author: SHAW, Judge.

text:
    Joseph G. STOKES, Appellant, v. Lloyd BELL, Jr., Appellee.
    No. AJ-60.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    Dale E. Rice, Crestview, for appellant.

      No appearance for appellee.
   SHAW, Judge.

Appellant tax collector sued the appellee taxpayer for 1975-1979 taxes owed on Oka-loosa County lots owned by the appellee. Service of process was effected while the appellee was in the courthouse in Okaloosa County, Florida, for an unrelated civil suit. Appellee filed a motion to abate for lack of personal jurisdiction, alleging that his permanent residence and principal place of business was in the Bahamas, but that he had a temporary residence in Miami Beach where his wife and children reside. The trial judge granted the motion to abate on the authority of State ex rel. Cox v. Adams, 148 Fla. 426, 4 So.2d 457 (1941).

Process in civil actions is governed by section 48.011, Florida Statutes (1981), which facially indicates that service of process runs throughout the State of Florida. Adams, on the other hand, says that a person in attendance in court outside the territorial jurisdiction of the county of his residence is immune from service of process while in court and for a reasonable period of time following the court appearance in order to return to his home county. We cannot find that the Supreme Court has receded from Adams, so we assume it is still good law, interpreted correctly by the trial judge in this case. We accordingly affirm. We find difficulty, however, in reconciling Adams with the statute, particularly where, as here, there is no suggestion that the tax collector acted in bad faith by luring or compelling Bell to enter Okaloosa County for service of process. We therefore certify the following question to the Supreme Court as being of great public importance:

SINCE SERVICE OF PROCESS ON A FLORIDA RESIDENT NORMALLY MAY BE EFFECTED STATEWIDE, IS THERE AN UNDERLYING POLICY REASON TO EXEMPT FLORIDA RESIDENTS FROM SERVICE WHEN ATTENDING COURT OUTSIDE THEIR COUNTY OF RESIDENCE IN THE SAME MANNER AS NONRESIDENTS OF THE STATE ARE EXEMPTED WHEN ATTENDING COURT WITHIN THE STATE?

JOANOS and WIGGINTON, JJ., concur.

      . 48.011 Process; how directed. — Summons, subpoenas and other process in civil actions run throughout the state. All process except subpoenas shall be directed to all and singular the sheriffs of the state.

      . See Art. V, § 3(b)(4), Fla. Const.; Fla.R.App.P. 9.030(a)(2)(A)(v).


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    Marvin Eugene BROWN, Appellant, v. STATE of Florida, Appellee. John Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. AK-331, AK-363.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1983.

      Frank Tassone, Jacksonville, for appellant Marvin Eugene Brown.
    Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant John Lee Williams.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Williams and Brown appeal their convictions and sentences for the crime of burglary of a dwelling with intent to commit theft. We reverse and remand for a new trial.

Williams and Brown were charged with the above crime by separate informations. On the same day that the jury selection process was commenced, the State moved to consolidate the cases against Brown and Williams. The trial court granted the motion to consolidate over the objections of both appellants. Opening arguments were commenced two days later, at which time both appellants moved to dismiss the information on the ground that the information was fatally defective in failing to allege that appellants entered a premises without the consent of the lawful owner. This motion was denied. Thereafter, the State filed a motion in limine to prohibit appellants from cross-examining the victim concerning his general moral character or drug usage. In opposition to this motion, appellants argued that cross-examination of the victim on these matters was necessary to explain the presence of appellants’ fingerprints at the victim’s home and was, therefore, essential to establish appellants’ defense. On that basis, appellants argued that their sixth amendment right to confront and cross-examine witnesses would be violated if the trial court granted the State’s motion in limine. In granting the State’s motion in limine, the trial court noted that “if you want to call him [the victim] as an adverse witness during your side of the case, you can.” During the State’s case-in-chief, the State presented testimony from the victim and his sister, with whom he lived. Both witnesses testified that neither appellant had ever been inside their residence with permission. The State also presented expert fingerprint testimony linking both appellants to the crime. Fingerprints from both appellants were found on the outside portion of a sliding glass door, which was identified as the point of entry. Appellant Williams’ fingerprints were also found on a dresser drawer located inside the burglarized dwelling. In addition, the State introduced evidence from an eyewitness who testified that on the morning of the burglary he saw Appellant Williams at the victim’s home trying to open the garage door. The eyewitness also testified that on the morning of the burglary, he observed Appellant Brown driving an automobile which passed several times slowly by the victim’s home and which later was parked around the corner from the victim’s home. During appellant’s case-in-chief, both appellants attempted to explain the presence of their fingerprints at the scene of the crime. Williams testified that he had been in the victim’s home to buy marijuana from the victim and to have sex with him. Brown testified that he had been in the victim’s home to sell food stamps to the victim and to buy marijuana from him. Appellant Williams also presented testimony from Melvin Brown, who is the brother of appellant Marvin Brown. Witness Brown testified that the victim had given him cocaine and marijuana, and that the victim had approached him sexually. This testimony, however, was stricken from the record by the trial court. During Appellant Brown’s cross-examination of Melvin Brown, testimony similar to that which was stricken was proffered, but the trial court prohibited it from being admitted into evidence. On rebuttal, the State recalled the victim, who denied ever selling marijuana to any of the defense witnesses. On surre-buttal, the trial court refused to allow counsel for Appellant Williams to inquire as to whether the victim had ever had a sexual encounter with his client and also refused to allow Appellant Williams to recall any of his witnesses to testify that they had purchased drugs from the victim. At the conclusion of the trial, appellants were found guilty as charged. On appeal, appellants raise four issues.

Addressing first the question of whether the trial court erred in denying appellants’ motions for judgments of acquittal, we find that the trial court did not err. On review of a trial court’s denial of a motion for judgment of acquittal, the test for determining the sufficiency of proof is whether the jury might reasonably conclude that the evidence, viewed in the light most favorable to the government, is inconsistent with every reasonable hypothesis of the defendant’s innocence, or, stated in another way, whether a reasonably minded jury must necessarily entertain a reasonable doubt of the accused’s guilt. United States v. Diaz, 655 F.2d 580 (5th Cir.1981).

Drawing every inference in favor of the State, the record is sufficient to support the convictions of both appellants. The evidence against Appellant Williams consisted of eyewitness testimony placing Williams at the scene of the crime on the morning of the break-in. In addition, Williams’ fingerprints were found both outside (on the sliding glass door where entry was gained) and inside (on a dresser drawer) of the burglarized dwelling. As to Appellant Brown, the evidence consisted of testimony from an eyewitness who identified Brown as the driver of a vehicle which passed slowly by the victim’s home and which was parked around the corner from the burglarized dwelling on the morning of the crime. Brown’s fingerprints were also found on the outside of the sliding glass door where entry was gained into the burglarized dwelling.

Both appellants contend that the only evidence implicating them in the crime consists of fingerprint evidence. Based on this interpretation of the evidence, they argue that in order for this evidence to be sufficient to identify appellants as the perpetrators of the burglary, the State must show that the fingerprints could have only been made at the time the crime was committed. Appellants contend that the State failed to carry this burden. We disagree.

Preliminarily, we hold that, as to Appellant Williams, the fingerprint evidence is not the only evidence linking him with the crime. The eyewitness testimony from Mr. Thomas placing Williams at the scene of the crime constitutes competent evidence which implicates Williams in the crime in question. On this basis, we find that the evidence against Appellant Williams is sufficient to sustain his conviction even without establishing that his fingerprints could have been made only at the time of the crime.

Furthermore, even assuming that the fingerprint evidence was the sole evidence linking appellants to the crime, the evidence would be sufficient to support appellants’ convictions. Although both appellants testified that they had been inside the burglarized dwelling before the date of the crime, viewing the evidence in the light most favorable to the State, there can be no question that the State carried its burden by showing, prima facie, that appellants’ fingerprints could have only been made at the time the crime was committed. Both residents of the burglarized dwelling testified that neither appellant had ever been invited inside their home. In view of the fact that the fingerprint evidence was taken only hours after the- crime was committed, as well as the fact that appellants’ fingerprints were found in locations that had very limited accessibility, we find that the evidence was sufficient to prove that appellants’ fingerprints could have only been made at the time of the crime. On this basis, we find that the evidence is sufficient to sustain appellants’ convictions.

We next consider appellants’ contention that their convictions should be reversed on the ground that the informations which charged them were fatally defective because they failed to allege that either appellant entered a dwelling without consent. This argument is without merit. In State v. Hicks, 421 So.2d 510 (Fla.1982), the Florida Supreme Court reversed the decision of the 5th District Court of Appeal in Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981), and held that nonconsent is not an essential element of the crime of burglary which must be alleged and proved.

We now turn to appellants’ last two points on appeal, which we find set forth grounds for reversal. The first of these grounds concerns the trial court’s decision to consolidate the cases of Williams and Brown two days before trial. Appellants contend that they were denied their sixth amendment right to effective representation because they were not given a reasonable time in which to prepare a defense for the consolidated trial. The State contends that the motion for consolidation was timely and that, even if untimely, appellants were not prejudiced because they had two days in which to prepare for the joint trial.

There can be no question in this case that the motion to consolidate was untimely and that appellants were prejudiced by the untimely motion. The constitutional right to be represented by counsel necessarily carries with it the right to have a reasonable time in which to prepare for trial. In this case, appellants were clearly denied their due process right to have a reasonable opportunity to prepare for trial. See Harley v. State, 407 So.2d 382 (Fla. 1st DCA 1981). Rule 3.151(b), Fla.R.Crim.P. (1981), provides as follows:

Two or more indictments or informations charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the State. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. Failure to timely move for a consolidation constitutes a waiver of the right to consolidation. (emphasis supplied).

