffed the evening before, did nothing to obtain the presence of the witness on the following day, made no motion to continue or reopen the case, and made no greater or other showing that the probability of locating or procuring the testimony of the witness had improved — none of which he was precluded from doing. While the defendant attempts to excuse his inaction by relying on the doctrine that a party is not required to conduct an exercise in futility in the face of a positive adverse ruling by the court, we find that doctrine inapplicable where, as here, the circumstances which obtained at the time of the court’s initial ruling (an intention to complete the trial that same day) have materially changed (trial carried over to the following day). Compare Bailey v. State, 224 So.2d 296 (Fla.1969); Brown v. State, 206 So.2d 377 (Fla.1968); Birge v. State, 92 So.2d 819 (Fla.1957) (in all of which court’s announced ruling would be unaffected by later developments at trial).

We also find the defendant’s reliance on Hicks v. Wainwright, 633 F.2d 1146 (5th Cir. 1981), misplaced. In Hicks, unlike the present case, the defendant’s sole expert to be offered in support of an insanity defense was under subpoena, had been available to testify the entire day of the trial, was unavailable at 4:30 p. m. when the prosecution rested, but would have been available that same evening beginning at 10:00 p. m. The trial court refused to grant any postponement to allow the witness’s testimony to be heard and, moreover, refused to lend the aid of the court to compel the witness’s appearance, despite clear indication from the witness’s prior sworn statements that the witness’s testimony would substantially and significantly support the defendant’s insanity defense. Finally, in Hicks, since closing arguments were held that very evening, the defendant’s failure to attempt to reopen the case the following day was, under those circumstances, deemed excusable. But see Evers v. State, 280 So.2d 30 (Fla. 3d DCA 1973) (noting that even though closing arguments had been made the day before, no motion to reopen the case for the purpose of presenting additional testimony was made the following day before the court instructed the jury).

Although we affirm the defendant’s convictions, we find several obvious sentencing errors which require us to reverse and remand for resentencing. See Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981).

First, the maximum sentence which could be imposed on Count IX for the offense of attempted burglary of a dwelling is five years. Section 777.04(4)(c), Florida Statutes (1979), defining and establishing the penalties for attempts, provides that “[i]f the offense attempted ... is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree . . . . ” A third-degree felony is punishable by a maximum of five years imprisonment. § 775.082(3)(d), Fla. Stat. (1979). The State, conceding the offense to be a third-degree felony, argues nevertheless that because the attempted burglary was one charged and proved to be one with the intent to commit an assault during which the defendant possessed a firearm, the felony must be reclassified as a felony of the second degree punishable by a term of imprisonment of fifteen years. But as Section 777.04(4)(c), Florida Statutes (1979), so plainly says, an attempt to commit a burglary of any degree [including a first-degree burglary in the course of which an assault is committed and the defendant is armed, see Section 810.02, Florida Statutes (1979)] still constitutes a third-degree felony. Williams v. State, 386 So.2d 631 (Fla. 2d DCA 1980). Accord Piantadosi v. State, 399 So.2d 382 (Fla. 3d DCA 1981); McQuay v. State, 368 So.2d 908 (Fla. 1st DCA 1979); State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla. 3d DCA 1977); Massey v. State, 348 So.2d 1244 (Fla. 1st DCA), cert. denied, 354 So.2d 983 (Fla.1977).

Second, the trial court’s retention of jurisdiction over one-third of the defendant’s sentences is unsupported by the findings justifying retention required by Section 947.16(3)(a), Florida Statutes (1979). Accordingly, we vacate that portion of the sentence and remand the case to the trial court for the purpose of making the necessary findings part of the record. See Mobley v. State, 409 So.2d 1031 (Fla.1982). The trial court is advised that it may not, as it did, retain jurisdiction for the first one-third of each of the consecutive sentences imposed, but, as stated in Section 947.16(3), Florida Statutes (1979), “. . . the jurisdiction of the trial court judge . .. shall apply to one third of the total consecutive sentences imposed.”

