text:
    Vera PILAT et al., Appellants, v. HOSPITAL DEVELOPMENT AND SERVICE CORP., etc., Appellees.
    No. 58746.
    Supreme Court of Florida.
    Oct. 16, 1980.
    Robert D. Peltz of Rossman & Baumber-ger, Miami, for appellants.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, Fort Lauderdale, and Ellen Mills Gibbs and William Zei of Gibbs & Zei, Fort Lauderdale, for appellees.
   PER CURIAM.

The trial court’s order dismissing appellants’ complaint is hereby reversed. See Aldana v. Holub, 381 So.2d 231 (Fla.1980).

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Melvin BRATTON, Respondent.
    No. 59523.
    Supreme Court of Florida.
    Oct. 16, 1980.
    Wallace N. Maer, Bar Counsel, Miami, for complainant.
    Melvin Bratton, in proper person, Miami, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Melvin Bratton, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee found as follows:

As to Count I

1. Respondent’s services were engaged under the mistaken impression that the Richard J. Hays, to whom client had been recommended by a friend, was associated with Respondent, when in fact Respondent’s associate was Richard F. Hays.

2. Respondent received a $500 retainer to represent Henry Bloch. Client, upon discovering that he had engaged the services of an attorney other than he intended, became disenchanted with the progress of his action, and complained to the Grievance Committee.

3. At the Grievance Committee hearing, Respondent agreed to refund client’s retainer.

4. On July 30, 1976, Respondent issued a check to client, postdated August 4, 1976, which was returned for insufficient funds [paragraph 5 of answer to request for admission].

5. Client sued and recovered a judgment against Respondent for $500 plus $17.50 costs.

6. Prior to final hearing, Respondent had paid client the sum of $500 ....

7. After final hearing, Respondent, who claimed to be unaware of the judgment, forwarded a check to client for costs in the sum of $17.50 and requested satisfaction of judgment.

As to Count II

1. Respondent represented Wilfredo Navarro in a real estate transaction involving Hayden Fultz, making statements in his letter to Joe Garcia, dated June 10, 1976, to the effect “my client, Wilfredo Navarro,” and “my client is anxious to clear the title to this property”

2. Navarro gave Respondent a check in the sum of $1,000, the amount which was recited in the deposit receipt between Wilfredo Navarro and Hayden Fultz and Wanda L. Fultz, his wife, said receipt further reciting “deposit to be held in escrow with the law offices of Melvin D. Bratton, trust account until such time as an abstract is brought up to date, indicating title to be good and marketable and/or insurable.” The subject check was never deposited as the client had represented to Respondent that there was not sufficient funds in his bank account to effect payment ....

3. On April 15, 1976, Respondent gave a receipt to Wilfredo Navarro, acknowledging the receipt of $1,000 in cash . . . when in fact he had not received such sum ....

4. Respondent never received the $1,000 allegedly held by him in escrow.

As to Count III

1.Respondent neither represented Alvaro Lourido and Yolanda Lourido, his wife, the buyers in a real estate transaction in which Maria T. Claret and Concepcion Machado were the sellers, nor did he represent the sellers in said transaction. By the preponderance of the evidence, it appears that Respondent represented Residential Investors, Inc. and Wilfredo Navarro in a transaction in which Residential Properties, Inc. or Wilfredo Navarro was purchasing the property for a lesser sum from the sellers and arranging the transaction to sell the property at a higher sum to the buyers. The deposit agreement was witnessed by Respondent as to both the signatures of the sellers and the buyers, and he acknowledged the receipt of $500 from Alvaro Lourido and Yolanda Lourido, his wife “proceeds to be held in escrow by Melvin D. Bratton, attorney at law” ....

