author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Dempsey BLANTON, Appellant, v. Olivia BLANTON, Appellee.
    No. 81-744.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    Edward J. Richardson of Saxon & Richardson, P. A., Melbourne, for appellant.
    James R. Dressier, Cocoa Beach, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Dempsey Blanton appeals from an order requiring him to pay his wife’s attorney’s fees and costs despite a property settlement agreement under which she had specifically assumed this obligation.

Attorney Harvey Poe was retained by Mrs. Blanton to represent her in dissolution proceedings against appellant. They entered into a written agreement whereby Poe agreed to represent Mrs. Blanton for $100 per hour plus anything the court ordered appellant to pay. He requested and obtained a $2,500 retainer. The agreement did not provide that Poe would rebate any amount paid by the wife if he were successful in obtaining his fees from appellant.

On the day before the final hearing, Poe met with Mrs. Blanton and requested that she sign a promissory note for $15,000 and place a mortgage lien against the family house as security for his fees. He informed her that if she did not agree to this arrangement, she should call the judge, get a continuance and find herself another attorney. Mrs. Blanton was in a quandry. She told Poe she would think it over. At 5:00 p. m. that day, she returned to Poe’s office and left a note with his secretary discharging him as her attorney. Poe disputes this version of the facts, admitting that he requested the note and mortgage, but contending that he was still willing to proceed without it. He claims he advised Mrs. Blanton that if she had lost confidence in him she should ask for a continuance and get another attorney. It is clear and undisputed, however, that he made no attempt to get the continuance for her.

The next day at the final hearing, appellant and his attorney appeared and announced that he and Mrs. Blanton had settled their differences and had executed a property settlement agreement. Poe, who was present, informed the court that he had been discharged by Mrs. Blanton and that he was there only to protect his claim to fees from the husband. He was not familiar with the agreement and had not participated in its negotiation. The agreement provided that the wife would pay all of her fees and costs.

The trial court exhibited considerable concern about the negotiation of the agreement by the parties. Mr. and Mrs. Blanton had worked out the terms between themselves and neither attorney participated. The trial judge reserved approval of the agreement until he could question Mrs. Blanton about it. The court permitted Poe to introduce testimony and evidence as to the extent and value of his services to Mrs. Blanton.

The trial judge subsequently discussed the agreement with Mrs. Blanton and informed her that she might be liable for Poe’s fees. Although she expressed some reluctance to accept any obligation to Poe, she repeatedly insisted that the terms of the agreement were acceptable and she wished to proceed. The court then entered final judgment retaining jurisdiction to award fees and costs.

Subsequently the court entered an order requiring appellant to pay Poe $16,000 in fees and $2,094.03 in costs for a total of $18,094.03. This appeal is from that order. We REVERSE.

The crucial question here is whether the trial court could require appellant to pay the wife’s fees when she had executed an agreement waiving any claim to attorney’s fees.

As a general proposition, property settlement agreements between the husband and wife, made in contemplation of divorce are, in the absence of fraud, coercion, or overreaching, valid and binding on the parties and should be respected by the courts. Carnell v. Carnell, 398 So.2d 503 (Fla. 5th DCA 1981); Zakoor v. Zakoor, 240 So.2d 193 (Fla. 4th DCA 1970). However, the Fourth District has recognized that a trial court is not necessarily bound by a provision in a separation agreement limiting the husband’s obligation for his wife’s attorney’s fees. Young v. Young, 322 So.2d 594 (Fla. 4th DCA 1975). We note that the agreement in Young, whereby the husband limited his obligation for his wife’s attorney’s fees to $500, was a separate maintenance agreement and at the time of execution the eventuality of a divorce was speculative. The principle enunciated in Young, however, is applicable here. The court there explained that in a dissolution proceeding, the liability of one party for payment of the other party’s attorney fees is in the same category as liability for other items of support which predate entry of a judgment dissolving the marriage. 322 So.2d at 596. Therefore, where equity requires, a provision in an agreement between the parties whereby one spouse waives or limits his or her obligation for payment of attorney’s fees may be disregarded.

In the case before us, however, there is no finding or evidence on which the trial court could have concluded that equity required that the provision be disregarded. Mrs. Blanton was to receive sufficient cash pursuant to the settlement agreement ($46,-000) to pay any fees she was legally obligated to pay. She repeatedly expressed her desire to proceed under the terms of the agreement, including the possibility that she might have to pay Poe’s fee. We therefore conclude that without a showing of some inequity the trial court could not grant Mr. Poe’s petition for an order requiring appellant to pay Mrs. Blanton’s attorney’s fees.

In light of the recent Florida Supreme Court case of Rosenberg v. Levin, 409 So.2d 1016 (Fla.1981), which was decided while this appeal was pending, we feel that some mention of the trial court’s actual monetary award is necessary. Under the employment contract, Poe and his associate earned $12,687.50 in attorney’s fees yet the court awarded Poe $16,000 plus costs.

In Rosenberg, the court, in considering the right of an attorney who has been wrongfully discharged to recover for legal services rendered prior to discharge, held that:

An attorney employed under a valid contract who is discharged without cause ... can recover only the reasonable value of his services rendered prior to discharge, limited by the maximum contract fee.

409 So.2d at 1021.

Poe’s fee was and is therefore limited by his contract with Mrs. Blanton, assuming a wrongful discharge.

REVERSED.

ORFINGER and COWART, JJ., concur.

      . The record reveals that Poe and his associate spent 145 hours on the case and that they split the work evenly. Poe charged $100 an hour, his associate $75 per hour.

      . The propriety of Mrs. Blanton’s discharge of Poe is not presented on this appeal.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. D. B. C., a child, Appellee.
    No. 81-964.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellant.
    Joseph W. DuRocher, Public Defender, and Douglas B. Leitch, Asst. Public Defender, Orlando, for appellee.
   COBB, Judge.

This case concerns an interpretation of the term “taken into custody” as it is used in section 39.05(6), Florida Statutes (1980 Supp.), and in Florida Rule of Juvenile Procedure 8.180(a), as a basis for inception of the respective 45-day and 90-day time periods which they control in juvenile proceedings.

A petition was filed in April, 1981, and amended in May, 1981, charging D. B. C., appellee herein, with an act of juvenile delinquency “in that on or about October 27, 1980, ... (he) did unlawfully operate a motor vehicle upon a public roadway while intoxicated, resulting in the death of (victim).” The October incident involved a van hitting a bicyclist, and witnesses to the accident identified D. B. C. as the driver of the van. Due to the nature of the injuries to the bicyclist, the responding Florida Highway Patrol trooper called for a homicide investigator. The trooper, as part of his accident investigation, then interviewed D. B. C., and the latter stated that he was driving his vehicle north on South Orange Blossom Trail in Orange County when he saw a bicyclist in front of him, and his effort to swerve and miss him was unsuccessful. D. B. C. continued northbound but subsequently turned around and returned to the scene of the collision. No traffic citations were issued.

D. B. C. did not appear to the trooper to be mentally alert at the scene, and was having physical difficulty in standing without support. Field sobriety tests were not administered. The trooper placed D. B. C. in the back seat of his cruiser and asked him to please sit there until the accident investigation was completed. D. B. C. sat there for approximately one hour to one hour and thirty minutes, at which time his parents arrived on the scene. D. B. C. was then transported in the cruiser to an area hospital, and released to his father after a blood test was administered. The trooper’s accident investigation report was not filed with the state attorney’s office or with the Department of Health and Rehabilitative Services.

Appellee, on May 18, 1981, filed a motion to reset the adjudicatory hearing, which was then presently scheduled for July 8, 1981, to July 1, 1981. This motion was granted on May 21, 1981. Appellant, State of Florida, on June 1, 1981, filed a motion for continuance asking the court to reset the adjudicatory hearing from July 1, 1981, to July 20, 1981. The court granted this motion on June 3, 1981. On July 15, 1981, pursuant to motions filed by the appellee, D. B. C., the trial court dismissed the petition on the basis that it was not timely filed under section 39.05(6), Florida Statutes (1979), and also for the reason that no adjudicatory hearing had been held within the requisite 90-day period under the juvenile speedy trial rule (Rule 8.180[a][b]). The state appeals this ruling.

In regard to the first issue raised by this appeal — i.e., dismissal based upon the 45-day period for filing the petition — we must first determine whether the statute or the rule governs. Section 39.05(6), Florida Statutes (1980 Supp.), provides:

On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 45 days from the date the child was taken into custody.... (Emphasis added.) (As amended on July 1, 1980.)

Florida Rule of Juvenile Procedure 8.110(e) substitutes “... forty-five (45) days from the date the complaint was referred to the intake office ...” for the underlined portion of section 39.05(6) quoted above. Since the statute was amended as of July 1, 1980, and the incident which gave rise to this appeal occurred on October 27, 1980, it is clear that the new statutory language applies. Thus, section 39.05(6) is in direct conflict with Rule 8.110(e). The statute, rather than the rule, controls because the matter is one of substantive, not procedural, law. L. H. v. State, 408 So.2d 1039 (Fla.1982). Since the statute controls, we must determine “the date the child was taken into custody.” This determination also is necessary for resolution of the second issue raised on appeal — the propriety of the trial court’s holding that the speedy trial period had run under Florida Rule of Juvenile Procedure 8.180(a).