Affirmed in part; reversed in part and remanded, with directions to resentence the defendant in accordance with this opinion.


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    The STATE of Florida, Appellant, v. Joe DAVIS, Appellee.
    No. 81-300.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.

      Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant was charged with second degree murder and display of a firearm during the commission of a felony. The defense was self-defense. The jury acquitted the defendant of second degree murder, but convicted him of unlawful possession of a firearm. The trial court granted a new trial; the State appeals. We affirm.

The principal prosecution witness was the deceased’s seven-year-old child. The trial court found her testimony not worthy of belief, warranting a new trial. Tibbs v. State, 397 So.2d 1120 (Fla.1981); State v. Gomez, 363 So.2d 624 (Fla. 3d DCA 1978); Baker v. State, 336 So.2d 364 (Fla.1976). He also found that the prosecutor made improper closing argument because it was based on facts not adduced on the evidence. This would also warrant a new trial. Kirk v. State, 227 So.2d 40 (Fla. 4th DCA 1969); Smith v. State, 74 Fla. 44, 76 So. 334 (1917).

Therefore, the order under review be and the same is hereby affirmed.

Affirmed.

DANIEL S. PEARSON, Judge,

specially concurring.

Unless more is said, a good deal of unnecessary judicial labor will be spent by the trial court trying to figure out where it is to go from here.

The defendant was acquitted on Count One of second-degree murder and manslaughter, the only offenses upon which the jury was instructed, and convicted on Count Two of unlawful possession of a firearm during the commission of a felony. By omitting further comment on these ostensibly inconsistent verdicts, we invite the defendant’s opening salvo on remand to be that under Redondo v. State, 403 So.2d 954 (Fla.1981), the acquittal on Count One undermines the conviction on Count Two. Therefore, I think we should now clarify that the defendant took no cross-appeal to assert that position here and has waived any right to assert it; and that, more importantly, in any event, the verdicts can be reconciled so that Redondo does not apply.

The record reflects that the jury, instructed on Count Two that the defendant could be found guilty of possession and display of the firearm “while committing or attempting to commit the felony of second degree murder,” was not instructed as to Count One on the offense of attempted second-degree murder. This means that the jury logically could have found that the defendant attempted to commit the felony of second-degree murder so as to support the conviction of possession and display of a firearm during the course of that felony, and still have acquitted the defendant of the crimes of second-degree murder and manslaughter, the only offenses upon which, under the court’s instructions, it could have returned a verdict on Count One. Under such circumstances, the conviction on Count Two may stand. State v. Pitts, 400 So.2d 549 (Fla. 3d DCA 1981), review granted (Fla.1982); McCray v. State, 397 So.2d 1229 (Fla. 3d DCA), review granted (Fla.1981). Compare Wooten v. State, 404 So.2d 1072 (Fla. 3d DCA 1981); Palacio v. State, 402 So.2d 500 (Fla. 3d DCA 1981).

But finding that the conviction for unlawful possession and display of a firearm survives this challenge does not solve the problem of the new trial. That trial should be for unlawful possession of a firearm while committing the felony of attempted second-degree murder and, if appropriate, committing or attempting to commit any lesser-included felonies of attempted second-degree murder. I do not believe Lewis v. State, 377 So.2d 640 (Fla.1980), or Martin v. State, 342 So.2d 501 (Fla.1977)— which hold only that the defendant’s request for these lesser instructions in a homicide case need not be honored — prevent the envisioned retrial.