The committee note to Rule 3.151(b) further states:

Limits motion for consolidation to defendant and provides that defendant waives his right to consolidation by failing to file a timely motion. Under standards relating to joinder of offenses and defendants, the prosecution may avoid the necessity for consolidation by charging offenses and defendants in a single indictment or information where consolidation is permissible .... (emphasis supplied)

Based on a reading of the above rule and committee note, it is apparent that the State could have avoided the necessity of consolidation in this case by charging both appellants in a single information. Having failed to exercise that right, the State could have only consolidated appellants’ cases by filing a timely motion for consolidation. The question, then, is whether the State’s motion for consolidation was timely filed and, if not, whether this failure to timely move for consolidation constitutes grounds for reversal. If the requirement in Rule 3.151(b), Fla.R.Crim.P., that a motion for consolidation must be timely made means anything, it must require that such a motion be made more than two days before trial.

Having determined that the motion to consolidate in this case was untimely made, the only question that remains is whether appellants were prejudiced. We believe they were. In Belote v. State, 344 So.2d 565 (Fla.1977), the Supreme Court of Florida held that a defendant was denied substantial procedural rights by the action of the trial court in consolidating, on its own motion, three cases against him on the day before trial where the state had failed to exercise its right to charge all the related offenses in a single information. In Zeigler v. State, 402 So.2d 365 (Fla.1982), the Florida Supreme Court was confronted with another consolidation case in which the trial court on its own motion moved for consolidation. In Zeigler, unlike Belote, there was a period of several months in between consolidation and trial. Noting this distinction between the two cases, the Supreme Court in Zeigler, held that “[u]nlike the situation in Belote, supra, and Kilgore, supra, no short notice or surprise is present in the record.” Based on this distinction, the court in Zeigler found that although the court was in technical violation of the rule when it consolidated the indictments, the error was not reversible because Zeigler had failed to demonstrate any prejudice resulting from the error. In view of this distinction which the Florida Supreme Court has drawn between the Zeigler and Belote eases, it would appear that the test for determining whether a defendant has been prejudiced by an untimely motion to consolidate is whether the defendant has been given a reasonable period after consolidation to prepare for the consolidated trial. When the period between consolidation and trial is so short that the defendant is denied a reasonable opportunity to prepare a defense for a joint trial, such a defendant has clearly been prejudiced by the denial of substantial procedural rights. In this case, it seems patent that the two-day period between consolidation and trial prejudiced appellants by denying them their due process rights to have a reasonable opportunity to prepare for trial. See Harley, supra. On that basis, we reverse appellants’ convictions and sentences and remand the case for new trial.

We also reverse their convictions and sentences on the ground that the trial court impermissibly restricted appellants’ cross-examination of the victim as well as the examination of witness Melvin Brown. The presence of appellants’ fingerprints at the scene of the crime was clearly a relevant and material issue in this case. The theory of the defense was that these fingerprints were placed at the scene of the crime when appellants visited the victim at his residence for illicit purposes; namely, the purchase of marijuana, the sale of food stamps, or homosexual relations. The victim denied that appellants had ever been inside the burglarized dwelling prior to the crime. Normally, testimony which concerns the moral character and prior bad acts of a witness is not admissible to impeach a witness. However, in this case, such testimony is admissible to show a possible bias or motive on the part of the victim in testifying that appellants had never been inside his residence. Although the questions of whether the victim had ever sold marijuana or paid cash for food stamps or engaged in homosexual activity are not directly relevant or material to the question of whether appellants had ever been inside the victim’s residence, testimony concerning these issues could possibly show a motive for the victim in denying that appellants had ever been inside his house. This is especially true in light of the fact that both appellants testified that they were inside the victim’s home prior to the crime for illegal purposes.

In Bryant v. State, 341 So.2d 841 (1st DCA 1977), this court held that “[i]t is a fundamental principle that matters tending to show bias or prejudice in a criminal prosecution may be inquired about even when they were not mentioned in direct examination.” The right to elicit facts tending to show bias or prejudice of a witness becomes even more important to a defendant in a criminal case, such as this one, where the jury must know of any improper motives of a prosecuting witness in determining that witness’ credibility. See Roberts v. State, 164 So.2d 817 (Fla.1964). In this case, it was necessary for the jury to know whether the victim had any improper motives in testifying that appellants had never been inside his home. For that reason, it was prejudicial error for the trial court to prohibit appellants from cross-examining the victim concerning the above matters.

In reaching this conclusion, we reject that State’s contentions that appellants were not prejudiced by the limitations placed on their cross-examination of the victim because the trial court stated that it would allow appellants to call the victim as an adverse witness and to impeach his credibility at that time. The right to confront and cross-examine a witness is not satisfied by permitting defense counsel to call a State’s witness as an adverse witness. By restricting appellants’ cross-examination and permitting only a direct attack on the victim’s credibility as an adverse witness, the court committed reversible error by forcing appellants to choose between calling an additional defense witness and retaining their right of concluding closing argument. McDuffie v. State, 341 So.2d 840 (Fla. 2d DCA 1977).

For the above reasons, it was also error for the trial court to prohibit appellants from eliciting testimony from witness Melvin Brown concerning questions about whether he had ever obtained illegal drugs from the victim or whether the victim had ever approached him sexually. On proffer by appellants, Melvin Brown stated that he had obtained marijuana and cocaine from the victim and that the victim had sex with him. This testimony was material and relevant to the victim’s credibility in that it tended to establish a possible motive for the victim’s testimony that appellants had never been to his house prior to the crime.

REVERSED and REMANDED for new trial.

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


author: WENTWORTH, Judge.

text:
    Alvin RADNEY, Appellant, v. Robert D. EDWARDS, Appellee.
    No. AL-191.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1983.
    William D. Barrow, of Barrow & Holley, Crestview, for appellant.
    W. Flemming Ward, DeFuniak Springs, for appellee.
    Mary Ann Stiles of Stiles & Livingston, Tampa, for amicus curiae Associated Industries of Florida, Inc.
   WENTWORTH, Judge.

Employer appeals a workers’ compensation order which determined that claimant is entitled to the payment of compensation benefits. Employer contends that he is exempted from the mandatory provisions of the workers’ compensation law since he is a private employer with less than three employees. We agree, and we reverse the order appealed.

Section 440.02(1)(b)2, Florida Statutes, defines “employment” under the workers’ compensation law as including

All private employments in which three or more employees are employed by the same employer.

Section 440.10(1), Florida Statutes, relating to liability for compensation, provides that only employers who are “within the provisions of [Chapter 440] are liable for the payment of compensation.” Since the present case involves a private employer with less than three employees, § 440.10(1) and § 440.02(l)(b)2 establish that claimant is not entitled to the payment of compensation under the workers’ compensation law. However, the deputy noted that, pursuant to § 440.11(1), Florida Statutes, if a covered employer fails to secure the payment of compensation as required by the workers’ compensation law, an injured worker may maintain an action at law for damages and several traditional common law defenses are statutorily unavailable to the employer. The deputy further noted that if the injured worker elects to proceed under the provisions of the workers’ compensation law, negligence need not be proved. The deputy then reasoned that workers whose private employers have less than three employees were thereby given “an inferior legal status which worked to deny them the equal protection of the law as guaranteed each citizen by both the federal and state constitutions.” The deputy therefore determined that claimant is entitled to receive workers’ compensation benefits even though his private employer has less than three employees.

Contrary to the deputy’s venturous ruling, we conclude that the statute effectively excludes private employers with less than three employees from the mandatory provisions of the law, and is not constitutionally infirm in this respect. The legislature could, in our opinion, properly distinguish small employers from larger entities, and such classification can be reasonably related to a permissible legislative objective — mandating the provision of workers’ compensation benefits only as to those entities which significantly impact the industrial marketplace. That classification is not discriminatory, arbitrary, or oppressive; therefore, considerations of equal protection, due process, and access to the courts do not preclude such distinction. See Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974). In this regard we note that claimant retains his common law legal remedies, and is merely precluded from resort to the legislature’s otherwise-substituted remedy of workers’ compensation.

Accordingly, we reverse the order appealed.

BOOTH and THOMPSON, JJ., concur.

      . Deputy commissioners are not empowered to declare provisions within the workers’ compensation law to be invalid on constitutional grounds. We address the merits of the issue under the doctrine of primacy of district court review.


author: NESBITT, Judge.

text:
    Nestor GONZALEZ, Appellant, v. Francoise BENOIT, Appellee.
    No. 81-1003.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.

      Legal Services of Greater Miami, Inc. and Carole M. Fruman, Miami, for appellant.
    George E. Barket, Richard M. Gale, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT, J., and PEARSON, TILLMAN (Ret.) Associate Judge.
   ON MOTION FOR CLARIFICATION

NESBITT, Judge.

Gonzalez appeals the order of the circuit court dismissing his complaint for lack of subject matter jurisdiction.

The complaint alleges that in June of 1980 Gonzalez went into possession of a motel apartment owned by the defendant, Benoit. Pursuant to a month-to-month tenancy, Gonzalez agreed to pay $200 per month and Benoit agreed to provide electrical service. On February 10,1981, Gonzalez tendered, and the defendant accepted, $200 for February 1 through February 28. The complaint further alleges that the landlord terminated electrical power to the tenant’s apartment on February 25, 1981. On March 4, it is alleged, the landlord changed the locks at the entrance of plaintiff’s apartment, depriving him of access. The tenant brought this action in circuit court seeking: (a) compensatory and punitive damages; (b) possession; and (c) an injunction. The trial court dismissed the case stating that it was a landlord and tenant action which properly belonged in county court. We reverse.

