author: SCHEB, Chief Judge.

text:
    Henry Shoemaker GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1409.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Joseph M. Ciarciaglino, Jr., of Osborne & Ciarciaglino, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellant pled guilty and was placed on probation for three years on April 7, 1978. On April 7,1981, the state filed an affidavit that he had violated his probation. At the evidentiary hearing to determine whether probation should be revoked appellant moved to dismiss the charges on the ground that his probationary period had expired. The court denied the motion, revoked appellant’s probation, and sentenced him to four years in prison. Appellant contends the court was without jurisdiction to revoke his probation. We agree.

The appellant was placed on probation on April 7, 1978. At that time he became subject to all the conditions and responsibilities attendant thereto. This period of probation terminated three years later on April 6, 1981.

Upon expiration of the probationary period, the court is divested of all jurisdiction over the probationer unless prior to that time the processes of the court have been set in motion for revocation or modification of probation. Bouie v. State, 360 So.2d 1142 (Fla. 2d DCA 1978); Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978); Hopson v. State, 339 So.2d 1152 (Fla. 2d DCA 1976); Ard v. Shelby, 97 So.2d 631 (Fla. 1st DCA 1957). Here the state’s affidavit alleging appellant had violated his probation was not filed until one day after his term of probation expired. Therefore, the court had no jurisdiction to revoke his probation.

Accordingly, we vacate the sentence imposed by the trial court and direct the court to enter an order discharging appellant.

HOBSON and BOARDMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Fred A. HENDRICKS, Sr., Appellant, v. Mary K. HENDRICKS, Appellee.
    No. 80-1830.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Rehearing Denied Feb. 18, 1982.

      John T. Allen, Jr., St. Petersburg, for appellant.
    Seymour A. Gordon of Gay & Gordon, St. Petersburg, and Wayne 0. Smith of Wallace, Smith & Finck, St. Petersburg, for appellee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and Neff v. Neff, 386 So.2d 318 (Fla. 2d DCA 1980).

HOBSON, A.C.J., and OTT and DAN-AHY, JJ., concur.


text:
    Glenn K. COLVIN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 81-777.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1982.
    Mac A. Greco, Jr., and Lee S. Damsker of Gordon & Maney, Tampa, for appellant.
    George A. MeKendree and Richard W. Driscoll of Miller, MeKendree & Somers, Tampa, for appellee.
   PER CURIAM.

Affirmed. Nicks v. Hartford Insurance Group, 291 So.2d 673 (Fla. 2d DCA 1974) and Travelers Insurance Co. v. Bartoszewicz, 404 So.2d 1053 (Fla.1981).

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


text:
    Judy Diane STARLING, as personal representative of the Estate of Mason Lofley, Deceased, Appellant, v. ALLSTATE INSURANCE COMPANY and John T. Lofley, Appellees.
    No. 81-445.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1982.
    Rehearing Denied Jan. 24, 1982.
    Mulholland, Anderson & McCue and Lee S. Damsker of Gordon & Maney, Tampa, for appellant.
    Chris W. Altenbernd and R. William Futch of Fowler, White, Gillen, Boggs, Vil-lareal & Banker, Tampa, for appellees.
   PER CURIAM.

Affirmed. Contra, Ard v. Ard, 395 So.2d 586 (Fla. 1st DCA 1981).

RYDER, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    David J. CUNNINGHAM, Appellant, v. Betty J. CUNNINGHAM, Appellee.
    No. 81-953.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.

      Scott Charlton of Peavyhouse, Giglio, Grant, Clark, Charlton & Opp, Tampa, for appellant.
    George W. Phillips, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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


text:
    STATE of Florida, Appellant, v. Jack WINDISCH, Appellee.
    No. 81-801.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellee.
   PER CURIAM.

This appeal is a companion case to State v. Amato, 408 So.2d 775 (Fla. 2d DCA 1982). We reverse and remand on the same grounds as stated in that opinion.

HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.


text:
    Jerry ROBERSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1870.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1982.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

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


text:
    Mark PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 81-707.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1982.

      Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Samuel R. Mandelbaum, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Brown v. State, 397 So.2d 320 (Fla. 2d DCA 1981).

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


text:
    John KLEMPNER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1014.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1982.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

BOARDMAN, A.C.J., and OTT and DAN-AHY, JJ., concur.


text:
    Virgil Ronald WHITE, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1350 to 81-1353.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment and sentence are affirmed. However, in view of the fact that appellant was insolvent, the trial court erred in assessing him court costs in the amount of $2.00. Brown v. State, 400 So.2d 510 (Fla. 2d DCA 1981). Therefore those costs are stricken from the order.

Appellant was also assessed an attorney’s fee for the services of the public defender plus costs expended in appellant’s behalf by the public defender, as authorized by section 27.56, Florida Statutes (1979). However, the trial court failed to afford appellant the protection of adequate prior notice and opportunity to be heard on the question of the fee and costs as mandated by section 27.56(7).

Accordingly, the judgment and sentence are affirmed, but the portions of the trial court’s order assessing costs expended by the public defender and an attorney’s fee for the public defender are stricken, without prejudice to the assessment of an attorney’s fee and costs after notice and hearing in compliance with section 27.56(7), Florida Statutes (1979).

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


author: HOBSON, Judge.

text:
    FLORANDO INVESTMENT CORPORATION, Appellant, v. Ester FRIED and Lawrence Fried, Appellees.
    No. 80-2254.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Scott J. Johnson of Maguire, Voorhis & Wells, P. A., Orlando, for appellant.
    Law Offices of Howard W. Mazloff, P. A., Coral Gables, for appellees.
   HOBSON, Judge.

Ester and Lawrence Fried purchased two mobile home lots and five new mobile homes from Florando Investment Corporation (Florando) in 1973. The total purchase price was $106,591, and the Frieds made a $21,706 down payment. The $84,885 balance was represented by two promissory notes from the Frieds to Florando, secured by purchase money mortgages on each lot. The Frieds never made a mortgage payment, and in 1978, Florando initiated foreclosure actions on each mortgage. The Frieds filed two affirmative defenses: fraud and misrepresentation on the part of Florando, and violation of Florida securities law, chapter 517, Florida Statutes (1977). Prior to trial, the Frieds sold one of the lots (Lot 88) and one mobile home thereon to a third party for $15,000.

After a nonjury trial, the court entered a final judgment holding that Florando, through its sales agent, had induced the Frieds to enter the transaction by fraud, deceit and misrepresentation. The court further held that the sale of the lots, coupled with the rental arrangement, constituted the sale of unregistered securities, in violation of chapter 517, Florida Statutes.

The final judgment denied Florando enforcement of the notes and mortgages and held them to be null and void. It ordered Florando to endorse the titles to the mobile homes so that the Frieds would own them free and clear. Finally, the court awarded the Frieds $9,305.25 in rental income, plus any additional sums collected, along with court costs of $97.55.

Florando does not appeal the portion of the final judgment which ruled in favor of the Fried’s affirmative defenses. The only issue raised in this appeal is the correctness of the trial court’s choice of remedies. The two choices considered by the court were: 1) to rescind the transaction and place the parties back in their original positions, or 2) to leave the parties where the court found them. Florando argues that the effect of the court’s decision to leave the parties where it found them is to give the Frieds possession of the lots and mobile homes for which they made only a $21,706 down payment and to forgive the mortgage payments with accrued interest amounting to approximately $165,000. Further, the Frieds retain the benefit of all rentals earned, an amount in excess of $9,000.

Florando urges this court to reverse the portion of the final judgment which provided an inequitable remedy and order the entire transaction rescinded in order to place the parties back in their initial respective positions. In that event, the Frieds would be required to tender back the property and be reimbursed by Florando for the down payment, unpaid rental fees, interest, court costs and attorney fees.

Although it is within the discretion of the trial court to formulate equitable remedies, we are of the opinion that the remedy evidenced in the final judgment is unduly harsh. We agree that Florando cannot be allowed to profit from an illegal transaction induced by fraud and misrepresentation. Rescission precludes this result.

We hold that the trial court abused its discretion in leaving the parties where it found them under the facts of this case. We reverse the final order and remand the cause in order that the trial court may rescind the entire transaction and devise a formula by which the parties will be placed, as nearly as possible, in their original respective positions. In so doing, the trial court shall allow the sale of Lot 88 to stand and reduce the amount that Florando owes the Frieds by the amount of the purchase price received or to be received by the Frieds from the third party.

REVERSED and REMANDED.

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


text:
    STATE of Florida, Appellant, v. James H. BECKETT, Appellee.
    No. 81-680.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    James P. Ogden of Matusek, Ogden, McKnight & Hudson, P. A., St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977).

HOBSON, A. C. J., and OTT and DAN-AHY, JJ., concur.


author: OTT, Judge.

text:
    Roy YOUNG, Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee.
    No. 80-836.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Richard R. Roach, Jr., of Woods & Roach, P. A., Lakeland, for appellant.
    A. H. Lane of Lane, Trohn, Bertrand, Williams & Smith, P. A., Lakeland, for ap-pellee.
   OTT, Judge.

The order of the trial court is AFFIRMED. See Causey v. Travelers Indemnity Co., 401 So.2d 1334 (Fla.1981).