      . It may be that the reason that no one requested an instruction on attempted second-degree murder as to Count One and none was given was the perception that no such instruction was permissible where the victim died. Cf. Lewis v. State, 377 So.2d 640 (Fla.1980) (instruction on aggravated battery not required in homicide prosecution); Martin v. State, 342 So.2d 501 (Fla.1977) (instruction on aggravated assault not required in homicide prosecution). That, however, is totally irrelevant to a determination that the jury, uninstructed in this manner, could logically come to the conclusion it did. Moreover, in the present case the ratio-cinative process by which the jury arrived at its conclusion is not “highly unlikely,” see McCray v. State, 397 So.2d 1229, 1231 n. 4 (Fla. 3d DCA), review granted (Fla.1981). The jury might have found from the evidence, drawing all inferences favorable to the defendant, that the defendant’s attempt to kill the victim did not result in her death, but that the victim was accidentally and fatally shot in a later struggle for the gun. Thus, as in Hayes v. State, 368 So.2d 374 (Fla. 5th DCA 1979), despite the death of the victim, a defense may be (and in the present case the jury may have believed) that the defendant was not responsible for the death, although responsible for some lesser offense that did not cause the death. Since the jury was instructed on attempted second-degree murder as an underlying felony of possession and display of a firearm, its divergent conclusions are unquestionably consistent.

      . It appears that the ratio decidendi of McCray v. State, supra, has been tacitly followed in Breedlove v. State, 413 So.2d 1 (Fla.1982). In Breedlove, the defendant contended that he was entitled to have his burglary conviction and sentence vacated, because the State proved only felony murder, not premeditated murder. The court found that since the State introduced sufficient evidence of premeditation, “the jury need not have convicted Breedlove of burglary in order to support the murder conviction.” Thus, it appears that, like McCray, Breedlove upholds the burglary conviction by indulging the assumption that the jury found premeditated murder.

      . Depending on the allegations of the charge and the proof submitted, these might be aggravated battery, aggravated assault, etc. Of course, there can be no instruction on manslaughter, as to which the defendant has been acquitted.


author: PER CURIAM. NESBITT, Judge

text:
    Reinaldo L. DEL VALLE, Appellant, v. BILTMORE II CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, Appellee.
    No. 81-810.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.

      Kenny, Nachwalter & Seymour and Brian F. Spector, Miami, for appellant.
    Lee H. Schillinger, Coral Gables, for ap-pellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Biltmore II Condominium Association filed a complaint against Reinaldo Del Valle (unit owner) seeking enforcement of a provision of the declaration of condominium which provided that persons under the age of 12 years shall not permanently reside in the condominium. The complaint sought a temporary and permanent injunction requiring Del Valle to conform to the declaration of condominium, attorney’s fees and costs. Del Valle answered the complaint with specific denials, alleged a variety of affirmative defenses, and demanded trial by jury. During the course of litigation, Del Valle filed a motion to dismiss based on mootness. The basis for the suggestion of mootness was that the child in question no longer was living in the condominium unit. The trial court granted the motion over the objection of the Association and reserved jurisdiction on the issue of attorney’s fees and costs. Significantly, no appeal was taken from that order by the Association. Thereafter, the trial court awarded attorney’s fees and costs pursuant to Section 718.303(1), Florida Statutes (1979). It is from that judgment which Del Valle appeals. We reverse.

The Condominium Association bases its claim for attorney’s fees and costs on the theory that it was the prevailing party, even though no merits determination was ever made on its complaint. Attorney’s fees statutes are in derogation of the common law and must be strictly construed. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975); Great American Indemnity Company v. Williams, 85 So.2d 619 (Fla.1956); Palm Beach Leisureville Community Association, Inc. v. Raines, 398 So.2d 471 (Fla. 4th DCA 1981); Dolphin Towers Condominium Association, Inc. v. Del Bene, 388 So.2d 1268 (Fla. 2d DCA 1980). While we agree that “a merits determination is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to’ the party who prevails,” Department of Health and Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982), that is not the case here. In Department of Health and Rehabilitative Services v. Hall, supra, control of the litigation was in the hands of the complainant, H. R. S. On the eve of trial, H. R. S.obviated a decision on the merits by restoring the employee to her prior position with full back pay. Further, the Commission denied a dismissal for mootness. In the case sub judice the Association did not receive the relief it was seeking; specifically, no temporary or permanent injunction ever issued.