2. On July 20, 1976, Respondent wrote to Stockton, Whatley and Davin, representing “this is to advise that this office is holding the sum of $500 on behalf of Alvaro Lourido and Yolanda Lourido, his wife, toward the purchase of the above real property located in Dade County, Florida, in accordance with a deposit receipt contract of July 5, 1976”. This letter went on to say, “In addition to the above the purchaser has deposited with the undersigned the sum of $600 toward the purchase of the above referenced property for a total amount on deposit with this office of $1,100.” . . .

3. Respondent never received the $500 deposit referred to nor the additional $600 referred to, he relying upon Wilfredo Navarro to bring these monies timely into client’s office.

4. Respondent’s misrepresentations did not facilitate the closing of the real estate transaction in that the real estate transaction was not in fact closed. However, it appears that Respondent was fully aware of the nature of the transaction at the time he drew the deposit receipt, that he knew the transaction was not a sale between the buyers and sellers as represented in the deposit receipt but was in fact a three-party transaction, that the monies allegedly due pursuant to the deposit receipt were not to be advanced by Alvaro and Yolanda Lourido, but were in fact to be advanced by Residential Investors, Inc., for Wilfredo Navarro and that at the time he made the representations that he had certain monies being held by him in escrow, said monies were in fact not so held by him.

The referee recommends that Respondent be found not guilty of violating any disciplinary rules as to Count I; be found guilty of violating disciplinary rule 1-102(A)(4), in that he has engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, as to Count II; and be found guilty of violating disciplinary rule 1-102(A)(4), in that he has engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, and disciplinary rule 7-102(A)(5) in that in his representation of a client, Respondent knowingly made a false statement of fact, as to Count III. Referee also recommends that Respondent receive a public reprimand.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, Respondent, Melvin Bratton, is hereby publicly reprimanded, and the publication of this order and judgment shall constitute a public reprimand.

ORDERED that Melvin Bratton shall pay the costs of these proceedings in the amount of $1,221.56.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.


author: McDONALD, Justice.

text:
    John N. SAMAHA, Appellant, v. STATE of Florida, Appellee.
    No. 58015.
    Supreme Court of Florida.
    Oct. 16, 1980.
    B. Robert Ohle, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellee.
   McDONALD, Justice.

John N. Samaha, an attorney, assails the constitutionality of section 440.34(5)(a), Florida Statutes (1977). Art. V., § 3(b)(1), Fla. Const. (1972). He was charged under that statute as a result of extracting a $5,000 fee from a workmen’s compensation claimant when the said fee was not approved by the judge of industrial claims. After timely raising the claim that the statute was unconstitutional, Samaha pled nolo contendere in the county court, but preserved the right for a review of the trial judge’s ruling that the statute was constitutional. We sustain the ruling of the trial judge and uphold the validity of the statute.

The basis for Samaha’s arguments is nebulous, but he claims that the statute violates due process, improperly delegates authority to the judge of industrial claims, and violates the equal protection clause of the constitution in that it discriminates between contracts that lawyers make with different clients.

A reading of this statute reveals no discernible ambiguity. The proscription is quite clear. The legislature is telling all that one doesn’t charge or receive a fee from a workmen’s compensation beneficiary unless such action and the fee are approved by the proper representative of the state in the proceeding.

As Justice Roberts stated in Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960):

[T]he workmen’s compensation law was intended to provide a direct, informal and inexpensive method of relieving society of the burden of caring for injured workmen and to place the responsibility on the industry served. Under the Act, if an injured employee is entitled to recover at all, the amount is fixed and definite, not contingent. ... In order to recover an award for his attorney’s fee, it is incumbent upon the claimant to show that it was necessary, and not merely expedient, to employ an attorney to represent him. A. B. Taff & Sons v. Clark, supra, 110 So.2d 428 [(Fla.App.)].

Id. at 602. The benefits are limited and all relate to the employee’s loss of earning capacity and direct recuperative expenses.