As to the claim for monetary relief, Section 34.011(1), Florida Statutes (1979) provides:

The county court shall have jurisdiction concurrent with the circuit court to consider landlord and tenant cases involving claims in amounts which are within its jurisdictional limitations.

At the time the cause of action accrued, the circuit court had jurisdiction over causes of action where the sum in controversy exceeded $5,000. § 34.01(1)(c) 2, Fla.Stat. (Supp.1980). The $5,000 demand for compensatory and punitive damages in the present case met the good faith test so as to invoke the jurisdiction of the circuit court. Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976).

Plaintiff next alleges that he has a right to be restored to possession. Section 34.011(2), Florida Statutes (1979) provides:

The county court shall have exclusive jurisdiction of proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements, except as provided in s. 26.012.

Formerly, the actions for unlawful detainer and forcible entry were adequate remedies to return a tenant to possession and these actions were properly brought in the county court. However, by Chapter 73-330, Section 13, Laws of Florida, as codified in Sections 82.02, 82.04, and 82.081(2), Florida Statutes (1973), these remedies are no longer available to a residential tenant.

We have discovered no cases which discuss the void created by the legislature’s withdrawal of the remedies of unlawful detainer and forcible entry. We must conclude that a residential tenant seeking to be restored to possession must file a suit in ejectment, pursuant to Chapter 66, Florida Statutes (1979). Clearly, however, an action in ejectment falls within the jurisdiction of the circuit court. §§ 34.011(2) and 26.012(2)(f), Fla.Stat. (1979). Consequently, the only possessory remedy for a residential tenant lies in circuit court.

Finally, plaintiff claims that he is entitled to an injunction which would bring this cause of action within the jurisdiction of the circuit court, pursuant to Section 26.-012(2)(e), Florida Statutes (1979). While we agree that the circuit court has jurisdiction over cases in equity, we find that the plaintiff, under the allegations before us, is not entitled to temporary injunctive relief.

A request for an injunction to prevent a breach of contract is tantamount to a suit for specific performance, Hotel and Restaurant Employees and Bartenders Union v. Boca Raton Club, 73 So.2d 867 (Fla.1954); Professional Golfers Association of America v. Bankers Life and Casualty Co., 166 So.2d 488 (Fla. 2d DCA 1964), and, as such, the courts are more reluctant to issue injunctions of this type than prohibitory injunctions. To justify the granting of a temporary mandatory injunction, the party seeking relief must allege facts to clearly and unequivocally indicate that: (1) irreparable harm will otherwise result; (2) there is a clear legal right; and (3) the remedy at law is inadequate. Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980).

In the present case, the plaintiff has failed to plead sufficient facts from which we can conclude that irreparable injury will result. The conclusory allegations made by the tenant are insufficient. Contemporary Interiors, Inc., supra. Irreparable injury is an injury of such nature that it cannot be redressed in a court of law; an injury for which monetary compensation will not suffice. Professional Golfers Association of America, supra. At first appearance, ejectment seems to be inadequate for a month-to-month tenant because the landlord could terminate the lease before the tenant’s action matures to judgment [fifteen days’ notice is required. § 83.57(3), Fla.Stat. (1979)]. However, we find that the remedy to be afforded a tenant who is ousted from possession can be no greater than the right he would have enjoyed in the absence of the landlord’s breach. While we recognize that there may be a unique case in which irreparable injury would occur, in the vast majority of cases, a tenant evicted from his dwelling can obtain substantially similar housing and then seek redress through the remedies available to him at law. We, therefore, find that ejectment in conjunction with money damages will ordinarily afford the dispossessed tenant an adequate remedy.

We conclude that generally the circuit court has jurisdiction over a properly pled complaint for monetary relief, ejectment, or injunctive relief. In this case, the plaintiff has stated a cause of action for monetary relief but has failed to state a cause of action for temporary injunctive relief. We reverse the order dismissing the complaint for lack of jurisdiction. Because we reverse, the plaintiff should be given the opportunity to properly plead an entitlement to injunctive relief.

Reversed and remanded.

      . Section 83.55, Florida Statutes (1979) provides a basis for compensatory damages. If, at any point during the litigation, it is revealed that the maximum potential liability is below the jurisdictional amount, then appropriate procedural remedies are available to the defendant. Augustine v. Southern Bell Telephone and Telegraph Co., 91 So.2d 320 (Fla.1956). Since we find the claim for compensatory damages sufficient to invoke jurisdiction, we need not determine if the plaintiff stated a cause of action for punitive damages.

      . As we stated with respect to the claim for punitive damages, the action for ejectment is not necessary to invoke circuit court jurisdiction. Consequently, we need not presently decide whether the plaintiff stated a cause of action for ejectment.

      . While our finding, that the tenant failed to state a cause of action for injunctive relief, is unnecessary to the jurisdictional question before us, we reach this issue because of the nature of the remedy sought.


author: PER CURIAM.

text:
    Ronald YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1219.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Lyons & Farrar, Miami, for appellant.
    Jim Smith, Atty. Gen., and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL, J., and KAPNER, LEWIS, Associate Judge.
   PER CURIAM.

We conclude that the only evidence at the trial which was admissible against the defendant-appellant, his own statement, was insufficient as a matter of law to justify the jury finding that he was guilty of the crime of false imprisonment. Sec. 787.02, Fla.Stat. (1979); see A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982); Perez v. State, 390 So.2d 85 (Fla. 3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968). As in the cases cited, Young could, at most, properly have been convicted only of being an accessory after the fact of his co-defendant’s commission of the offense, a crime with which the appellant was not charged. See A.Y.G. v. State, supra, 414 So.2d at 1159. For this reason, the judgment under review is reversed with directions to discharge the defendant.

KAPNER, LEWIS, Associate Judge, dissents.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    Judith FARAH, Appellant, v. Albert FARAH, Appellee.
    No. 81-1368.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.

      Simon, Schindler & Hurst and Deborah Miller and Judith A. Bass, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Robert L. Floyd and Phillip E. Walker, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr., Associate Judge.
   OWEN, WILLIAM C., Jr., Associate Judge.

Judith Farah contends that the trial court, in entering a final judgment dissolving the parties’ marriage, erred (1) in awarding her former husband a special equity in certain jointly owned property, (2) in failing to award her exclusive use and possession of the jointly owned property, and (3) in failing to provide her with adequate alimony, both as to the type and amount. We find that no error has been demonstrated in any of these respects, and affirm.

The jointly owned property was a condominium purchased in 1975, the title to which was placed in the parties joint names as tenants by the entirety. The court found that all of the consideration for the purchase of the condominium was supplied by the husband from funds derived from a source totally unconnected with the marriage, and that in placing the title in the parties’ joint names, the husband had not intended to make a gift to the wife of a one-half interest in the property. These two factual findings are amply supported by competent substantial evidence. The principal thrust of appellant’s argument is that the trial court erred as a matter of law in applying the principles established in Ball v. Ball, 335 So.2d 5 (Fla.1976), since title to the condominium was acquired prior to the date of the Ball decision. While candidly recognizing that the case of Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978) had decided this issue adversely to the position she advocated, appellant cited as authority Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979), and Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978) in support of her position. At the time this case was submitted on oral argument, appellant’s counsel urged that we delay our decision pending disposition by the Supreme Court of Florida of its review of the Fifth District’s decision in Wright v. Wright, 388 So.2d 1319. The Supreme Court has now spoken on that matter, Wright v. Wright, 422 So.2d 306 (Fla.1982), and has expressly held that the principles announced in the Ball case are applicable to all suits filed subsequent to the date of the Ball decision, and that the date upon which the parties acquired title to the property is irrelevant.

On the other issues raised by appellant, we find no abuse of the trial court’s discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


text:
    Hugo ARMANDO and Amalia Armando, Appellants, v. Mauricio RIZIKOW, Appellee.
    No. 81-2396.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Leibowitz & Rice and Arthur Rice, Miami, for appellants.
    Jerome Bill Ullman, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.
   ON MOTION FOR REHEARING GRANTED

PER CURIAM.

The defendants’ amended answer was mailed to the court at a time when no leave to amend was necessary. Fla.R.Civ.P. 1.190(a). The trial court’s order setting the cause for trial, which under the cited rule triggered the necessity for leave to amend, was docketed on the next day but one day before the amended answer was docketed. When the case came up for hearing on the plaintiff’s motion for summary judgment, the court decreed that it would not consider the amended answer because it was viola-tive of Rule 1.190. This pronouncement had the effect of denying leave to amend and was, in our view, an abuse of discretion. See generally Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA), pet. for review denied, 402 So.2d 612 (Fla.1981); Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3d DCA 1981); Singh v. Tolz, 380 So.2d 1326 (Fla. 4th DCA 1980); Lewis v. Howanitz, 378 So.2d 310 (Fla. 3d DCA 1979).

Reversed and remanded for further proceedings consistent with this opinion.

      . Therefore, the only reasonable inference is that the amended answer and the notice that trial had been set crossed in the mail.


author: FERGUSON, Judge.

text:
    Thomas J. STICKNEY, Jr., Appellant, v. BELCHER YACHT, INC., Belcher Yacht Sales, Inc., Carl Edward Herner and Lloyds Ins. Group, Appellees.
    No. 81-2453.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.

      Horton, Perse & Ginsberg and Edward Perse, James F. Dougherty, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and James L. Dennis, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant Stickney commenced this action seeking to recover damages for injuries suffered when he was bitten by Belcher’s dog. The complaint stated both statutory and common law causes of action. This appeal is taken from a Final Judgment entered on defendant’s Motion for Directed Verdict which was granted at the conclusion of all the evidence in a jury trial.