The appropriateness of injunctive relief in the enforcement of regulations contained in a declaration of condominium is well-established in Florida law. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979); Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637 (Fla. 4th DCA 1981); Fifty-six Sixty Collins Avenue Condominium, Inc. v. Dawson, 354 So.2d 432 (Fla. 3d DCA 1978); Pepe v. Whispering Sands Condominium Association, Inc., 351 So.2d 755 (Fla. 2d DCA 1977).

Age restrictions in a declaration of condominium, however, are subject to the test laid down by our Supreme Court in White Egret.

We do recognize, however, that these age restrictions cannot be used to unreasonably or arbitrarily restrict certain classes of individuals from obtaining desirable housing. Whenever an age restriction is attacked on due process or equal protection grounds, we find the test is: (1) whether the restriction under the particular circumstances of the case is reasonable, and (2) whether it is discriminatory, arbitrary, or oppressive in its application. White Egret, supra, at 351.

The Supreme Court went on to find that the Association in White Egret was es-topped from selectively enforcing an age restriction and, thus, the restriction was not capable of judicial enforcement.

Where, as here, the unit owner denies each and every material allegation in a complaint for injunctive relief and, additionally, interposes affirmative defenses including defenses of selective and discriminatory enforcement and estoppel, which, if proved at time of trial, would have precluded the Association from obtaining the relief requested, we have no basis for concluding that the Association was the prevailing party where the dismissal for mootness was unrelated to the merits of the case.

Reversed.

NESBITT, Judge

(dissenting):

The majority opinion acknowledges that the issue became moot when the child left the condominium. When Del Valle procured the order of dismissal based on his own motion to dismiss for mootness, he tacitly conceded that the child was not coming back to live in the unit.

The majority’s preoccupation with the viability of Del Valle’s claim here that he did not have an opportunity to litigate the affirmative defense (that the covenant prohibiting young children from living in the condominium was being enforced on a selective and discriminatory basis) is misplaced; it allows Del Valle to maintain inconsistent positions. In United Contractors, Inc. v. United Construction Corp., 187 So.2d 695 (Fla. 2d DCA 1966), the court stated:

“Equitable estoppel” precludes a person from maintaining a position inconsistent with another position which is sought to be maintained at the same time or which was asserted at a previous time; and, as a general rule where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim or right, he cannot afterward assume a position inconsistent with such act or conduct to the prejudice of another who has acted in reliance on such conduct. The doctrine requires of a party consistency of conduct, when inconsistency would work substantial injury to the other party.

187 So.2d at 701. See also Hodkin v. Perry, 88 So.2d 139 (Fla.1956); Lyle v. Hunter, 102 Fla. 972, 136 So. 633 (1931). Consequently, Del Valle cannot be permitted to maintain his affirmative defense where it is contrary to his motion to dismiss.

The trial court was well within its discretion in awarding attorney’s fees to the association. In the present case, the matter had been in litigation for a year and a half. Two weeks before the trial on the merits, the defendant procured the order determining that the matter was moot — a matter which he has now conceded for the purpose of this litigation.

Del Valle’s last minute attempt to withdraw his motion to dismiss (which was denied) does not prevent equitable estoppel from operating in this case. The inconsistent position was created by Del Valle’s actions and cannot be erased by his thoughts. If Del Valle was serious about asserting his affirmative defense, he should have appealed the denial of his ore tenus motion to withdraw his motion to dismiss. It is obvious that Del Valle is not concerned with vindicating his right to maintain children in his condominium — his interest was in something even “closer to home” — his pocketbook.

I would affirm the order awarding fees, based upon the written agreement which created the obligation, under the rationale of the cases cited in the majority opinion.