BOARDMAN, A. C. J., and GRIMES, J., concur.


text:
    STATE of Florida, Appellant, v. Deborah MUMMA, Appellee.
    No. 81-1206.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., Tampa, for appellant.
    Marc H. Saltón, New Port Richey, for appellee.
   PER CURIAM.

Affirmed. See Brockelbank v. State, 407 So.2d 368 (Fla. 2d DCA 1981); Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla.1979).

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


text:
    RADIO SHACK, a Division of Tandy Corporation, Petitioner, v. UNARCO-ROHN, a foreign corporation, and The Home Insurance Company, Respondents.
    No. 81-2463.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Donald V. Bulleit of Fowler, White, Gil-len, Boggs, Villareal & Banker, P. A., St. Petersburg, for petitioner.
    William F. McGowan, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for respondent Unarco-Rohn.
    John T. Allen, Jr., of John T. Allen, P. A., St. Petersburg, for respondent The Home Ins. Co.
   PER CURIAM.

Certiorari denied without prejudice to raising the issues on appeal from final judgment.

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


text:
    Orville Don WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1436.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by filing a motion to vacate in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    STATE of Florida, Appellant, v. C. J., Jr., Appellee.
    No. 80-1217.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

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


text:
    STATE of Florida, Appellant, v. J. P., a child, Appellee.
    No. 80-1278.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

DANAHY, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. W. J. H., a child, Appellee.
    No. 80-1324.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

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


text:
    STATE of Florida, Appellant, v. D. J. M., a child, Appellee.
    No. 80-1325.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

OTT, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. T. L., a child, Appellee.
    No. 80-1512.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Allen P. Allweiss, St. Petersburg, for ap-pellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

BOARDMAN, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. K. D. S., a child, Appellee.
    No. 80-1486.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

OTT, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. J. P., a child, Appellee.
    No. 80-1327.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

DANAHY, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. E. E., a child, Appellee.
    No. 80-1353.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Leonard Holton, Dade City, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

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


text:
    STATE of Florida, Appellant, v. J. A. S., a child, Appellee.
    No. 80-1485.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and BOARDMAN and OTT, JJ., concur.


text:
    STATE of Florida, Appellant, v. R. P., a child, Appellee.
    No. 80-1484.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

HOBSON, A.C.J., and BOARDMAN and OTT, JJ., concur.


text:
    STATE of Florida, Appellant, v. V. E. B., a child, Appellee.
    No. 80-1395.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

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


text:
    STATE of Florida, Appellant, v. R. A. McW., a child, Appellee.
    No. 80-1397.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

BOARDMAN, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. C. R., a child, Appellee.
    No. 80-1399.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

HOBSON, A. C. J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. A. R. S., a child, Appellee.
    No. 80-1400.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Wm. G. Pontrello, Clearwater, for appel-lee.
   PER CURIAM.

Reversed. See L. H. v. Slate, 408 So.2d 1039 (Fla.1982).

HOBSON, A. C. J., and DANAHY and SCHOONOVER, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Robert Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 81-827.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Ronald A. Dion of Entin, Schwartz, An-gert, Dion & Broudy, North Miami Beach, and Clyde M. Taylor, Jr., Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Robert Lee Smith appeals his judgment and sentences for possession (count 1) and sale (count 2) of methaqualone. We affirm.

We decline to recede from our holding in Fundak v. State, 362 So.2d 295 (Fla. 2d DCA 1978), that even in circumstances such as those here, where the possession and sale of a given drug arises out of a single episode, Section 775.021, Florida Statutes (1979), requires separate sentences where the possession is not a lesser included offense of the sale. Contra, Drayton v. State, 372 So.2d 983 (Fla. 3d DCA 1979); Williams v. State, 377 So.2d 755 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980). We therefore affirm appellant’s sentences.

Finding no merit to the other issues raised by appellant, we also affirm the judgment of guilt for both offenses.

AFFIRMED.

GRIMES and RYDER, JJ., concur.


author: RYDER, Acting Chief Judge.

text:
    Francis BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-880.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 1982.
    Rehearing Denied March 30, 1982.

      Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Acting Chief Judge.

Francis Brown was charged with vehicular homicide and DWI manslaughter following a collision in which a passenger in Brown’s car was killed. Appellant’s original convictions for the charges arising from this unfortunate and deadly incident were reversed by this court because a blood sample was taken over his objection and introduced at trial. Brown v. State, 371 So.2d 161 (Fla. 2d DCA 1979), aff’d, State v. Brown, 386 So.2d 549 (Fla.1980).

After remand and retrial, Brown was found guilty of vehicular homicide. He appeals that judgment of guilt and sentence of five years’ imprisonment.

Of the four points raised in this appeal, only the third merits discussion. It concerns the fact that during retrial the state was allowed to introduce testimony regarding Brown’s refusal to submit to that same blood test. Therefore, although the jury could not be informed of the test results because of this court’s mandate in Brown, they were told that appellant had refused to take the test (and, in fact, misled to believe that no test was taken). We conclude that the holdings in two recent cases require reversal under these circumstances.

This court held in State v. Duke, 378 So.2d 96 (Fla. 2d DCA 1979) that one’s refusal to submit to a blood test is admissible into evidence against an offending driver because such a test is compulsory. However, the supreme court in Sambrine v. State, 386 So.2d 546 (Fla.1980) has invalidated the Duke holding. Sambrine states that section 322.261, Florida Statutes (1979) gives a driver the right to refuse testing by affirmatively revoking his implied consent. Thus, when a driver exercises his statutory option to refuse testing, the result of any test taken over objection is inadmissible at trial.

This court recently applied the mandate of Sambrine to facts quite similar to those in the case sub judice. In State v. Ducks-worth, 408 So.2d 589 (Fla. 2d DCA 1981), we wrote that inasmuch as Sambrine invalidated our holding in Duke, the state can no longer introduce into evidence the fact that the defendant refused to submit to a test for alcohol in his system. We adhere to Ducksworth, recede from Duke, and hold that the admission into evidence of appellant’s refusal to submit to the blood test was improper. However, we note that the suppression of all evidence relating to the blood test herein does not dictate reversal on grounds of insufficient evidence nor does it mandate dismissal. This cause is, therefore, REVERSED and REMANDED for further proceedings consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Robert S. DuBOIS, Appellant, v. Gay DuBOIS, Appellee.
    No. 82-438.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Welbaum, Zook, Jones & Williams and John D. Weatherford, Miami, for appellant.
    Robert F. Weiner, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

The orders holding the appellant-husband in contempt and committing him to jail for failing to make temporary alimony payments are summarily reversed because neither contains the requisite finding of a wilful failure to pay notwithstanding a present ability to do so. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980); Hammond v. Sandstrom, 376 So.2d 466 (Fla. 3d DCA 1979).

      . It is at best highly doubtful that such a finding, even if made, would be supportable by this record.

      . Nor, alternatively, a wilful divestiture of assets in order to avoid the payment ordered by the court. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Hammond v. Sandstrom, 376 So.2d 466 (Fla. 3d DCA 1979).


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Edward James BROWN, Appellee.
    No. 81-1385.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Rehearing Denied April 21, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Miguel Del Aguila, Miami, for appellee.
   DOWNEY, Judge.

The State of Florida seeks reversal of an order granting appellee’s motion to suppress evidence resulting from a luggage search at an airport.

The facts found by the trial judge are set forth in his order as follows:

“1. Both Defendant and Daniel Stuart entered the Fort Lauderdale Airport together at 9:40 P.M., on January 26, 1981. Daniel Stuart paid cash for both roundtrip tickets from Fort Lauderdale to Chicago and returning back within 12 hours. The Defendant checked in his luggage with the ticket agent. Mr. Stuart retained a shoulder bag on his person.
2. As both suspects proceeded through the concourse, Agent Capone and Brennan approached them and identified themselves as Sheriff’s Deputies.
3. Agent Brennan asked both suspects if they ‘had a minute to talk’ when both suspects cooperated.
4. The State’s testimony revealed that both suspects consented to a search of their luggage. However, since Mr. Stuart’s testimony was in direct conflict, the Court resolved such dispute in favor of the Defendant, in that the Defendant was silent as to such consent.
5. Both suspects voluntarily entered a nearby storage room for a luggage search after being asked if they ‘wouldn’t mind’ going into the room.
6. Once both suspects entered the room a suitcase was retrieved from the airlines and brought into the room. At that point, both the defendant and Mr. Stuart denied ever possessing or owning such luggage.
7. The suitcase was forced open by Deputies and approximately 2.2 lbs. of Cocaine was found therein.” (Emphasis added.)

Based upon those findings the trial judge held that Brown had standing to contest the search. He also found any consent given by Brown was involuntary. Thereupon, relying upon Monahan v. State, 390 So.2d 756 (Fla. 3d DCA 1980), the trial court suppressed the contraband found in the suitcase in question.

The State contends that the trial court erred when it found that appellee had a legitimate expectation of privacy in luggage he abandoned. We agree with that contention.

