author: ORFINGER, Judge.

text:
    Eric Randle McCARVER, Appellant, v. STATE of Florida, Appellee.
    No. 79-276/T4-390.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 21, 1980.
    Harry W. Carls, III, Public Defender, and Charles A. Tabscott, Asst. Public Defender, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ORFINGER, Judge.

This is an appeal from a judgment of conviction based upon a plea of nolo conten-dere, reserving right to appeal, following the denial of defendant’s motion to dismiss the indictment herein.

On April 18, 1978, defendant, a juvenile, was arrested on a petition for delinquency, charging him with armed burglary of a dwelling. On April 19, 1978, he was brought before the Circuit Court, Juvenile Division, for a detention hearing. At that hearing, and in response to a question put to him by the circuit judge, he indicated a desire to enter a plea of guilty to the charge, whereupon the Court proceeded to take testimony to determine the defendant’s understanding of the nature of the charges, his understanding of his rights and the rights he would be waiving if the Court accepted his plea, and the factual basis for the plea. At the conclusion of the testimony, the Court specifically found that the facts supported the violations charged, that the plea was entered freely and voluntarily after intelligent consideration, and the Court accepted the plea. The Court then announced that it would withhold adjudication pending the preparation of a disposition report which he then ordered prepared. The defendant was not represented at this hearing and waived counsel. An Assistant State Attorney was present representing the State and made neither comment nor objection to the proceedings.

That same day, the State filed a motion before the same circuit judge, requesting the “. . . Court to vacate the plea of guilty entered by the . [defendant] and accepted by the Court . . .” and to enter for the defendant a plea of not guilty because the defendant had been charged with a felony punishable by life imprisonment, the State intended to present this matter to the grand jury, and that under Sec. 39.02(5)(c), F.S., no adjudicatory hearing could be held within 14 days from the date the child was taken into custody unless the State Attorney advised the Court in writing that it did not intend to present the case to the grand jury, and no such written notice had been filed with the Court.

The following day, April 20, 1978, the Court appointed the Public Defender to represent the defendant and vacated and set aside the guilty plea because the charge was a life felony and that, pursuant to Sec. 39.02(5)(c), F.S., “. . . the Court cannot hold an adjudicatory hearing until 14 days have passed unless the State Attorney advises the Court in writing that he does not intend to present the case to the grand jury.” The trial court then specifically found that the term “adjudicatory hearing” did include a guilty plea.

With the guilty plea vacated, the State presented the matter to the grand jury, which returned an indictment against the defendant. Defendant filed a motion to dismiss the indictment on the ground that he had been placed in jeopardy by the acceptance of the guilty plea in the juvenile division. The motion was heard by a judge in the criminal division, and denied; whereupon, the defendant entered a plea of nolo contendere, reserving the right to appeal. Defendant appeals his conviction, asserting error in the denial of his motion to dismiss the indictment.

Appellant urges two grounds for reversal. First, he asserts that the term “adjudicatory hearing” does not include acceptance of guilty pleas, hence the 14-day inhibition of Sec. 39.02(5)(c), F.S., does not apply. We do not agree. Sec. 39.01(23), F.S., defines “adjudicatory hearing” as “ . a hearing at which the court makes its findings of fact and enters an appropriate order dismissing the case, withholding adjudication, or adjudicating the child to be a delinquent child . . ” Rule 8.130 Fla. R.Juv.P. provides that at any hearing after the filing of the petition the child may enter a plea of guilty or nolo contendere and the Court “. . . shall not accept either plea without first determining that the plea is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of such plea and that there is a factual basis for such plea.” Additionally, Rule 8.190 Fla.R. Juv.P., the caption of which is “adjudicatory hearings” provides for the entry of a guilty plea at such hearing with the attendant interrogation by the Court concerning said plea and determination of the factual basis for it. The Court may then adjudicate the child delinquent or withhold adjudication. Thus it is obvious that, as found by the juvenile division, an adjudicatory hearing contemplates the taking of a guilty plea.

Appellant next contends that when he submitted a plea of guilty at the hearing, and when the Court took testimony to determine the voluntariness of the plea and the factual basis for it, accepted the plea and withheld adjudication pending a predisposition report, he was placed in jeopardy and the subsequent proceedings violated the constitutional prohibitions against double jeopardy and are thus void. We agree and must reverse the instant conviction entered upon the plea of nolo contendere.

Defendant contends, and correctly so, that jeopardy attaches in juvenile proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and Smith v. State, 316 So.2d 552 (Fla.1975). The State concedes this. However, the State contends that before jeopardy can attach as a result of a trial or hearing, the proceeding must be valid and if the proceedings are lacking in any fundamental prerequisite which renders the judgment void, they will not constitute a proper predicate for such a claim. Tilghman v. Mayo, 82 So.2d 136 (Fla.1955). Put another way, the State says that if the court before which the proceedings are conducted has no jurisdiction, such proceedings are fundamentally void and offer no basis for a claim of double jeopardy. It cites Rogers v. State, 336 So.2d 1233 (Fla.4th DCA 1976) and Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972) as support for its position. In Rogers, it was held that an information filed in the county court for the felony of carrying a concealed firearm did not preclude a later information in the circuit court for the same crime, even after trial commenced in the county court, when the county court dismissed the information for lack of jurisdiction. In Pope, the reverse was found; that the filing of an information in the circuit court for a crime that was a misdemeanor did not preclude the later filing of an information in the county court for the same crime. In both cases, the determining factor was the jurisdiction of the first court to entertain the proceedings, and so here, we look to the jurisdiction of the circuit court to accept appellant’s plea. The State contends the juvenile court had no such jurisdiction because of the 14-day “wait” period of Sec. 39.02(5)(c), F.S., and it urges us to hold that by accepting the plea in violation of this rule it exceeded its jurisdiction “. just as surely as if the plea had been tendered and accepted in county court.”

Sec. 39.02(1) provides that the circuit court shall have “exclusive original jurisdiction ” of proceedings in which a child is alleged to be delinquent. Sec. 39.02(5)(c) then provides:

“(c) A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult. No adjudicatory hearing shall be held within 14 days from the date that the child is taken into custody unless the state attorney advises the court in writing that he does not intend to present the case to the grand jury or that he has presented it to the grand jury but that the grand jury has declined to return an indictment. Should the court receive such a notice from the state attorney, or should the grand jury fail to act within the 14-day period, the court may proceed as otherwise required by law.” (emphasis supplied)

Thus it is evident that from the time a petition for delinquency is filed and the juvenile is taken into custody, the circuit court jurisdiction vests, and it is not divested until a grand jury returns an indictment in a proper case. If the grand jury refuses to indict or does not do so within the 14-day period, the juvenile jurisdiction continues as before. If we adopt the State’s position that the juvenile court has no jurisdiction during the first 14-day period, then no court would have jurisdiction, and this obviously cannot be.

Jurisdiction is the power to hear and determine a cause, even erroneously. Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926); State ex rel. Reynolds Construction Co., Inc. v. Hendry, 37 So.2d 904 (Fla.1948). The juvenile court had jurisdiction when it requested and accepted defendant’s guilty plea at the detainer hearing. In view of the nature of the charge against him, the State should have been given the opportunity contemplated by the statute to either present the matter to the grand jury or advise the court in writing that it did not intend to do so. Nevertheless, an adjudicatory hearing was held; a plea of guilty was tendered and factual evidence was presented to support the plea. Having thus proceeded, even though erroneously, the Court placed the defendant in jeopardy, which attached when the Court, as the trier of the facts, began to hear evidence. Breed v. Jones, supra; Smith v. State, supra. Defendant could not thereafter be tried again for the same offense.

The judgment of conviction is therefore reversed and the sentence set aside, and the cause is remanded to the Circuit Court of Orange County, Florida, Juvenile Division, for further proceedings in that division, consistent herewith.

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

      . Cf. Spencer v. Wainwright, 377 So.2d 38 (Fla. 1st DCA, 1979) where only a transfer hearing was held, so jeopardy did not attach.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dorothy Logan POST, Petitioner, v. STATE of Florida, Respondent.
    No. 79-1908.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 20, 1980.
    Waldense D. Malouf, Clearwater, for petitioner.
    James T. Russell, State’s Atty., and Larry Sandefer, Asst. State’s Atty., Clearwater, for respondent.
   PER CURIAM.

This petition for writ of common law certiorari to review the circuit court’s af-firmance of petitioner’s conviction in the county court is denied in view of our recent decision in State v. Duke, 378 So.2d 96 (Fla. 2d DCA 1979), and because we do not find that the circuit court departed from the essential requirements of law.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Terry Lee YOUMAN, Prince Albert Lewis and Idus Jenkins, Appellees.
    No. 78-1280.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1980.
    David H. Bludworth, State’s Atty., and William B. King, Asst. State’s Atty., West Palm Beach, for appellant.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellee Lewis.
    Nelson E. Bailey of Bailey & Jordan, P. A., West Palm Beach, for appellee Youman.
    Frank G. Callas of O’Connor, Baylor, Callas & Elliott, Palm Beach, for appellee Jenkins.
   PER CURIAM.

This appeal involves an issue relating to Fla.R.Crim.P. 3.191, speedy trial. Just prior to trial on two informations consolidated for trial the court entered an order suppressing evidence. An interlocutory appeal followed and this court ultimately reversed the ruling and remanded the case for trial. During the pendency of the interlocutory appeal the state moved to extend the speedy trial limitations and motion was granted prior to the reversal of the order of suppression.