In D. L. M. v. State, 397 So.2d 439 (Fla.3d DCA 1981), the court noted that the juvenile speedy trial rule has evolved from its adult counterpart, Florida Rule of Criminal Procedure 3.191, and that interpretations under the latter are proper guides in determining the meaning of the words “taken into custody” appearing in Rule 8.180(a)(1). In that case the facts indicated that on May 2, 1979, D. L. M., a nine-year-old child, was seen emerging from a house that was burglarized. The police were called and they caught D. L. M. and took him back to the house, where he was identified by a witness. He was then returned to his parents. On May 31, D. L. M. was formally arrested. The petition was filed July 11. On July 26, the case was set for sounding, but the child did not appear because his parents had not been served. At that time, the trial judge tolled the speedy trial period until August 6. On August 6, trial was set for August 21. On August 21, appellant moved for discharge for failure to grant a speedy trial under Florida Rule of Juvenile Procedure 8.180(a)(1), alleging he was taken into custody on May 2 when he was initially stopped by the police. The court held that the action of the police officers on May 2, 1979, did not constitute “taking into custody” within the meaning of the rule, and that the appellant was not “taken into custody” until May 31, 1979.

The court in State v. Robbins, 359 So.2d 39 (Fla.2d DCA 1978), a factually similar case, held that where the defendant was stopped by the police, momentarily handcuffed, taken to a hospital, allowed to leave the hospital after examination and treatment, and was never arrested or detained, the defendant-driver was not “in custody” for purposes of the application of the speedy trial rule to charges arising out of the stop by the police. The court also noted that when an accused is stopped and temporarily detained, but is not placed in a cell or fingerprinted, and is allowed to leave without being placed under arrest, he has not been placed “in custody” within the meaning of Florida Rule of Criminal Procedure 3.191(a)(1), although he has been placed “in custody” for purposes of the Miranda requirements. The fact that the police had probable cause to arrest the defendant at the time of his temporary detention and transportation to the hospital does not change the result. The police may delay an arrest beyond the completion of their investigation.

The defendant in State ex rel. Dean v. Booth, 349 So.2d 806 (Fla.2d DCA 1977), was driven to the police station in a patrol car, advised of his Miranda rights and questioned. he was not placed in a cell nor fingerprinted, and was allowed to leave without being placed under arrest. The court found the defendant to be in custody for Miranda purposes but not for the purposes of the application of Florida Rule of Criminal Procedure 3.191(a)(1). A short protective or investigative custody is often advisable where a person is a suspect but the police do not believe they have enough evidence to arrest him. See also Williams v. State, 382 So.2d 847 (Fla.3d DCA 1980); Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977).

In the instant case, the evidence does not support a finding that appellee was “taken into custody” in October, 1980, for speedy trial purposes. He was asked to remain in the police car at the scene of the accident for safety and investigative purposes. No citation was issued. No field sobriety tests were given. He was not placed in a cell or fingerprinted. The mere administering of a blood test does not constitute a “taking into custody” for purposes of commencing the running of the speedy trial rule. State v. Naughton, 395 So.2d 581 (Fla.5th DCA 1981); Gagel v. Cornelius, 380 So.2d 1333 (Fla.5th DCA 1980). See also Filmon v. State, 336 So.2d 586 (Fla.1976), cert. denied and appeal dismissed, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977), rehearing denied, 431 U.S. 960, 97 S.Ct. 2689, 53 L.Ed.2d 279; State v. Mitchell, 245 So.2d 618 (Fla.1971).

Appellee was not taken into custody on October 27, 1980, nor at any time prior to the filing of the petition in April, 1981. Thus, section 39.05(6), Florida Statutes (1980 Supp.), is not applicable. According to Florida Rule of Juvenile Procedure 8.180(a)(2), as amended effective January 1, 1981, an adjudicatory hearing on the petition must be commenced within 90 days of the date the petition was filed (April 24, 1981). An adjudicatory hearing must have occurred by July 23, 1981. The motions to dismiss were filed on May 21, 1981, and granted on July 15, 1981, clearly before the speedy trial period had run. Under our construction of the applicable facts and law, Rule 8.180(a)(1) does not apply since appel-lee was not in custody prior to the filing of the petition alleging delinquency. Thus, the trial court erred in granting appellee’s motions to dismiss pursuant to the aforesaid statute regarding filing of the petition and the juvenile speedy trial rule.

Accordingly, this cause is reversed and remanded for trial.

REVERSED and REMANDED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Since the rule is procedural, rather than substantive, it supersedes section 39.05(7), Florida Statutes (1979), the “speedy trial statute.” See State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971).

      . See In Re Florida Rules of Juvenile Procedure, 393 So.2d 1077 (Fla.1981).


author: PER CURIAM.

text:
    Robert Lee KING, Appellant, v. STATE of Florida, Appellee.
    No. 82-523.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    Robert Lee King, in pro. per.
    No appearance for appellee.
   PER CURIAM.

The denial of post-conviction relief by the trial court is affirmed on authority of Jones v. State, 384 So.2d 956 (Fla. 5th DCA), review denied, 392 So.2d 1375 (Fla.1980), and Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980), approved 394 So.2d 407 (Fla.1981).

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: HURLEY, Judge. BERANEK, Judge,

text:
    BILTMORE SYSTEMS, INC., a Florida corporation, Appellant, v. MAI KAI, INC., a Florida corporation d/b/a Mai Kai Restaurant, The Travelers Indemnity Company and Richard Brown Agency, Inc., Appellees.
    No. 79-2054.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.

      Jack Whitelock, Jr., of Bedford & White-lock, Miami, for appellant.
    Edward G. Stephany of Marko, Stephany, Lyons & Dow, Fort Lauderdale, for appel-lee-Mai Kai, Inc.
   HURLEY, Judge.

The issue in this case is whether the risk of loss on a ‘loaner’ automobile remained with the lessor or passed to the lessee pursuant to the terms of the leasing agreement. We conclude that the contract’s plain meaning placed the risk of loss on the lessee and, therefore, we reverse the lessee’s favorable summary judgment.

Lessor/appellant, Biltmore Systems, Inc., is a car leasing company. In December, 1975, Biltmore agreed to lease a 1976 Pontiac Grand Prix co lessee/appellee, Mai Kai, Inc., for 24 months. In the contract, Mai Kai agreed to indemnify Biltmore for any damage, loss, theft or destruction of the vehicle during the lease term. Mai Kai also obligated itself to provide comprehensive insurance, including theft coverage.

On December 29, 1976, Biltmore picked up the Grand Prix for repairs and left a 1975 Lincoln Continental as a ‘loaner’ for Mai Kai. The Lincoln was stolen and Bilt-more claims that Mai Kai is responsible for its loss. Mai Kai, however, argues that it never became responsible for the Lincoln because it was an “additional vehicle” as defined by the contract and, since no written addendum to the lease had been executed, the contractual provisions did not apply and the risk of loss did not pass to Mai Kai. The trial court agreed with Mai Kai and granted a summary judgment from which Biltmore appeals.

At issue are two provisions in paragraph 15 of the leasing contract. The first sentence of the paragraph reads as follows: “Additional vehicles may be included in this lease by addenda to Schedule A mutually executed by Lessor and Lessee from time to time.” Mai Kai contends this provision requires a mutually executed agreement as to the ‘loaner’ car before the indemnification and insurance provisions of the contract come into effect. This position might be tenable were it not for another sentence in the same paragraph relating to ‘substitute vehicles.’ It states: “Lessor may, at any time, substitute a similar vehicle for any vehicle and the substitute shall be subject to all of the provisions of this lease as if it were the original vehicle.” (Emphasis supplied.)

It is fundamental that where a contract is clear and unambiguous in its terms the court may not give those terms any meaning beyond that expressed. Hamilton Construction Co. v. Board of Public Instruction, 65 So.2d 729 (Fla.1953); 11 Fla.Jur.2d Contracts § 101 (1979). Where ambiguity exists, however, the court should arrive at an interpretation “consistent with reason, probability, and the practical aspect of the transaction between the parties.” Blackshear Manufacturing Co. v. Fralick, 88 Fla. 589, 102 So. 753, 754 (Fla.1925); 11 Fla. Jur.2d Contracts § 104 (1979).

We believe the terms of the contract are clear and unambiguous. Even if there were some question as to their plain meaning, our interpretation would be the same since logic and reason dictate the same result. The language concerning additional vehicles applies to situations in which Mai Kai, having already leased one car, seeks to obtain another under the same lease. There, an addendum detailing special terms as to the second car would clearly be warranted. On the other hand, the contract’s language regarding substitution of vehicles refers to the situation in which one vehicle is exchanged for the original. In other words, “additional vehicles” connotes two or more, whereas “substitution of vehicles” suggests one in place of the other. This distinction is further evidenced by paragraph 15’s heading which reads: “Additional Vehicles; Extended Term; Substitution of Vehicles.” Each phrase is complete, indicating that ‘additional’ vehicles and ‘substitute’ vehicles are two separate categories.

We conclude that under the plain meaning of the terms of the contract the Lincoln was a substitute vehicle for which the risk of loss passed to the lessee, Mai Kai. Accordingly, the summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GLICKSTEIN, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I dissent on jurisdictional grounds.


text:
    Benjamin ROSAYN, Petitioner, v. Daniel T. BERRY, Respondent.
    No. 80-980.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Benjamin Rosayn, in pro. per.
    Gary L. Self, Pompano Beach, for respondent.
   PER CURIAM.

This is a petition for writ of certiorari seeking quashal of a circuit court order that dismissed for untimeliness Benjamin Ro-sayn’s appeal from a final judgment of the county court.