It is recognized that in some instances the services of an attorney are necessary. In such instances, however, the expense of the attorney has been placed on the employer by requiring him to pay attorney fees caused or created by his failure to timely pay the benefits due an injured employee. These fees are set by the judge of industrial claims under guidelines established by the legislature, but the award of fees and the amount thereof must be determined with reference to the rights and equities of the employer, the insurance carrier, and the claimant. Tampa Aluminum Products Co. v. Watts, 132 So.2d 414 (Fla. 1961). Since a workmen’s compensation claimant’s benefits are limited, allowing an attorney or other person to obtain a portion thereof from a claimant, particularly when it is a substantial sum, would thwart the public policy of affording the claimant necessary minimum living funds and cast the burden of support for that person on society generally. Thus the state has a legitimate interest in regulating attorney fees in workmen’s compensation cases.

Every assault on statutes regulating attorney fees in workmen’s compensation cases that we have seen has been successfully resisted. In Yeiser v. Dysart, 267 U.S. 540, 45 S.Ct. 399, 69 L.Ed.2d 775 (1925), the United States Supreme Court affirmed a ruling of the Nebraska Supreme Court that a similar statute was a proper exercise of the police power of the state and was not repugnant to the provisions of the federal constitution guaranteeing rights in property, due process of law, and equal protection of the law. We likewise find no violation of the Florida Constitution.

As for the contention that the statute improperly delegates authority to the judge of industrial claims, a reading of the statutes shows that the judge of industrial claims is given clearly defined directions as to when and how much fee to award. This is a far cry from the situations which existed in Mahon v. County of Sarasota, 177 So.2d 665 (Fla.1965), and Husband v. Cassel, 130 So.2d 69 (Fla.1961). Utilizing the guidelines set forth in those cases, we can discern no merit to the appellant’s argument on this issue either.

This Court upholds the constitutionality of section 440.34(5)(a), Florida Statutes (1977), and affirms the conviction.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.

      . Former § 440.34(5), Fla. Stat., reads as follows:
      (5) Any person:
      (a) Who receives any fees or other consideration or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the judge of industrial claims, the commission, or such court; or
      (b) Who makes it a business to solicit employment for a lawyer or for himself or herself in respect of any claim or award for compensation,
      shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      Similar provisions are now contained in § 440.-34(4), Fla. Stat. (1979).

      . § 440.34, Fla. Stat. (1979).

      . Dysart v. Yeiser, 110 Neb. 65, 192 N.W. 953 (1923).


author: DANAHY, Judge.

text:
    John D. BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 79-101.
    District Court of Appeal of Florida, Second District.
    March 19, 1980.
    As Modified On Denial of Rehearing May 14, 1980.

      William M. Moran, George D. Gold, and Sheryl Joyce Lowenthal of Moran & Gold, Miami, and Ronald K. Cacciatore, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

What jury instructions on the subject of conspiracy are required in a criminal trial when the crime of conspiracy is not charged but proof of a conspiracy is relied upon to establish the defendant’s responsibility for the crime charged and hearsay statements of co-conspirators are admitted as evidence of the conspiracy? We address this question for the first time and find error in the instructions given in this case. ■ Therefore, we reverse appellant’s conviction and remand for a new trial.

Appellant was charged in a three-count information with (1) bringing a controlled substance into Florida, (2) possession of cannabis over 5 grams, and (3) possession of cannabis with intent to deliver. All three charges stemmed from the off-loading of a quantity of marijuana from a small aircraft which landed in a wooded area of Glades County. Appellant was not present on that occasion but the state charged him with importation and possession on the theory that those present were co-conspirators of appellant in a scheme to import marijuana from South America. A jury found appellant guilty as charged on all three counts.