Upon remand the defendants moved for discharge under the speedy trial rule. The motions were granted and the state appealed from the orders of discharge; this court reversed the trial court.

The defendants again moved for discharge, asserting that at no time since the issuance of the mandate or the motion to discharge had the state requested an extension of time in order to prosecute an interlocutory appeal, nor had a valid order been issued extending the limits of speedy trial. The motions were granted and the state again appealed.

The narrow issue presented is whether the state was required to obtain an order extending the time under the speedy trial limitations when it appealed the first orders of discharge. The state relies on State v. Pearce, 336 So.2d 1274 (Fla.1st DCA 1976), which dealt with a final order dismissing an information. In its order granting the motions to discharge the trial court depended upon State v. Cannon, 332 So.2d 127 (Fla.4th DCA 1976) and Jenkins v. State, 349 So.2d 1192 (Fla.4th DCA 1977), both cases considering an interlocutory appeal from an order suppressing evidence.

Since the above decisions the supreme court in State v. Barnett, 366 So.2d 411 (Fla.1978) was faced with the question of whether or not it was necessary for the state to apply for an extension of the speedy trial time limits when it wished to take an appeal from an erroneous trial court order granting the discharge of a defendant under the rule. Therein it was stated that

We agree with the district court that the speedy trial rules are silent with regard to whether the state must apply for an extension when it wishes to appeal an erroneous order of the trial court discharging a criminal defendant from prosecution under the speedy trial rule. However, we find that there are sufficient policy considerations distinguishing appeals taken by the state following a trial court’s order discharging a defendant under the speedy trial rule provisions from all other types of appeals taken by the state in criminal cases. Generally, a motion for discharge will be filed immediately prior to the commencement of trial. In most cases, there will be little or no time left under the original 180 days, so that any extension of time would be meaningless. Further, the delay caused by such an erroneous discharge has in no way been predicated upon some error or misjudgment made by the prosecution. The speedy trial time limits are not automatically tolled upon the filing of an interlocutory appeal by the state under other circumstances because we do not wish to encourage prosecutors to file interlocutory appeals solely for the purposes of delay.
Rather, the state must also file for an extension of time, and prove to the trial court that such an appeal is not frivolous, nor taken solely for the purposes of delay. This policy consideration is inapplicable to appeals taken by the state from erroneous orders discharging defendants from prosecution.
In the present case, the trial court improperly granted the defendants’ motions for discharge.

Id. at 417.

The court having improperly granted the defendants’ motions to discharge, the consolidated causes are remanded to the trial court, to be brought to trial within a reasonable time after mandate, not to exceed 90 days.

MOORE and HERSEY, JJ., and LAMAR WARREN, Associate Judge, concur.


author: PER CURIAM. BOOTH, Judge,

text:
    POOL BOYS INTERNATIONAL, INC. and Liberty Mutual Insurance Company, Appellants, v. ESTATE of Richard SZIDOR and Jacqueline Szidor, as Mother, and Joseph Szidor, as Father, Appellees.
    No. QQ-101.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1980.
    Rehearing Denied March 5, 1980.
    Frank E. Maloney, Jr., for Anthony J. Beisler, Fort Lauderdale, for appellants.
    Curtis G. Levine of Baskin & Sears, Boca Raton, for appellees.
   PER CURIAM.

Affirmed.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: HOBSON, Acting Chief Judge.

text:
    PINELLAS COUNTY, Florida, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. 79-628.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1980.
    Rehearing Denied Feb. 15, 1980.
    Leslie M. Conklin and W. Gray Dunlap, Clearwater, and John-Edward Alley and Robert D. Hall, Jr. of Alley & Alley, Tampa, for petitioner.
    Vernon Townes Grizzard, Staff Counsel, Tallahassee, for respondent.
   HOBSON, Acting Chief Judge.

The Board of County Commissioners of Pinellas County (county) seeks review of a final order rendered by the Florida Public Employees Relations Commission (PERC) which denied the County’s application for approval 'of local option ordinance No. 76-20, submitted pursuant to Section 447.603, Florida Statutes (1975). We reverse.

In 1974, the Florida legislature enacted Part II of Chapter 447, Florida Statutes (the Tucker Act). The act established the Public Employees Relations Commission and delegated to it the task of supervising collective bargaining by public employees. On February 4, 1975, Pinellas County submitted local option ordinance No. 75-4 to PERC for approval. The ordinance was drafted under the authority of Section 447.-603, Florida Statutes, which provided:

447.603 Local option. — Any district school board or political subdivision, other than the state or a state public authority, may elect to adopt, by ordinance, resolution, or charter amendment, its own provisions and procedures in lieu of the requirement of this part, provided such provisions and procedures effectively secure to public employees substantially equivalent rights and procedures as set forth in this part. Prior to [such provisions and procedures] becoming law, the public employer shall apply to the commission for review and approval as to whether local provisions or procedures, or both, are substantially equivalent to the provisions and procedures set forth in this part. All public employee agreements now in existence shall remain in effect until their expiration.

Seven months later, on September 17, 1975, PERC conducted a hearing on the proposed ordinance. On February 26, 1976, hearing officer Curtis L. Mack issued a staff recommendation and analysis which specified 94 deficiencies in the subject ordinance. At a hearing before PERC on March 3, 1976, further oral argument was heard and the application for approval was denied. On August 25, 1976, the county filed ordinance No. 76-20 for approval, which substantially amended the original local option ordinance.

Ordinance No. 76-20 was assigned to a PERC attorney for research and investigation. On May 25, 1978 (nearly two years after the amended ordinance was submitted), the investigating agent recommended that the local option application be denied. His report found that the ordinance, as amended and resubmitted, conformed to some 91 changes suggested in the prior hearing officer’s report of February 26, 1976; however, the recommended order suggested 12 additional changes that would be necessary in order to secure approval. PERC granted the county additional time to file exceptions and brief and on June 19, 1978, the county did so file. On September 11, 1978, oral argument on the exceptions to the recommended order was heard. Six months later, the county filed a petition with this court seeking relief which would require PERC to approve the local option ordinance on the ground that PERC had abused the “90-day rule” of Section 120.59 (Florida Statutes). The following day, March 22, 1979, PERC entered the final order denying approval of the local option application. This order was rendered 192 days following oral argument, two and one-half years after the county submitted amended ordinance No. 76-20 and over four years after the county filed its initial application for approval of ordinance 75-4.

DISCUSSION

Section 120.59, Florida Statutes, provides:

(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record and include findings of fact and conclusions of law separately stated, and it shall be rendered within ninety days:
(a) After the hearing is concluded, if conducted by the agency,
(b) After a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer, or
(c) After the agency has received the written and oral material it has authorized to be submitted, if there has been no hearing.
The ninety day period may be waived or extended with the consent of all parties. (Emphasis ours)

Although the above-quoted section does not provide a specific penalty in the event an agency violates the 90-day rule, Section 120.68, Florida Statutes, which deals with judicial review, sets out in subsection (8):

The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.

The county argues that under the authority of City of Panama City v. PERC, 364 So.2d 109 (Fla. 1st DCA 1978), this court must reverse PERC’s final order and remand the cause with directions that the local option ordinance be approved as it now stands. The facts of the Panama City case are strikingly similar to those in the instant case. In Panama City, the city filed a petition seeking review of an order of PERC which denied approval of a similar local option ordinance. The city filed its proposed ordinance in December 1974 and, after hearings, adopted an amended ordinance to conform to the concept of “substantial equivalency.” A hearing was held on the amended ordinance in April 1976. PERC rendered an oral decision which approved the ordinance subject to certain modifications and conditions. Over a year later, PERC redetermined the issue of the substantial equivalency of the ordinance and entered its order denying approval. The First District Court approved PERC’s findings concerning the deficiencies in the submitted ordinance and substantially agreed with PERC on the merits of the case. Nevertheless, the court reversed the order and remanded with directions that the city’s local option ordinance be approved. The basis on which the court granted its reversal was that “PERC flagrantly disregarded the time provision in the statute and the rights of the city and its employees to have their status timely determined. Clearly the fairness of the proceedings has been impaired.” Panama City at 114. The Panama City court cited with approval the case of Financial Marketing Group, Inc. v. State Department of Banking & Finance, Div. of Securities, 352 So.2d 524 (Fla. 3d DCA 1977), in which that court reversed a final agency order which denied a security dealer’s license. The reversal was based on the fact that the agency’s final order was improper where the agency did not have before it a full transcript of the proceedings before the hearing examiner and had apparently reversed his findings of fact. The court noted that PERC had failed to render its final order within 90 days and remarked:

We certainly agree that the State agencies should follow mandates of the Legislature. We further observe that the regulatory agencies should not frustrate a citizen’s attempt to secure a license to pursue a vocation or profession by inaction. If there were no other basis to reverse the agency’s action under review, we might adopt the penalty suggested by the petitioners and require the issuance of the licenses because of the failure of the respondent to follow the mandatory provisions of Section 120.59, Florida Statutes.

Financial Marketing at 525.