Headquarters for the County Court of Palm Beach County is at the County Courthouse in West Palm Beach. There are branches of the County Court at Belle Glade, North Palm Beach, and Delray Beach. The clerk of the circuit court is also the clerk of the county court.

The trial of the case Rosayn was involved in took place at the Delray Beach branch of the County Court. The final judgment in that litigation was signed at Delray Beach on December 11, 1979. The clerk of the county court, at the Delray Beach branch of the county court, by a time stamp on the judgment, indicated the final judgment was received on December 13, 1979. Another time stamp of the clerk at the main courthouse indicates the final judgment was filed December 19, 1979.

A notice of appeal from the foregoing judgment bears two time stamps. One shows the clerk received the notice of appeal January 18, 1980, at Delray Beach and the other shows the notice was filed January 22, 1980, in the main courthouse.

Rosayn argues here that, although his notice of appeal was marked “received” on January 18, 1980, it was for all intents and purposes filed on that date and not on January 22, 1980. We agree with that argument. We hold that a document is filed on the date a clerk of court first time stamps the document regardless of any word appearing over the time stamp. Because of this holding we conclude that the final judgment was rendered December 13, 1979, and that the notice of appeal was filed January 18, 1980, thirty-six days after December 13th. We would reach the same conclusion even if we used the dates on which the final judgment was “filed” (December 19, 1979) and the notice of appeal was “filed” (January 22, 1980). We conclude that the notice of appeal was not timely filed and that the circuit court did not depart from the essential requirements of law when it dismissed Rosayn’s appeal.

For the foregoing reasons Rosayn’s petition for writ of certiorari is denied.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


author: HURLEY, Judge.

text:
    Francesco ZAMBUTO, Appellant, v. STATE of Florida, Appellee.
    No. 81-39.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

We are asked to decide whether, in the course of accepting a plea which anticipates probation, the trial court must inform the defendant that if he violates his probation he may subject himself to an enhanced penalty under the habitual offender statute. We answer in the negative for we hold that the enhanced penalty provisions of Section 775.084, Florida Statutes (1979), are collateral consequences of a plea. Accordingly, we affirm the sentence imposed.

Defendant, charged with grand larceny, elected to enter a plea of guilty. During the colloquy preceding the acceptance of the plea, the trial court stated the maximum statutory penalty for grand larceny, but did not mention the possibility of an enhanced penalty pursuant to Section 775.-084, Florida Statutes (1979). Thereupon, the defendant entered a plea of guilty and was placed on five years probation with the special condition that he serve one year in the county jail.

Sometime after defendant’s release from jail, he was charged with violating his probation. The court conducted a hearing, found a material violation and revoked defendant’s probation. The state then filed a notice of intent to seek an enhanced penalty pursuant to Section 775.084, Florida Statutes (1979). A hearing was held in accord with the requirements of Section 775-084(3)(c) and, thereafter, the court imposed an enhanced penalty of ten years with credit for time served.

Defendant rightly contends that Rule 3.172(c)(i), Florida Rules of Criminal Procedure, governs the acceptance of pleas and mandates the trial court to advise the defendant of “the maximum possible penalty provided by law ... . ” Nonetheless, the trial court “is not required to advise the accused of every collateral consequence which follows from a guilty plea.” Polk v. State, 405 So.2d 758, 761 (Fla.3d DCA 1981). “The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.) cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). See, e.g., Edwards v. State, 393 So.2d 597 (Fla.3d DCA) petition for review denied, 402 So.2d 613 (Fla.1981); Herrera v. United States, 507 F.2d 143 (5th Cir. 1975); Tindall v. United States, 469 F.2d 92 (5th Cir. 1972); French v. United States, 408 F.2d 1027 (5th Cir. 1969).

The Supreme Court of Washington discussed the proper categorization of an enhanced penalty provision in State v. Barton, 93 Wash.2d 301, 609 P.2d 1353 (1980). There, as part of a plea bargain, the prosecutor agreed to recommend probation if the defendant had no prior felonies and not more than three misdemeanor convictions. In accepting the plea, the trial judge advised the defendant of the maximum penalty under the statute, but did not discuss the possible application of the habitual offender statute. Later, the prosecutor discovered that the defendant had three prior felony convictions. The prosecutor then filed a motion for sentencing under Washington’s habitual offender statute. Upon a finding that the defendant had two prior felony convictions, the defendant was adjudicated as a habitual offender and sentenced to life imprisonment. On appeal, the Washington Supreme Court held:

[A]n habitual criminal proceeding is a collateral consequence of a guilty plea. An habitual proceeding is not automatically imposed after a defendant has entered a plea of guilty even if the defendant has two or more prior felonies. Rather, the prosecuting attorney has discretion on whether to file habitual proceedings conditioned on the requirement that prosecutorial discretion “must be tempered by procedural due process”. Moreover, defendant’s status as an habitual offender is determined in a subsequent independent trial in which defendant has the right to counsel, the right to subpoena and cross examine witnesses, the right to discovery, and the right to a trial by jury. Any enhancement of defendant’s sentence is a collateral rather than a direct result of defendant’s guilty plea. Therefore, defendant need not be advised of the possibility of an habitual criminal proceeding. Id. at 1356 (citations omitted).

Similarly, the Fifth Circuit in Wright v. United States, 624 F.2d 557 (1980), held that “a plea’s possible enhancing effect on a subsequent sentence is merely a collateral consequence of the conviction; it is not the type of consequence about which a defendant must be advised before the defendant enters the plea.” Id. at 561.

The same rationale governs Florida’s habitual offender statute, Section 775.084, Florida Statutes (1979). Unlike the Washington and federal statutes, our law does not indicate whether its implementation is dependent upon a request by the prosecutor; nonetheless, it cannot be said that its utilization is direct, immediate and largely automatic. Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). The Florida Statute requires specific factual findings and depends ultimately upon the trial court’s determination that an enhanced penalty is “necessary for the protection of the public .... ” Section 775.084(3), Florida Statutes (1979). Moreover, the statute contains abundant due process safeguards which further indicate its separate and ancillary nature. Accordingly, we hold that the enhancement of the defendant’s sentence was a collateral, rather than a direct, consequence of his plea of guilty. The trial court was not obliged to advise the defendant of the possible future application of the habitual offender statute.

The one question remaining is whether it was permissible to utilize the habitual offender statute to enhance defendant’s sentence for violating probation. We answer in the affirmative. Bilyou v. State, 404 So.2d 744, 745 (Fla.1981), held that “the violation of probation opens a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime.” Thus, “when a defendant pleads guilty pursuant to a plea bargain and the court places him on probation, if he violates his probation the court can sentence him to a term in excess of the provisions of the original bargain.” State v. Segarra, 388 So.2d 1017, 1018 (Fla.1980). Applying this reasoning to the case at bar, we find that the defendant met the criteria for classification as an habitual felony offender. For this reason we hold that the trial court did not exceed its authority in revoking defendant’s probation and imposing an enhanced penalty pursuant to Section 775.084, Florida Statutes (1979).

AFFIRMED.

HERSEY and DELL, JJ., concur.

      . Wash.Rev.Code § 9.92.090; 18 U.S.C. § 3575(a) (1970).

      . Our statute is silent on how it is initially triggered. Since we need not resolve this issue we expressly refrain from doing so. But we note that the usual practice is exemplified in the case at bar where the state filed a motion for an enhanced penalty. Yet it is also arguable that the court, on its own motion, has the authority to implement the statute. See § 775.084(3), Fla.Stat. (1979).

      . § 775.084(3), Fla.Stat. (1979); Mangram v. State, 392 So.2d 596 (Fla. 1st DCA 1981).

      . § 775.084(3)(c), Fla.Stat. (1979).


author: ANSTEAD, Judge.

text:
    Wilbert WILKINS a/k/a Wilbert Lee Wilkins, Appellant, v. STATE of Florida, Appellee.
    No. 81-287.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Joel M. Weissman of Sales & Weissman, P. A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order finding that appellant had violated a condition of his probation specifically prohibiting him from having possession of a firearm. We affirm.

While on probation appellant was charged with first degree murder. Prior to his trial on that offense, and based on the same alleged unlawful conduct, he was also charged with having violated a condition of his probation prohibiting him from violating the law. Following his acquittal on the murder charge, the probation violation based on the same conduct was dismissed. However, based upon appellant’s admission to having possessed a firearm at the time of the alleged murder, a subsequent probation violation charge was brought. Appellant, conceding that he had possession of a firearm, nevertheless sought dismissal of the subsequent charge on the grounds that possession of a firearm was a lesser-included offense of the murder charge that formed the basis of the initial probation violation charge; and that the dismissal of the initial violation mandated dismissal of the second charge. The trial court rejected appellant’s contention and, after finding him in violation of the terms of his probation for having possession of a firearm, extended appellant’s probation for an additional two-year period.

In Cuciak v. State, 394 So.2d 500 (Fla. 4th DCA 1981), a case principally involving discovery issues, this court noted the many differences between criminal trials and probation revocation proceedings and observed that generally double jeopardy protections do not apply to revocation proceedings. Id. at 503. We are unaware of a case which has held that double jeopardy concepts apply to revocation proceedings in the manner urged by appellant here. In any case, there has been no demonstration of a violation of the concept even if it did apply. Neither the offense charged nor the issues litigated in appellant’s murder trial and initial probation revocation proceeding were dispositive of the matter before the trial judge in determining the second probation violation.