The questions presented by this appeal are (1) whether by posting a “Beware of Dog” sign an owner of a dog is immune from statutory liability where the dog bites a person lawfully on the owner’s property, (2) whether Section 767.04, Florida Statutes (1979) superseded the common law and now provides the exclusive remedy for a dog bite plaintiff.

Appellee Belcher operated a marina where yachts were sold, serviced, docked and stored. The place of business, enclosed by a chain link fence with a rear and front gate, was open seven days a week. Customers coming to the business on Sundays were instructed to use the rear gate near a guardhouse. For years Belcher had kept one or more watchdogs about the premises under control of round-the-clock security guards. The dog involved in this incident was allegedly trained as an attack dog and had been acquired by Belcher some thirty to sixty days earlier. The security guard on duty, appellee-Herner, had been given no instructions or training in the handling of the dog. There was prominently posted on the property a “BEWARE OF DOG” sign.

In the early morning of August 10, 1980, Stickney and some companions went to the Belcher premises to take Stickney’s boat out for a fishing trip. He drove his ear through the rear gate past the guardhouse and past the security guard, Herner. After boarding the boat Stickney discovered the keys were missing; he walked over to the guardhouse to see if they had been left with the guard, as was customary. As he approached the guardhouse, the dog started to growl. Herner came out of the guardhouse, grabbed the dog by the collar and spanked him on the rear; the dog responded by sitting quietly. As Stickney spoke with Herner the dog suddenly sprang from behind Herner and attacked Stickney, biting him in the crotch causing severe testicle injuries.

Stickney put on evidence tending to show that he was a business invitee who had been on the premises regularly over a period of time; that he was without sufficient knowledge that the dog, relatively new to the premises, was trained to attack; that the dog was on a concealed leash of unreasonable length; that the guard should have, but failed to restrain the dog; that all of the circumstances presented a danger hidden from him.

The first issue — whether an owner is shielded from statutory liability where his dog bites a person lawfully on his property because the owner has erected a prominent “Beware of Dogs” sign — is settled by a number of cases, first of which is Romfh v. Berman, 56 So.2d 127 (Fla.1951). In Romfh, as here, there was proof that the defendant had displayed an easily readable sign in a prominent place bearing the words “Beware of Dogs”; that before entering the premises the plaintiff saw and understood the signs; that the plaintiff had done nothing to provoke or aggravate the dog; and that the dog attacked and bit him. On those facts, the court held:

Since Section 767.04 is the applicable law and it is admitted that the plaintiff was lawfully on defendant’s premises, and that he did not provoke the dogs, it would seem that the question here reduces itself to that of whether or not the sign with the words “Beware of Dogs” met the requirement of the statute that the sign bear the words “Bad Dog”. The sole purpose of the legend was to put one entering the premises on notice that there were dangerous dogs on the place and it would seem that the legend “Beware of the Dogs” would serve that purpose as well or better than the legend, “Bad Dog”.

The later case of Carroll v. Moxley, 241 So.2d 681 (Fla.1970), reiterated the basic holding of Romfh but added a qualification:

In every case, the factual determination must be made whether the “Bad Dog” sign as posted is in a prominent place and easily readable, so as to give actual notice of the risk of bite to the victim.

But on this point, the trial court correctly determined that there was no issue of fact. Appellant admitted that he had seen and understood the sign, thus, a directed verdict on the statutory claim was appropriate. See Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979). Compare Flick v. Malino, 356 So.2d 904 (Fla. 1st DCA 1978) (protection for the safety of an adult, who can read and understand a warning sign, is not necessarily protection of an unexpected three-year old child).

The question presented by the second issue is not so well-settled although two supreme court cases hold that Section 767.04, Florida Statutes, superseded the common law in those situations covered by the statute. Donner v. Arkwright-Boston Manu facturing Mutual Insurance Co., 358 So.2d 21 (Fla.1978); Carroll v. Moxley, 241 So.2d at 682.

Carroll v. Moxley is the first Florida Supreme Court case to hold that the common law on dogbites was superseded by section 767.04, relying on Romfh v. Berman, Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957) and Knapp v. Ball, 175 So.2d 808 (Fla. 3d DCA 1965). Donner v. Arkwright-Boston Manufacturers Mutual acknowledged the holding in Carroll, then addressed the issue presented in that case, i.e., whether the common law defenses such as assumption of risk were superseded by those defenses specifically enunciated in the statute.

The issue in Romfh was only whether in an action brought pursuant to section 767.-04, a dog owner was liable to a bite victim lawfully on his property where the owner had a sign conspicuously posted which read “Beware of Dogs” rather than “Bad Dogs”. A contention made in Romfh, was that the bad dog sign proviso was in derogation of the common law and should be strictly construed. The court disposed of the contention in a single sentence: “the statute in terms relieves the owner when the posted sign bears the legend ‘Beware of Dogs’, so there is no reason for construction.” In a separate discussion, later recognized as mere obiter dictum, the Romfh court held that section 767.04 (dog bite statute) superseded section 767.01 (applicable statute where dog causes damage by other than bite). One of the cases relied upon by Romfh for the proposition that the statute relieved a plaintiff of a burden to prove scienter is Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196 (1939).

Ferguson is particularly significant for two reasons (1) it was authored by Chief Justice Terrell who also authored Romfh v. Berman, (2) it expressly recognized the simultaneous existence of both a statutory and common law cause of action for a dog bite plaintiff. In Ferguson, suit was filed as a three-count common law action, the first count of which contained no allegation of scienter (owner’s knowledge of the dog’s vicious propensity), as was required under common law pleadings. It was held, with respect to the first count, that “allegations of scienter were unnecessary since Section 7044, Compiled General Laws of 1927 (predecessor to § 767.04) provides that owners of dogs shall be liable for any damages done by them to ... persons.” It was held, alternatively, that even if an allegation of scienter was necessary (the action being one at common law), the second and third counts were ample. The court relied upon an Ohio case, Kleybolte v. Buffon, 89 Ohio St. 61, 105 N.E. 192 (1913), which recognized, inter alia, that a dog bite victim may elect to sue either at common law or pursuant to the statute.

In Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957), the question before the court was whether the defenses of contributory negligence and assumption of risk were available in a statutory action where a dog causes injury by other than a bite. The Vandercar court held, without addressing the question whether section 767.04 supersedes sectiop 767.01, the fact that liability is imposed by statute does not require rejection of a contributory negligence or assumption of the risk defense.

This court observed in Josephson v. Sweet, 173 So.2d 463 (Fla. 3d DCA 1964) that the Romfh court unnecessarily held that section 767.04 superseded section 767.-01. Later, the supreme court agreed and expressly receded from the Romfh obiter dictum; it held that section 767.04 supersedes section 767.01 only where the dog-caused injury is the result of a bite. Sweet v. Josephson, 173 So.2d 444 (Fla.1965).

Again in Knapp v. Ball, 175 So.2d 808 (Fla. 3d DCA 1965), the question before this court was whether there were triable issues as to assumption of risk and contributory negligence in an action brought pursuant to section 767.01 for a non-bite, dog-caused injury. Consistent with Vandercar v. David, the court held “the fact that liability is imposed by statute does not require rejection of the [defenses],” but affirmed a summary judgment for the plaintiffs because there were insufficient facts upon which to invoke a defense of assumption of risk.

Returning for the moment to Carroll v. Moxley, it is clear that reliance upon the above cases — for the proposition that the dog bite statute superseded the common law — is misplaced. In fact, the supreme court did not address the question, even indirectly, in any of the cases relied upon by the Carroll court for that holding. The only case which had reached the question, though obliquely, is Ferguson v. Gangwer, which, notably, was not mentioned in the Carroll opinion.

Placing Ferguson and Carroll aside for the moment, there are other compelling reasons for us to construe the statute as an alternative to, rather than an abrogation of, the common law. First, there was no clear expression by the legislature to supersede the common law. Second, the statute is not facially repugnant to the common law. Third, the statute and common law can easily coexist. Fourth, a coexistence of both remedies harmonizes the law of dog bite with the legal duty of a landowner with respect to visitors upon his lands. Finally, “repeals by implication are not favored; ... in order for a court to declare that [a] statute impliedly overrules another [law], it must appear that there is positive repugnancy between the two, or that the last was clearly intended to . prescribe the only rule.... ” Sweet v. Josephson, citing State v. Sarasota County, Fla., 74 So.2d 542 (Fla.1954); Tamiami Trial Tours, Inc. v. City of Tampa, 159 Fla. 287, 31 So.2d 468 (1947); Beasley v. Coleman, 136 Fla. 393, 180 So. 625 (1938).

Florida’s dog bite statute, if considered an exclusive remedy, would vitiate, needlessly, the distinction between the degree of care owed by a landowner to a visitor on the land who is an invitee and one who is a trespasser, where the danger on the premises happens to be a dog. See Wood v. Camp, 284 So.2d 691 (Fla.1973); Post v. Lunney, 261 So.2d 146 (Fla.1972). The conclusion we would be forced to reach in this case is that an owner may post signs inviting the public onto his lands to do business, and where an accepting member of the public comes onto the land and is mauled by a large attack dog, the owner will not be liable becaúse he has posted another smaller but conspicuous sign which reads “Beware of Dog”. That hair-raising result in all likelihood would not obtain if the Post v. Lunney rule be applied: where visitor is an invitee, the owner must “keep his property reasonably safe and (affirmatively) protect the visitor from dangers of which he is, or should be aware.” 261 So.2d at 147.