Our study of the briefs and record causes us to conclude that Monahan is not apposite. The reversal in that case was based primarily on the fact that the police had insufficient probable cause to make an arrest; therefore, the seizing of the contraband following Monahan’s illegal arrest made the contraband subject to suppression. In the case at bar, there was no illegal arrest. Brown and his cohort consented to entering a nearby storage room for a luggage search. When the suspect suitcase was brought into the room Brown and his companion each announced it did not belong to him. A search of the suitcase produced cocaine.

If Brown had admitted ownership of the suitcase but refused to consent to a search, he would have had standing to question the search, i.e., he would have had a legitimate expectation of privacy as to the suitcase. However, when Brown denied ownership thereof, he had no standing to question the search, i.e., he abandoned any legitimate expectation of privacy in the suitcase. United States v. Colbert, 474 F.2d 174 (5th Cir. 1973); United States v. Miller, 589 F.2d 1117, 1131 (1st Cir. 1978); United States v. Canady, 615 F.2d 694 (5th Cir. 1980), cert. denied 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78; United States v. Veach, 647 F.2d 995 (9th Cir. 1981).

Accordingly we hold the trial court erred in granting the motion to suppress. Therefore, the order appealed from is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED, with directions.

HERSEY and HURLEY, JJ., concur.


author: COWART, Judge.

text:
    ORANGE COUNTY, Appellant, v. Roosevelt SEALY, et ux, Appellees.
    No. 80-1395.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.

      G. Yates Rumbley of Pitts, Eubanks & Ross, P. A., Orlando, for appellant.
    Robert D. Melton, P. A., Orlando, for appellees.
   COWART, Judge.

An employer, who paid an injured employee workers’ compensation, seeks recovery, under section 440.39(3)(a), Florida Statutes (1981), of an equitable pro rata share of damages the employee recovered from Mr. Smith, a third party who negligently caused the employee’s injuries.

Appellee was employed by appellant as a deputy sheriff when he was injured. Mr. Smith’s insurer paid appellee personal injury policy limits of $10,000, which included settlement of appellee’s wife’s derivative claim. There is no dispute that appellant, as employer, paid or would pay appellee $9,465.05 in compensation benefits. The total amount of damages sustained by the employee (or the value of his cause of action against Smith) was contested, but there was substantial competent evidence in the form of expert testimony that appellee’s case was worth $50,000, of which sum his wife’s derivative claim for loss of consortium was worth $5,000. After deducting attorney’s fees and costs out of the $10,000 settlement of his and his wife’s claim, appellee received $6,569.62. Of this amount, the trial court found that 50 per cent constituted a reasonable amount for pain and suffering (not covered by workmen’s compensation) and the wife’s derivative claim. Since appellee demonstrated that he did not recover the full value of the damages he sustained under the statute, the employer was only entitled to recover a pro rata share of compensation paid or to be paid. As suggested in National Ben Franklin Insurance Company v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976), an equitable pro-ration can be done by formula, determining the relationship that the employee’s actual net recovery bears to his total damages and applying that ratio to the compensation benefits. These figures and findings would produce this calculation:

$6,569.62 x Vz x $9,465.05 = $690.91 $50,000 - 5,000

By using rounded figures the trial judge awarded $540 as follows:

$ 6.°°° x $9,000 = 1080 x Vi2 = $540. 50,000

Considering the subjective nature of several factors involved, the trial judge’s award is affirmed.

However, neither section 440.-39(3)(a) or section 440.34(1) authorize attorney’s fees for work done in equitable distribution proceedings. Edmondson v. Swope, 395 So.2d 553 (Fla. 5th DCA 1980); State Department of Health and Rehabilitative Services v. Culmer, 402 So.2d 1273 (Fla. 3d DCA 1981). Therefore the award of attorney’s fees is reversed.

AFFIRMED in part; REVERSED in part.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . Appellee initially asserted in the trial court, in a post-trial memorandum filed in lieu of closing argument, a claim for attorney’s fees under Fla.R.Civ.P. 1.380(c) based on the need to prove certain denied requests for admissions. The award of attorney’s fees cannot be sustained on this basis because appellant’s request for oral argument on motion for rehearing was denied and appellant has never had an opportunity to properly meet and argue this assertion.


text:
    John E. GRUBBS, Appellant, v. STATE of Florida, Appellee.
    No. 81-2596.
    District Court of Appeal of Florida, Second District.
    March 31, 1982.
   SCHEB, Chief Judge.

Appellant, John Grubbs, seeks review of an order which summarily denied his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(g).

Grubbs was found guilty of one count of aggravated battery and two counts of aggravated assault. The three-year mandatory minimum sentence applied in this case pursuant to section 775.087, Florida Statutes (1979), as appellant possessed a firearm. Grubbs was sentenced to three years on each charge, the sentences to run concurrently. The court also declared Grubbs a habitual offender under section 775.084; however, his sentence was not enhanced as a result of that declaration.

Appellant attacks his conviction on several grounds, but the only point which has merit is his challenge to the legality of his being sentenced as a habitual offender. Section 775.084(3)(b) requires written notice to be served on a defendant and his attorney when the court intends to sentence the defendant under this section. The record reveals that no advance written notice that he might be sentenced as a habitual offender was given to appellant as required by the statute. Thus, his sentence as a habitual offender is illegal and subject to correction by his motion for postconviction relief under Rule 3.850. Massey v. State, 389 So.2d 712 (Fla. 2d DCA 1980).

Accordingly, we strike the reference to Grubbs’ being a habitual offender from his sentence; otherwise, we affirm the trial court’s denial of his petition.

OTT and RYDER, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Terry Wilburn WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1386.
    District Court of Appeal of Florida, Second District.
    April 2, 1982.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Samuel Robert Mandelbaum, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was convicted of first degree burglary and sexual battery and given consecutive fifteen year sentences. Relying upon McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980), he argues that we should vacate the sentence imposed for sexual battery because, he contends, the sexual battery was a lesser included offense of the first degree burglary.

In McRae this court considered two counts arising out of the same event, the first of which charged the defendant with burglary during the course of which he made an assault upon the victim, to wit: involuntary sexual battery. The second count contained a charge of sexual battery upon the same victim. We held that the second count was a lesser included offense of the first because proof of the sexual battery was indispensable to the conviction for first degree burglary and that therefore the defendant could not be convicted of both counts.

In the present case the information alleged that appellant:

COUNT ONE: did unlawfully enter or remain in a certain structure, to-wit: a dwelling, located at or in the vicinity of Palm and Pine Trailer Park, in the County and State aforesaid, the property of Bernice Wallace, as owner or custodian thereof, with the intent to commit an offense therein, to-wit: Sexual Battery, and did make an assault upon a human being while therein, to-wit: Ms. Bernice Wallace,
COUNT TWO: did unlawfully commit a sexual battery upon Bernice Wallace, a person over the age of eleven (11) years, without said victim’s consent, by vaginal penetration by the sex organ of another, and in the process thereof used physical force and violence not likely to cause serious personal injury.

A careful analysis demonstrates that because of an essential difference between the McRae information and the one filed against appellant, a different result is required here. In McRae the burglary count alleged that the assault was the sexual battery, whereas here the information did not state that the assault upon Ms. Wallace consisted of the sexual battery. Thus, under the allegations of count one appellant could not have been convicted of a lesser included offense of sexual battery.

One may legitimately ask why this should make any difference since we know from the record that the assault committed on Ms. Wallace culminated in the sexual battery. The reason lies in the principle of lesser included offenses. In order to be a category three (now one) offense, the lesser offense must be an essential ingredient of the greater. Brown v. State, 206 So.2d 377 (Fla.1968). Obviously, sexual battery is not an essential ingredient of burglary with an assault. In order to be a category four (now two) lesser included offense, the greater offense must allege all of the elements of the lesser offense, and the proof must support the allegation of the lesser offense. Brown v. State. In this case count one cannot be read to include a charge of sexual battery. See Gaylord v. State, 413 So.2d 72 (Fla. 2d DCA 1982), involving a similar analysis in a different context.

Since count two was not a lesser included offense of count one, the court properly entered separate sentences on both counts. § 775.021(4), Fla.Stat. (1981).

AFFIRMED.

RYDER and CAMPBELL, JJ., concur.

      . Appellant concedes that by reason of the recent case of State v. Hegstrom, 401 So.2d 1343 (Fla.1981), only his sentence and not his conviction should be vacated if he prevails.

      . See In re Use By the Trial Courts of the Standard Jury Instructions in Criminal Cases, Nos. 57,734 and 58,799 (Fla. Apr. 16, 1981).


text:
    Russell A. RIZZO, Appellant, v. STATE of Florida, Appellee.
    No. 81-1500.
    District Court of Appeal of Florida, Second District.
    April 2, 1982.

      Jerry Hill, Public Defender, Tampa, and Robert J. Krauss, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellant Russell Rizzo contends that the trial court erred in refusing to suppress evidence seized during an inventory search of his automobile. We agree and reverse.

On May 10, 1980, Deputy Hauck of the Pinellas County Sheriff’s Office stopped appellant’s vehicle on the suspicion that appellant had committed a crime. When appellant was unable to produce his driver’s license as requested, the deputy arrested him. He then conducted an inventory search of appellant’s vehicle, and discovered a pair of bolt cutters which were later identified as belonging to the victim of the burglary which Deputy Hauck was investigating. Hauck did not inform appellant that his vehicle would be impounded unless he could provide a reasonable alternative.