Appellant was not charged with violating his probation by committing the criminal offense of possessing a firearm. Rather, he was charged with possessing a firearm in violation of a specific prohibition against such conduct contained in the conditions of his probation. His violation of that condition did not turn on a determination of whether he committed a criminal act. He could have been in lawful possession of a firearm and still violated that condition of his probation. Furthermore, the dismissal of the initial probation revocation proceeding, which was based on the murder charge, constituted at most a determination by the trial court that the appellant had not committed the offense of murder. That determination did not turn on whether appellant possessed a firearm. As noted, appellant has at all times conceded that he was in possession of a firearm at the time of the alleged murder.

For the reasons set out above, we affirm the order extending appellant’s term of probation.

HERSEY and GLICKSTEIN, JJ., concur.

      . Appellant claimed that he was acting in self defense at the time of the alleged murder.


text:
    CITY OF LAKE WORTH, Appellant, v. PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, Appellee.
    No. 81-695.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Frank A. Kreidler, Lake Worth, for appellant.
    Michael M. Switzer and Michael R. Hall, Asst. Gen. Counsel, and Thomas Criss, Legal Intern, Tallahassee, for appellee Florida Public Emp. Relations Com’n.
    William Rodriguez of Panza & O’Donnell, Fort Lauderdale, for appellee Palm Beach County Police Benev. Ass’n.
   PER CURIAM.

This is an appeal from a final administrative order entered by the Public Employees Relations Commission (“PERC”) which (1) found that appellant had committed an unfair labor practice, and (2) awarded attorneys’ fees to appellee. We affirm. The agency order is based upon findings which are supported by competent, substantial evidence in the record. Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977); § 447.504(2), Fla.Stat. (1979). The award of attorneys’ fees under Section 447.503(6)(c), Florida Statutes (1979), has not been shown by appellant to have been an abuse of discretion by PERC. International Brotherhood of Painters v. Anderson, 401 So.2d 824 (Fla. 5th DCA 1981).

AFFIRMED.

DOWNEY and HERSEY, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Carrie Mae HAWTHORNE, Appellant, v. Isom ROSS, d/b/a Springfield Missionary Baptist Church, Inc., Appellee.
    No. 81-1265.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    James F. Johnson, Jr., P. A., Fort Lauder-dale, for appellant.
    Raleigh R. Rawls, Fort Lauderdale, for appellee.
   PER CURIAM.

This cause involves the dismissal with prejudice of an amended complaint which we concede would normally be appealable. See Allstate Ins. Co. v. Collier, 405 So.2d 311 (Fla. 4th DCA 1981).

However, in this instance, there is an existing counterclaim and the cause has not been finalized. Accordingly, we dismiss the appeal upon the authority of S.L.T. Warehouse Company v. Webb, 294 So.2d 712, 713 (Fla. 4th DCA 1974). However, as we did in the Webb case, we stress that this dismissal is without prejudice to review the entire matter upon entry of a final judgment.

DISMISSED.

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


text:
    Frank BRADY, Appellant, v. Lizzie G. MYERS, Appellee.
    No. 81-1549.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.

      John A. Gentry, III, West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   PER CURIAM.

Frank Brady appeals an award of $1,000 in attorneys fees pursuant to Section 57.105, Florida Statutes (1979).

Appellant joined Lizzie Myers as a defendant in a foreclosure action alleging that:

Defendant, LIZZIE G. M.YERS, ... has or may claim to have some right, title, claim or interest in and to the Mortgaged property as life tenant under that certain Deed.... Said interest is subordinate and inferior to the claim and interest of Plaintiff in said Mortgage.

The trial court granted appellee’s motion for summary judgment and awarded her attorneys fees pursuant to § 57.105, supra. The trial court made no findings that would support an award of attorneys fees pursuant to this section of the Florida Statutes.

Appellant contends that the trial court erred when it failed to make express findings of fact which would show that his joinder of appellee was so utterly devoid of merit as to be considered frivolous.

The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject matter of a suit, must be made parties either as complainants or defendants so that a complete decree may be made binding upon all parties. Oakland Properties Corporation v. Hogan, 96 Fla. 40, 117 So. 846, 848 (1928).

Appellee had a beneficial interest as life tenant in the mortgaged property and therefore was properly joined in the foreclosure action. Accordingly, on the authority of such cases as City of Deerfield Beach v. Oliver-Hoffman Corp. of Deerfield Beach, 396 So.2d 1187 (Fla. 4th DCA 1981), T.I.E. Communications v. Toyota Motors, 391 So.2d 697 (Fla. 3d DCA 1980), Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980) and the Supreme Court’s recent decision in Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982), the order awarding attorneys fees under Section 57.105, Florida Statutes (1979) is reversed.

REVERSED.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


author: DELL, Judge.

text:
    PALM BEACH NEWSPAPERS, INC., Petitioner, v. The Honorable Philip G. NOURSE, Respondent.
    No. 81-2265.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.

      Florence Beth Snyder, Gen. Counsel, West Palm Beach, and Donald M. Middle-brooks of Steel, Hector & Davis, Miami, for petitioner.
    Respondent, pro se.
    Robert E. Stone, State Atty., and G. D. Dugan, III, Asst. State Atty., Okeechobee, amicus curiae for respondent.
    Elton H. Schwarz, Public Defender, and Shirley M. Brennan, Asst. Public Defender, Fort Pierce, amicus curiae for respondent.
   DELL, Judge.

Petitioner, Palm Beach Newspapers, Inc., seeks appellate review under Florida Appellate Rule 9.100(d) of an order issued by the respondent, the Honorable Philip G. Nourse, which closed an arraignment and sentencing hearing to the press and public and sealed the court file.

At the commencement of a docket which included fifty-five other cases, respondent agreed to a request by both prosecution and defense counsel to close the arraignment and sentencing of Theodore Dukes. Dukes, charged with performing a lewd and lascivious act on a child under fourteen, had agreed to plead guilty. After all of the cases were heard respondent called the Dukes case and without any advance notice announced his order that the courtroom would be closed. The newspaper reporters present responded that they wanted to hear the case. Respondent gave no factual reasons to justify the closure or why the disposition of the case could not wait until the attorney for the newspaper could come or call from Palm Beach County to participate in a closure hearing. After clearing the courtroom the respondent disposed of the Dukes case on the merits. He later reduced the oral order to writing and ordered the court file permanently sealed.

The petitioner contends that the respondent’s actions violated procedural due process. We agree.

The Supreme Court has clearly defined the constitutional and procedural due process requirements for closure of a court proceeding from the press and public:

Although freedom of the press belongs to all the people those who gather and distribute news have special concerns which entitle them to notice and a hearing before any trial court enjoins or limits publication of court proceedings. The circumstances may require a summary hearing but reasonable notice under prevailing conditions and a hearing must be had in each instance. The court should serve notice to news reporters present, but no order entered in good faith is invalid for lack of notice to one or more who may be unavailable to receive notice. Announcement from the bench or publication in writing in the courtroom should be adequate. State ex rel. Miami Herald v. McIntosh, 340 So.2d 904 at 910 (Fla.1977).

This Court has extended the same due process rights to a closure order and subsequent sealing of the record. Miami Herald Publishing Co. v. State, 363 So.2d 603 (Fla. 4th DCA 1978).

The request for closure occurred at the commencement of a docket of fifty-five cases, but the respondent made no mention of the request until he ordered the courtroom cleared. He denied the reporters’ request to delay the proceedings until their attorneys could be heard and he gave no reasons for the closure. Such conduct constituted a complete denial of the constitutional and due process requirements set forth in State ex rel. Miami Herald v. McIntosh, supra.

Respondent relied upon the broad language in State v. Newman, 405 So.2d 971 (Fla.1981), to justify his oral closure order. State v. Newman, supra, does speak of the balancing of interest and rights between the parties to the proceeding and the public and the press, stating that “closed judicial proceedings are not banned absolutely.” However, Newman, supra, requires that “good cause” must be shown. The respondent failed to meet both the requirement of good cause as set forth in Newman and the three part test of Miami Herald Publishing Co. v. State, supra:

[S]uch orders cannot be entered absent a showing that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice, (2) that no less restrictive alternative measures are available and (3) that closure will in fact achieve the court’s purpose. Id. at 606.

Respondent made no effort to show any threat to the administration of justice or that no less restrictive alternative to total secrecy of the entire proceeding was available to him. He argues that his actions were necessary to keep the victim’s identity secret. His actions may have achieved that purpose, but his actions did not meet the standards required in Miami Herald Publishing Co. v. State, supra.

Accordingly, we grant the petition for review and direct the trial court to afford a hearing upon appropriate application by petitioner after notice to the office of counsel for Dukes and the State of Florida, at which a determination shall be made pursuant to State v. Newman and Miami Herald Publishing Co. v. State as to whether a transcript of the closed proceedings should be made available and the file unsealed. Such a determination will in any event be tempered by the need to protect the identity of the minor from disclosure or publication.

CERTIORARI GRANTED.

HERSEY and GLICKSTEIN, JJ., concur.

      . The validity of the three part test is presently pending before the Supreme Court. Miami Herald Publishing Co. v. Lewis, 383 So.2d 236 (Fla. 4th DCA 1980).


text:
    STATE of Florida, Petitioner, v. Tony D. HORVATCH, Respondent.
    No. 82-251.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Gerald Lefebvre of Conlon & Tooker, Okeechobee, for respondent.
   ANSTEAD, Judge.

The state seeks review of a pretrial order holding that the respondent, Tony D. Hor-vatch, will be entitled to introduce the results of a lie-detector examination in evidence at his upcoming trial on charges of aggravated battery. We grant the writ and quash the order of the trial court.