Many states have enacted statutes pertaining to dogs, some of which, like the Florida statute, explicitly negative the necessity of proving viciousness and scienter in order to recover damages. We have found no other statute which has the “Bad Dog” sign proviso, but even so, the other statutes have been interpreted not to abrogate a common law action, but instead to create an alternative right of action. Veal v. Spencer, 53 Mich.App. 560, 220 N.W.2d 158 (1974) (dog bite statute did not repeal common law action); Reaves v. Eckles, 77 Ill.App.2d 408, 222 N.E.2d 530 (1966) (legislature is presumed to have known of the common law action and had they intended to repeal such action it would have done so explicitly); Gretkowski v. Coppola, 26 Conn.Sup. 294, 222 A.2d 41 (1966) (a person injured by dog attack can elect to pursue cause of action under either common law or dog injury statute); Warner v. Wolfe, 176 Ohio St. 389, 199 N.E.2d 860 (1964) (the right to maintain an action at common law for dog bite has not been abrogated by statute and a suit may be maintained either under the statute or at common law).

The cases relied upon for the proposition that the statute superseded the common law as to those cases,covered by the statute are cited in Carroll v. Moxley with the introductory signal “see”, which, concededly, means that the proposition is not stated by the cited authorities but merely follows from them. A Uniform System of Citation, (13th ed. 1981). (That the proposition even follows from the cited cases has already been disputed.) Further, there are no instructive pronouncements by the supreme court as to what, factually, constitutes “cases covered by the statute.” More importantly, and contributing to the uncertainty created by Carroll v. Moxley, there is Ferguson v. Gangwer, never expressly overruled, which clearly recognizes that the statute provides an alternative, not an exclusive remedy, for a dog bite victim.

We therefore proceed to answer the second question presented, free of clear precedential constraints, and hold that an economic invitee who is bitten by a dog while on the business premises has a common law cause of action against the business establishment which owns the dog — a conclusion which is manifestly more just.

Reversed and remanded for a new trial.

We certify the following question to the Supreme Court of the State of Florida as one of great public importance:

WHETHER SECTION 767.04, FLORIDA STATUTES (1979) SUPERSEDED THE COMMON LAW AND NOW PROVIDES THE EXCLUSIVE REMEDY IN A DOG BITE ACTION BROUGHT BY AN ECONOMIC INVITEE AGAINST A BUSINESS ESTABLISHMENT WHICH OWNS THE DOG.

      . § 767.04, Fla.Stat. (1979) provides in pertinent part:
      LIABILITY OF OWNERS. — The owners of any dog which shall bite any person, while such person is on a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on ... such property upon invitation, expressed or implied, of the owner thereof; provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke ... the dog ... nor shall any such owner be so hable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words "Bad Dog”, [e.s.]

      . The rule of the common law generally is that one who keeps a domestic animal which he has reason to know has vicious propensities abnormal to its class is liable for the harm the animal causes to others. Zarek v. Fredericks, 138 F.2d 689 (3d Cir.1943).

      . What is a situation covered by the statute is not clear. We do know that situations not covered by section 767.04 are (1) where the landowner is not the dog owner, e.g., Flick v. Malino, (2) where the dog-caused injury results from other than a bite, e.g., Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957).

      . A case is only authority for what it actually decides, and what may seem to flow logically from it is not binding precedent. R. Aldisert,
        The Judicial Process, 787 (1976), citing Quinn v. Leathem [1901] A.C. 495, 506.

      . The statute which was considered in Ferguson v. Gangwer, supra, did not have the bad dog sign proviso. We have considered whether the present statute, in light of the proviso, is repugnant to the common law because the sign, which shields the dog owner in a statutory action, would, in a common law action, be proof of scienter and, therefore, the victim’s sword. We think the mere posting of a sign warning of dogs, without more, does not conclusively establish that the owner has reason to believe that his animal has vicious propensities abnormal to one of its class. And even if scienter be established, liability, total or partial, does not automatically flow.

      . We have found two cases in this district where the court was called upon to interpret section 767.04, neither of which conflicts with the conclusion reached herein. In Fusinski v. Robertson, 391 So.2d 771 (Fla. 3d DCA 1979), the action was treated as a statutory claim. In Rattet v. Dual Security Systems, Inc., 373 So.2d 948, supra, the court did not decide whether appellant could proceed on a negligence claim because the issue was not properly preserved for review.


author: BASKIN, Judge.

text:
    Raul FINLAY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-532.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Defendant Finlay appeals his convictions for carrying a concealed firearm, armed burglary, and armed robbery. He received two consecutive life sentences followed by five years’ imprisonment. He contends that the court erred in denying his motion to sever the offenses which were neither facets of a single transaction nor connected acts. We agree and reverse.

The charges against Finlay were the result of two incidents occurring eight days apart. On August 18, 1981, Finlay was arrested following a chase by police, who observed him commit a traffic violation. At the time, Finlay was driving the car stolen during an armed robbery of Rodobal-do Vento and an armed burglary at Vento’s home on August 10, 1981. Miami City Commissioner J.L. Plummer informed the police that he had seen two men walking after they had abandoned a car. Commissioner Plummer followed Finlay in his car, saw Finlay drop the gun alleged to have been used on August 10, and aimed his own gun at Finlay, assisting in his apprehension by police. Finlay was acquitted of the charge of aggravated assault on Commissioner Plummer. The concealed firearm charge related to the August 18 incident.

Florida Rule of Criminal Procedure 3.152(a) states:

(a) Severance of offenses.
(1) In case two or more offenses are improperly charged in a single indictment or information, the defendant shall have a right to a severance of the charges upon timely motion thereof.
(2) In case two or more charges of related offenses are joined in a single indictment or information, the court nevertheless shall grant a severance of charges on motion of the State or of a defendant.
(i) before trial upon showing that such severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense, or,
(ii) during trial, only with defendant’s consent, upon a showing that such severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.

In our view, the offenses committed on August 10, 1981, are unrelated to those committed on August 18, 1981. We find no merit in the state’s contention that the burglary led to the theft of the car and then to the commission of the traffic infraction which led to the aggravated assault with the gun used in the robbery. We discern neither a causal relationship nor a series of connected episodes, Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982); Rodgers v. State, 325 So.2d 48 (Fla. 2d DCA 1975), cert. dismissed, 342 So.2d 1103 (Fla.1977); Moore v. State, 259 So.2d 179 (Fla. 3d DCA 1972), sufficient to justify joinder. McMullen v. State, 405 So.2d 479 (Fla. 3d DCA 1981); Fla.R.Crim.P. 3.152 committee note (1972 revision). When improper join-der has occurred, prejudice is conclusively presumed, Macklin v. State, 395 So.2d 1219 (Fla. 3d DCA 1981), and reversal is required.

In addition, we find error in the admission of testimony that defendant Fin-lay gave a false name when arrested on August 18, 1981. If the name given were in fact false, a matter which was not established during trial, that fact had no bearing on the offenses committed on August 18, 1981, but established, if anything, only a consciousness of guilt regarding offenses committed on August 10, 1981. Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1980). If the giving of a false name were admitted as an indication of flight to avoid arrest, Williams v. State, 268 So.2d 566 (Fla. 3d DCA 1972), the inferences properly drawn should have been explained by a charge to the jury.

For these reasons, we reverse the convictions and remand for appropriate proceedings consistent with this opinion.


text:
    Felipe RODRIGUEZ and Haydee Alvarez, Appellants, v. INTEROCEANIC BANK OF PANAMA, INC., Appellee.
    No. 82-878.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Richard N. Friedman, Miami, for appellants.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Dale F. Webner, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Batavia, Ltd. v. United States, 393 So.2d 1207 (Fla. 1st DCA 1981); Al Wilson’s Power-Ful Display, Inc. v. Morgan Adhesive, Inc., 259 So.2d 166 (Fla. 3d DCA 1972); 27 Fla.Jur.2d, Fraud and Deceit § 103 (1981).


text:
    Cleveland NORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1201.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Bennett H. Brummer, Public Defender, and Morgan, Lewis & Bockius and Lauri B. Waldman, Sp. Asst. Public Defenders, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and BASKIN, JJ,
   PER CURIAM.

Affirmed. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Grant v. State, 390 So.2d 341 (Fla.1980).


text:
    Lourdes Arguello O’BRIEN, Appellant, v. Daniel A. O’BRIEN, Appellee.
    No. 82-1332.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Wolf & Shane and Michael Wolf, Miami, for appellant.
    Palmer & Lazar and Bruce Lazar, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

In this appeal, Lourdes O’Brien questions the propriety of the trial court’s order adopting the general master’s recommendation that she be denied child support payments for the four and one-half-year period she supported the parties’ only child. She seeks to recover child support for the period between the filing of dissolution proceedings and the entry of the court order grants ing her child support. We disagree with the finding that Mrs. O’Brien had relinquished her claim and reverse.

The parties were married in 1970 and have a minor child born of the marriage. In 1977, the husband filed a petition for dissolution of the marriage but failed to mention the existence of the child. Accordingly, the Final Judgment of Dissolution contained no provision for child custody or support. The wife, who resided in Guatemala, did not learn of the action until approximately six months after the final judgment had been entered. When the wife moved to Miami in 1981, she filed a petition seeking child support. Subsequently, she amended her petition in an attempt to recover back child support for the period between the filing of the petition for dissolution and the filing of her petition for support. The court entered an order requiring the husband to pay $75 per week for child support and granting him visitation privileges. Prior to that time, the wife had refused to allow visitation. After the entry of the court order, however, Mrs. O’Brien permitted the husband to visit the child.

The question of back child support was referred to a general master, who recommended denial of the wife’s claim based upon her refusal to permit the husband to visit the child and upon a finding that she had waived her claim through inaction. The wife filed exceptions to the general master’s report, but the trial court adopted the report. This appeal ensued.