We have examined the record of the case 'under review to determine whether or not “the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” It is our considered opinion that the county diligently pursued a course of action designed to acquire PERC’s approval of its local option ordinance. These efforts were met with delay and inaction, for whatever reason, by PERC. Although we realize the importance of thorough investigation by the commission in order to determine whether the submitted ordinance meets statutory requirements, certainly there was more than enough time to handle this matter in the two and one-half year period after its second submission. When the legislature saw fit to delegate extensive responsibility to PERC through the Tucker Act and, further, to place certain time limits on the execution of this responsibility, we assume that the purpose was to assure efficient resolution of collective bargaining matters. Although extenuating circumstances might exist in certain situations which would relieve PERC from strict compliance with the 90-day rule, we can find no such extenuating circumstances in this case. Whatever the motives or reasons which prompted this flagrant disregard for the statutory time limit, the result is a material error in procedure which requires redress by this court. If PERC’s primary consideration in the matter had been to assure a substantially equivalent local option ordinance for the benefit of county employees, it had more than sufficient time in which to do so. If the investigation appeared to require more than 90 days, PERC should have at least requested that the county stipulate to a definite period of extension.

Therefore, we grant the petition for review and reverse the final order which denied approval of Pinellas County’s local option ordinance No. 76 — 20. We remand the cause for the county to amend said ordinance where necessary to bring it into substantial compliance with Chapter 447, Part II, as amended by Chapter 77-343, Laws of Florida. City of Panama City v. PERC, 378 So.2d 66 (Fla. 1st DCA 1979). Upon said amended ordinance being filed with PERC, the commission is ordered to grant immediate approval.

REVERSED and REMANDED.

OTT and RYDER, JJ., concur.


text:
    Edward R. SMITH, Appellant, v. CHEVYLAND LEASING, INC. and Bennie Shields, Appellees.
    No. OO-88.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1980.

      W. Dexter Douglass of Douglass, Davey & Cooper, Tallahassee, for appellant.
    Edna L. Caruso, West Palm Beach, and McClure & Gay, P.A., Ft. Lauderdale, for appellee Chevyland.
   PER CURIAM.

The trial court correctly ruled that there was no genuine issue as to any material fact and that Chevyland was entitled to judgment as a matter of law. The operation of Chevyland’s truck did not contribute as a proximate cause to the gunshot wound inflicted on plaintiff by a hunter standing on the bed of the truck. For the reasons stated in the trial court’s order granting summary judgment, that judgment is

AFFIRMED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


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

text:
    David Michael CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. OO-167.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1980.
    Rehearing Denied March 4, 1980.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Cummings, convicted of sexual battery and committed to the Department of Health and Rehabilitative Services as a mentally disordered .sex offender, Chapter 917, Florida Statutes (1977), complains on this appeal that the trial court erred in removing him from the Department’s custody for imprisonment pursuant to sentence without holding an evidentiary hearing on the issue of whether the Department has exhausted all available treatment. On receiving the Department’s report that all available treatment had been exhausted, the court scheduled a hearing on pending matters but refused an evidentiary hearing and proceeded to sentencing.

Citing Washington v. State, 355 So.2d 464 (Fla. 1st DCA 1978), and O’Steen v. State, 366 So.2d 844 (Fla. 1st DCA 1979), in which evidentiary hearings were had by the court, Cummings urges that he also is entitled to controvert and adduce proof refuting the Department’s decision that it has exhausted all available treatment. We affirm.

While an evidentiary hearing was had in Washington, and the efficacy of a hearing was assumed in that case, O’Steen was decided on the basis of facts appearing in the Department’s report. In neither case was an issue raised or decided concerning the necessity for an evidentiary hearing. Moreover, Section 917.20(2) was amended by Chapter 77-312, Section 19, Laws of Florida, to provide in part:

if the department returns an offender to the court because the department has determined that it has exhausted all treatment for the offender, the court shall remove the offender from the custody of the department. .

For the following reasons stated by Circuit Judge Clark, we agree with his conclusion that Section 917.20(2), Florida Statutes (1977), did not require that .Cummings be afforded a trial before the court on the issue of whether the Department had exhausted all available treatment:

The Court has determined as a matter of law that Section 917.20(2) requires the court to remove the offender from the custody of the Department when it has exhausted all treatment for the offender. Although that fact contemplates a hearing when the offender is returned to the Court, the only issue before the Court is whether a valid written report has been filed with the committing court stating that the Department has exhausted all treatment of the offender. The written report contains that recital including a statement that the offender’s case has been reviewed by the Department’s Interdepartmental Screening Committee which unanimously supported that finding. It is clear from a reading of Chapter 917 that the legislature did not intend to put the Department of Health and Rehabilitative Services on trial each time it filed a written report that it has exhausted all appropriate treatment . . .

AFFIRMED.

LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    DODI PUBLISHING CORPORATION, Appellant, v. EDITORIAL AMERICA, S. A., a Florida Corporation, Appellee.
    No. 79-790.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Rehearing Denied March 5, 1980.
    Kreeger & Kreeger and Judith L. Kreeger, Miami, for appellant.

      Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Patricia M. Silver, Miami Beach, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Affirmed. See Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors Southeast, Inc., 355 So.2d 853 (Fla. 3d DCA 1978).


text:
    Sue PETERSON, Judy Favor and Karen Young, Appellants, v. Orlando DIAZ, Appellee.
    Nos. 79-1438, 79-1446.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Michael Brodsky and Thomas F. Almon, Miami, McMahon & Goldstein, North Miami, Elmer J. Herrmann, Jr., New Jersey, for appellants.
    Weiner, Robbins, Tunkey & Ross and Ronald Dion, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., JR. (Ret.), Associate Judge.
   PER CURIAM.

We reverse a summary final judgment entered in favor of appellee, the original owner of personal property lost in a public place. The dispositive issue on appeal involves a determination of whether appel-lee’s act in claiming or calling for the lost property, BEFORE it was found, constituted sufficient compliance with the requirements of Section 715.01, Florida Statutes (1977). We hold that it did not.

The pertinent facts are as follows: On November 11,1977, appellants found a camera case containing United States and Canadian currency with an aggregate value of $17,215. The camera case was found at Daphne’s Restaurant within the Sheraton Riverhouse Hotel in Miami, Florida, where appellants were employed. Subsequently the camera case and its contents were turned over to the Dade County Public Safety Department. On May 30, 1978, appellant Karen Young, in Circuit Court Case No. 78-8945, filed a replevin suit seeking return of the currency. On January 11, 1979, appellee, a Chilean resident, filed a motion to intervene in Case No. 78-8945 alleging that he was the rightful owner of the currency and entitled to its return. Ap-pellee moved for summary judgment referring to a deposition which confirmed that he had reported the loss of his property to the hotel at a time prior to its finding. It is undisputed that no further inquiry or claim on the property was made by appellee until December 10, 1978, some 13 months after the property had been found. On June 22,1979, the court below entered summary judgment in favor of appellee specifically finding that appellee’s claim to the currency on “the day following its loss satisfies the provisions of Section 715.01, Florida Statutes (1977) inasmuch as both the fact that the intervenor did make such a claim and that he is the rightful owner of the currency in this cause remain uncontro-verted and uncontested”.

We disagree with the trial court’s finding that an owner meets the requirements of Section 715.01, Florida Statutes (1977) by claiming the property before it is found. Section 715.01, Florida Statutes (1977) places an obligation on rightful owners of personal property found in public places to call for or claim same within six months after the finding of such property. This, appellee undisputedly did not do. Thus, under the Statute, title to the property vested in appellants. While Section 715.-01, Florida Statutes (1977) appears to be in derogation of an owner’s common law right to lost property, our statutes are a limitation on the common law rather than an enlargement of it. Linger v. Balfour, 102 Fla. 591, 136 So. 433 (1931).

Reversed and remanded with instructions to enter judgment in favor of appellants.

      . “715.01 Title to personal property found in public places
      “The title to all personal property found in or upon public conveyances, premises at the time used for business purposes, parks, places of amusement, public recreation areas and other places open to the public is hereby vested in the finder unless the same be called for or claimed by the rightful owner thereof within six months after the finding thereof. Employees of public transportation systems shall be deemed agents of such transportation systems and personal property found on public conveyances, in depots, and garages of said transportation systems shall be turned in to the proper person or department designated to receive such property by the said transportation systems, and such property shall be securely kept for the period of time as required by this section after which time if unclaimed by the rightful owner the title of such property shall be vested in the transportation system and not in the employee.”

      .Also found in the camera case was hashish oil.

      . On August 24, 1978, Young filed an amended complaint naming Peterson and Favor as defendants. Subsequently appellants entered into a stipulation concerning the distribution of the currency.

      . Appellant Young also moved for summary judgment.

      . 1 Am.Jur.2d Abandoned, Lost, etc., Property § 19.


author: DOWNEY, Chief Judge.

text:
    RAN INVESTMENTS, INC., a Florida Corporation, Appellant, v. INDIANA INSURANCE COMPANY, a Foreign Corporation and Community Federal Savings and Loan Association of Riviera Beach, a Florida Corporation, Appellees.
    No. 78-1128.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Rehearing Denied March 6, 1980.

      Charles C. Powers and Forrest Barnhart of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellee, Indiana Ins. Co.
   DOWNEY, Chief Judge.

Appellant, Ran Investments, Inc., appeals from a final judgment dismissing its complaint with prejudice.