In State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), the Third District held that the state may obtain certiorari review of pretrial rulings excluding or admitting evidence where such rulings are legally erroneous and no remedy will be available to the state upon appeal from a final disposition of the case. We agree with this proposition. If the court permitted the evidence to be admitted and respondent was subsequently adjudicated not guilty, the state would have no remedy by appeal, since the state cannot seek review of such an adjudication. See Fla.R.App.P. 9.140(c)(1). We also believe that the ruling below is legally erroneous, for as stated in Pendleton v. State, 348 So.2d 1206, 1209 (Fla. 4th DCA 1977), “polygraph tests and information gleaned therefrom are not admissible evidence in any criminal proceeding” in the absence of a “stipulation between the state and defense counsel.” Accord, State Dept. of Highway Safety & Motor Vehicles v. Zimmer, 398 So.2d 463 (Fla. 4th DCA 1981). The results of polygraph examinations have not been accepted as competent scientific proof in Florida. Kaminski v. State, 63 So.2d 339 (Fla.1953).

Even under McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981), cert. denied - U.S. -, 102 S.Ct. 1479, 72 L.Ed.2d - (1982) [30 Crim.L.Rptr. 4217], cited by respondent for the proposition that the state’s refusal to stipulate to the admission of a defendant’s polygraph test may amount to a denial of due process of law when not based upon legitimate reasons, we believe the results of respondent’s test would be excludable. Aggravated battery is a specific intent crime. See Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979). In our view the state was not required to stipulate to the admission of the polygraph test taken by respondent in which respondent’s answer of “no” to the question of whether he intended to commit an aggravated battery was purportedly truthful. Any criminal defendant, of course, may testify that he did not intend to commit the crime charged, but the subjective belief of the defendant is not necessarily dispositive. In the present case we agree with the state that its refusal to stipulate, based upon the possibility that a jury might be misled by the aura surrounding respondent’s purportedly scientific “proof” of his innocence and acquit on this basis alone, was legitimate. In any event, there is no provision under Florida law whereby the state can be compelled to stipulate to the admission of a defendant’s polygraph test, and we are in disagreement with McMorris to the extent that it holds that the withholding of consent under these circumstances violates the provision of the Federal Constitution guaranteeing due process.

In accordance with the above we grant the petition for writ of certiorari and quash the trial court’s order of February 2, 1982.

GLICKSTEIN and DELL, JJ., concur.


text:
    Michael J. MICELI, Appellant, v. W. W. GILMAN, Appellee.
    No. 81-638.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.
    Jackson L. Boughner, Naples, for appellant.
    James D. Adams of Quinton, Lummus, Dunwody & Adams, P. A., Miami, for appel-lee.
   PER CURIAM.

Our review of the points on appeal raised by the appellant reveals only one meritorious argument, i.e., appellant’s contention that the trial court erred in awarding certain relief to the appellee which was neither requested by the pleadings nor supported by the evidence.

Appellant’s contention is directed to that portion of the final judgment which is:

ORDERED AND ADJUDGED that MICHAEL J. MICELI give W. W. GIL-MAN the opportunity to sell the property for a net $600,000, and if the property is not sold within six months, that MICHAEL J. MICELI pay to W. W. GIL-MAN that portion of the $60,000 realtor’s commission that would have come to W. W. GILMAN as a listing salesman in Michael Powell’s real estate office. A further hearing of this Court will be held to determine what that percentage would have been if the parties can not agree thereon.

We agree that the relief awarded by the quoted paragraph was beyond the scope of the pleadings and evidence. However, we construe that paragraph as awarding W. W. Gilman a judgment for that part of the $60,000 realtor’s commission that would have ordinarily been paid to him as a listing salesman in Michael Powell’s real estate office had that office sold the real estate that was the subject matter of this litigation.

Since the record does not establish the percentage of the commission that a listing salesman would have been entitled to under these circumstances, that determination must be made by the trial court. Accordingly, we affirm the trial court’s judgment as we have construed it. We remand with directions that the trial court conduct an evidentiary hearing to determine the entitlement of W. W. Gilman in accordance with this opinion and to enter an amended judgment awarding that amount to him.

SCHEB, C. J., and OTT and SCHOON-OVER, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    William Lee LACY, III, Appellant, v. Rosemary Ann LACY, Appellee.
    No. 81-1090.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.
    Anthony P. Gránese, Clearwater, for appellant.
    Robert W. Wilson of Law Offices of Robert W. Wilson, P. A., Clearwater, for appel-lee.
   HOBSON, Acting Chief Judge.

I

William Lee Lacy, III (William), appeals a portion of a final order in favor of Rosemary Ann Lacy (Rosemary), his former wife, modifying a marriage dissolution judgment by increasing child support. We reverse.

In 1978, the Circuit Court for Pinellas County entered a judgment dissolving the marriage of the parties. The judgment awarded Rosemary custody of their two minor children, subject to reasonable visitation privileges, and incorporated a property settlement agreement between the parties wherein William assented to pay child support in the amount of $25 per week for each child. In 1981, Rosemary filed a petition for modification of the judgment requesting, inter alia, that he pay $75 per week per child.

The court held a hearing on the petition for modification. Rosemary, a self-employed hairdresser, testified that the needs of their children had increased since the dissolution judgment. She asserted that her net weekly income during the previous year varied from $135 to $145. Although she stated that she was “in the hole” approximately $75 per week, she anticipated a 25% increase in income over the previous year. Further, she conceded that she had recently purchased a new $7,000 car and $900 worth of furniture. William, a carpenter, then testified that his net annual income amounted to $9,000. He added that his income had remained static since the divorce decree and that he did not foresee an increase in income. Moreover, he introduced his financial statement into the record which indicated that his average weekly expenses exceeded his average weekly net income by $90.28 and that his liabilities exceeded his assets by $4,187.92.

At the conclusion of the hearing, the court found that “the [children’s] need has certainly gone up [since the divorce decree]” but that “[William’s] ability to pay has not gone up proportionate to the need .... Basically, the ability is status quo at the time of the divorce.” The court thereupon ordered an increase in child support payments from $25 per week per child to $32.50 per week per child, after remarking that “all things considered” it would be “best for the children and equitable and fair” to grant an increase.

Essentially, William argues that the court’s modification of the child support provisions was improper since he believes that Rosemary failed to demonstrate a substantial change in the circumstances of him and/or her. Rosemary, meanwhile, relying upon section 63.13(1), Florida Statutes (1981), contends that the modification was proper since the court found that it was in the children’s best interests to grant an increase. We agree with William.

Section 61.13(1) reads in pertinent part as follows:

61.13 Custody and support of children, etc., power of court in making orders.—
(1) In a proceeding for dissolution of marriage, the court may at any time order either or both parents owing a duty of support to a child of the marriage to pay such support as from the circumstances of the parties and the nature of the case is equitable. The court initially entering an order requiring one or both parents to make child support payments shall have continuing jurisdiction after the entry of such initial order to modify the amount of the child support payments, or the terms thereof, when such is found to be necessary by the court for the best interests of the child or children, when the child or any one of the children has reached the age of 18 years, or when such is found to be necessary by the court because there has been a substantial change in the circumstances of the parties.

(Emphasis added) In Wood v. Wood, 272 So.2d 14 (Fla. 3d DCA 1973), cited by Rosemary in support of her argument, our sister court held that section 61.13(1) permits a trial court to modify child support payments when it finds that it is in the children’s best interests, even though it does not find that there has been a substantial change in circumstances.

However, section 61.13(1) is inapplicable in the instant ease for two reasons. First, the court below did not “initially” enter an order requiring child support payments. Instead, the parties themselves executed a property settlement agreement wherein they provided for child support payments. Later, the court opted to incorporate this agreement into the dissolution judgment. Second, section 61.14(1), Florida Statutes (1981), specifically addresses the situation where a party seeks to modify an agreement providing for child support payments which has been incorporated into a divorce decree. Section 61.14(1) provides in pertinent part as follows:

61.14 Modification of alimony judgments; agreements, etc.—
(1) When the parties have entered into ... an agreement for payments for ... support, . .. whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed ... since the rendition of the order, either party may apply to the circuit court ... for a judgment decreasing or increasing the amount of support, . .. and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child or children, decreasing, increasing, or confirming the amount of separate support ... provided for in the agreement or order.

A fundamental prerequisite to modification of a child support provision is a demonstration of a substantial change of circumstances, including financial circumstances, of one or both the parties, Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981), appeal dismissed, 402 So.2d 609 (Fla.1981); Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980); Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979); Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978); Brown v. Brown, 315 So.2d 15 (Fla. 3d DCA 1975); see, section 61.14, Florida Statutes (1981). The party seeking modification has the burden of demonstrating such a substantial change of circumstances. Fox; Burdack; Meltzer. Further, where the amount of child support payments is based upon an agreement between the parties, a heavier burden rests upon the party seeking modification. Bish v. Bish, 404 So.2d 840 (Fla. 4th DCA 1981); Deatherage; Floyd v. Floyd, 393 So.2d 22 (Fla. 2d DCA 1981); Burdack; Scott v. Scott, 285 So.2d 423 (Fla. 2d DCA 1973).

Rosemary, who sought an increase in child support payments from the amount agreed upon between herself and William, failed to carry her heavy burden of demonstrating a substantial change of circumstances. By finding that the ability to pay child support had remained “status quo,” the court indicated to us that the financial circumstances of William had not improved, let alone substantially improved. Although the court did not make a finding on Rosemary’s financial predicament, her testimony shows that her situation had not deteriorated since the divorce decree, let alone substantially deteriorated. Thus, despite the finding that the needs had increased, we believe that the modification in child support payments was unjustified and unwarranted.