Mrs. O’Brien discharged her husband’s child support obligation for four and one-half years. She is thus entitled to reimbursement for the husband’s proportionate share of the dual support obligation, See Variety Children’s Hospital v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980); Plant v. Plant, 20 Ill.App.3d 5, 312 N.E.2d 847 (1974); Brown v. Brown, 269 N.W.2d 819 (Iowa 1978), unless she relinquished her right to be reimbursed by failing to pursue her claim or by refusing to permit visitation.

Waiver is an affirmative defense which may be established only by proving the intentional relinquishment of a known right. See Opler v. Wynne, 402 So.2d 1309 (Fla. 3d DCA 1981), review denied, 412 So.2d 472 (Fla.1982). Mere delay is insufficient to support waiver. Mercede v. Mercede Park Italian Restaurant, Inc., 392 So.2d 997 (Fla. 4th DCA 1981). Our review of the record reveals that during the three and one-half-year period between the wife’s receipt of the notice that dissolution proceedings had been instituted and the filing of the petition for child support she lived in Guatemala and made only brief intermittent trips to the United States. As soon as she began to reside in Miami, she commenced her action to recover child support. It was the husband’s failure to mention the child in the proceedings for dissolution that caused the omission of child support provisions. Under these circumstances, we find that the wife did not relinquish her right to child support.

A duty to support their minor children rests equally upon both parents, Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978); Condon v. Condon, 295 So.2d 681 (Fla. 1st DCA 1974); Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973); § 61.13(1), Fla.Stat. (1979), although prior to the 1971 amendment to section 61.13, the obligation to support belonged to the father. See Issacs v. Deutsch, 80 So.2d 657 (Fla.1955); Bezanilla v. Bezanilla, 65 So.2d 754 (Fla.1953). The right to receive support belongs to the child, Armour v. Allen, 377 So.2d 798 (Fla. 1st DCA 1979), and may not be waived by a parent. Strickland v. Strickland, 344 So.2d 931 (Fla. 2d DCA 1977); Kirkconnell v. Kirkconnell, 222 So.2d 441 (Fla. 2d DCA 1969); see Gammon v. Cobb, 335 So.2d 261 (Fla.1976); Melvin v. Melvin, 391 So.2d 691 (Fla. 1st DCA 1980); Armour; Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971). Claims for child support arrearages are generally enforceable, absent extraordinary or compelling circumstances, such as waiver, laches, estoppel or reprehensible conduct on the part of the custodial parent. Panganiban v. Panganiban, 396 So.2d 1156 (Fla. 2d DCA 1977); see Armour; Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974); Brown v. Brown, 108 So.2d 492 (Fla. 2d DCA 1959).

We find no evidence that the wife violated any order requiring visitation. Panganiban; Denton v. Denton, 147 So.2d 545 (Fla. 2d DCA 1962); see Phillips v. Adams, 339 So.2d 665 (Fla. 4th DCA 1976); Teta. The Final Judgment of Dissolution contained no provision for visitation because the court had not been informed that a child existed. Mrs. O’Brien has complied with the visitation order subsequently entered by the court, and, accordingly, no valid reason exists to deny her child support arrearages.

For these reasons, we reverse the provisions of the order denying child support arrearages and remand for further proceedings consistent with this opinion.


text:
    Arnold R. GELLMAN, Appellant, v. Jane Ellen Gellman WOLF, Appellee.
    No. 82-1523.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Tralins & Potash and Miles Tralins, North Miami, for appellant.
    Mitchell M. Goldman, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Appellant seeks review of an order of the Circuit Court for Dade County awarding his former wife attorney’s fees in connection with his petition to enforce visitation rights as provided for in their separation agreement and made a part of the final judgment of dissolution of marriage.

It is appellant’s contention on appeal that the trial court erred in finding that the appellee was entitled to an award of attorney’s fees because of vexatious conduct on her part and her financial ability to pay for the services of her attorney.

The trial court found:

“1. That the Husband stipulated with the Wife that this court could award fees if any, on affidavits and her testimony by deposition.
2. That the Husband stipulated that he was financially able to pay a reasonable fee if this Court awarded one.
3. There Is no contemptuous conduct on the part of the Wife nor does this Court find her conduct vexatious. That if there was any vexatious conduct it would of been on both parties, [sic]”

The law is well settled that a trial court’s findings of fact arrive at this court with a presumption of correctness, Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Mufson v. Mufson, 245 So.2d 110 (Fla. 3d DCA), cert. denied, 252 So.2d 798 (Fla.1971), and that an award of attorney’s fees in connection with dissolution proceedings is discretionary with the trial court and will not be disturbed absent an abuse of discretion, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Upon careful consideration of the record, briefs and argument of counsel and controlling principles of law, we conclude that no abuse of discretion has been shown.

Affirmed.


text:
    O.C. MURDERS, Appellant, v. Alfred D. BIELEY, P.A., Appellee.
    No. 82-1542.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Robert Shevin and Jeffrey M. Weissman, Miami, for appellant.
    Jerry B. Schreiber, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

The issue in this appeal is whether the attorney who represented the wife in a dissolution proceeding is precluded from executing on her half interest in the marital home in the exclusive possession of the husband. We hold that the filing of a bankruptcy petition by the wife has stayed further proceedings. We therefore reverse the trial court’s order permitting the execution sale of the marital residence.

Pursuant to the terms of the Final Judgment of Dissolution, the parties became tenants in common of the marital home. The husband was granted exclusive possession. Shortly thereafter, the wife’s attorney filed a charging lien for his services against her interest in the marital home. Appellee filed a complaint for damages under the theory of account stated. Several months later, Mrs. Murders executed a warranty deed conveying her half interest in the marital home to the husband. Mr. Murders recorded the warranty deed two hours after appellee recorded his final summary judgment for damages. Although the wife had filed a voluntary petition for bankruptcy, the trial court entered an order directing the sheriff to levy against her half interest in the home. The court granted a stay of the sale pending appeal upon the posting of a bond by the husband and permitted him to intervene in these proceedings. The husband has challenged the order granting the levy and sale.

The Bankruptcy Act, 11 U.S.C.A. § 362(a)(1, 2, 5) (1978) provides:

(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
% sfc sfc sfc *
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title[.]

Under the Bankruptcy Act, actions pending against a debtor are stayed although the state court retains jurisdiction. See Coleman American Cos. v. Littleton National Bank (In re Coleman American Cos.), 8 B.R. 384 (Bkrtcy.D.Kan.1981); McKiever v. King & Hatch, Inc., 366 So.2d 264 (Ala.1979).

Unlike the situation involved in the decision in Shop in the Grove, Ltd. v. Union Federal Savings & Loan Ass’n, 429 So.2d 39 (Fla. 3d DCA 1982), in which this court denied a stay where the appeal had been brought by the debtor, the appeal before us was advanced by the husband-intervenor and falls within the purview of section 362(a)(1). The creditor’s action against the wife, filed five months before she filed her bankruptcy petition, is subject to the automatic stay provided by section 362. The stay took effect upon the filing of the bankruptcy petition. United States v. Critical Fork Coal Corp. (In re Critical Fork Coal Corp.), 18 B.R. 422 (Bkrtcy.W.D.Va.1982); Cloud Nine, Ltd. v. Cloud Nine, Ltd. (In re Cloud Nine, Ltd.), 3 B.R. 202 (Bkrtcy.D.N.M.1980); 2 Collier on Bankruptcy § 362.03 (15th ed. 1982).

For these reasons, we reverse the trial court’s order authorizing the execution sale.


text:
    Lydia NASRALLAH and Aetna Casualty & Surety Company, Appellants, v. Isabel SCHEUERMANN, Appellee. Isabel SCHEUERMANN, Appellant, v. Lydia NASRALLAH and Aetna Casualty & Surety Company, Appellees.
    Nos. 81-127, 81-1763 and 81-1850.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for Lydia Nasrallah and Aetna Cas. & Sur. Co.
    Gary A. Esler of Esler & Kirschbaum, P.A., Fort Lauderdale, for Isabel Scheuer-mann.
   PER CURIAM.

Upon review of the record and consideration of the briefs and argument on appeal we have concluded that the appellant Isabel Scheuermann has failed to demonstrate that the trial court erred in setting aside the default entered against appellee Aetna Casualty & Surety Company. B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981). In particular we believe the trial court was entitled to consider the nature of the relationship between all of the parties in the pending and prior litigation in determining whether or not excusable neglect had been established for the appellees’ failure to respond. However, we reverse the order as to the appellee Lydia Nasrallah, and remand with directions that she be given an opportunity to amend her motion to set aside the default and to establish thereby excusable neglect for her failure to respond to Scheuermann’s complaint. We do not believe the present record is sufficient to sustain the trial court’s ruling as to Nasrallah, although we believe that under the peculiar circumstances of this case Nasrallah, the insured of the appellee Aetna, should be given an opportunity to demonstrate grounds for setting aside the default.

Accordingly, the order of the trial court is affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

ANSTEAD and HURLEY, JJ., and SHA-HOOD, GEORGE, Associate Judge, concur.


author: HURLEY, Judge.

text:
    Jorge SIMON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1747.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.

      Geoffrey C. Fleck and William R. Tunkey of Weiner, Robbins, Tunkey & Ross, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

This appeal contests the validity of a search and seizure. We hold that the police lacked probable cause to search the defendant’s truck and, therefore, we reverse.

At about 5:30 p.m. on Tuesday, April 28, 1981, a deputy sheriff observed the defendant driving a 1979 Ford, four wheel drive, pick-up truck. It “was cream with a brown stripe .... It had a white camper shell that protruded over the top of the cab with two large spot lights on the front of the camper shell. And it had what appeared to be a heavy duty suspension on the four wheel drive vehicle.” Although the vehicle appeared to be riding in a normal (unloaded) fashion, the officer was suspicious because “[i]t fit a profile of several vehicles that ... [he had] seen in the past utilized in smuggling operations.”