Appellant’s amended complaint alleged that it owned certain improved realty which it leased to Gerald and Elsie Krai; that the Krais procured a policy of insurance from appellee, Indiana Insurance Company, protecting said property against fire and other hazards; said policy contained a mortgagee clause naming as mortgagee the appellee, Community Federal Savings & Loan Association, as its interest may appear. The complaint further alleged that the property was damaged by fire; Community Federal demanded payment on said policy but the insurance company refused to pay; and that Community Federal refuses to pursue legal action against the insurance company. Finally, appellant alleges that it is entitled to recover on said policy. The trial court dismissed the amended complaint and it is that order which we are asked to review here.

The rationale of the order of dismissal is contained in the following excerpt therefrom:

After having considered Plaintiff’s claim as stated in its Amended Complaint, the policy of insurance attached thereto, together with Defendant’s motion, the Court finds as a matter of law that the policy of insurance is a personal contract between the named insureds, Mr. and Mrs. Krai, and Defendant, to insure the Krais’ interest in the covered property, and not the property itself. And since there is no reference whatsoever to Plaintiff in the policy, either expressly or impliedly, and further since there is nothing in the policy to show that the parties intended in any way to benefit Plaintiff, Plaintiff is precluded from maintaining a cause of action on the policy against Defendant, INDIANA INSURANCE COMPANY.

On motion for rehearing appellant exhibited a proposed second amended complaint which alleged, among other things, that the Krais had agreed to insure the property against the usual hazards, including fire, for the benefit of appellant, which insurance policy would comply with the terms of the mortgage deed from appellant to appel-lee, Community Federal. The court refused the proposed amendment because it was the view of the trial judge that no cause of action would be stated even with the amendment.

The issue as framed by the appellant is whether “a Mortgagor may bring suit as a third party beneficiary to enforce a promise by an insurer to pay his Mortgagee to the extent of the Mortgagee’s loss as its interests appear, where the Mortgagee is named as loss-payee in a fire insurance policy.” Appellee casts the question a little differently: “whether a property owner may recover on a policy of fire insurance in which it is neither named as a party nor referred to in any manner.”

Prom the record presented we glean that appellant owned a piece of improved realty which it leased to the Krais. The lease contract required Krai to obtain hazard insurance on the property which would protect the mortgagee as the mortgagor had agreed to do in its mortgage contract. The Krais did obtain said policy. The property was damaged by fire, the mortgagee has-failed or refused to proceed against the fire insurance company and appellant claims as a third party beneficiary of said contract that it should be able to recover the proceeds of the policy. We are persuaded that appellant’s contention has merit and is supported by several Florida cases.

In Schlehuber v. Norfolk & Dedham Mutual Fire Insurance Co., 281 So.2d 373 (Fla. 3rd DCA 1973), the Sehlehubers purchased a dwelling from the Cannons. Prior to the sale the Cannons had insured the property against loss by fire. The policy contained a loss payable clause naming two mortgagees as their interest may appear. After the closing of the sale the property was damaged by fire but the mortgagees refused to sue on the policy. The Sehlehubers were not named as insureds on the policy and had not paid a pro rata portion of the premium; however, they demanded payment under the policy as third party beneficiaries. The company refused payment. In holding that the Cannons could recover, the court stated:

Fla.Stat. § 627.405, F.S.A., sets out by way of negative statement the proposition that a contract of insurance of property may be enforced for the benefit of persons having an insurable interest in the property. Further, the term insurable interest is defined as an “economic interest in the safety or preservation of the subject” at the time of the loss. It is apparent, therefore, that at the time of the loss appellant had an insurable interest and that he has a right to enforce the policy as it was written and in force at that time. We conclude that the language of the mortgagee payment clause which was a part of that policy represents a promise by the insurance company to pay to the mortgagees the extent of their loss as their interests appear. This promise may be enforced by the appellant as a third party beneficiary even though he possessed no policy in his name. See Shingleton v. Bussey, Fla.1969, 223 So.2d 713; Maxwell v. Southern American Fire Insurance Company, Fla.App. 1970, 235 So.2d 768. Cf. Duke v. Hoch, 468 F.2d 973 (5th Cir. 1972). 281 So.2d 375.

The cause was remanded to the trial court with directions to enter judgment for the Cannons in accordance with the holdings contained in the decision. Thereafter the trial court entered judgment for the Cannons and found that the total fire loss was $7300; the second mortgage had been paid by the Cannons since the suit was commenced; that the first mortgage had a balance of $1524.98. The judgment thus awarded the Cannons $1524.98 in trust 'for the second mortgagees, together with the total loss to the property, less the amount due the first mortgagee, plus interest and attorney’s fees.

On appeal again to the Third District Court of Appeal, that court reversed the judgment because the trial court had misconstrued their previous decision. The appellate court pointed out that in its prior decision;

We held simply that because the plaintiff was trying to enforce the insurance policy issued by the defendant on property that the plaintiff had purchased, the plaintiff was not entitled to enforce the policy as to its own interest thereon. We held, however, that the plaintiff, as a third party beneficiary, could enforce the mortgagee payment clause and, in so holding, stated that the plaintiff could enforce the promise of the insurance company to “pay to the mortgagees the extent of their loss as their interests appear.”
* * * * * *
That portion of the judgment which holds that the plaintiff is entitled to be paid the full amount of his loss is without basis in our prior decision and is, therefore, reversed. Norfolk & Dedham Mutual Fire Insurance Company v. Schlehuber, 327 So.2d 891 at 892, 893.

Schlehuber stands for the proposition that the property owner may recover against the insurer as a third party beneficiary of the mortgagee clause and to that extent only. The owner cannot recover for the loss to the property in excess of the balance due on the mortgage at the time of the loss.

In Spindler v. Kuschner, 284 So.2d 481 (Fla. 3d DCA 1973), the Third District Court of Appeal also held the third party beneficiary doctrine applicable to a situation where the property was destroyed by fire pending the sale. The purchaser in possession had agreed to return the property in substantially the same condition as it was when possession was delivered in the event of failure to close the sale. The purchaser had procured fire insurance and the court held that the seller could recover thereunder as a third party beneficiary.

Adverting once again to the amended complaint, it was alleged that “Plaintiff, the owner of the premises, was a third party beneficiary of said policy by reason of the Mortgage Deed . . . and, upon the happening of the fire and the resulting damage thereto, the terms of the policy inured to the benefit of the plaintiff.”

Aligning ourselves with the Third District Court of Appeal, particularly the Schlehuber decision, we believe appellant can state a cause of action as a third party beneficiary of the mortgagee’s loss payable clause to the extent of the amount due on the mortgage at the time of the loss, together with interest on the amount found to be due. The sum recovered, of course, is to be applied in accordance with the contract between the mortgagor and the mortgagee.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to allow appellant to file the proposed second amended complaint and for further proceedings consistent herewith.

REVERSED AND REMANDED, with directions.

LETTS, J., and CROSS, SPENCER C., Associate Judge, concur.

      . Spindler v. Kushner, 284 So.2d 481 (Fla. 3d DCA 1973); Schlehuber v. Norfolk & Dedham Mutual Fire Insurance Co., 281 So.2d 373, 373 (Fla. 3d DCA 1973); State Farm Fire & Casualty Company v. Fowler Rentals Inc., 303 So.2d 646 (Fla. 1st DCA 1974), cert. denied 316 So.2d 284 (Fla.1975).


text:
    Sharon Lynette Barnes KING, Appellant, v. Thomas J. KING, Appellee.
    No. 79-230.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Rehearing Denied March 10, 1980.

      Irving B. Gussow, Fern Park, for appellant.
    John D. Kurtz of Hustad & Kurtz, West Palm Beach, for appellee.
   PER CURIAM.

The wife here appeals the trial court’s final judgment of dissolution after a final hearing at which neither the wife nor her attorney appeared, despite adequate notice.

She appeals not only the disposition of the case which we affirm, but also the court’s refusal to grant an oral continuance, first requested through opposing counsel only four days before the final hearing set three months earlier.

Much of the argument in the briefs is not substantiated by the record, but so far as we can determine the wife’s attorney just did not do his job. There is no justifiable excuse in the record, or in the briefs for his failure to attend the hearing. In any case, under the Rules of Civil Procedure, all requests for continuances “shall be in writing” [Rule 1.460(b)],

The final judgment of dissolution is affirmed.

LETTS, MOORE and HERSEY, JJ., concur.


text:
    COCA-COLA COMPANY FOODS, Division General Adjustment Bureau, Appellant, v. George BRIDGES, deceased; Ida Mae Bridges, widow; Gloria Jean Bridges, natural child; Quentary Derail Bridges; Maurice Lamar Bridges; and Gloria Jean Bridges, II; natural grandchildren, Appellees.
    No. QQ-228.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1980.
    Rehearing Denied March 4, 1980.
    Robert E. Sheridan of Jesse F. Sparks, P. A., Orlando, for appellants.
    Edward H. Hurt, Orlando, and Donna L. Bergh, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    William G. HORTON, Appellant, v. STATE of Florida, Appellee.
    No. SS-159.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1980.
    Rehearing Denied March 5, 1980.
    William G. Horton, pro se.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This court having considered the petition filed herein, the State of Florida’s response to the rule to show cause, and the petitioner's reply to the State’s response, the order to show cause is hereby discharged and the petition is hereby denied.