Accordingly, we reverse that portion of the order modifying the child support provision of the dissolution judgment and remand with directions to vacate such portion.

REVERSED and REMANDED.

BOARDMAN and RYDER, JJ., concur.

      . In ruling section 61.13(1) inapplicable under the facts at bar, we intimate no opinion as to how we would have construed this statute if the parties had not entered an agreement providing for support and the court had initially entered an order requiring support.


author: HOBSON, Judge.

text:
    John D. PATRICK, Appellant, v. STATE of Florida, Appellee.
    No. 81-1325.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.

      Jerry Hill, Public Defender, Bartow, and Neil Polster, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Samuel R. Mandelbaum, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

A jury convicted John Daniel Patrick of felony murder, the underlying felony of burglary and aggravated battery. The court sentenced him to concurrent prison terms for the felony murder, the underlying felony and the aggravated battery. During the sentencing hearing, the court agreed to award him credit for time served from the date of his arrest, July 25, 1980. However, the written order of judgment and sentence reflects credit from August 25, 1980. Patrick contends that the court erred in sentencing him for the felony murder and the underlying felony and in failing to award him credit for time served from the date of his original confinement. We agree with both contentions.

Section 775.021(4), Florida Statutes (1981), precludes imposition of multiple sentences for felony murder and the underlying felony. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

A court’s written order of judgment and sentence must not vary from its oral pronouncement of judgment and sentence. Cf. Gatti v. State, 324 So.2d 193 (Fla. 2d DCA 1975) (cause remanded where the written order of judgment and sentence exceeded the sentence imposed in open court).

Accordingly, we remand the cause with directions to vacate the sentence for the underlying felony of burglary and to award credit for time served from July 25, 1980. We leave untouched the three convictions and the sentences for felony murder and aggravated battery.

REMANDED.

SCHEB, C. J., and CAMPBELL, J., concur.


author: SCHEB, Chief Judge.

text:
    CITY OF NAPLES, Florida, Appellant, v. CLAM COURT MARINA TRUST, Appellee.
    No. 81-1390.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.

      David W. Rynders, Naples, for appellant.
    Kenneth G. Hadcock, Naples, for appel-lee.
   SCHEB, Chief Judge.

The City of Naples challenges the trial court’s holding that it acted improperly in refusing to grant Clam Court Marina Trust a zoning variance. We agree with the City’s contention and reverse.

In 1978 appellee, Clam Court Marina Trust, submitted its plans for construction of a thirteen-unit condominium development to the appellant, City of Naples. The condominiums were to be situated on 1.07 acres. The zoning of this land permitted a maximum of twelve units per acre (12 X 1.07 = 12.84 or thirteen permissible units). Since the plans submitted to the City showed that Unit # 13 contained two kitchens and had two independent entries, the City Building Department found it was in reality two dwelling units and refused to issue a building permit for appellee’s proposed development. After the plans were revised to show that a ground floor kitchen was not permitted in Unit # 13, the City issued the permit. However, during construction plumbing and wiring for a second kitchen were installed, and once the unit was occupied, the kitchen facilities were completed.

As constructed Unit # 13 has three floors. The first floor contains living, sleeping, bathroom, and kitchen facilities, has an independent entry from the outside, and is connected to the second floor by a staircase. The second floor contains living, kitchen, and bathroom facilities, and an independent entry from the outside. The third floor contains sleeping and bathroom facilities. The second and third floors are connected by a stairway.

Upon discovering that the second kitchen had been installed, the City’s Community Development Director determined that the first-floor level of the apartment constituted a second dwelling unit. Thus, the director concluded that appellee’s project violated the density restrictions in the City’s zoning code. Appellee appealed the Community Development Director’s interpretation of the zoning ordinance to the Planning Advisory Board and the Naples City Council. Each affirmed the Director’s determination. Appellee then filed a petition with the Board seeking a variance from the City’s minimum lot size requirements to permit a guest house. The Board denied this request, the City Council approved the denial, and appellee sought a writ of certio-rari from the circuit court. The court quashed the City’s denial of the variance request and this appeal ensued.

The trial court found that the City’s determination that appellant’s apartment # 13 constituted two dwelling units was unreasonable, arbitrary, and capricious. We disagree. The City merely applied the definition of dwelling unit found in its ordinances.

Residence is defined in Appendix A in section 14, item 36, of the City Zoning Ordinance as follows:

Residence: A single-family dwelling or a dwelling unit in a multi-family complex, which contains sleeping, bathroom, food, refrigeration, cooking and dining facilities.

The Building Code provides:

Dwelling unit — is a single unit providing complete, independent, living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking, and sanitation.

The City determined that the first floor of Unit # 13 met the building code definition of a dwelling unit as well as the zoning ordinance definition of a residence. Yet, the second and third floors together also satisfied the requirements of these two definitions. Therefore, the City’s determination that Unit # 13 constituted two units and as such violated the zoning requirements was in accord with the definitions contained in its ordinances and was neither arbitrary nor capricious. Accordingly, the court erred in overturning the City’s decision. City of Tampa v. Islands Four, Inc., 364 So.2d 738 (Fla.2d DCA 1978).

In addition, we note the City’s denial of appellee’s petition for a variance was reasonable. Section 9 of the City Zoning Ordinance stipulates that certain conditions must be met prior to the granting of a variance. Among them are:

1. The plight of the applicant must be due to unique circumstances not created by him.
2. Special conditions and circumstances must exist which are peculiar to the land or structure involved, and which are not applicable to other lands or structures in the same district.

The City found that these conditions had not been met because appellee created the situation in issue and there were no unique circumstances relative to the property involved. Moreover, appellee was not deprived of rights commonly enjoyed by other landowners in the same district. Thus, as appellee failed to establish its entitlement to a variance under the ordinance, the City correctly denied its petition. City of Miami v. Franklin Leslie, Inc., 179 So.2d 622 (Fla. 3d DCA 1965). Where, as here, there is sufficient, competent evidence to support the decision of a zoning board of adjustment, a reviewing court must not disturb the board’s action. Bell v. City of Sarasota, 371 So.2d 525 (Fla. 2d DCA 1979).

Accordingly, we reverse the judgment of the trial court and reinstate appellant’s denial of appellee’s petition for variance.

GRIMES and CAMPBELL, JJ., concur.

      . We note that two additional circuit judges participated in this decision which suggests to us that the trial court may have perceived ap-pellee’s petition as one seeking appellate review which, by local rule in the Twentieth Circuit, would be heard by a panel of three judges. Actually, appellee’s petition to the circuit court sought review of the City’s action and was an original proceeding. Thus, we have jurisdiction to review by plenary appeal. Art. V, § 4(b)(1), Fla.Const.; County of Volusia v. Transamerica Business Corp., 392 So.2d 585 (Fla. 5th DCA 1980); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979).


text:
    Ralph Jerome GARVIN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1896.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Garvin appeals the revocation of his probation and his sentence to twenty-five years imprisonment. Because the record reveals grounds sufficient to justify revocation, that portion of the order is affirmed. Watkins v. State, 368 So.2d 363 (Fla.2d DCA 1979). However, we remand the cause to the trial court with directions to impose a sentence reflecting credit for the time served on the original sentence. Ferguson v. State, 372 So.2d 209 (Fla.3d DCA 1979). Appellant need not be present for this purpose.

SCHEB, C. J., and GRIMES and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Ralph DiGUILLIO, William Duarte, Clifford Pennington, and Marvin Ward, Appellees.
    Nos. 81-2030 to 81-2033.
    District Court of Appeal of Florida, Second District.
    May 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Allen P. Allweiss, St. Petersburg, for ap-pellees DiGuillio, Durate and Ward.
    Susan F. Schaeffer, St. Petersburg, for appellee Pennington.
   SCHEB, Chief Judge.

The state challenges the trial court’s dismissal of informations charging the defendants with bookmaking, a felony proscribed by section 849.25, Florida Statutes (1979).

The state filed an information against each of the defendants, and in a series of counts charged that each “did take or receive one or more bets or wagers upon the result of a trial or contest of skill, speed, power or endurance of, or between, men, to-wit: football games involving teams known as .. . contrary to Chapter 849.25, Florida Statutes .... ” The trial court granted each defendant’s motion to dismiss on the ground that the information failed to charge the defendants with felonies and thus it was without jurisdiction. We reverse.

The trial court noted the similarity between sections 849.25(1) and 849.14, Florida Statutes (1979), the misdemeanor betting statute, and opined that neither statute makes a distinction between professional and occasional betting. Thus, the court perceived that the statutes do not afford a person charged with violating these terms proper notice of what acts are proscribed. It held that the state’s failure to specifically allege the acts which charged more than simple gambling as prohibited by section 849.14 failed to charge felonies. Therefore, the circuit court concluded it was without jurisdiction to try the defendants.

At the outset we note that we do not reach the question of the ambiguity of the statutes as the trial court did not rule on their constitutionality. While the statutes may lack clarity due to their similar language, we think the informations alleged felonies and thereby subjected defendants to jurisdiction of the circuit court. Each of the counts against the defendants included the allegation of “taking or receiving bets” which the statute defines as bookmaking. Each tracked the language of section 849.25 and cited that statute. These allegations were sufficient to place each of the defendants on notice as to the acts proscribed by section 849.25. Where, as here, an information refers to a statute and tracks its language, it is generally held sufficient. Martinez v. State, 368 So.2d 338 (Fla.1979); State v. Pajon, 374 So.2d 1070 (Fla. 3d DCA 1979).