      . In response to the dissent, it is enough to say that the following transpired at the hearing on attorney’s fees:
      “[Del Valle’s Counsel]: I want to ask you one question, Mr. Del Valle: Why did the mother and child move out?
      “[Del Valle]: Because the mother and I had differences and she separated from me and took residence on her own.
      “[Del Valle’s Counsel]: Did it have anything to do with this lawsuit?
      “[Del Valle]: No, sir. She would still be with me.
      “[Biltmore’s Counsel]: Objection, Your Hon- or, this is totally outside of the record and I move that it be stricken.
      “THE COURT: Sustained, sustained.
      “[Del Valle’s Counsel]: I have no further questions.
      “THE COURT: All right. Do you have any questions?
      “You may step down.
      “[Del Valle’s Counsel]: Your Honor, I would like to say at this time, if your Honor is making the determination as a matter of law, that you made with respect to Mr. Del Valle, that I think I have the right to withdraw my motion to dismiss on mootness and ask for a trial on the merits because if I can establish that that was not—Your Honor, I think I can win this lawsuit.
      “Now, what I did, if I may, Your Honor is, I moved to dismiss based on mootness. That mother and child moving out had nothing to do with this lawsuit.
      “Now, if Your Honor is going to make this man pay attorney’s fees, then I want a trial on the merits and I am entitled to a trial on the merits because I am going to win this case and I ask for a jury trial.
      “Now, for Your Honor to make that determination and not give me a trial on the merits, I think is totally unfair.
      “THE COURT: All right.
      “[Del Valle’s Counsel]: Now, I would like to withdraw the motion to dismiss and let’s set this case for trial and file it.
      “[THE COURT]: The motion to withdraw the motion to dismiss is denied.
      “The Court is ready to rule.
      “The judgment of the Court is that counsel is entitled to and is hereby awarded the sum of $4,100 for attorney’s fees in this matter.”
      Thus, Del Valle’s position was perfectly consistent—since my child is no longer with me, the litigation is not worth fighting about, but if dismissal means having to pay fees to the association, then let’s see who will prevail.


author: BARKDULL, Judge.

text:
    Judith HERSKOWITZ, Petitioner, v. SCHWARZ & SCHIFFRIN, Respondent.
    No. 82-2.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.

      Judith Herskowitz, in pro. per.
    Norman Schwarz, Miami Beach, for respondent.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BARKDULL, Judge.

The petitioner has filed a petition for writ of certiorari seeking review of an order of the circuit court (sitting in its appellate capacity) which affirmed a trial court’s order denying the defendant’s motion to quash service of process.

Service of process was attempted by the process server going to the defendant’s residence where, upon knocking on the door, a male voice answered. The unknown male refused to open the door so the process server left the papers on the door step and departed. His return indicated that he had served a John Doe, a person above the age of 15, who was a resident of the defendant’s household, pursuant to Section 48.031, Florida Statutes (1979). The defendant moved to quash service of process, contending that both she and her son, the only permanent residents of her household, were out of town on the date service of process was alleged to have occurred. The trial court denied the motion. Timely appeal to the circuit court resulted in the order of affirmance.

The error alleged herein is of such fundamental nature that it rises to a level of denial of due process, so fatally infecting the proceeding that the ruling cannot answer constitutional muster. Thus, we shall exercise our certiorari jurisdiction. See: City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980). Section 48.031, Florida Statutes (1979), reads as follows:

“Service of process generally.—
(1) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.”

Statutes governing substituted service of process must be strictly construed and must be strictly complied with. Atlas Van Lines Inc., v. Rossmoore, 271 So.2d 31 (Fla. 2d DCA 1972); Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977). Section 48.-031, Florida Statutes (1979) clearly requires that in order to perfect substituted service it must be made upon a person over the age of 15 years, who resides in the defendant’s place of abode. The process server’s return filed herein shows on its face that service was made on a John Doe person residing therein. Clearly, such a return is invalid on its face and without more cannot reflect a determination that the individual served comes within the purview of Section 48.031, Florida Statutes (1979). Such a return fails to show that the individual is over the age of 15 and, in fact, resides in the defendant's home; thus, service would be invalid. See: Hauser v. Schiff, supra; Couts v. Maryland Casualty Company, 306 So.2d 594 (Fla. 2d DCA 1975); Sangmeister v. McElnea, 278 So.2d 675 (Fla. 3d DCA 1973). Furthermore, leaving the suit papers outside the door of the defendant’s abode, where there is no evidence that the individual inside the abode (who made the response) was a person 15 years of age or older, is insufficient evidence of the facts that are required under the statute. Cullimore v. Barnett Bank of Jacksonville, 386 So.2d 894 (Fla. 1st DCA 1980).