The state prosecuted Rizzo for burglary; however, the trial court granted Rizzo’s motion to suppress the evidence seized from his vehicle on the ground that the initial stop was not justified. The state appealed and this court reversed finding that Deputy Hauck had a well-founded suspicion that appellant had committed a burglary. State v. Rizzo, 396 So.2d 842 (Fla. 2d DCA 1981). On remand appellánt sought to suppress the evidence revealed by the inventory search on the ground that Hauck failed to advise him that impoundment would not occur if he could provide a reasonable alternative. The trial court refused to suppress this evidence, and appellant filed this appeal.

In Miller v. State, 403 So.2d 1307 (Fla.1981), the supreme court held that when the owner or possessor of a motor vehicle is present, the arresting officer must advise the arrestee that the vehicle will be impounded unless the arrestee can provide a reasonable alternative to impoundment. There are some exceptions, i.e., when a vehicle is unattended, its owner is not reasonably available or is mentally incapacitated. None of the exceptions are involved here.

Therefore, as it is undisputed that the deputy failed to advise Rizzo that his vehicle would be impounded unless he could provide a reasonable alternative, the search was invalid. Accordingly, we vacate the trial court’s order denying the motion to suppress, and remand for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.

      . Appellant attacked the inventory search in his initial motion to suppress but, because of its initial order, the court did not review the legality of the search until after our remand.

      . In Sanders v. State, 403 So.2d 973 (Fla.1981), the supreme court elaborated on its holding in Miller v. State noting that Miller does not mandate that an arrestee must be advised of all available options to impoundment.


text:
    Bruce RECARDO, Appellant, v. STATE of Florida, Appellee.
    No. 81-1606.
    District Court of Appeal of Florida, Second District.
    April 2, 1982.
    Jerry Hill, Public Defender, Bartow, and Gregory E. Like, Asst. Public Defender, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation was revoked for failure to pay court costs and costs of probation- supervision. This was improper because there was no evidence from which the court could find that appellant had the financial ability to pay such costs. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979).

Accordingly, we reverse and remand for a new hearing on the question of appellant’s ability to pay.

GRIMES, A. C. J., and RYDER and CAMPBELL, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Earl L. NELSON, Appellant, v. James L. BOYER and Sandra L. Boyer, his wife, Appellees.
    No. 81-1794.
    District Court of Appeal of Florida, Second District.
    April 2, 1982.
    Jack S. Carey of Carey & Harrison, St. Petersburg, for appellant.
    C. Bryan Boydstun, Jr., of Lyle & Skipper, P.A., for appellees.
   SCHOONOVER, Judge.

The appellant, Earl L. Nelson, has appealed a final summary judgment holding that an interspousal conveyance of certain real estate was valid.' We revérse.

Louis E. Nelson, appellant’s father, purchased the property in question on October 15, 1962. At all times material to this case, the appellant did not live on the property, was a self-supporting married adult, and resided outside of the state of Florida.

On October 18, 1962, Louis E. Nelson and his future wife, Dorothy, moved into the property which was to become their matrimonial domicile and lived there together continuously until Louis E. Nelson’s death on February 20, 1973.

On October 19, 1962, the parties were married and on the same day executed the deed in question. The deed reflects that Louis E. Nelson joined by his wife, Dorothy Nelson, conveyed the property by warranty deed to Louis E. Nelson and Dorothy Nelson, his wife. The deed was executed pursuant to section 689.11, Florida Statutes (1961), in an effort to create an estate by the entireties.

On August 12, 1980, after Mr. Nelson’s death, Mrs. Nelson conveyed the property to her daughter Sandra L. Boyer and her husband James L. Boyer. The Boyers, ap-pellees, filed the instant action seeking a declaratory judgment declaring them to be holders in fee simple of the property.

The trial court found that the property had not acquired homestead status, and, therefore, the interspousal transfer in question was valid.

We agree that Louis E. Nelson did not become the head of the household during the three-day period he owned the home prior to his marriage to Mrs. Nelson. Earl L. Nelson was a self-supporting adult child who did not reside on the property. However, at the time of Louis’ marriage to Mrs. Nelson, the parties were already residing in the home, and it therefore became homestead property immediately. Homestead status having attached to the property, the subsequent conveyance in an effort to establish an estate by the entireties was void ab initio. Gotshall v. Taylor, 196 So.2d 479 (Fla. 4th DCA 1967); Moore v. Moore, 237 So.2d 217 (Fla. 4th DCA 1970).

Even though the deed was executed pursuant to section 689.11, Florida Statutes (1961), which permits the creation of an estate by the entireties by deed from the husband to the wife, the statute is inapplicable to homestead property under Article X of the 1885 Florida Constitution, which was in effect at the time of the transfer. Fla.Const. of 1885 art. X § 4.

Since the October 19,1962 deed was void, Mrs. Nelson acquired a life estate in the property at the time of Mr. Nelson’s death and therefore could only convey a life estate to the appellees. The appellant acquired the remainder interest upon his father’s death.

We reverse and remand for the entry of a judgment consistent herewith.

SCHEB, C. J., and RYDER, J., concur.


author: LARRY G. SMITH, Judge.

text:
    Gladys SUAREZ, Appellant, v. AMERICAN BUILDING MAINTENANCE and Allstate Insurance Company, Appellees.
    No. AC-343.
    District Court of Appeal of Florida, First District.
    April 5, 1982.

      Arnold R. Ginsberg, Horton, Perse & Ginsberg and Ratiner & Glinn, Miami, for appellant.
    Mark L. Zientz, Williams & Zientz, Coral Gables, for appellees.
   LARRY G. SMITH, Judge.

This worker’s compensation appeal is concerned primarily with alleged material errors in the deputy commissioner’s findings of fact upon which he denied the appellant-claimant’s petition for modification. We reverse.

In paragraph five of the order the deputy commissioner found, based upon the testimony of Dr. Eugene Komrad, that the claimant’s surgery for duodenal ulcers was not causally related to her industrial accident. The error is that Dr. Komrad’s testimony related only to the medication, aspirin, as a cause of ulcers, and his testimony did not eliminate ingestion of the medication, Butazolidin, as a possible cause of duodenal ulcers.

Paragraph six contains a finding that “claimant never advised any of her numerous attending and treating physicians that she has fallen and injured herself as a result of her left leg giving way due to pain and weakness of her left lower extremity caused by her compensable phlebitic condition.” The error is that the record shows that claimant did advise Dr. Engelmann, a chiropractor, of these falls. In the same paragraph the deputy commissioner found that the records of American Hospital contained no record or history of the claimant’s alleged weakness of the left lower extremity. The error is that American Hospital’s records do show that claimant was admitted to that hospital on October 8, 1974 for thrombophlebitis of her left leg.

Paragraph six also contains the finding that “based upon the testimony of Dr. Eugene Komrad and Dr. Pedro Ramos, that since August, 1974, the claimant has had no further evidence of active phlebitis.” The error is that Dr. Komrad did not see the claimant after December, 1973; and, although Dr. Ramos did testify that claimant did not suffer active phlebitis after August, 1974, he did point out that the claimant was suffering from post-phlebitic syndrome, and he made the diagnosis that the falls the claimant related to him were the results of the symptoms from the post-phlebitic syndrome.

Finally, in paragraph seven the deputy commissioner’s order contains the finding that the claimant’s present complaints of neck, low back and right shoulder pain, as well as the necessity for neck and right shoulder surgery, were not precipitated or caused by the claimant’s falling as a result of her leg giving way, “but are in fact attributable to emergency efforts to resuscitate the claimant when she fainted while undergoing diagnostic tests ... in October 1975 .... ” The error is that the claimant obviously had these complaints of neck, low back and right shoulder pain before the incident involving emergency resuscitation efforts in October, 1975.

We do not expect or demand perfection in the factual recitals in worker’s compensation orders. See Indian River County Road & Bridge v. Stalling, IRC Order 2-2897 (1975). We are not unmindful of the arguments and references to the record contained in the brief of the appellees, from which it appears that each of the ultimate findings of fact made by the deputy commissioner can be supported by record evidence. We also acknowledge and appreciate the forthright manner in which appel-lees have addressed the problems presented here, by clearly admitting those errors of fact where they appear in the order. Nonetheless, we think the ends of justice would be better served in this case by remanding this cause to the deputy commissioner for further consideration, and correction of the alleged errors, rather than for this court to undertake its own determination of the facts from the record. Even though we might, in good conscience, be capable of objectively determining whether the record supports the order’s ultimate findings, we will decline to do so because of the substantial risk that we will give the appearance of weighing the evidence. This court does not act as the trier of fact.

Accordingly, this cause is reversed and remanded.

MILLS and SHAW, JJ., concur.