Accordingly, we reverse and remand for proceedings consistent with this opinion.

OTT and SCHOONOVER, JJ., concur.

      . Section 849.25(1) provides:
      The term “bookmaking” means the act of taking or receiving any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man or beast or between men, beasts, fowl, motor vehicles, or mechanical apparatus or upon the result of any chance, casualty, unknown, or contingent event whatsoever.

      . Section 849.14 provides:
      Whoever stakes, bets or wagers any money or other thing of value upon the result of any trial or contest of skill, speed or power or endurance of man or beast, or whoever receives in any manner whatsoever any money or other thing of value staked, bet or wagered, or offered for the purpose of being staked, bet or wagered, by or for any other person upon any such result, or whoever knowingly becomes the custodian or depositary of any money or other thing of value so staked, bet, or wagered upon any such result, or whoever aids, or assists, or abets in any manner in any of such acts all of which are hereby forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.


author: PER CURIAM. ANSTEAD, Judge,

text:
    B. M. H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-2212.
    District Court of Appeal of Florida, Fourth District.
    May 5, 1982.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that the trial court’s determination that the appellant waived his right to have formal charges lodged against him within 45 days is supported by the record. On the issue of waiver of counsel I concur on the authority of Jordan v. State, 334 So.2d 589 (Fla.1976).


author: DANAHY, Judge.

text:
    NORTHEAST BANK OF CLEARWATER, Appellant, v. Marguerite L. BENTLEY, sometimes known as Margaret L. Bentley, Appellee.
    No. 81-694.
    District Court of Appeal of Florida, Second District.
    May 7, 1982.
    Ted R. Manry, III, and Joshua Magidson, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Douglas J. Loeffler, Clearwater, for ap-pellee.
   DANAHY, Judge.

The appellant (the Bank) negotiated a check bearing the endorsement of only one of the two payees. Appellee (Mrs. Bentley), the other payee, brought this action against the Bank for conversion of the funds represented by the check. As an affirmative defense, the Bank asserted that the intended person — the endorsing payee — received the proceeds of the check. The trial judge rejected that defense and summarily entered judgment for Mrs. Bentley as a matter of law. We reverse.

The facts are essentially undisputed. At the time the check was issued, Mrs. Bentley had been adjudged incompetent and an individual named James Taylor was qualified and acting as the guardian of her property and person. Mrs. Bentley and her husband, Richard C. Bentley, jointly owned 1503 shares of Texaco stock. In May of 1977, Mrs. Bentley’s guardian and Mr. Bentley’s attorney in fact, his daughter, entered into an agreement to divide those 1503 shares. They agreed that Richard C. Bentley would receive the proceeds from the sale of one-half the stock and Mrs. Bentley would receive one-half of the shares (752) registered in her sole name. Accordingly, a stock certificate was obtained in the name of Mrs. Bentley representing 752 shares of Texaco stock. The other 751 shares were sold and a check was delivered to Richard C. Bentley in the amount of $19,239.87 representing the proceeds of that sale, and payable to Richard C. Bentley and Mrs. Bentley. The Bank accepted the check and negotiated it in accordance with the instructions of Richard C. Bentley or his attorney in fact, notwithstanding that the check was endorsed only on his behalf and did not bear the endorsement of Mrs. Bentley.

On March 8, 1978, Richard Bentley, the son of Richard C. Bentley and Mrs. Bentley, was named as Mrs. Bentley’s successor guardian. One year later, Mrs. Bentley’s competency was restored. In the meantime, Richard C. Bentley died, leaving Mrs. Bentley as the sole beneficiary of his estate. The assets of his estate consisted of three oil leases and $100.00 in personal effects.

At the time of the proceedings before the trial judge in this case, no orders had been entered in Mrs. Bentley’s guardianship proceeding discharging either James Taylor or Richard Bentley as guardian.

The Bank’s affirmative defense in this case was bottomed on the proposition that by agreement of the fiduciaries representing Richard C. Bentley and Mrs. Bentley, Richard C. Bentley was intended to receive the proceeds of the check and did receive them. Mrs. Bentley countered with the argument that the agreement in question was void because neither of her guardians had ever obtained “probate court” approval for the sale of the Texaco stock jointly registered in her name and that of her husband. The “probate court” is the same circuit court in which the instant proceedings arose.

Section 744.447, Florida Statutes (1977), provided that an application for authorization to perform, or confirmation of, a sale of an incompetent’s property was to be by petition stating the facts showing the expediency or necessity for the action, a description of any property involved, and the price and terms of the transaction. Section 744.-457, Florida Statutes (1977), provided in part as follows:

(l)(a) All legal or equitable interests in real and personal property owned as an estate by the entirety by an incompetent for whom a guardian of the property has been appointed may be sold, transferred, conveyed, or mortgaged in accordance with s. 744.447, if the spouse who is not incompetent joins in the sale, transfer, conveyance, or mortgage of the property. ...
(b) In ordering or approving the sale and conveyance of the real or personal property, the court shall provide that one-half of the net proceeds derived from it shall go to the guardian of the property of the incompetent and the other one-half to the spouse who is not incompetent.

The rule in Florida is that a bank may escape liability for honoring a check on a faulty or improper endorsement, or even without endorsement, if the bank can prove that the intended person received the proceeds of the check. Florida National Bank v. Geer, 96 So.2d 409 (Fla.1957); First Independent Bank v. Stottlemyer & Shoemaker Lumber Co., 384 So.2d 952 (Fla. 2d DCA 1980); Sullivan v. Wilton Manors National Bank, 259 So.2d 194 (Fla. 4th DCA 1972). The trial judge in the case before us rejected that defense by the Bank because no order had ever been entered in Mrs. Bentley’s guardianship proceeding authorizing or confirming the agreement between Mrs. Bentley’s guardian and Richard C. Bentley’s attorney in fact to divide the jointly owned Texaco stock. But the guardianship proceeding pertaining to Mrs. Bentley has not terminated; no order has been entered discharging either James Taylor or Mrs. Bentley’s son as guardian. The trial judge in this case, a judge of the same circuit court, has jurisdiction in the guardianship proceeding as well. It is not too late to bring the guardians before the court and determine whether the division of the Texaco stock met the requirements of the guardianship statutes and can be confirmed as proper.

Accordingly, we reverse with directions that the trial judge examine the matter of confirming the transaction giving rise to the dispute before us. We suggest that the guardianship proceeding pertaining to Mrs. Bentley simply be consolidated with the present action for purposes of expediency. Summary judgment was improper on the state of the record before us.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

HOBSON, A. C. J., and CAMPBELL, J., concur.

      . Art. V, § 5, Fla.Const.; § 26.012, Fla.Stat. (1981). See the discussion of circuit court jurisdiction in In Re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977).


author: GRIMES, Acting Chief Judge.

text:
    Anthony BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1215.
    District Court of Appeal of Florida, Second District.
    May 7, 1982.
    Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

In this case we must decide whether a jury verdict of guilty without an adjudication of guilt constitutes a conviction for purposes of impeachment.

During his trial for second degree robbery, appellant, under advice of counsel, testified on direct examination that he had no prior convictions. However, one week earlier another jury had returned a guilty verdict against him in a felony case although the court had not yet adjudicated him guilty. Knowing this, the state attorney informed the court that he intended to use the jury verdict for impeachment purposes. Appellant’s counsel objected, arguing that a jury verdict, absent adjudication by the court, could not be so used, but the lower court allowed the inquiry. Appellant then admitted the prior conviction. He was subsequently convicted as charged.

It has long been the rule in Florida that a witness may be impeached by evidence of his prior convictions. E.g., Roberson v. State, 40 Fla. 509, 24 So. 474 (1899); § 90.08, FIa.Stat. (1977), repealed by Ch. 76-237, § 2, Laws of Fla. This has been codified in the Florida Evidence Code as section 90.610, Florida Statutes (1981), which reads:

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment ....

Florida courts have dealt with the meaning of conviction in a variety of contexts, but only one case even tangentially deals with the precise question posed by this appeal. In Smith v. State, 75 Fla. 468, 78 So. 530 (1918), the state had charged the defendant under a statute precluding the sale of intoxicating liquor in a dry county by a person “having been before convicted of the same offense.” The court construed the word “convicted” to be equivalent to “adjudicated” and reversed the judgment of guilt because the information had only alleged that the defendant had previously pled guilty to a like offense. In support of its decision, the court quoted from 2 Words and Phrases, Convictions, which stated that a conviction as used to effect the credibility of a witness meant the judgment of a court. 75 Fla. at 474, 78 So. at 532.

Courts in other state jurisdictions have also interpreted the word conviction, with differing results. However, certain decisions of the federal courts are more significant because they deal directly with what constitutes a prior conviction for purposes of impeachment.