In light of the foregoing, we find that the circuit court (sitting in its appellate capacity) has departed from the essential requirements of law in affirming the trial court’s order denying the defendant’s motion to quash service of process.

Therefore, the order of the circuit court is quashed and the cause is remanded for further proceedings consistent herewith.

Quashed and remanded with directions.


author: PER CURIAM.

text:
    Michael Anthony BENTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-898.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.

      James B. Gibson, Public Defender, and Ronald K. Zimmet, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Appellant pled nolo contendere with express reservation of the right to appeal (Fla.R.Crim.P. 3.172(c)(iv)) a ruling denying his motion to suppress. In addition to the search and seizure question involved in the motion to suppress, appellant on this appeal challenges the validity of a condition of probation and the legality of his split sentence.

We conclude that under the circumstances in this case, the information the arresting officer received reasonably aroused his suspicion to the extent that he acted reasonably in approaching appellant, who was loitering near a business that had previously been burglarized, for the purpose of ascertaining appellant’s identity. After the officer noticed a distinctively shaped bulge in appellant’s pocket, which appeared to the officer to be a weapon, the officer was warranted in conducting a limited pat down search that revealed a concealed firearm. Therefore, the trial court properly denied the motion to suppress. See § 901.-151, Fla.Stat. (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); McNamara v. State, 357 So.2d 410 (Fla.1978); State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), affirmed, 387 So.2d 963 (Fla.1980); State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978); Ingram v. State, 264 So.2d 109 (Fla. 4th DCA 1972).

Appellant also challenges the validity of a condition of probation prohibiting him from living with any female to whom he is not married or related, citing Wilkinson v. State, 388 So.2d 1322 (Fla. 5th DCA 1980), which, relying on criteria set forth in Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979), held that such a condition of probation was invalid because it bore no reasonable relationship to the crime of carrying a concealed weapon.

By criminal laws, society protects the freedom, the person, and the property of each citizen from the acts of other citizens. By constitutions, these same rights of each citizen are protected from organized society, acting in the form of government. If a citizen obeys the laws, he is entitled to the utmost freedom, respect and protection possible in an organized society. However, if he chooses to disobey and disregard the rights of others, it is only just that his own rights be reduced or eliminated. At one time, justice was accomplished by permitting the injured citizen or his representative to personally take retribution upon the offender, but this is not now permitted and organized society, again acting through government, has the duty to do justice for all. This can be done only by permitting or requiring government to penalize the offending citizen by reducing his constitutional freedom from governmental action. To adequately protect the public and punish wrongdoers, it must be recognized that persons who have, by their own acts, submitted themselves to criminal sanctions do not have, and are not entitled to, all of the constitutional rights of law abiding citizens.

Criminal sanctions generally involve confinement or probation. Probation is a matter of grace. When it is offered as an alternative to confinement, it is usually considered a sufficient alternative by the sentencing judge only if the accused complies with conditions and limitations upon his usual freedoms. Oftentimes the balance of judgment between the appropriateness of confinement and the adequacy of probation is very close and the sentencing court would protect the public from the defendant by imposing the greater punishment, but for its statutory authorization and discretion to fashion specific conditions which it feels will limit and curtail the defendant’s activities to an extent justifying the risk to the public involved in allowing the defendant to remain at large. Since such conditions make a great difference, sentencing judges should, and do, give great care to fashioning conditions and enforcing compliance with them.

It has become a deceitful practice for a defendant to accept conditional probation from the trial court, live free until he violates a condition, and then to challenge the condition by appeal. A defendant always prefers no conditions because conditions are fetters on his right to continue the same anti-social actions and life-style that led to his violation of law and because it is the breach of those conditions which can violate probation and cause imprisonment.