Cautionary Instructions Regarding Co-Conspirators’ Hearsay Statements

The trial judge permitted witnesses to testify as to out-of-court declarations and acts of appellant’s alleged co-conspirators under the co-conspirator exception to the hearsay rule. That rule has its genesis in the basic principle that when a conspiracy is established, everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by every one of them and may be proved against each. Brown v. State, 128 Fla. 762, 175 So. 515 (1937), clarified, 130 Fla. 479, 178 So. 153 (1938). Accordingly, a hearsay (out-of-court) statement of a defendant’s alleged co-conspirator is admissible against the defendant if the statement was made during the pendency of the conspiracy and in furtherance of its objectives, provided that there is evidence of the conspiracy independent of the hearsay testimony. The requirement of independent evidence is a condition of admissibility. Briklod v. State, 365 So.2d 1023 (Fla.1978); Resnick v. State, 287 So.2d 24 (Fla.1973).

The admissibility of an out-of-court declaration of a co-conspirator is not affected by the fact that the defendant is not charged with the crime of conspiracy. People v. Wallace, 13 Cal.App.3d 608, 91 Cal.Rptr. 643 (Ct.App.1970). However, in cases where conspiracy is not charged but the existence of a conspiracy must be established in order for the jury to find the defendant guilty, as well as in cases where the crime of conspiracy is charged, the condition of admissibility of a co-conspirator’s hearsay statement — the existence of independent evidence of the conspiracy — coincides with an ultimate fact which the jury must find. This raises the question whether the condition of admissibility is for the judge to determine, for the jury to determine, or for both.

In the present case, at that point in the trial when the hearsay statements of appellant’s alleged co-conspirators were first offered in evidence, appellant requested the trial judge to give the jury an instruction which he describes as the cautionary instruction called an Apollo instruction held to be required in such situations by the court in United States v. Apollo, 476 F.2d 156 (5th Cir. 1973). The trial judge declined and appellant argues that his refusal to give the instruction was error.

We reject appellant’s argument for two reasons. In the first place, the instruction requested by appellant was not the Apollo instruction. The Apollo case involved fourteen defendants charged with a conspiracy to import marijuana, four of whom were also charged with the substantive offense of importing a specific amount of marijuana. In that context- — that is, a conspiracy case involving multiple defendants — the Apollo court held that when extrajudicial statements of alleged co-conspirators are proffered, the trial judge must give a cautionary instruction on the limited uses of such hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant’s participation in it must be established by independent, nonhearsay evidence.

In this case, appellant requested that the following instruction be given:

Any admissions or statements made or acts done outside of court by one person may not be considered as evidence against any person who was not present and did not hear the statement made or see the act done. Therefore, statements of any alleged conspirator which are not made in furtherance of a conspiracy or made before its existence or after its termination may be considered as evidence only against the person making that. However, [if] it ever is established beyond a reasonable doubt from the evidence that a conspiracy existed and from independent evidence of his own conduct, it is established beyond a reasonable doubt that the defendant was one of its members, then the statements thereof knowingly made, the actions thereof, knowingly done, by any person likewise found to be a member, may be considered as evidence in the case as to any defendant found from the evidence, beyond a reasonable doubt to [be] a member of the conspiracy.

A very similar instruction was disapproved in United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff’d, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). The comments on the point in that opinion by Judge Learned Hand are particularly apposite and have been quoted many times by courts following his reasoning:

It is difficult to see what value the declarations could have as proof of the conspiracy, if before using them the jury had to be satisfied that the declarant and the accused were engaged in the conspiracy charged; for upon that hypothesis the declarations would merely serve to confirm what the jury had already decided. In strict logic these instructions in effect altogether withdrew the declarations from the jury, and it was idle to put them in at all. The law is indeed not wholly clear as to who must decide whether such a declaration may be used; but we think that the better doctrine is that the judge is always to decide, as concededly he generally must, any issues of fact on which the competence of evidence depends, and that, if he decides it to be competent, he is to leave it to the jury to use like any other evidence, without instructing them to consider it as proof only after they too have decided a preliminary issue which alone makes it competent. Indeed, it is a practical impossibility for laymen, and for that matter for most judges, to keep their minds in the isolated compartments that this requires.