In United States v. Klein, 560 F.2d 1236 (5th Cir. 1977), cert. denied, 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978), the court considered whether it was proper to impeach the defendant with evidence of a jury verdict of guilt which had been returned against him in another case earlier on the same day though no adjudication had yet taken place. The court observed that until the adoption of the Federal Rules of Evidence, the federal circuits were split on the issue with respect to the propriety of using prior convictions which were on appeal for purposes of impeachment. The court noted, however, that Federal Rule of Evidence 609 now specifically provided that the pendency of an appeal would not render evidence of a conviction inadmissible for impeachment, though evidence of the pend-ency of the appeal would also be admissible. The court then said:

It follows that if a jury can comprehend that a prior conviction on appeal may be reversed, it can also comprehend that a jury verdict of guilty may be set aside upon a motion for judgment of acquittal, pursuant to Fed.R.Crim.P. 29(c), a motion for a new trial, pursuant to Fed.R.Crim.P. 33, or a motion in arrest of judgment, pursuant to Fed.R.Crim.P. 34. Thus, we can perceive no logical distinction, for purposes of impeachment, between a conviction on appeal and a jury verdict of guilty where judgment and sentence have not yet been entered, so long as the defendant has the opportunity to explain to the jury the legal status of the “conviction.”
We hold only that a verdict of guilty where judgment and sentence have not been entered is admissible for impeachment purposes where it otherwise meets the requirements of Fed.R.Evid. 609. In so holding, we do not suggest that a guilty verdict is for all purposes the equivalent of a conviction or that a mere plea of guilty may in all cases be used for impeachment purposes.

560 F.2d at 1240.

Other federal circuits have followed this interpretation of rule 609. United States v. Smith, 623 F.2d 627 (9th Cir. 1980); United States v. Vanderbosch, 610 F.2d 95 (2d Cir. 1979); United States v. Duncan, 598 F.2d 839 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. Rose, 526 F.2d 745 (8th Cir. 1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). While section 90.610 of the Florida Evidence Code is not the same as rule 609 in all particulars, that portion of the section now under consideration is identical with its federal counterpart. Because the federal interpretation is founded in logic, we choose to follow it. We believe that for purposes of impeachment, there is no significant difference in probative value between a jury’s finding of guilt and the entry of a judgment thereon.

One may reasonably suggest that an anomaly will occur if the court ultimately chooses to withhold adjudication and place appellant on probation for the crime of which the jury had previously found him guilty. Should this happen, appellant cannot thereafter be impeached by evidence concerning that crime. United States v. Georgalis, 631 F.2d 1199 (5th Cir. 1980). However, the result under those circumstances would be no different than if a witness’s judgment of guilt was ultimately reversed on appeal. Until such time as the reversal occurs, evidence of his judgment of guilt may be admitted for impeachment, and the fact that an appeal is pending may also be shown. Likewise, if a witness has been impeached by evidence that he has previously suffered an adverse verdict of guilt, evidence will also be admissible to show that no adjudication has yet been made. See United States v. Smith.

The court did not err in permitting appellant to be impeached by his prior guilty verdict despite the absence of adjudication. Appellant’s other point has no merit.

AFFIRMED.

RYDER and SCHOONOVER, JJ., concur.

      . State v. Gazda, 257 So.2d 242 (Fla.1971) (conviction does not require adjudication by the court in context of a statute relating to limitation on withheld sentences); Delta Truck Brokers v. King, 142 So.2d 273 (Fla.1962) (conviction in the context of a statute preventing one from engaging in a brokerage business without a license means determination of guilt and judgment of court); Weathers v. State, 56 So.2d 536 (Fla.1952) (conviction of a principal means adjudication of guilty); Ellis v. State, 100 Fla. 27, 129 So. 106 (1930) (judgment of conviction in a misdemeanor case must contain an adjudication of guilty by the court); Timmons v. State, 97 Fla. 23, 119 So. 393 (1929) (when alleging prior convictions in an indictment, conviction must include adjudication by the court); State ex rel. Owens v. Barnes, 24 Fla. 153, 4 So. 560 (1888) (conviction may on occasion have different meanings depending upon the context in which it is used); Accredited Sur. & Cas. Co. v. State, 318 So.2d 554 (Fla. 1st DCA 1975) (conviction for purposes of the bail bond statute means adjudication of guilt and not a guilty plea).

      . State v. Superior Court, 51 Del. 178, 141 A.2d 468 (1958) (conviction construed in its technical legal sense); State v. Ege, 274 N.W.2d 350 (Iowa 1979) (conviction for purposes of impeachment does not include a deferred sentence and a successfully completed period of probation); Forcier v. Hopkins, 329 Mass. 668, 110 N.E.2d 126 (1953) (conviction means judgment that conclusively establishes guilt after a finding, verdict, or plea, but a suspended sentence does not affect the finality of the judgment); Buhar v. Dizdar, 240 Minn. 26, 60 N.W.2d 77 (1953) (conviction means either ascertainment of guilt prior to judgment and sentence or in its technical legal sense, judgment or sentence rendered pursuant to a verdict, confession or plea); Jones v. Kelly, 9 A.D.2d 395, 194 N.Y.S.2d 585 (1959) (no fixed significance attached to conviction; therefore courts may look for legislative intent).

      . The court noted in a footnote by way of contrast that often, as in Smith v. State, where a prior conviction is an essential element of the offense, there must be proof of a judgment and sentence in order to demonstrate a conviction.


author: RYDER, Judge.

text:
    AMERICAN AGRONOMICS CORPORATION, a Florida corporation, Appellant, v. Edward Otto VARNER, Appellee.
    No. 82-1.
    District Court of Appeal of Florida, Second District.
    May 7, 1982.

      William Knight Zewadski and Nelson D. Blank of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, P. A., Tampa, for appellant.
    Glen L. Brock of Martin & Brock, Lake Wales and J. Michael Rooney, Punta Gorda, for appellee.
   RYDER, Judge.

American Agronomics Corporation appeals an order denying its motion to set aside a default judgment entered against the corporation. We reverse.

The facts reveal that appellee, for reasons not relevant to this decision, was unable to perfect service of process upon preferred officers of appellant, a Florida corporation. Appellee successfully served John Davis, a director of the corporation, who was, however, not involved in the day-to-day operations of appellant. Mr. Davis mistakenly believed the summons and complaint were duplicates of papers already served eight times on the corporation in two lawsuits unrelated to the instant case. Mr. Davis informed attorneys handling the unrelated suits that he had been served with additional copies, and they instructed him to disregard the summons and complaint. Consequently, no answer was filed by appellant in the instant case, and appellee proceeded to obtain a default judgment against appellant.

Upon learning of the default judgment, appellant promptly moved to have it set aside, but the lower court denied the motion and this appeal followed.

Florida courts freely grant relief from defaults so that the matters may be tried on the merits. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). In setting aside a default, courts afford greater leniency in cases not decided on the merits, and Florida courts have held that a greater showing may be required to reverse an order granting a motion to vacate than that required to reverse a denial of such a motion. Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977).

Under the circumstances of this case, we believe the lower court abused its discretion in failing to set aside the default judgment. Failure of Mr. Davis to deliver the summons and complaint to counsel constitutes excusable neglect and warrants setting aside the default judgment. See Ellis v. Ellis, 404 So.2d 774 (Fla. 2d DCA 1981). Justice will be served better by a resolution of this controversy on the merits rather than by default.

We find it unnecessary to discuss the other arguments raised by appellant.

REVERSED with directions to set aside the default entered herein and for further proceedings consistent with this opinion.

OTT, A. C. J., and SCHOONOVER, J., concur.


text:
    D. L. J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2295.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

The State having confessed error the adjudication of delinquency rendered September 14, 1981 is hereby reversed with directions to discharge the appellant. See, J. L. B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981); J. O. v. State, 384 So.2d 966 (Fla. 3d DCA 1980); J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979); K. W. U. v. State, 367 So.2d 647 (Fla. 3d DCA 1979); cert. denied, 378 So.2d 349 (Fla.1979).

Reversed and remanded.


text:
    Andrew Lee SHELTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-973.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

The following is substituted for our previous opinion in this appeal.

Andrew Lee Shelton, while on probation, committed a sexual battery for which he has now been tried and convicted. His probation has been revoked based upon the same criminal activity. He appeals the conviction and the revocation.

We affirm the conviction, the sentence and the revocation.

AFFIRMED.

BERANEK, HERSEY and DELL, JJ., concur.


text:
    Peter GIACONA and Cheryl L. Morgan v. CONTI COMMODITY SERVICES, INC.
    No. 82-C-0244.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   Re: Peter Giacona and Cheryl L. Morgan, applying for Writ of Certiorari and Review, to the Fourth Circuit Court of Appeal Parish of Orleans, No. 81-13474.

Writ granted. Judgment of the Court of Appeal is reversed. The Court of Appeal apparently decided this case on the strength of an exhibit to a writ application, an exhibit not made part of the record in the trial court. The case is remanded to the district court for re-trial of the exception of prematurity, with the parties being afforded the opportunity to introduce all relevant evidence.


author: DIXON, C. J.,

text:
    STATE of Louisiana Ex rel. Tommy Joe COLE v. Acton HILLEBRANDT, Clerk, 14th Judicial District Court, Parish of Calcasieu, State of Louisiana.
    No. 81-KH-3054.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   Re: Tommy Joe Cole applying for Writ of Mandamus, Parish of Calcasieu, Nos. 13,529-79 and 7408-79.

Denied. Relator has not shown that he is entitled to be furnished the documents he seeks.

DIXON, C. J.,

concurs in the denial. He has not appealed, and is not therefore entitled to a transcript. Nor has relator filed a pleading for this relief with the district court.


text:
    STATE of Louisiana Ex rel. Roy W. HARBISON v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-3060.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   Re: Roy W. Harbison, applying for Writ of Certiorari, Parish of Beauregard, Number C-143-80.

Denied.

DIXON, C. J.,

concurs. Relator may apply here without a transcript to review ha-beas proceedings. If a transcript is needed, this Court will order it.