When, at sentencing, the trial court proposes the conditions under which it will offer probation, the defendant should at that time seriously consider the matter and if he feels the conditions lade him with burdens too grievous to be borne, the defendant should forthrightly object to them at that time and place. It is true that an accused does not have bargaining power with the judge, but that is not the point. The defendant’s legal right is to not receive a sentence of confinement in excess of the statutory maximum. If he feels the proffered probation with conditions is more onerous than the maximum confinement permitted by law, he should reject the tendered offer of probation. This is not unfair because the predicament leading to his dilemma is a matter of his own making and the trial judge is acting for organized society. It is the duty of the trial court, on behalf of the public and the defendant, to fashion such conditions of probation as, in the trial court’s judgment, will serve to rehabilitate the defendant and protect and serve the public. If the trial court is adamant that the conditions are necessary, the defendant should either refuse probation or accept it as offered.

When conditions, without which the trial court would have concluded that prison was necessary, are stricken and eliminated on appeal, the trial court normally does not again have an opportunity to reweigh the alternatives in light of its inability to insist upon conditions it deemed necessary. The result is that the defendant has his cake and eats it too, that is, he has probation but without the conditions that the trial judge considered essential. At one time, appellate courts endeavored to prevent this result, see Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974), but more recently the courts have considered the constitutional rights of a probationer as if he were a law-abiding citizen and have liberally stricken conditions authorizing governmental action merely because such conditions would be unconstitutional as applied to free citizens, and have even found agreements to conditions to be invalid. Other cases have added further limitations upon conditions of probation by holding that such conditions must relate to the specific crime for which the offender has been convicted and must be directed to only diminishing his inclination to commit similar crimes.

Probation is solely a creature of statute. Section 948.03(1), Florida Statutes (1979), expressly authorizes the sentencing court to impose nine enumerated conditions of probation in every case, many of which conditions bear no reasonable relationship to any particular crime. Thus, this statute implies that there need be no relationship between conditions of probation as such and the particular crime of which the probationer stands convicted. In addition, section 948.03(2), Florida Statutes (1979), expressly provides that the enumeration of the specific conditions shall not prevent the sentencing court from adding other conditions as it considers proper. While the crime of which an accused stands convicted is very relevant to an appropriate sentence, the particular crime which underlies the probation is not the most important consideration in devising an appropriate disposition of the case, except only as it sets the lawful limits of punishment, because the sentencing judge is dealing with and sentencing the man and not the crime. The crime is sometimes symptomatic of the malady, that is, of the inability of the defendant to live in free society without breaking its laws, but often is not.

Criminal statutes prohibit conduct considered harmful to society. Regardless of the particular crime involved, the proper purpose of all sentencing is to, within lawful limits, act on the offender in such a manner that, in the future, the offender will more likely conform his conduct to the minimal societal standards set by criminal statutes. To determine the action needed in a given case is a difficult judgment decision for the sentencing judge to make after studying the person, that person’s needs and the alternatives available to the judge.

Both punishment and rehabilitation can influence future conduct. Contrary to inferences in some reported cases, both imprisonment and probation contain many aspects of punishment, through loss of various degrees of freedom, and many aspects of rehabilitation, through moral building incentives optimistically designed with the hope and goal of reforming a defendant into a more conscientious citizen-with greater respect for the person and property rights of others and self-discipline enabling him to keep his resolutions. To accomplish the latter purpose is the true purpose of conditions of probation. Accordingly, the correct rule should be that section 948.03(2), Florida Statutes (1979), authorizes conditions of probation of the same general kind, class and nature as does section 948.03(1), Florida Statutes, and which to the sentencing judge appear reasonable and proper to accomplish the purposes sought to be achieved. Section 948.03, Florida Statutes, does not require that the trial judge specify his reasons for imposing conditions of probation, but a cautious trial judge may see fit to do so in the event an appellate court undertakes to review for substance and reasonableness. Cf. Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1980) (trial judge must state with particularity his reasons for retaining jurisdiction pursuant to section 947.16(3), Florida Statutes).