Judge Hand’s analysis has been adopted and followed in both federal and state courts. E. g., Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953, 84 S.Ct. 1265, 12 L.Ed.2d 498, cert. denied, 377 U.S. 953, 84 S.Ct. 1626, 12 L.Ed.2d 498, cert. denied, 377 U.S. 953, 84 S.Ct. 1627, 12 L.Ed.2d 498; People v. Halpin, App.Div., 418 N.Y.S.2d 929 (App.Div. 1979). Finding no error in the trial judge’s refusal to give an instruction similar to that requested by appellant in this case, the court in Carbo pointed out that such an instruction would have the trial judge in effect say to the jury “you may not consider this evidence unless you first find the defendant guilty.”

But even if the instruction requested by appellant in this case had been the correct Apollo instruction, we nevertheless would find no error in the trial judge’s refusal to give that instruction. Appellant was the only defendant in this case and he does not claim that there was insufficient independent evidence of a conspiracy. Under either circumstance, no prejudice results from the failure to give a cautionary Apollo instruction; that instruction in such a case is meaningless and useless. United States v. Buschman, 527 F.2d 1082 (7th Cir. 1976); United States v. Moore, 505 F.2d 620 (5th Cir. 1974); cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d 785 (1975).

We note parenthetically that the court which rendered the Apollo decision recently overruled it. United States v. James, 590 F.2d 575 (5th Cir. 1979), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The James court held that the preliminary determination of the admissibility of a co-conspirator’s hearsay statement is to be made pursuant to Federal Rule of Evidence 104(a), and that rule requires the trial judge alone to make the determination. The court explained that the Apollo instruction reflected the thought that both the trial judge and the jury played a part in the determination of admissibility. The Federal Rules of Evidence became effective July 1, 1975, two years after the decision in Apollo.

But the Apollo rule lives on in Florida. The Florida Evidence Code (Chapter 90, Florida Statutes, 1979) is similar to the Federal Rules of Evidence in many respects; Section 90.105 of the Code is a counterpart of Federal Rule of Evidence 104. The co-conspirator exception to the Hearsay rule is almost identically stated in Federal Rules of Evidence 801(d)(2)(E) and in Section 90.803(18)(e) of the Florida Evidence Code. Unlike the federal rules, however, Section 90.803(18)(e) adopts the Apollo instruction by providing that “upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.” The Florida Evidence Code became effective July 1, 1979 (though originally enacted by the legislature in 1976), and does not apply to the case before us.

Final Instructions on Conspiracy

The trial judge in this case gave the jury an instruction on the subject of conspiracy as requested by the state before the jury retired to begin its deliberations. Appellant claims that the giving of that instruction was error because he was not charged with the offense of conspiracy and could not have been convicted of the crime of conspiracy. Alternatively, appellant argues, that the instruction given was inadequate and misleading. He argues that if an instruction on conspiracy is proper, it should have been the instruction on criminal conspiracy contained in Florida Standard Jury Instructions in Criminal Cases.

Appellant is correct in one respect. The instruction on conspiracy given in this case was indeed inadequate and misleading, and the giving of it constituted reversible error. The instruction was as follows:

Now when several persons combine together to commit an unlawful act, each is criminally responsible for the act of his associates committed in furtherance of the common design. Each conspirator must take the risk of being bound by the actions of the others taken or done in the furtherance of the perpetration of that particular unlawful act as long as the conspiracy lasts. Each becomes responsible for whatever one of the others may do during the continuance of the conspiracy in pursuance of the design or in connection with the carrying out of the purpose of the conspiracy, although the methods and means to effect the purpose have not been definitely agreed upon amongst the conspirators.

As a statement of law, the instruction is correct as far as it goes. In a trial for a substantive offense, evidence is admissible to prove a conspiracy to commit the substantive crime charged (although no conspiracy is charged) on the theory that the principal crime charged may itself be established by first proving the formation and execution of a pre-existing conspiracy out of which its accomplishment was realized in the completion of the substantive offense. Brown v. State, supra. Thus a conviction for a possessory crime may rest on proof of the possession of a co-conspirator. People v. Oliver, 129 Ill.App.2d 83, 262 N.E.2d 597 (App.Ct.1970).