      . We must point out again, however, that the failure of counsel to give proper attention to the contents of the deputy commissioner’s order has resulted in a needless waste of time, money, and the judicial resources of this state. Genuine Parts Co. v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982), Case No. AB-479, opinion filed January 28, 1982, 7 FLW 309; Acosta Roofíng Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).


text:
    BAKER MOBILES OF FLORIDA and United States Fidelity & Guaranty Company, Appellants, v. Eugene O’NEIL and the Division of Workers’ Compensation, Appellees.
    No. AD-183.
    District Court of Appeal of Florida, First District.
    April 5, 1982.
    Summers Warden, Miami, for appellants.
    Miguel A. Orta of Ress, Gomez, Rosenberg & Howland, Jr., North Miami, for ap-pellees.
   PER CURIAM.

This is an appeal from an order of the deputy commissioner awarding temporary total disability benefits, payment of medical bills, penalties, and future medical care. We reverse.

While lifting or attempting to lift a cinder block, the claimant sustained a compression fracture of the L-l and L-3 vertebrae. The deputy commissioner found that at the time of the accident the claimant was suffering from severe osteoporosis, which had slowly developed as a result of steroid therapy administered to control his bronchial asthma. He found that the steroid therapy led to a progressive weakening of the bones in the claimant’s back to the point that he sustained compression fractures as a result of lifting the cinder block.

It is settled that when an employee brings to his job some idiopathic condition, before the injury may be found compensa-ble, the employee must demonstrate that it resulted from an exertion or strain beyond that which he normally encountered, in his non-working life. Southern Bell Telephone and Telegraph Company v. McCook, 355 So.2d 1166 (Fla.1977); Gore Newspapers v. Lovett, 393 So.2d 1152 (Fla. 1st DCA 1981); Market Food Distributors, Inc. v. Levenson, 383 So.2d 726 (Fla. 1st DCA 1980); 1 Larson Workmen’s Compensation Law, § 12.10, 3252 (1978). Compare, Croft v. Pinkerton-Hayes Lumber Company, 386 So.2d 535 (Fla.1980) (claimant working under unusual strain); Ivy H. Smith Company v. Kates, 395 So.2d 263 (Fla. 1st DCA 1981) (claimant subjected to unusual stress and exertion); Legakis v. Sultan & Sons, 383 So.2d 938 (Fla. 1st DCA 1980) (working conditions such as would not normally be encountered); Cheney v. F. E. C. News Distribution Company, 382 So.2d 1291 (Fla. 1st DCA 1980) (working conditions such as would not normally be encountered).

In the instant case, there is no evidence that the claimant’s injury occurred as a result of an effort greater than that which he would normally encounter in his non-working life, nor is there any evidence that the conditions of his employment were such as he would not normally encounter in his non-working life. Accordingly, the injury may not be said to be one which “arose out of” his employment. Market Food Distributors v. Levenson. The order of the deputy commissioner is reversed and the cause is remanded with directions to dismiss the claim.

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


text:
    ORANGE NEWS and Mission Insurance Co., Appellants, v. Mary PRICE, Appellee.
    No. AE-357.
    District Court of Appeal of Florida, First District.
    April 5, 1982.
    Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Scott H. Michaud of Meyers, Mooney, Adler & Hammond, P. A., Orlando, for ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Appellant seeks rehearing and points out that in determining the merits of •this appeal the Court affirmed the deputy’s order below in its entirety which included disposition of an issue raised by appellants and that was conceded by appellee in her brief to be reversible error. Appellants’ Motion is well taken.

In appellee’s previous appearance before this Court, Duval-Bibb Company v. Mary Price, 402 So.2d 552 (Fla. 1st DCA 1980), we vacated the deputy’s finding that the employer fired appellee in violation of Section 440.205, Florida Statutes (1979) because there was a lack of proper notice as to the violation. Again that issue is raised and again the deputy erred in his same finding.

Rehearing is granted and we vacate our previous Per Curiam Affirmance. We reverse the deputy’s order that the employer violated Section 440.205 as we find, and the parties acknowledge, that there was inadequate notice that the issue was to be considered at the hearing. Otherwise, the deputy’s order is affirmed.

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


author: FERGUSON, Judge.

text:
    Rojelio Cabrera CASTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2094.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Bennett H. Brummer, Public Defender and Harold C. Culmer, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

Rojelio Cabrera Castillo appeals from a final judgment of conviction and sentencing for second-degree murder and for unlawful possession of a firearm while engaged in a criminal offense. He raises two points as error: (1) admitting into evidence self-incriminating statements attributed to him which were taken without Miranda warnings, and (2) permitting the prosecutor to cross-examine him as to an irrelevant prior bad act. We affirm.

Rojelio Castillo returned to the residence where he rented a home on the afternoon of May 29, 1980 to find the victim apparently intoxicated and physically aggressive toward the victim’s girlfriend and others present. An argument ensued. Castillo left the room, returned, and shot twice at the victim. Castillo then went outside and told a neighbor to call the police. When the police arrived Castillo handed them the gun. Castillo claimed at trial that he shot the victim in self-defense.

At the pre-trial motion to suppress statements of the defendant, one of the officers who had been at the scene testified that the defendant asked him if the victim was dead and that on the officer’s response in the negative, Castillo said that the officer should give him back the gun so he could finish the victim off. Another officer at the scene testified that he did not hear such a statement. Castillo denied making the statement.

We find no reversible error by the trial court in refusing to suppress the defendant’s statements to the officer. The court’s determination that the statements were spontaneous and freely given and were not the product of interrogation is supported by the record. See Spikes v. State, 405 So.2d 430 (Fla. 3d DCA 1981) (state not required to establish waiver where defendant volunteers statements). Nor is there any suggestion that the statements were the result of any unlawful activity on the part of the police officers. See, e.g., State v. Beck, 390 So.2d 748 (Fla. 3d DCA 1980), pet. for rev. denied, 399 So.2d 1140 (1981).

Appellant claims that the trial court committed reversible error in permitting the prosecutor, on cross examination, to question him regarding a specific prior crime pursuant to Section 90.404(2), Florida Statutes (1979) because the inquiry was irrelevant to any fact in issue and tended only to prove bad character or propensity. That two-question inquiry and responses are found at page 306 of the record:

Q. [By prosecutor] Mr. Castillo, did you ever tell a police officer that you have blown up a train of Russians when you lived in Cuba?
A. No.
Q. You never said that, sir?
A. I don’t recall having said that.

On redirect examination by defense counsel on the same subject appellant changed his testimony and admitted that he had told police officers about derailing a Russian military train while in Cuba and that as a result he had spent time in prison. We first note that there was no contemporaneous objection to the prosecutor’s questioning. Further, even if there had been a timely objection it would have been considered abandoned after defense counsel further explored the subject and brought out all the alleged prejudicial details. Killingsworth v. State, 90 Fla. 299,105 So. 834 (1925); Taylor v. State, 289 So.2d 421 (Fla. 3d DCA 1974).

No reversible error having been shown the judgment and sentence are AFFIRMED.

      . Though we affirm on grounds that the issue was not preserved for review, the error of inquiring whether defendant had admitted to a prior bad act, which act is only questionably bad, and to which the reply was a denial, was non-prejudicial in this self-defense case and, therefore, harmless. See Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980). See, e.g., Harrell v. State, 405 So.2d 480 (Fla. 3d DCA 1981); Taylor v. State, supra.


text:
    Ruben MERCADO, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 80-2231.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See: Section 924.33, Florida Statutes (1979); compare: O’Berry v. State, 348 So.2d 670 (Fla. 3d DCA 1977); Wells v. State, 256 So.2d 580 (Fla. 3d DCA 1972).


author: BASKIN, Judge.

text:
    Paul A. POPPE, Appellant, v. Jean I. POPPE, Appellee.
    No. 80-2537.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Martin Levinson and Stephen R. Schneider, Miami, for appellant.
    No appearance for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

We vacate the provision in the final judgment of dissolution ordering the husband, an Air Force pilot, to pay his wife rehabilitative alimony. Although Mrs. Poppe is a certified teacher with a master’s degree and is a trained legal secretary, she wishes to pursue her interest in writing religious music. The record reflects, however, that Mrs. Poppe does not require financial assistance to regain a useful and constructive role in society. In the absence of a need for vocational or other training, she is not entitled to receive rehabilitative alimony. Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1974); see Scott v. Scott, 408 So.2d 1089 (Fla.3d DCA 1982); Kellner v. Kellner, 388 So.2d 1274 (Fla. 4th DCA 1980).

Mrs. Poppe received a half interest in the parties’ real and personal property and is self-supporting. Her husband is responsible for one son’s college expenses along with custody of the minor child. Since Mrs. Poppe is in a financial position equal to that of her husband, she is not entitled to an award of attorney’s fees. Pepper v. Pepper, 388 So.2d 1342 (Fla. 3d DCA 1980); Caldwell v. Caldwell, 383 So.2d 1115 (Fla. 3d DCA 1980); Mertz v. Mertz, supra; see Bucci v. Bucci, 350 So.2d 786 (Fla. 3d DCA 1977); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 737 (Fla.1975).

For these reasons, we vacate the awards pertaining to rehabilitative alimony and attorney’s fees but affirm the remainder of the final judgment.

Affirmed in part, reversed in part.


text:
    Victor Louis JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-555.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.