At sentencing, the trial court should clearly delineate all terms upon which he deems it necessary to condition probation and the defendant should clearly state of record his objections and refusal to accept conditions of probation, failing which he should be deemed to have accepted such conditions. In the event the trial court imposes such conditions upon a defendant over the defendant’s clear objection, the defendant must appeal from the original probation order, rather than attacking the imposition of a condition after its breach. In the event conditions are subsequently held improper by an appellate court, the cause should be remanded to the trial court for reconsideration of the sentence anew in light of the trial court’s inability to impose the conditions it considered proper and needed. In the matter of imposing conditions of probation, sentencing judges should, at least, have the same presumption accorded their acts as is accorded to the acts of nonjudicial public officers; that is, that public officers are presumed to have properly performed their duty in good faith. This means that it should be presumed that the sentencing judge imposed the conditions of probation to protect the public and to increase the probability that the defendant will obey the law in the future. From the general presumption that a public officer performs his duty comes a secondary presumption that action taken by the officer which presupposes the existence of other matters to make such action proper, operates as presumptive proof of the existence of the necessary prerequisites. This principle should be applied to raise a rebuttable presumption that there is a rational connection between a condition of probation and the proper objective sought to be achieved by probation, which presumption the probationer should have the burden to overcome in a proceeding instituted for that purpose in the trial court. See Barlow v. State, 390 So.2d 165 (Fla. 5th DCA 1980); Barlow v. State, 388 So.2d 349 (Fla. 5th DCA 1980); Singleton v. State, 386 So.2d 1314 (Fla. 5th DCA 1980); Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980). Any appeal attacking the validity of a specific condition of probation should be from an adverse ruling in the trial court. For the above reasons, we recede from Wilkinson.

Appellant’s split sentence is condemned by Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), a decision issued after the sentencing in this case. This court has recognized the propriety of a Villery attack initiated in the appellate court, so appellant’s sentence is hereby reversed. Under Villery, the trial court has the authority to impose a sentence which may require a greater period of confinement than originally included within the probation order. Appellant is not required to accept probation and may reject the court’s attempt to effect his rehabilitation by conditions of probation rather than by a straight term of imprisonment. See Cline v. State, 399 So.2d 1115 (Fla. 5th DCA 1981).

A consideration by the full court being deemed necessary to maintain uniformity of decisions in this court on matters involved in this case, the court on its own motion determined this cause en banc. See Fla.R. App.P. 9.331(a) and (b).

Conviction AFFIRMED, sentence VACATED and cause REMANDED for sentencing.

DAUKSCH, C. J., and ORFINGER, COBB, FRANK D. UPCHURCH, SHARP and COWART, JJ., concur.

      . Besides reducing the risk to the public in allowing a criminal to remain at large, conditions of probation should be fashioned to serve the dual purposes of punishment of the criminal, to deter him from committing future crimes, and his rehabilitation, by forcing him into a pattern, or habit, of conduct less likely to lead him to violate the law.

      . See, e.g., Grubbs v. State, 373 So.2d 905 (Fla.1979).

      . Dearth v. State, 390 So.2d 108 (Fla. 4th DCA 1980).

        .See Almond v. State, 350 So.2d 810 (Fla. 4th DCA 1977); Coulson v. State, 342 So.2d 1042 (Fla. 4th DCA 1977); Russell v. State, 342 So.2d 96, 97 (Fla. 3d DCA 1977); Kominskey v. State, 330 So.2d 800 (Fla. 1st DCA 1976).

      .The ejusdem generis rule.

      . See generally 26 Fla.Jur. Public Officers § 188 (1959); 23 Fla.Jur.2d Evidence and Witness §§ 91, 93 (1980).

      . See, e.g., Boozer v. State, 402 So.2d 585 (Fla. 5th DCA 1981); Leftwich v. State, 399 So.2d 496 (Fla. 5th DCA 1981).

        .See Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981).