MILLS, C. J., and SHAW and WENT-WORTH, JJ., concur.


author: SHARP, Judge.

text:
    William J. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. NN-19/T1-40.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.
    Rehearing Denied Feb. 21, 1980.
    Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.
   SHARP, Judge.

The appellant was convicted of burglary of a dwelling and aggravated battery. He argues that the trial judge erred in denying his Motion for Judgment of Acquittal and New Trial because the evidence, which was primarily circumstantial, was not sufficient to convict him. We agree, reverse the conviction and order the appellant discharged.

The State proved that a burglary of the Stanton dwelling occurred on the night of September 22, 1978. When Mark Stanton returned home, he surprised an intruder in his house. The intruder shot Mark, and he heard someone yell “Let’s go_” (a nickname Mark cannot recall). Mark was unable to identify the appellant as the intruder who shot him, although he meets the general description given by Mark — a tall, black man, and he has a nickname, “Bobo”. The State also established that Mark Stanton was shot with a .38 caliber pistol, which the appellant sold to Ephriam Campbell, the day after the burglary occurred. But, there were no latent prints of appellant on the gun or in the Stanton’s house.

Reginald Smith, the brother of the appellant, gave the prosecution a statement that he and the appellant were involved in the robbery and that the appellant shot Mark Stanton. However, at the trial Reginald denied that he and the appellant had anything to do with the robbery and shooting. Reginald’s prior inconsistent statement was used to impeach him, but it could not be considered as substantive evidence against the appellant. Delaine v. State, 362 So.2d 689 (Fla. 2d DCA 1978); Perry v. State, 356 So.2d 342 (Fla. 1st DCA 1978).

It has long been established in Florida that when the State relies on circumstantial evidence to convict an accused the evidence must be not only consistent with the defendant’s guilt, but it must be inconsistent with any reasonable hypothesis of innocence. Williams v. State, 143 So.2d 484 (Fla.1962); Davis v. State, 90 So.2d 629 (Fla.1956). The circumstantial evidence in. this case points to Reginald almost as strongly as the appellant and to neither with sufficient certainty to convict.

The conviction of the appellant is reversed, and this cause is remanded to the trial court with directions to discharge him. McArthur v. Nourse, 369 So.2d 578 (Fla.1979); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

REVERSED AND REMANDED.

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


text:
    Walter G SALL and Naomi Sall, Appellants, v. E. S. TRUPPMAN, Kenneth Luxemberg, Albert Cohen and Morton Miller, Individually and as Trustees, Appellees.
    No. 79-578.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Rehearing Denied March 5, 1980.

      Kelly, Black, Black, Wright & Earle and Hugo L. Black, Jr., Miami, for appellants.
    Houston, Faircloth, Cooper, Easthope & Kelley and Joe Easthope, Fort Lauderdale, for appellees.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

By this appeal, we are asked to review a final declaratory judgment construing an agreement entered into between the parties herein to settle a prior lawsuit. The trial court construed the settlement agreement to mean, in effect, that a parcel of real estate known as Parcel IV should be included in the base for computing a certain 15 percent due the appellees to satisfy a maximum $425,000 obligation under Section 4(f)(iii)c of the settlement agreement. It further found that the appellees have a security interest in said Parcel IV for as long as any monies remain due the appel-lees under the above section of the settlement agreement.

The appellants contend on appeal that this construction of the settlement agreement is directly contrary to section 4(g) thereof which specifically provides that the appellees under no circumstances shall have any interest in Parcel IV if obtained by the appellants by virtue of a default and ultimate foreclosure of the captioned property, that Parcel IV was so obtained by the appellants upon settlement of a subsequent foreclosure suit involving Parcel IV [which settlement netted the appellants approximately $591,000], and that, accordingly, the appellees by the plain terms of the agreement can have no interest in Parcel IV and are only entitled to 15 percent of the above $591,000 under section 4(f)(iii)c of the settlement agreement. Our review of the settlement agreement as a whole, including sections 4(f) and 4(g), convinces us that, under well-settled principles of contract construction, the appellants’ contention herein is entirely correct. Raines v. Palm Beach Leisureville Community Ass’n., 317 So.2d 814, 817 (Fla. 4th DCA 1975); Aetna Life Insurance Co. v. White, 242 So.2d 771, 773 (Fla. 4th DCA 1970); Cypress Gardens Citrus Products, Inc. v. Bowen Bros., Inc., 223 So.2d 776, 778 (Fla. 2d DCA 1969).

The final declaratory judgment appealed from is, accordingly, reversed and the cause remanded to the trial court with directions to render a declaratory judgment that Parcel IV is not included in the base for computation of the 15 percent due the appellees under section 4(f)(iii)c of the settlement agreement, that the $591,000 cash received by the appellants upon settlement of the Parcel IV foreclosure suit shall be included in the base for computation of the 15 percent due the appellees under section 4(f)(iii)c of the settlement agreement, and that the appellees by the settlement agreement have no security interest whatever in Parcel IV.

Reversed and remanded.


author: BARKDULL, Judge.

text:
    Robert D. MARSHALL, Jr., Appellant, v. Monica M. MARSHALL, Appellee.
    Nos. 79-893, 79-894 and 79-1071.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Shutts & Bowen and Linda K. Huber, Miami, for appellant.
    Patrick A. Podsaid, Thomas G. Murray, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   BARKDULL, Judge.

This cause occurs before us seeking review of three orders: finding the appellant in contempt for failure to comply with a prior order of the court dated October 3, 1978, relating to child support; an order denying a motion to vacate said order; and an award of attorney’s fees.

We affirm the latter two orders, the appellant having failed to demonstrate reversible error in their entry. We reverse the order of October 5, 1978 because of the failure of the trial judge to make a finding of the willful refusal of the appellant to comply with the prior order of support. See: Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979).

This matter will be returned to the trial judge to reconsider this matter to make a specific finding on this point. In this connection, he can either do it on the record as already made or he may take additional evidence as he may be so advised.

Affirmed in part, reversed in part with directions.


author: NESBITT, Judge.

text:
    Richard P. BRINKER, as Clerk of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Appellant, v. Helen Mackey LUDLOW, Individually and on behalf of all others similarly situated, Appellee.
    No. 79-966.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.

      Gus Efthimiou, Jr., Miami, for appellant. Peggy M. Fisher, Miami (Legal Services of Greater Miami, Inc.), for appellee.
    Before SCHWARTZ and NESBITT, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   NESBITT, Judge.

Appellant, as respondent below, appeals the issuance of a peremptory writ of mandamus requiring him, as Clerk of the Circuit Court and ex officio recorder of documents, to record a certified copy of an order taxing costs without charge to the appellee.

The appellee, as relator in the trial court, initiated a petition for writ of mandamus, on behalf of herself individually and as representative of a class similarly situated, to coerce the recordation of a cost judgment. The petition was exhibited to the trial court. Thereafter, the court issued an order to show cause and following argument thereon, issued the peremptory writ of mandamus appealed from.

Since we reverse on the merits, we do not address the class action question presented in this appeal.

We are called upon to construe pertinent provisions of Section 57.081, Florida Statutes (1977). This statute was first enacted as a population act by Chapter 17883, Laws of Florida (1937), long before the United States Supreme Court held, in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 703, 28 L.Ed.2d 113 (1971), that the requirement of prepayment of certain court costs by indigents constituted a denial of due process. Enactment of Chapter 57 — 251, Section 1, Laws of Florida converted the statute from a population act to a general act and, with minor amendments, has been carried forth to date.

Despite its vintage, there is a paucity of reported decisions construing the statute. We do know that the issuance of a certificate of insolvency is a condition precedent to its activation. Young v. Slaughter, 298 So.2d 357 (Fla.1974). In State ex rel. Shellman v. Norvell, 270 So.2d 417 (Fla.4th DCA 1972), the sheriff of St. Lucie County was required to serve a summons in a dissolution of marriage proceeding on behalf of a Dade County resident only because that court concluded .that basic human rights contemplated by Boddie v. Connecticut, supra, were embodied within the statute. The Attorney General has advised that fees might be waived in marriage dissolution proceedings; and that a petition for habe-as corpus might be accepted without prepayment of the prescribed filing fee.

The statute has been considered tangentially in other cases. In Grissom v. Dade County, 293 So.2d 59 (Fla.1974), the state was ordered to pay publication costs in order to acquire constructive service of process over the children’s natural parents in an adoption proceeding. In Dade County v. Womack, 285 So.2d 441 (Fla.3d DCA 1973), the county was not required to pay costs of publication for an indigent parent who wished to change the name of a minor child. In Bower v. Connecticut General Life Insurance Co., 347 So.2d 439 (Fla.3d DCA 1977), a transcript of trial proceedings for appellate review was held not within the purview of the statute.

In pertinent part, Section 57.081(1) provides:

Insolvent and poverty-stricken persons having actionable claims or demands shall receive the services of the courts, sheriffs, and clerks of the county in which they reside without charge. No prepayment of costs to any judge, clerk, or sheriff in the county is required in any action when the party has obtained a certification of insolvency from the clerk in each action, based [up]on affidavits filed with him that the applicant is insolvent and unable to pay the charges otherwise payable by law to any of such officers.

In the present case, we must determine whether the cost judgment procured by a person holding a certificate of insolvency is recordable without prepayment of the prescribed filing fee. None of the reported cases have construed the pivotal provision of the statute in question, namely, “actionable claims or demands,” which is dispositive of the controversy.