      Paul Morris, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

We affirm defendant Jones’ convictions of possession with intent to sell cocaine and trafficking in cocaine upon his plea of no contest with a reservation of his right to appeal entered following the trial court’s denial of his motion to suppress cocaine discovered on his person during an airport search. Our decision rests upon our determination that no unlawful stop or seizure took place when officers asked to talk to him, Cavalluzzi v. State, 409 So.2d 1108 (Fla.3d DCA 1982), and that the trial court correctly ruled that defendant Jones voluntarily consented to the search after having been advised he had the right to refuse. State v. Henry, 390 So.2d 92 (Fla.3d DCA 1980); Husted v. State, 370 So.2d 853 (Fla.3d DCA 1979).

Affirmed.


text:
    Induru SESHADRI, M.D., The Public Health Trust of Dade County, d/b/a Jackson Memorial Hospital and Jackson Memorial Medical Center and The University of Miami School of Medicine, Appellants, v. Hungria MORALES, as Personal Representative of the Estate of Doris Morales, a minor, deceased, Appellee.
    No. 81-630.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, for appellants.

      Horton, Perse & Ginsberg and Edward A. Peyse, Deutsch & Blumberg, Miami, for ap-pellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Finding no merit in appellants’ contentions, we affirm the Final Judgment insofar as it holds appellants liable for medical malpractice resulting in the wrongful death of appellee’s minor child. We reverse the monetary award and remand for a new trial solely on the question of damages because we find that comments by appellee’s trial counsel concerning the “value of human life” and “value of an innocent baby” constituted error both inappropriate and prejudicial. Erie Insurance Co. v. Bushy, 394 So.2d 228 (Fla. 5th DCA 1981); Martin v. State Farm Mutual Automobile Insurance Co., 392 So.2d 11 (Fla. 5th DCA 1980); Eastern Steamship Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA), cert. denied, 388 So.2d 1115 (Fla.1980).

Affirmed in part, reversed in part, and remanded for a new trial as to damages only.


text:
    Stephanie O. REIK, Appellant, v. Karl M. REIK, Jr., Appellee.
    No. 81-1016.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Norman J. Silber, Miami, for appellant.
    James 0. Nelson, Brett D. Anderson, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Over the wife’s appeal, the awards of permanent periodic and lump sum alimony and child support, as well as the requirement that the marital home be sold and the proceeds divided, are affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); see, Scott v. Scott, 408 So.2d 1089 (Fla. 3d DCA 1982); Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981); compare, Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).


text:
    I.O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1263.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant, a juvenile, was adjudicated delinquent for aggravated assault by use of a shotgun. By this appeal he contends that the court erred in applying a subjective test to find that the instrument used was a deadly weapon where objective proof was lacking. We agree and reverse.

The testimony of the victim, who had twenty-six years military service with the United States Air Force, had an “expert” rifle rating, and was at one time a member of a “Scattergun” team, was that the weapon used by I. 0. was not a toy gun, but a real shotgun. I. O. and a companion juvenile testified that the instrument in their possession was not a real shotgun but a lightweight toy replica which had been examined by a police officer in the neighborhood earlier that same day.

After the evidence was presented and counsel had concluded their arguments, the court made oral findings of fact and conclusions of law. The pertinent parts are found at page 38 of the record:

... I cannot find, beyond, and to the exclusion of any reasonable doubt that this was, in fact, a deadly weapon ... I would be tending to find, however, that the victim reasonably believed it to be a deadly weapon ... My understanding of the law is, that it is the same thing as a deadly weapon, if the victim reasonably believed it to be such. But, if I’m in error on the Law on the subject, I would most certainly not find them guilty of an aggravated assault, simply of a simple assault, if I find guilt at all....

The trial court’s clearly stated findings of fact and conclusion of law has simplified this review. Also in all fairness, the state of the law — whether the courts of this state apply the objective test or the subjective test for the purpose of determining a deadly weapon — has been unsettled until recently-

Where the instrument used is not a firearm, Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator in determining whether the instrument is a deadly weapon for purpose of the aggravated assault statute, Section 784.-021(l)(a), Florida Statutes (1979). M. R. R. v. State, 411 So.2d 983 (Fla.3d DCA 1982). It is the nature of the weapon which characterizes an assault as aggravated. Goswick v. State, 143 So.2d 817 (Fla.1962). Where the evidence does not support a finding that the instrument used was a deadly weapon, the trial court should grant a motion for judgment of acquittal as to the aggravated nature of the assault. M. M. v. State, 391 So.2d 366 (Fla. 1st DCA 1980) (Docket No. 60,135, review denied 12/21/81).

The trial court having found the evidence insufficient to establish beyond a reasonable doubt a deadly weapon was used could not, as a matter of law, enter an adjudication for aggravated assault.

We reverse the adjudication of delinquency for aggravated assault and remand with directions that the court enter an adjudication for simple assault.


text:
    Ella PASIN, Appellant, v. Rosa L. KROO, Appellee.
    No. 81-1696.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.

      Michael Lechtman, North Miami Beach, for appellant.
    Smith & Mandler and Patricia M. Silver, Miami Beach, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a final order enforcing a charging lien for attorney’s fees. Appellant, Ella Pasin, was the losing defendant in an action for specific performance of a contract to sell a condominium unit. Pasin was represented by the law firm of Smith, Mandler, Smith, Werner, Jacobowitz & Fried, P.A. which she had hired for the purpose of cancelling the contract. After the judgment had been entered, Smith & Mandler withdrew from the case and filed a notice of charging lien on the proceeds to be paid to Pasin pursuant to the sales contract which Pasin had tried to avoid.

An attorney’s lien, or charging lien on funds recovered for a client through the attorney’s services may issue only if there is a client-attorney relationship and the attorney has, in fact, recovered proceeds for his client. The lien may not issue if no proceeds have been recovered. Chancey v. Bauer, 97 F.2d 293 (5th Cir. 1938). See, e.g., Conroy v. Conroy, 392 So.2d 934 (Fla.2d DCA 1980), pet. for rev. denied, 399 So.2d 1141 (Fla.1981). Pasin was the losing party so there was no recovery of funds. It was error to impose a $12,000.00 charging lien upon the proceeds from the sale of her real property.

Reversed.


text:
    Marie WILLIAMS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 81-2160.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Maguire & Friend and Michael R. Friend, Coral Gables, for appellant.
    Dickman & Barnett and James K. Clark, Coral Gables, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. United States Fidelity and Guaranty Co. v. Timon, 379 So.2d 113 (Fla. 1st DCA 1979); Travelers Insurance Co. v. Wilson, 371 So.2d 145 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980); Aetna Casualty and Surety Co. v. Ilmonen, 360 So.2d 1271 (Fla. 3d DCA 1978); Government Employees Insurance Co. v. Butt, 296 So.2d 599 (Fla. 3d DCA 1974), cert. denied, 308 So.2d 114 (Fla.1975); § 627.727(1), Fla. Stat. (1979).


text:
    R. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2248.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

We reverse the order adjudging defendant R. M. delinquent. Defendant’s conviction of grand theft was not supported by the evidence; the state failed to prove that R. M. knew the bicycle had been stolen. State v. Lewis, 364 So.2d 1223 (Fla.1978); State v. Allen, 362 So.2d 10 (Fla.1978); Fisk v. State, 138 Fla. 815, 190 So. 10 (1939); R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981); A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981). Defendant’s unrefuted explanation that he borrowed the bicycle from a friend precluded conviction under section 812.014, Florida Statutes (1979).

Reversed with directions to discharge defendant.

HENDRY, J., dissents.


text:
    PITTSBURGH PARTNERS, LIMITED, etc., et al., Appellants, v. ACCURATE CASH REGISTER, INC., Appellee.
    No. 81-2545.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Burt E. Redlus, Alfred Bieley, Miami, for appellants.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The default order under review was erroneously entered after an answer had been filed and is consequently reversed. Fla.R. Civ.P. 1.500(c); Board of Regents v. Hardin, 393 So.2d 1134 (Fla. 1st DCA 1981); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980); Freedman v. Freedman, 235 So.2d 544 (Fla. 3d DCA 1970), cert. denied, 241 So.2d 859 (Fla.1970).

      . Pursuant to Fla.R.App.P. 9.130(a)(3)(C)(iv). See Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982).


text:
    Gregory ISOM, Appellant, v. The STATE of Florida.
    No. 82-587.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Gregory Isom, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

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


author: ORFINGER, Judge.

text:
    Reginald L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-904.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    Thomas E. Bevis of Bevis & Disney, De-land, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Apj>ellant contends that he should have been sentenced as a youthful offender under section 948.04, Florida Statutes (1979), following his conviction for sexual battery under section 794.011(5), Florida Statutes (1979). The record clearly shows that he was seventeen years old at the time of the offense, so under the statute in effect at that time, he was mandatorily entitled to be sentenced as a youthful offender, unless he had been previously found guilty of a felony or had been adjudicated guilty for an act which would be a capital, life or first degree felony if committed by an adult. Durden v. State, 407 So.2d 1003 (Fla. 5th DCA 1981).

Although the record indicates that appellant did have a prior record, there is nothing in the record before us to evidence the nature of his prior crimes or delinquent acts.