With the help of officers on the ground and air reconaissance, the police kept the vehicle under surveillance for the next three hours. They observed the truck go north, return to the south, stop at a gas station and proceed north again. It approached an airport, stayed for a brief time and then continued north again. The defendant stopped to make a telephone call and then drove back to the airport road. There, he was joined by another person driving a black Bronco. Both vehicles proceeded north and stopped at a gas station where the drivers talked with a third individual. Then, the defendant drove onto a private ranch “to a hammock which was close to what appeared to be an airstrip.”

When the defendant’s truck was next seen, it was riding lower than before; it appeared to be heavily loaded. The police followed it to a plaza on U.S. 98. As the defendant got out of the truck, he was approached by a deputy sheriff who asked for some identification. The officer also advised the defendant of his Miranda rights. Cardboard boxes, partially covered by a carpet, were visible in the rear of the truck. At this point the officer told the defendant that he was going to open the tailgate because the officer felt that the defendant was transporting contraband. The officer opened the tailgate and found that the box was filled with yellow plastic bags which contained methaqualone pills. The trial court evaluated these facts and found that the search was valid. We cannot agree.

At the outset, it is important to note what this case is not about. Because the officer began to search the truck almost immediately, this case is not governed by Florida’s Stop and Frisk Law, section 901.151, Florida Statutes (1981). In other words, “founded suspicion” is not the issue here. The critical question is, “Did' the officer have probable cause prior to the time he initiated the search?” See, United States v. Ross, 456 U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In attempting to answer this question, we are mindful of the admonition that

probable cause is not to be evaluated from a remote vantage point of a library, but rather from the viewpoint of a prudent and cautious police officer on the scene at the time of arrest.... The test of probable cause is not what reaction victims — or judges — might have but what the totality of the circumstances means to police officers. Conduct innocent in the eyes of the untrained may carry entirely different ‘messages’ to the experienced or trained observer.

State v. Profera, 239 So.2d 867, 869 (Fla. 4th DCA 1967) (quoting from Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194 (1962) and Davis v. United States, 133 U.S.App.D.C. 172, 409 F.2d 458 (1969)). Nonetheless, it is the responsibility of the court to determine whether the objective information available to the police officer was capable of supporting a reasonable belief that the defendant was violating the law.

We discussed the concept of probable cause in State v. Keen, 384 So.2d 284, 286 (Fla. 4th DCA 1980), and said that

[pjrobable cause is defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in believing the accused to be guilty.” The arresting officer need not actually see the law being violated, nor must he satisfy himself beyond any question that a crime has been committed. The person making the arrest may act either upon facts within his own knowledge or on those communicated to him by a responsible person. Probable cause to arrest exists where a reasonable person, having the specialized training of a police officer in reviewing facts known to the arresting officer prior to the actual time of arrest, would come to the conclusion that a crime is being or has been committed by the person to be arrested.

Id., at 286 [citations omitted].

The facts in the case at bar do not amount to probable cause. Although varying degrees of significance can be attached to individual facts, seen in their totality they do not support a reasonable belief that the defendant was violating the law. Therefore, the search of the truck was without justification. It is significant that during the three hour covert surveillance, no criminal activity was observed. Neither an air drop nor the loading of packages in suspect covering, e.g., burlap bags was observed. Furthermore, the make of the defendant’s vehicle together with its equipment are commonplace in rural Florida. The fact that the defendant talked with other individuals or drove the route outlined above does not indicate criminal activity. Accordingly, we reverse the defendant’s conviction together with the order denying the motion to suppress and remand the cause for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ANSTEAD and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    Richard A. McBRIDE, Appellant, v. Joyce McBRIDE, Appellee.
    No. 81-2060.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.

      Warwick, Campbell & Hewitt, Palm Beach, Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    Willard C. Wheeler, Jr., Jupiter, for ap-pellee.
   DOWNEY, Judge.

Appellant, Richard A. McBride, seeks reversal of that portion of a final judgment of dissolution of marriage awarding the appel-lee, Joyce McBride, one half of certain property owned by the husband prior to the marriage as lump sum alimony.

The husband and wife are 47 and 37 years of age respectively. The marriage lasted approximately fourteen years and produced two children who are now teenagers. The husband is a Certified Public Accountant who grosses about $79,000 per year and nets approximately $26,000 before taxes. The wife, a high school graduate, worked at various unskilled jobs. At the time of the marriage, the husband owned real and personal property valued at approximately $89,000, including the home wherein the family resided during the marriage. At the time of the dissolution, the parties had accumulated additional property including stocks, an interest in real property, automobiles and bank accounts valued at approximately $21,000. As a result of a business failure, the husband incurred a debt of $40,-000. The evidence indicated that during the separation of the parties the husband paid to or on behalf of the wife and children approximately $900 per month for household and living expenses plus $125 per week. When asked if she and the children were able to get along on that sum, the wife answered, “Barely, but we do it.”

The final judgment under review awarded custody of the children to the wife, divided equally all of the property acquired before and during the marriage subject to all outstanding debts, gave the wife $125 per week permanent periodic alimony, suit money and her attorney’s fees.

The husband takes no issue with the award of permanent periodic alimony or the division of the property acquired during the marriage. He contends, however, that awarding the wife a one-half interest in the property which the husband owned prior to the marriage as lump sum alimony was an abuse of discretion. We hold there is merit in the husband’s argument and reverse the award to that extent, subject to our subsequent discussion as to the marital home.

Clearly an alimony award is justified in this case. After dividing the property accumulated during the marriage, the wife’s needs remain unfulfilled. Following the long standing rule laid down in Yandell v. Yandell, 39 So.2d 554 (Fla.1949), and once again approved in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and followed in Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), the better practice generally is to grant periodic payments of permanent alimony. If the needs to be met can then be satisfied resort to lump sum alimony is generally inappropriate. But if the circumstances of the parties are such that permanent periodic alimony is unsuitable and the more affluent spouse has sufficient property to accommodate a lump sum award, the trial court is entitled to use that vehicle to meet the need even though acquisition of the property was not associated with the marriage. An award of lump sum alimony in property not associated with the marriage is only appropriate upon a showing of a special reason or a great need. Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1977).

The circumstances of these parties present “a mixed bag” which require an award of both permanent periodic and lump sum alimony. However, in our view, the guidelines set forth in Yandell, Canakaris and Rosen would be met by the award of permanent periodic alimony contained in paragraph C of the judgment together with the lump sum award of a one-half interest in the property acquired during the marriage, the lump sum award of a one-half interest in the marital home and possession of the home during the minority of the children. The justification for invading the husband’s separate property acquired from sources unconnected with the marital relation only exists vis-a-vis the marital home. The needs of the wife and children support the trial judge’s decision to include that property in his lump sum award. The record is devoid of justification for awarding the wife an undivided half interest in the remainder of his separate property.

Accordingly, the judgment appealed from is affirmed. However, as to the award to the wife of a one-half interest in all of the husband’s separate property described in paragraph 5 of the judgment, that award to the wife of a one-half interest in the efficiency fourplex, the interest in the Mango-nia Lots and the Silver Coin Collection is reversed.

AFFIRMED in part and REVERSED in part.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: LETTS, Chief Judge.

text:
    Lieselotte D. MOSSEL, Appellant, v. Otto K. MOSSEL, Appellee.
    No. 82-875.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.

      William F. Zamer, P.A., Fort Lauderdale, for appellant.
    Robert W. Crawford, Fort Lauderdale, for appellee.
   LETTS, Chief Judge.

In the Final Judgment of Dissolution of Marriage rendered in 1977, the wife was given sole use of the marital home for an unspecified period of time subject to the right of partition at a later date. No appeal was taken from that judgment. In 1981, the husband filed a complaint for partition and the court struck two paragraphs of the wife’s affirmative defenses thereto and dismissed her counterclaim. The order gave her twenty days within which to amend. She now appeals that order.

An order dismissing a complaint with leave to amend is a non-appealable non-final order Petnuch v. Smith, 395 So.2d 294 (Fla. 5th DCA 1981). We therefore dismiss this appeal.

However, we pause to announce that even on the merits we would affirm. The wife here seeks a fresh determination of her right to alimony and a special equity. These issues cannot be raised in a partition suit after the entry of a non-appealed final judgment of dissolution Craig v. Craig, 404 So.2d 413 (Fla. 4th DCA 1981), Cribb v. Cribb, 261 So.2d 566 (Fla. 4th DCA 1972). Likewise, the counterclaim was similarly correctly dismissed since it seeks a special equity and/or lump sum alimony award.

APPEAL DISMISSED.

HURLEY and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    William D. COBB, Appellant, v. STATE of Florida, Appellee.
    No. 82-2143.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.

      Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   On Motion For Clarification (in an appeal from denial of a motion for post-conviction relief)

HERSEY, Judge.

Appellant filed a motion for post-conviction relief in the trial court under Rule 3.850, Florida Rules of Criminal Procedure. The order which disposed of the motion recites, inter alia, “having reviewed said motion, the records and files of this case, and having heard the arguments of counsel ...,” the motion is denied. From this order appellant appeals, presumably under Rule 9.110, Florida Rules of Appellate Procedure and pursuant to Rule 3.850, Florida Rules of Criminal Procedure, which provides that “[a]n appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus.”