Black’s Law Dictionary defines the word “actionable” as: “That for which an action will lie, furnishing legal ground for an action.” The same authority defines “demand” as: “[a] peremptory claim to thing of right, differing from claim, in that it presupposes that there is no defense or doubt upon question of right.”

In Herrera v. Doctor’s Hospital, 360 So.2d 1092 (Fla.3d DCA 1978), aff’d sub nom. Fisher v. Herrera, 367 So.2d 204 (Fla.1978), that court undertook to define the word “claim” as it related to a medical malpractice action as follows:

[A] claim is essentially a statement of facts describing the alleged acts of malpractice; that is, a pleading comparable to a complaint under the Florida Rules of Civil Procedure.

360 So.2d at 1095.

In other words, a “demand” may be viewed as a “claim” which has matured into a legal obligation which may be asserted in the court. The procedural enforcement of a “claim” or “demand” is identical.

In Volume I, Florida Jurisprudence 2d, Actions, Section 2, the following definition is found:

In a legal sense, the terms “case,” “cause,” “action,” and “suit” are convertible terms, each meaning a proceeding in court. They are generally understood as meaning a judicial procedure for the determination of a controversy between parties where rights are enforced and protected, or wrongs are prevented or redressed, (footnotes omitted).

In Trawick’s Florida Practice and Procedure, Section 1-1, (1979) that writer states:

[T]he term “action” is used synonymously with “civil action.” It means a judicial proceeding for the determination of a controversy. A cause of action is the right to institute a judicial proceeding. The action is the method by which the cause of action is enforced, (footnotes omitted).

From the foregoing definition, it is apparent that the term “actionable claims or demands” employed in the statute simply refers to a “cause of action” as that term is employed in current practice and procedure.

Under Section 57.021, Florida Statutes (1977), costs are taxed after an action is determined. This provision has been construed to mean that costs may not be taxed until after final determination of the cause. Sears, Roebuck & Company v. Richardson, 343 So.2d 678 (Fla. 1st DCA 1977).

In the case sub judice, appellee prevailed in her action and obtained a judgment. It is that judgment upon which she has obtained an order taxing costs. She now seeks to record the order taxing costs, so that it may become a lien against the real property of the judgment debtor in the county where recorded, without payment of the prescribed filing fee. It is doctrinaire that a cause of action merges into the judgment obtained. 19 Fla.Jur., Judgments and Decrees, § 93. Trawick’s Florida Practice and Procedure, Section 25.13 appropriately recites the consequences of such an event:

A cause of action that is sued on merges in any final judgment entered. The pre-existing obligation ceases to exist. The only thing that remains is the judgment. The judgment for money then becomes a debt. The judgment for other than money likewise becomes the obligation. Thus a remedy applicable only to an obligation that has not been reduced to judgment cannot be used or asserted after judgment, (footnotes omitted).

By the adoption of Section 57.081, the Legislature intended to obviate the payment of certain litigation costs by bona fide indigents. The statute should, therefore, be liberally construed so as to advance the remedy. Because of the frequent and firm application of terminology employed in the statute and the consequences thereof, we cannot, however, reach a construction contrary to the intent of the Legislature. Stern v. Miller, 348 So.2d 303 (Fla.1977).

From the foregoing analysis, we view the enactment of Section 57.081 as a legislative fiat for indigent persons holding certificates of insolvency to receive, without cost, the essential services from the courts, sheriffs and clerks in the prosecution of the steps in the cause of action as opposed to steps beyond the cause of action, i. e., after entry of judgment. Whether the legislative design was inadvertent or deliberate, it is not for this court to substitute its own judgment.

The foregoing construction of the questioned statute makes it apparent that the appellee was not entitled to procure the recording of the cost judgment without prepayment of the prescribed fee.

The judgment awarding the peremptory writ of mandamus is reversed.

      . § 28.222, Fla.Stat. (1977).

      . In Boddie, the Court was concerned with denying indigents access to courts where fundamental human rights were involved. It is conceded that the present case does not involve fundamental human rights.

      . 1971 Op.Att’y Gen.Fla. 071-383 (December 3, 1971).

      . 1970 Op.Att’y Gen.Fla. 076-112 (May 18, 1976).

      . Black’s Law Dictionary 51 (4th Ed.Rev.1968).

      . Id. at 516.

      .Doctor Fisher was a defendant in the action before the medical mediation panel and in proceedings thereafter.

      . § 55.10, Fla.Stat. (1977).


text:
    Harvey Bruce ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. OO-77.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1980.
    Rehearing Denied March 5, 1980.
    Harvey Bruce Roberts, in pro. per.
    No appearance required of Attorney General.
   PER CURIAM.

An appeal from a summary denial of appellant’s Rule 3.850 motion. We do not reach the merits of the appeal because the motion, attacking a judgment entered in 1971, substantially violated Rule 3.850 by failing to state whether appellant has previously filed any appeal or post-conviction motion.

AFFIRMED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Lawrence ARNOLD, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-755, 79-756.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1980.
    Jack O. Johnson, Public Defender, David A. Davis and Douglas A. Lockwood, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The state charged Lawrence Arnold with armed robbery and burglary. Arnold pled nolo contendere reserving his right to appeal the trial court’s denial of his motions to suppress his confessions. The trial court accepted Arnold’s plea, adjudicated him guilty of both charges and sentenced him to concurrent fifteen year sentences. This timely appeal ensued.

Citing the supreme court’s recent opinion in Brown v. State, 376 So.2d 382 (Fla.1979), the state argues that this court has no jurisdiction to entertain Arnold’s appeal on the merits because his confessions could not have been dispositive as a matter of law. We agree.

Accordingly, we dismiss this appeal and direct the trial court to allow Arnold 30 days from the date of our mandate to file a motion to withdraw his plea and set aside the judgment and sentence under the procedure outlined in Pittman v. State, No. 79-642 (Fla.2d DCA 1980).

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

      . Arnold also reserved the right to appeal the denial of his motions to suppress physical evidence seized in searches by the police. On appeal, however, he challenges only the denial of the motions to suppress his confessions. Hence, his contention concerning suppression of physical evidence is deemed abandoned. See Ungaro v. West Palm Beach Biltmore Apartments, Inc., 61 So.2d 642 (Fla.1952).


text:
    GOLDEN HILLS GOLF AND TURF CLUB and South Carolina Insurance Company, Appellants, v. John A. CRANDELL, Appellee.
    No. QQ-422.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1980.
    Bruce R. Raster of Pattillo, MacKay & McKeever, Ocala, for appellants.
    Frank C. Amatea, Ocala, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits,- I would concur in the majority’s opinion.


text:
    ST. REGIS PAPER COMPANY, Appellant, v. J. B. WATSON, Sr., Appellee.
    No. PP-1.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    William G. Cooper of Kent, Watts, Dur-den, Kent & Mickler, Jacksonville, for appellant.
    Joseph G. Young of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Hel-pling & Young, Gainesville, for appellee.
   PER CURIAM.

We affirm the trial court’s order granting appellee’s amended Motion for Interview of Jurors but decline to decide appellant’s second point regarding allegedly improper questions submitted pursuant to the order. The trial judge has yet to rule on which interrogatories may or may not be presented to the jurors.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Bernard A. DECKER, Appellant, v. CITY OF WEST PALM BEACH and Liberty Mutual Insurance Company, Appellees.
    No. QQ-70.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.

      Janet W. Freeman of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellant.
    Patrick J. Malone of Anthony J. Beisler, P. A., West Palm Beach, for appellees.
   PER CURIAM.

Claimant seeks review of an order of the judge of industrial claims wherein claimant’s average weekly wage was determined to be $196.47, and claimant’s relocation expenses were determined to be unrecoverable from the carrier.

Claimant contends that his expenses for relocation to North Carolina should be recoverable from the carrier because medical testimony established that the relocation would be beneficial to the claimant from a psychiatric standpoint. Claimant suffered from a mixed anxiety depressive neurosis. Claimant’s psychiatrist testified that a move from the West Palm Beach area would be necessary for the treatment of claimant’s psychiatric condition. Claimant testified that he was moving to North Carolina because his in-laws were moving there and because his psychiatrist thought it would be helpful for him to leave the West Palm Beach area.

The judge found that claimant’s relocation expenses were not recoverable because the relocation, although incidentally beneficial, was only marginally helpful for claimant’s complaints.

We agree that the carrier should not be required to reimburse claimant for his relocation expenses in this case. Although the evidence might support a finding that a move was necessary for treatment of claimant’s condition, there was no showing that a move to North Carolina was reasonable or necessary for claimant’s treatment, even assuming that relocation may be considered as remedial treatment. Out-of-state remedial treatment may be compensable where local treatment or evaluation would be unavailable or less beneficial to claimant and where equal treatment is unavailable in Florida. See Keifer v. Cajun Diner, 2 FCR 258 (1957); Florida Cartage Company v. Tyler, 90 So.2d 291 (Fla.1956); Howell v. Cottage-Ette Mfg. Co., 186 So.2d 1 (Fla.1966).

However, we find that the order must be reversed and remanded for more definitive findings of fact on the question of claimant’s average weekly wage. See Brown v. S. S. Kresge Company, Inc., 305 So.2d 191 (Fla.1974). The issue of claimant’s average weekly wage was a highly controverted one, and we are unable to determine from the judge’s order the basis of his determination of that issue. Accordingly, the order is reversed and remanded.