The judgment of conviction is affirmed, but the sentence is set aside and the case is remanded for resentencing. The State shall have the opportunity at the resentenc-ing hearing to present evidence of appellant’s prior record so that the trial court may determine if appellant is mandatorily entitled to the benefits of the Youthful Offender Act. See Durden.

REMANDED for resentencing.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


text:
    BELLY ACRES, INC., a Florida corporation, Appellant/Cross-Appellee, v. Leonard FRANKEL, Appellee/Cross-Appellant.
    No. 80-1116.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    John B. Ritch of Overstreet & Ritch, Kis-simmee, for appellant/cross-appellee.
    Jonathan C. Green, Orlando, for appel-lee/cross-appellant.
   COWART, Judge.

Appellant, seller of a trailer park, appeals a final judgment in favor of the buyer awarding various items of damages arising from the breach of express contractual warranties relating to the condition of improvements on the real property sold. The buyer cross-appeals the trial court’s denial of the buyer’s claims for reformation, for punitive damages and for damages relating to seller’s alleged misrepresentation that the premises were high and dry. We have reviewed the record and the trial court’s findings as to all matters urged as error on appeal and find no reversible error, with two exceptions.

The evidence is sufficient only to support a finding that there were two broken urinals on October 22, 1976, rather than the three mentioned on the plumber’s estimate establishing the cost of replacement at $200 each (exhibit 25).

We note the discrepancies between the itemized damages allowed and the total stated in the judgment. On page 2 of the final judgment damages for exhibit 35 were itemized as follows: fan repairs, $226.20; pool motor, $197.60; license fee, $185.00; and tile, $169.60, which items totaled $778.40. However, on the summary on pages 3 and 4 of the final judgment, the total for exhibit 35 is given as $818.40. Also, the itemized summary as shown correctly totals $41,019.08, rather than $47,-792.64 as shown in the final judgment. We hereby reduce the $41,019.08 figure by $200 to eliminate the cost of replacing one of the three urinals (exhibit 25) and by the $40.00 necessary to correct the discrepancy relating to exhibit 35, thereby modifying the final judgment to total $40,779.08. It is, hereby,

AFFIRMED as modified.

COBB and SHARP, JJ., concur.


text:
    James E. FLOYD, Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 81-166.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    David M. Hammond of Meyers, Mooney & Adler, P. A., Orlando, for appellant.'
    Roy B. Dalton, Jr., of Dean, Ringers, Morgan & Lawton, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

See Liberty Mutual Insurance Co. v. Wright, 406 So.2d 1261 (Fla. 4th DCA 1981); Del Prado v. Liberty Mutual Insurance Co., 400 So.2d 115 (Fla. 4th DCA 1981).

DAUKSCH, C. J., and ORFINGER and COWART, JJ., concur.


text:
    STATE of Florida, Appellant, v. W. A. M., a child, Appellee.
    No. 81-249.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellee.
   REVISED

COWART, Judge.

This is an appeal by the State of Florida from an order of the juvenile court discharging the appellee from further prosecution as a juvenile under the authority of Florida Rule of Juvenile Procedure 8.180, the juvenile “speedy trial” rule.

There is a question as to whether the State may take this appeal because no statute or rule authorizes it.

Article V, § 4(b)(1), Florida Constitution (1972), provides in part:

District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court, (emphasis supplied)

The emphasized language would appear at first to be a mere parenthetical phrase describing the appeals which district courts have jurisdiction to hear, implying that the grant of rights to take appeals would be found in statutory law. However, the constitutional provision formerly relating to the jurisdiction of district courts of appeal, Article V, § 5(3), Florida Constitution (1956), provided in part as follows:

Appeals from trial courts in each appellate district, ... may be taken to the court of appeal of such district, as a matter of right, from all final judgments or decrees except those from which appeals may be taken direct to the supreme court or to a circuit court, (emphasis supplied)

This earlier provision clearly described the jurisdiction of the district courts of appeal as a corollary of a grant of the right to appeal final judgments. The Supreme Court of Florida held in Crownover v. Shannon, 170 So.2d 299 (Fla.1964) that this provision of the constitution describing the jurisdiction of the district court granted a right of appeal as a matter of course. In Crownover it was said that:

The right to appeal from the final decisions of trial courts to the Supreme Court and to the District Courts of Appeal has become a part of the Constitution and is no longer dependent on statutory authority or subject to be impaired or abridged by statutory law. .. .

Notwithstanding the substantial difference in language between the former constitutional provision considered in Crownover and the present provision relating to the jurisdiction of district courts of appeal, we do not believe such changes were intended to eliminate the right of appeal from final judgments. Therefore, we hold that the State does have a constitutional right of appeal from final judgments in juvenile cases.

An order discharging a defendant on speedy trial grounds is a final order. State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976); State v. Johnson, 287 So.2d 322 (Fla. 3d DCA 1974); State v. Mims, 267 So.2d 52 (Fla. 1st DCA 1972).

In this case, the juvenile was not brought to an adjudicatory hearing within the time provided by Florida Rule of Juvenile Procedure 8.180(a). However, within the time provisions of that rule, the juvenile sought and obtained a continuance and the State argues that by such actions the juvenile waived his speedy trial (adjudicatory hearing) rule rights, by analogy to the similar and familiar opinions holding that a defendant waives his right under Florida Rule of Criminal Procedure 3.191 by moving for and obtaining a continuance. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980). We agree and hold that discharging appellee was error because he had waived his rule rights by moving for a continuance of his adjudicatory hearing and because he has demonstrated no violation of his constitutional speedy trial rights.

REVERSED and REMANDED for further proceedings.

COBB and SHARP, JJ., concur.

      . As to interlocutory appeals in juvenile cases, see In re R. J. B., D. J. P. and D. A. D., 408 So.2d 1048 (Fla.1982).


author: SHARP, Judge.

text:
    Clayton H. WILLIS and his wife, Doris Willis, Appellants, v. PUTNAM COUNTY, FLORIDA, a political subdivision of the State of Florida, and E. W. Pellicer, as Sheriff of Putnam County, Appellees.
    No. 81-602.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    Paul G. Wright, of Anderson & Wright, P. A., Gainesville, for appellants.
    Paul M. Eakin and Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellees.
   SHARP, Judge.

Clayton and Doris Willis appeal from a final summary judgment denying them any relief in their damage suit against the Sheriff and the County of Putnam, Florida. While Willis was being detained in the county jail for a seventy-two hour period pursuant to the Myers Act, the officers in the jail administered to him both alcohol, to prevent delerium tremens, and Coumadin (a blood thinning drug), for his heart condition. The combination of alcohol and Coumadin caused Willis to hemorrhage both externally and internally. Willis was immediately rushed to a hospital and he ultimately suffered various injuries and damages. Relying on Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974), the trial court ruled that the adverse effect of alcohol and Coumadin on Willis was an independent, intervening cause of his injuries, thereby relieving the County of any liability. We disagree, and reverse.

In reviewing this record, we have considered only those facts and inferences which favor Willis. If these facts are sufficient to establish a prima facie case, then summary judgment is improper. Gordon v. Hotel Seville, 105 So.2d 175 (Fla. 3d DCA 1958). The record shows the jail attendants dosed Willis with Coumadin and alcohol. For summary judgment purposes, the record shows these acts caused Willis’ injuries because no intervening, independent force interrupted or superseded them. The detention officers alone set in motion the forces which combined to injure Willis. See Loftin v. McCrainie, 47 So.2d 298 (Fla.1950).

The basic issue in this case is whether the damage suffered by Willis was a foreseeable result of administering to him both Coumadin and alcohol. For summary judgment purposes, there is a basis in this record from which a jury could conclude the detention officers knew or should have known that giving both alcohol and a prescription drug to a person being held in protective custody under the Myers Act was potentially dangerous to that person, and should have been avoided. Willis’ resulting injuries were clearly within the ambit of danger stemming from the defendants’ acts. Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556 (1909); Adair v. The Island Club, 225 So.2d 541 (Fla. 2d DCA 1969). We therefore reverse the summary judgment.

REVERSED AND REMANDED.

ORFINGER and COWART, JJ., concur.

      .§ 396.072(2), Fla.Stat. (1977). This section of the Comprehensive Alcoholism Prevention, Control and Treatment Act (the Myers Act) provides that a person incapacitated by abuse of alcohol “may be detained in protective custody” for a 72 hour period. Willis’ wife had called the sheriff to pick him up because he had been on a drinking binge for several days and was unable to stop drinking by himself.

      . Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Brightwell v. Beem, 90 So.2d 320 (Fla.1956); Doll v. Robbins, 303 So.2d 338 (Fla. 3d DCA 1974).

      . Nunziato v. P. & L. Auto Parts, Inc., 403 So.2d 1031 (Fla. 3d DCA 1981); Railway Express Agency, Inc. v. Garland, 269 So.2d 708 (Fla. 1st DCA 1972).


text:
    Richard R. JUNKAS, Appellant/Cross-Appellee, v. UNION SUN HOMES, INC., Appellee/Cross-Appellant.
    Nos. 81-867, 81-1639.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.

      Richard Tombrink, Jr. of Joseph E. Johnston, Jr., P.A., Brooksville, for appellant/ cross-appellee.
    Harold S. Wilson, Clearwater, for appel-lee/cross-appellant.
   COWART, Judge.