This is not the correct procedure; therefore, we attempt by this opinion to clarify the situation and to expand upon our previous opinion on a related aspect of this subject in Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980). In that opinion we explained that unless the motion is insufficient on its face or when considered in light of existing files and records the motion is insufficient there must be an evidentiary hearing; In other words, a hearing at which some evidence is taken. In the present case there was a hearing based solely upon an existing record, the files in the case, and argument of counsel. Under such circumstances summary appeal is available by means of Rule 9.140(g), Florida Rules of Appellate Procedure, rather than a full appeal under Rule 9.110, Florida Rules of Appellate Procedure.

Denial of post-conviction relief may take three postures:

1. The trial court may determine (and the order should so state) that the 3.850 motion is insufficient on its face. Appeal is perfected under Rule 9.140(g), Florida Rules of Appellate Procedure by filing a notice of appeal, in which event the order, the motion itself and any proceedings on rehearing constitute the record on appeal.

2. Where an examination of the papers in the court file together with the original record show that the motion is without merit, it is incumbent upon the trial court as we explained in Jones v. State, supra, to attach to the order “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief.” Appeal is appropriate under Rule 9.140(g), Florida Rules of Appellate Procedure, and is perfected by filing a notice of appeal. The record on appeal consists of the 3.850 motion, the order with attachments and any motions and orders with reference to rehearing in the trial court.

3. The trial court may afford the defendant an evidentiary hearing in which event appeal of the order denying the motion for post-conviction relief may be had pursuant to Rule 9.110, Florida Rules of Appellate Procedure, which affords a full appeal.

We therefore relinquish jurisdiction for sixty days to permit the trial court to attach to the order “a copy of that portion of the files and records” upon which denial of the 3.850 motion was based. This appeal shall thereafter proceed under Rule 9.140(g), Florida Rules of Appellate Procedure.

BERANEK and WALDEN, JJ„ concur.


text:
    NISSAN MOTOR CO., LTD., Appellant, v. Royal A. MILLER, as Personal Representative of the Estate of Mary Louise Miller, deceased; Nissan Motor Corporation In USA, a foreign corporation, and Datsun Palm Beach, Inc., a Florida corporation, Appellees.
    No. 82-2175.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.
    Larry M. Roth, of Rumberger, Kirk, Caldwell, Cabaniss & Burke, P.A., Orlando, for appellant.
    Theodore A. Babbitt, P.A., and Larry Klein, West Palm Beach, for appellee Royal A. Miller.
   PER CURIAM.

Pursuant to appellees’ Notice of Confession of Error we reverse the order appealed from and remand with instructions to grant the motion of appellant, filed in the trial court, to dismiss or quash for lack of personal jurisdiction.

ANSTEAD, HERSEY and DELL, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Richard Edward HINKLE, Appellant, v. Leldon Leroy LINDSEY, Appellee. In re the Adoption of Richard Edward Hinkle, Jr.
    No. 81-935.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1983.

      Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Chief Judge.

Appellant Richard Edward Hinkle appeals a final judgment granting appellee’s petition to adopt appellant’s minor son, Richard E. Hinkle, Jr. The appellee is now married to the child’s mother and the trial court approved the adoption, notwithstanding the absence of consent by appellant, on a finding that appellant had abandoned his child. We reverse.

At the outset we note that, except for only the direct testimony of appellee, all the testimony and evidence was presented to a special examiner, and the written record was then presented to the trial court for determination. Under those circumstances, the presumption of correctness which ordinarily attaches to the trial court’s findings is slight, because the trial court has not seen and heard the witnesses, the appellate court has the same record before it as did the trial court, and has the same opportunity to weigh its evidentiary value. West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla.1958); Conklin v. Pruitt, 182 So.2d 644 (Fla. 1st DCA 1968).

Richard E. Hinkle, Jr., was bom to appellant and his then wife, Marcia Kay Hinkle, in Victoria, Texas, on November 25, 1972. When the marriage fell apart, Marcia left the marital home in May, 1977, and with the child, moved to Ohio where she later filed an action for divorce. Appellant came to Ohio in February, 1978, for the final hearing in the divorce action, visited with his child on one or two occasions, and then took the child back to Texas with him. The final divorce decree awarded permanent custody of the child to Marcia, and she then moved to Daytona Beach with appellee Lindsey, following which she and Lindsey went to Texas to reclaim the child. After having physical custody of the child for four or five weeks, Hinkle turned the boy over to his mother, who with Lindsey and the boy, returned to Florida late in March, 1978. Marcia and appellee were subsequently married, and on August 14, 1980, appellee filed this petition for adoption.

Adoption, unknown to the common law, exists in Florida by virtue of chapter 63, Florida Statutes. Section 63.062, Florida Statutes (1981), provides in part:

63.062 Persons required to consent to adoption
(1) Unless consent is excused by the court, a petition to adopt a minor may be granted only if written consent has been executed after the birth of the minor by:
(b) The father of the minor, if:
1. The minor was conceived or born while the father was married to the mother ....

Additionally, section 63.072, Florida Statutes (1981), provides in part:

63.072 Persons whose consent to an adoption may be waived.
The court may excuse the consent of the following individuals to an adoption:
(1) A parent who has deserted a child without affording means of identification or who has abandoned a child;

Here, since the minor child was born during the marriage between the appellant (natural father) and Marcia Lindsey (natural mother) and there is no question of identification, the trial court had to find that the appellant had abandoned his child before it could grant the petition in the absence of appellant’s written consent.

Abandonment in this context has been defined as “conduct which manifests a settled purpose to permanently forego all parental rights and the shirking of the responsibilities cast by law and nature so as to relinquish all parental claims to the child.” In the Interest of D.A.H., 390 So.2d 379, 381 (Fla. 5th DCA 1980); Solomon v. McLucas, 382 So.2d 339, 344 (Fla. 2d DCA 1980). Additionally, since permanent deprivation of a person’s parental rights is a drastic step, all Florida district courts of appeal require a petitioner to present clear and convincing proof of the natural parent’s abandonment. See, e.g., In the Interest of D.A.H.; In re adoption of Cottrill, 388 So.2d 302 (Fla. 3d DCA 1980); Solomon v. McLucas; In re adoption of Noble, 349 So.2d 1215 (Fla. 4th DCA 1977); Durden v. Henry, 343 So.2d 1361 (Fla. 1st DCA 1977).

Although an inquiry into what is in the best interest of the child is important in ultimately deciding whether to grant a petition for adoption, before reaching that question, the threshold question of abandonment must first be determined. In re adoption of Cottrill; Solomon v. McLucas; Nelson v. Herndon, 371 So.2d 140 (Fla. 1st DCA 1979); In re adoption of Noble. The trial court cannot decide the case on the child’s best interest unless the evidence first supports a finding of abandonment by the non-consenting natural parent.

While the shirking of parental duties and obligations may be evidence of the intention to permanently forego all parental rights, thus evidence of “abandonment,” proof of such omission alone does not, as a matter of law, prove such abandonment. Failure of the non-consenting parent to pay required support for the child is not conclusive on the issue of abandonment, especially where the failure to provide support was because of unemployment or lack of assets, In re adoption of King, 373 So.2d 384 (Fla. 4th DCA 1979), or in retaliation to the custodial parent’s actions in concealing the child’s whereabouts and impairing visitation rights. Barrett v. Reed, 363 So.2d 14 (Fla. 1st DCA 1978).

Here, the evidence is far from “clear and convincing” that appellant exhibited conduct which “manifested a settled purpose to permanently forego his parental rights.” Admittedly, he was behind in his support payments during the two-and-a-half-year period between the divorce and the filing of the adoption petition, but for at least one of those years, he was essentially unemployed. There is evidence that he sent some (the number of checks and amount are in dispute) support money. It is also undisputed that after moving to Daytona Beach, Marcia never gave appellant an address where he could contact his child, but only a post office box where the money could be sent. She telephoned appellant frequently to ask for the support money, but always from a public telephone, because she had no telephone in her home. Appellant contends that he withheld his support payments because he was not allowed to see his child. Although Marcia denies any overt denial of visitation rights, the record is clear that she made no effort to keep lines of communication open and gave appellant no way of making direct contact with his child. The record is also clear and undisputed that as soon as appellant was served with the adoption petition which disclosed the Lind-seys’ street address, he immediately appeared in Daytona Beach, went to the child’s school and attempted to see him, but was not allowed to do so. He then appeared at the Lindsey home in another unsuccessful attempt to see his child. He testified that he had to be back at his job and left Daytona Beach without seeing the child because his efforts had been thwarted. He did return to Daytona Beach for the trial.

While we do not condone appellant’s action in withholding child support during the time he could afford to pay, we are not dealing with a contempt or enforcement action. Neither can we or should we decide which of the two contestants would make the better parent, because that choice is not ours to make. Natural law gives appellant certain rights as the parent of the child, and these rights can be taken away only in strict compliance with the law. The record before us does not support a conclusion, by clear and convincing proof, that appellant’s conduct manifested a settled purpose to forego his parental rights. On the contrary, it supports the conclusion that he was attempting to assert those rights.

The final judgment is therefore reversed, with directions to dismiss the petition for adoption.

REVERSED.

COBB and COWART, JJ., concur.

      . The United States Supreme Court has recently adopted the same position, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

      . While this adoption proceeding was pending, Marcia filed an action for support against appellant on January 26, 1981, under the Uniform Reciprocal Enforcement of Support Act and secured a judgment for support on April 22, 1981. Testimony in this adoption proceeding had concluded on February 16, 1981, and the final judgment appealed from was entered on June 22, 1981.


text:
    Alexander STECKI, Appellant, v. STATE of Florida, Appellee.
    No. 81-1135.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1983.
    James B. Gibson, Public Defender, and Leonard R. Ross, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

See Green v. State, 414 So.2d 1171 (Fla. 5th DCA 1982); Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr. and COWART, JJ., concur.