McCORD, LARRY G. SMITH and SHIVERS, J.J., concur.


text:
    BREVARD COUNTY SCHOOL BOARD and the Hartford Insurance Group, Appellants, v. Edward M. SPIRES, Appellee.
    No. QQ-145.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    Donna C. Wyatt, Orlando, for appellants.
    Jon Johnson and Janet R. Delaura of Smalbein, Eubank, Johnson, Rosier & Bus-sey, Daytona Beach, for appellee.
   PER CURIAM.

Claimant, who injured his knee and lower back in the course and scope of his employment as a carpet installer, was awarded seventy percent permanent partial disability benefits based upon loss of wage earning capacity. We affirm the determination of disability, but we agree with appellants that the employer/carrier was entitled to a deduction for benefits paid for a prior injury-

The claimant suffered a knee injury in 1973 for which compensation benefits were paid. The Judge of Industrial Claims found that the impairment resulting from that injury combined or merged with the impairment from his subsequent injury. However, no deduction in the award was made for benefits paid for the prior injury. We find this was error, and this cause is remanded for computation and allowance of the deduction required under Section 440.-15(5)(c), Florida Statutes. See Jackson v. Nat Harrison Associates, 283 So.2d 27 (Fla.1973).

All other issues appealed are affirmed. Reversed in part and remanded.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., .concur.


text:
    Yvonne BONNER, Appellant, v. RED LOBSTER INNS OF AMERICA, INC., and Liberty Mutual Insurance Company, Appellees.
    No. QQ-409.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    Stephen Marc Slepin of Slepin & Slepin, Tallahassee, Edward H. Hurt of Hurt & Parrish, Orlando, for appellant.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellees.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    DAYTONA COCA-COLA BOTTLING and Fireman’s Fund Insurance Company, Appellants, v. Steven R. CRETENS, Appellee.
    No. QQ-423.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    J. Richard Boehm of Haas, Boehm & Brown, Daytona Beach, for appellants.
    Steven R. Cretens, pro se.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Sandra FASHIONS and Liberty Mutual Insurance Company, Appellants, v. Rosezeta DETREVILLE, Appellee.
    No. QQ-428.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    Robert E. Buckmaster and Donna L. Bergh of Walker & Buckmaster, Orlando, for appellants.
    Russell H. Cullen, Jr., Sanford, for,appel-lee.
   PER CURIAM.

Affirmed.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    FOSTER WHEELER ENERGY CORP. & the Hartford Insurance Group, Appellants, v. Myers FUTCH, Appellee.
    No. QQ-432.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.

      Donna C. Wyatt of Cooper & Rissman, Orlando, for appellants.
    Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.
   PER CURIAM.

We find no error on this appeal by the employer and carrier from a compensation order awarding permanent partial disability benefits. There is apparent merit in claimant’s argument that his benefits should not have been reduced on account of his gastric condition, arising independently of the compensable accident but expressly “disregarded” by the deputy in finding permanent and total disability, except to determine that it prevented surgical treatment of the injury. Davis v. Conger Life Insurance Co., 201 So,2d 727 (Fla.1967). However, there being no cross application for review or cross-appeal by claimant, we cannot reach that question.

AFFIRMED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    HILTON INN GATEWAY and Florida Hotel/Motel Association and Corporate Group Service, Inc., Appellants, v. Gloria Fullwood SPENCE, Appellee.
    No. QQ-482.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    Keith A. Mann, of Miller & Cooper, Orlando, for appellants.
    Clifton L. Howell, Jr., of Howell & Roth, Winter Haven, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Booker T. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. NN-206.
    District Court of Appeal of Florida, First District.
    Feb. 12, 1980.
    Thomas S. Keith, Asst. Public Defender, Michael J. Minerva, Public Defender, for appellant.
    No appearance for appellee.
   PER CURIAM.

After reviewing the, record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we reverse conditions (10)-(12) of the probation order requiring appellant to make restitution in an unspecified amount. The conviction of aggravated battery is affirmed but we remand for a determination of the amount of restitution to be made after providing appellant notice and opportunity to be heard. Buford v. State, 376 So.2d 479 (Fla. 1st DCA 1979).

MILLS, C. J., and McCORD and BOOTH, JJ., concur.


text:
    D. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1747.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See: In Interest of I. D. K., 360 So.2d 488 (Fla. 4th DCA 1978).


text:
    FIRST EQUITIES LIFE INSURANCE COMPANY, Appellant, v. Charles E. FLOYD and Evelyn R. Floyd, his wife, Appellees.
    No. 79-732.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Andrew & Lubbers and J. David Lynch, Fort Lauderdale, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Gary D. Fox, Miami, for appel-lees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Hartnett v. Southern Ins. Co., 181 So.2d 524 (Fla.1965); Saskatchewan Government Ins. Office Co. v. Padgett, 245 F.2d 48 (5th Cir. 1957); American Automo bile Ins. Co. v. Pajor, 316 So.2d 612 (Fla. 4th DCA 1975); 18 Fla.Jur. Insurance § 455 (1971); see Floyd v. First Equities Life Ins. Co., 364 So.2d 514 (Fla. 3d DCA 1978).


text:
    CABRIOLET PORSCHE AUDI, INC., et al., Appellants, v. DE MARIA PORSCHE AUDI, INC., Appellee.
    No. 79-955.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Shalle Stephen Fine, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from a judgment of the Circuit Court of Dade County, Florida, awarding attorney fees to defendant below for services rendered by its counsel.

Appellant contends that the award of $65,000.00 was excessive and an abuse of the trial court’s discretion. We have considered appellant’s point on appeal in the light of the record on appeal, briefs and argument of counsel and have concluded that no clear abuse of discretion appears. Herzog v. Herzog, 346 So.2d 56 (Fla.1976); Greenberg v. Greenberg, 289 So.2d 439 (Fla. 3d DCA 1974). Thereupon the judgment appealed is affirmed.

Affirmed.


text:
    Raymond E. McGRATH, Appellant, v. Bette S. McGRATH, Appellee.
    No. 79-1249.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Edwin A. Willinger, Miami Beach, for appellant.
    Michel E. Anderson, Legal Aid Society Dade County Bar Association, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Fowler v. Fowler, 112 So.2d 411 (Fla. 1st DCA 1959).


text:
    VARIETY CHILDREN’S HOSPITAL FOUNDATION, INC., a Florida corporation not for profit, Appellant, v. The RIGGS NATIONAL BANK OF WASHINGTON, D. C., et al., Appellees.
    No. 79-1833.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.

      Gautier & Ezell, Miami, for appellant.
    Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for appellees.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975); § 47.122, Fla.Stat. (1977).


text:
    Joseph ROTH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-188.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1980.
    Joseph Roth, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    John Raymond CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-534.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant was charged with two counts of burglary of a dwelling, one count of burglary of a structure and three counts of second degree arson. He was found guilty as charged and sentenced as follows:

THE JUDGMENT OF THE COURT and the Sentence of the Law that you be confined in the FLORIDA STATE PRISON AS TO COUNT I, FOR A TERM OF FIFTEEN (15) YEARS WITH CREDIT FOR TWO HUNDRED SEVENTY SEVEN (277) DAYS TIME SERVED, TO RUN CONCURRENT WITH CT. II & VI; AS TO CT. II, FIFTEEN (15) YEARS WITH CREDIT FOR TWO HUNDRED SEVENTY SEVEN (277) DAYS TIME SERVED; AS TO COUNT III, FIVE (5) YEARS WITH CREDIT FOR TWO HUNDRED SEVENTY SEVEN (277) DAYS TO RUN CONSECUTIVE TO CT. IV, AND CONCURRENT WITH COUNT II, VI, I, V: AND AS TO COUNT IV. FIFTEEN (15) YEARS WITH CREDIT FOR TWO HUNDRED SEVENTY SEVEN (277) DAYS TIME SERVED, TO RUN CONCURRENT WITH CT. II, VI, I, V.: AND AS TO COUNT V. FIFTEEN (15) YEARS WITH CREDIT FOR TWO HUNDRED SEVENTY SEVEN (277) DAYS TIME SERVED TO RUN CONSECUTIVE TO COUNT I AND CONCURRENT WITH COUNT II, VI; AND AS TO COUNT VI. FIFTEEN (15) YEARS WITH CREDIT FOR TWO HUNDRED SEVENTY SEVEN (277) DAYS TIME SERVED, TO RUN CONSECUTIVE TO COUNT II.

The grounds submitted for reversal are contained in three points. We shall treat each of them.

The denial of appellant’s motion for judgment of acquittal and instructing the jury on burglary of a dwelling instead of burglary of a structure is the thrust of appellant’s first point on appeal. Appellant’s contention is that the evidence was insufficient to prove burglary of a dwelling because the two buildings alleged to be dwellings had been unoccupied for such an extended period that they no longer constituted dwellings under the law of this state. We need not pass upon this contention because during presentation of the State’s case, appellant stipulated that the buildings in question were dwellings. It is the function of an appellate court to review judicial acts and determine whether they constitute reversible error. It would certainly be anomalous for this Court to find error in not granting a motion for judgment of acquittal for insufficient evidence to prove the buildings were dwellings and for charging the jury as he did, when appellant had agreed with appellee in open court that the buildings in question were dwellings. In addition, the jury had been apprised of counsels’ stipulation. Thus, we find no' merit in this point.