The appellee, as defendant below, had a witness attend a jury trial for one and one-half days to prepare to present testimony. Appellee intended to have the witness, an appraiser, qualified in its case as an expert witness to give an opinion as to value, which was in issue in the plaintiff’s case. However, the trial court correctly directed a verdict in defendant’s favor at the close of the plaintiff’s case. Therefore, this witness was never qualified as an “expert” to give his opinion and never testified. Notwithstanding, the trial judge found $650 to be a fair and reasonable fee for the witness and taxed that sum against appellant as costs.

Appellee cites Florida Rule of Civil Procedure 1.420(d) providing for costs in any action dismissed under that rule. That rule is inapplicable because Rule 1.420(b) provides for an involuntary dismissal for insufficiency of proof “after a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of his evidence ...” and this was a jury trial. In any event, that rule begs the question here, which is whether an expert fee is a taxable cost under the circumstances. Section 92.231(2), Florida Statutes (1981), provides for the allowance of an expert witness fee for any expert or skilled witness “who shall have testified in any cause.” Florida Rule of Civil Procedure 1.390(c) provides that “an expert or skilled witness whose deposition is taken shall be allowed a witness fee.... ” Counsel at oral argument conceded that this witness had never been deposed. Costs are taxable only where authorized by statute or rule. No applicable statute or rule permitting the allowance of an expert witness fee under the circumstances in this case has been directed to our attention.

The cost judgment for an allowance for an expert witness is reversed and the appealed judgment is otherwise affirmed.

AFFIRMED in part; REVERSED in part.

ORFINGER and SHARP, JJ., concur.


text:
    IDEAL MUTUAL INSURANCE CO., Appellant, v. INTERCONTINENTAL ASSOCIATES, INC., Appellee.
    No. 81-1023.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    Edward R. Curtis and Richard S. Womble of Fertig & Curtis, P. A., Fort Lauderdale, for appellant.

      David B. King of Peed & King, P. A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See Carner Bank of Miami Beach v. R. G. Wolff & Co., Inc., 329 So.2d 298 (Fla.1976); Burton v. Oliver Farm Equipment Sales Co., 121 Fla. 148, 163 So. 468 (1935); Empire Electric Co. v. R. J. Hunt Construction Co., 264 So.2d 114 (Fla. 4th DCA 1972); Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971).

COBB, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


author: COBB, Judge.

text:
    William Henry LAZARUS, Appellant, v. STATE of Florida, Appellee.
    No. 82-356.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    William Henry Lazarus, in pro per.
   COBB, Judge.

The appellant, defendant below, pled guilty to the crime of burglary and in July, 1978, was sentenced to a prison term of seven years under section 775.084, Florida Statutes (1977), as an habitual offender. He did not appeal therefrom, but he did file a 3.850 motion in September, 1981, attacking his seven-year sentence on the basis that he “did not receive a separate hearing as required by law before being sentenced as a recidivist.” This motion was summarily denied by order of the trial court dated February 23, 1981, and Lazarus now appeals that order.

The argument advanced by appellant is that he could not be sentenced as a recidivist in the absence of a separate information filed by the state subsequent to the burglary conviction. His reliance upon Wright v. State, 291 So.2d 118 (Fla. 2d DCA 1974), and section 775.11, Florida Statutes (1973) (which Wright relied upon), is misplaced for the simple reason that the latter statute was repealed by Ch. 74-383, § 66, Laws of Fla.

In the absence of the repealed statute, the attack raised here by the appellant is not the proper subject matter of a post-conviction motion to vacate under Florida Rule of Criminal Procedure 3.850. The trial court clearly had jurisdiction to impose an enhanced sentence, and the argument that the procedure by which it did so was procedurally defective in some manner is an issue which could have been raised on direct appeal. A motion to vacate a sentence cannot be used as a substitute for an appeal, and denial of the motion was proper. Thompson v. State, 410 So.2d 500 (Fla. February 11, 1982) [1982 FLW 85]; Goode v. State, 403 So.2d 931 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980).

AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


text:
    Michael SORRENTINO, Jr., and Robin Sorrentino, his wife, Appellants, v. Ruth BARWICK, Appellee.
    No. 80-2039.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Thomas E. Brandt of Law Office of Thomas E. Brandt, Fort Lauderdale, for appellants.
    Peter M. Weinstein of Weinstein & Zimmerman, Fort Lauderdale, for appellee.
   PER CURIAM.

Michael and Robin Sorrentino appeal from a final judgment in favor of appellee, Ruth Barwick, in which Barwick was awarded possession of certain real property and $50,000 as damages.

This litigation commenced when Barwick filed a one-Count “Complaint for Eviction” in which she alleged that: the Sorrentinos were tenants in possession of Barwick’s property under a week to week oral lease; and the Sorrentinos had refused to pay the rent due or deliver possession of the property to Barwick. An Amended Complaint was subsequently, filed in four counts. Count I essentially realleged the allegations of the original complaint. Count II real-leged Count I and added that Barwick owned the property and that the Sorrenti-nos had altered the property and committed waste thereon. Count III realleged all of the foregoing and, in addition, it alleged that the Sorrentinos forcibly evicted Bar-wick and unlawfully withheld possession. Count IV sought punitive damages for the Sorrentinos’ wilful conduct.

The Sorrentinos filed an answer that denied the allegations of the complaint and affirmative defenses that alleged their possession was not under a lease but was rather under an oral contract to purchase. The Sorrentinos also counterclaimed for declaratory relief alleging the parties were in doubt as to their rights under the oral contract and praying for a determination thereof.

At trial before the court without a jury the evidence showed the following things. The parties had entered into an oral agreement for the sale of the property pursuant to which the Sorrentinos paid Barwick $50,-000 and Barwick delivered possession to the Sorrentinos. While in possession the Sor-rentinos had spent substantial money on “improvements.” The parties disagreed on the alleged purchase price, how the payments were to be made, and other details of the sale. They also disagreed on whether the “improvements” were really improvements or waste of the property.

The final judgment entered by the trial court awarded possession of the property to Barwick, directed the Sorrentinos to vacate the premises, and awarded Barwick the sum of $50,000.

On appeal the parties seem to be in agreement that the transaction involved the sale of Barwick’s property to the Sorrenti-nos. However, they disagree on the terms of the sale and on the appropriate remedies to be pursued.

After serious consideration of the record and briefs we are unable to determine whether the parties actually had an enforceable contract, and if so, what the terms were and whether there was a breach by appellants or the appellee. In view of this state of the record, there is no adequate support for the judgment ultimately entered.

Accordingly, we believe the ends of justice would be test served by reversing the judgment and remanding the cause for a new trial after the parties have recast the pleadings so as to frame the appropriate issues to be tried.

The judgment appealed from is therefore reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED, with directions.

DOWNEY and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . Barwick contends that the counterclaim for declaratory relief will not lie because such relief is not available to construe the rights of parties under an oral contract. This contention is erroneous. Chapter 86, The Florida Declaratory Judgment Act, is available to determine the rights of parties under an oral contract. See Simpson v. Ivey, 67 So.2d 687 (Fla.1953), Keith v. Culp, 111 So.2d 278 (Fla. 1st DCA 1959); Barrineau v. B & F Auto Parts, Inc., 191 So.2d 53 (Fla. 1st DCA 1966).


text:
    Frederick VAN DRAKE, Appellant, v. STATE of Florida, Appellee.
    No. 80-690.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Robert Bruce Jones, Jr., North Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Sarmiento, 397 So.2d 643 (Fla.1981); Burch v. State, 343 So.2d 831 (Fla.1977); Thomas v. State, 409 So.2d 1185 (Fla. 4th DCA 1982); Brown v. State, 349 So.2d 1196 (Fla. 4th DCA 1977).

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


text:
    Charles William Robert KLINE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1552.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Heath, 343 So.2d 13 (Fla.1977), cert. denied 434 U.S. 893, 98 S.Ct. 269, 54 L.Ed.2d 179 (1977).

ANSTEAD, HURLEY and DELL, JJ., concur.


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    William ARRINGTON and Edith Arwood Arrington, his wife, Appellants, v. CHICAGO INSURANCE COMPANY, a foreign insurance corporation authorized to do business in the State of Florida, Beane Exterminating Company, Inc., a Florida corporation, and Smith Cameron, Appellees.
    No. 81-439.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Robert V. Romani of Farish, Farish & Romani, West Palm Beach, for appellants.
    Christopher R. Fertig of Fertig & Curtis, P.A., Fort Lauderdale, and David Wm. Boone of Law Offices of David Wm. Boone, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellants, plaintiffs in the court below, seek reversal of a judgment based upon an adverse jury verdict for defendant-appellants.

We have carefully considered appellants’ contention that the trial court erred in refusing to grant appellants a new trial because the verdict was contrary to the manifest weight of the evidence. Unquestionably the verdict surprised appellants arid the trial judge. Nevertheless, the trial judge felt, and we agree, that the issue was one for the jury’s determination.

Accordingly, we find no demonstration of reversible error and affirm the judgment appealed from.

AFFIRMED.

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