In his second point appellant contends the trial court erred in not granting appellant’s motion for a mistrial. During the course of his closing argument the prosecutor pleaded with the jury not to find appellant not guilty simply because they felt sorry for him due to some illness, insinuating that he would be back on the street if they did. The defense here was insanity at the time of the commission of the crime." Several psychiatrists testified for each side, so defendant’s sanity was the key issue. However, there was no objection when the argument was made. Appellant moved for a mistrial at the end of the closing arguments of counsel; not at the time the statements and arguments were made. So there was no objection, motion for curative instruction nor motion for mistrial made contemporaneously with the improper argument. Clark v. State, 363 So.2d 331 (Fla.1978). In our opinion, a timely objection and curative instruction would have adequately cured the impropriety of the questioned argument. Thus, we find no error in the second point.

Finally, appellant complains that his sentence is incomprehensible and fears it may create problems for him at a later date. We are somewhat sympathetic to appellant’s contention in this regard, as we find the sentence most difficult to fathom.

Accordingly, all of appellant’s points on appeal are rejected with the exception of the point directed to the sentence. We remand the case to the trial court and respectfully request the trial judge to resen-tence appellant in a fashion and in terms which will be easier for all to understand. It shall not be necessary for appellant to be present at the resentencing.

REMANDED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: MOORE, Judge.

text:
    Dennis GERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1854.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.
    Rehearing Denied March 12, 1980.
    Richard L. Jorandby, Public Defender, Gary S. Israel, Asst. Public Defender, and Jorge Labarga, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Kenneth G. Spillias and Ondina Felipe, Asst. Attys. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Defendant appeals a conviction of armed robbery. The only point with possible merit is that evidence of a collateral crime was improperly admitted in evidence. However, we do not reach this issue because we find that appellant failed to adequately preserve the question for appeal.

Appellant filed a pre-trial motion in li-mine in an attempt to suppress certain collateral crimes evidence. The trial court denied the motion immediately prior to trial. Appellant did not object to the admission of this testimony at the time of its introduction at trial, although he did move for a mistrial at the close of all the evidence.

In Stanley v. State, 357 So.2d 1031 (Fla. 3rd DCA 1978) cert. den. 364 So.2d 891 (Fla.1978), the Third District held that the appellant waived review of the denial of his motion to suppress statements made while in police custody, by failing to timely object to the admission of this evidence at trial. Similarly, the Court held in Jones v. State, 360 So.2d 1293 (Fla. 3rd DCA 1978), that the appellant’s failure to contemporaneously object to a medical examiner’s testimony waived appellate review of the issue, even though a pretrial motion to suppress had been made. See also Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980). In this regard, the Jones Court stated:

Failure to renew an objection at trial contemporaneously with admission of the contested evidence constitutes a waiver of the right to appellate review of an alleged error, even though issues of constitutional dimension are claimed to exist.

360 So.2d at 1296.

The necessity of a contemporaneous objection was reaffirmed by the Florida Supreme Court in Clark v. State, 363 So.2d 331 (Fla.1978), in which the Court held that in order to preserve appellate review of a prosecutor’s comment on the defendant’s right to remain silent, the defendant must object and move for a mistrial.

In the instant cause, appellant failed to object to the collateral crimes testimony when it was admitted into evidence. Although he did move for a mistrial, the motion was untimely coming as it did at the close of all the evidence. As noted by this Court in Barrett v. State, 266 So.2d 373, 375 (Fla. 4th DCA 1972):

The accused in a criminal proceeding is not entitled to the privilege of refraining from making timely objection to matters felt to be prejudicial, and then waiting until the relative strength of the prosecution and defense presentations can be evaluated before raising a cry of prejudice.

See also Owens v. State, 349 So.2d 197 (Fla. 1st DCA 1977) cert. dism. 353 So.2d 677 (Fla.1978).

Accordingly, the conviction is affirmed.

BERANEK and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    FEDERAL INSURANCE COMPANY, Mount Victory Flying Service, Inc., etc., et al., Petitioners, v. Robert GUTERMA, etc., et al., Respondents.
    No. 79-2485.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.
    Calvin F. David of Walton, Lantaff, Schroeder & Carson, Miami, for petitioner, Federal Ins.
    Wilton L. Strickland of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for respondent, Marc S. Guterma.
    Louis M. Silber, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for respondent, Robert Guterma.
   BERANEK, Judge.

This is a petition for common law certio-rari seeking review of the trial court’s order which denied the defendants/petitioners’ request to amend the answer previously filed. The amendment sought to assert a new defense not previously pled. Certiorari is denied because we conclude that even if error has been committed, it can be corrected by appeal after final judgment. Chal fonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th. DCA 1979); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975). See also: Esler v. Gabinet, 369 So.2d 93 (Fla. 4th DCA 1979).

ANSTEAD and MOORE, JJ., concur.


text:
    WILLIAMS BROTHERS IGA GROCERY, Retail Grocers Association Self-Insurers’ Fund, and Corporate Group Service, Inc., Appellants, v. Anthony R. GREENE and the Great Atlantic and Pacific Tea Company, Appellees.
    No. QQ-229.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.
    Keith A. Mann of Miller & Cooper, P. A., Orlando, for appellants.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, Gary L. Stump of Whittaker, Pyle, Stump & Webster, P. A., Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    E & A CONCRETE and Peninsular Fire Insurance Company, Appellants, v. William PERRY, Appellee.
    No. QQ-475.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.

      Ivan Matusek, St. Petersburg, for appellants.
    William F. Blews, St. Petersburg, for ap-pellee.
   PER CURIAM.

In this workers’ compensation case, we hold there is substantial, competent evidence consistent with reason and logic to find Perry permanently and totally disabled as of September 15, 1975, but we reverse the portion of the order awarding twelve percent interest on all back due payments.

At issue here is the determination of the applicable interest rate incident to compensation installments which have been declared past due both before and after the effective date of the twelve percent statutory interest provision.

The new provision first appears in Chapter 78-300, Laws of Florida, which amends § 440.20(7) to provide:

In addition to any other penalties provided by this chapter for late payment, if any installment of compensation is not paid when it becomes due, the employer or carrier shall pay interest thereon at the rate of 12 percent per annum from the date the installment becomes due until it is paid, whether such installment is payable without- an order or under the terms of an order.

Section 25 of Chapter 78-300 provides:

This act shall take effect July 1, 1978 and shall apply to all claims arising out of injuries which occur on or after such date.

Prior to the enactment of these provisions, the employer was compelled to pay the lawful interest on a worker’s compensation award from the date each installment was due and should have been paid. Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955). For example, the legal interest rate in Parker was, and is now, six percent. § 687.01, Florida Statutes (1979).

We read § 440.20(7) to provide for a specific interest rate in worker’s compensation cases which supersedes the general provisions of § 687.01. Although a different rule may apply in other cases involving numerous debts maturing before and after a change in the lawful interest rate, e. g., Board of Public Instruction for County of Sumter v. Wright, 76 So.2d 863 (Fla.1955), we hold that § 25 of Chapter 78-300 prohibits the application of the twelve percent interest rate to claims arising out of injuries occurring before July 1, 1978. Thus, the interest rate provided for in § 687.01 is applicable here.

Affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla.1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    In the Interest of L. F. H., a child.
    No. 77-2303/T4-16.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Richard L. Jorandby, Public Defender, and John M. Conway, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an adjudication of delinquency and commitment to the Department of Health and Rehabilitative Services entered by the Circuit Court of Osceola County, Florida. The Public Defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this Court that no reversible error appears. On April 25, 1979, the Fourth District Court of Appeal, before which this appeal was originally filed, gave the Appellant thirty (30) days within which to file a brief in her own behalf. No such brief has been filed. The Court has reviewed the brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted, and the adjudication of delinquency is hereby

AFFIRMED.

ORFINGER, COBB and SHARP, JJ., concur. ■

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    William Herman DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-644/T4-77.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   SHARP, Judge.

The appellant appeals his conviction of armed robbery. He was tried with Ulysses Holt, and the issues and facts of this ease are set forth in Holt v. State, 378 So.2d 106 (Fla. 5th DCA 1980). The State’s case against the appellant was somewhat stronger than that against Holt. However, because of the extent and nature of the rulings which truncated appellant’s right to cross-examine the key prosecution witness, Gwendolyn Tisdale, we reverse the conviction and remand for a new trial. Cowheard v. State, 365 So.2d 191 (Fla. 3rd DCA 1978); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

REVERSED AND REMANDED FOR NEW TRIAL.

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


text:
    Harold Clinton KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 78-1609/T4-161.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

ORFINGER, COBB and UPCHURCH, JJ., concur.


text:
    Willie Burgess LEWIS et al., Petitioners, v. Vincent TORPY, Town of Indialantic, Florida, and Appalachian Insurance Company, Respondents.
    No. 79-40.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Ira Wm. McCollum, Jr., Orlando, for petitioners.
    Chris W. Altenbernd, Tampa, for respondents.
   PER CURIAM.

DENIED.

See Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Chalfonte Development Corporation v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Lynch v. City of Deerfield Beach, 369 So.2d 1042 (Fla. 4th DCA 1979); Esler v. Gabinet, 369 So.2d 93 (Fla. 4th DCA 1979).

ORFINGER, COBB and UPCHURCH, JJ., concur.