Accordingly, the universal rule is that where evidence of a conspiracy is relevant to prove the substantive offense charged, it is proper for the trial judge to give an instruction relative to a conspiracy between the defendant and other persons although the defendant is not charged with the crime of conspiracy. United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); People v. Washington, 81 Cal.Rptr. 5, 71 Cal.2d 1170, 459 P.2d 259 (1969); State v. Skinner, 251 La. 300, 204 So.2d 370 (1967), cert. dismissed, 393 U.S. 473, 89 S.Ct. 704, 21 L.Ed.2d 684 (1969); State v. Stidham, 449 S.W.2d 634 (Mo.1970), aff’g 305 S.W.2d 7 (Mo.1957); Annot., 66 A.L.R. 1311, paragraph III (1930).

What are proper instructions in a case such as this? At a minimum, the instructions should contain a definition of conspiracy, an explanation of the legal consequences of proving a conspiracy in the case, and the admonition that it is for the jury to determine whether a conspiracy has been established beyond a reasonable doubt. State v. Skinner, supra; People v. Bazaure, 235 Cal.App.2d 21, 44 Cal.Rptr. 831 (Ct.App. 1965), cert. denied, 384 U.S. 1026, 86 S.Ct. 1951, 16 L.Ed.2d 1032 (1966). Where, as in this case, the crime of conspiracy is not charged, the state is not required to prove all the elements of the crime of conspiracy and it is error to tell the jury it must find that all those elements have been established. People v. Washington, supra. Thus we reject appellant’s argument in this case that the judge should have given the jury the full instruction on criminal conspiracy contained in the standard jury instructions.

The failure to give any instruction at all on the subject of conspiracy may not be prejudicial to a defendant, since it effectively eliminates one theory upon which a jury could find him guilty. Powers v. Commonwealth, 197 Ky. 154, 246 S.W. 436 (1922). But in the case before us, the trial judge gave a partial instruction, telling the jury only of the legal consequences of a conspiracy. He omitted telling the jury what a conspiracy is and, most significantly of all, he failed to instruct the jury that it must find that a conspiracy was established. Easterlin v. State, 43 Fla. 565, 31 So. 350 (1901).

We borrow the words of other observers to comment that conspiracy in criminal law is an elastic, sprawling and pervasive concept, chameleon-like, and extremely difficult to confine within the boundaries of definitive statement. As an aid to understanding, the reader of our opinion should bear in mind that these aspects of relating the concept of conspiracy to criminal law are separate and distinct:

1. Conspiracy as a crime in and of itself, as defined in Section 777.04(3), Florida Statutes (1979). Conviction of the crime, of course, requires proof beyond a reasonable doubt.

2. Conspiracy as a basis for imposing vicarious liability or responsibility on a defendant for a criminal act in the commission of which he did not directly participate. In the instant case appellant was not present — indeed, he apparently was out of the country — when the marijuana he was charged with possessing and importing was off-loaded by other persons from a small aircraft in a wooded area of Glades County; yet the information charges that on that day and at that place, appellant unlawfully imported and possessed a controlled substance. Appellant’s liability for these substantive offenses could only be vicarious, even though the state prosecuted on a conspiracy theory without alleging the existence of a conspiracy in the information. Appellant does not challenge the state’s procedure or its theory of vicarious liability based on conspiracy and we express no opinion on those facets of this case. See Developments in the Law—Criminal Conspiracy, 72 Harv.L.Rev. 922, 993-1000 (1959). However, we suggest that one should not assume that the meaning of conspiracy in this context and the definition of the crime of conspiracy are always coextensive. In any event, when conspiracy (however defined) is the basis for imposing vicarious criminal responsibility, whether or not alleged in the charging instrument, we believe it axiomatic that the conspiracy must be proved beyond a reasonable doubt.

3. Conspiracy (however defined) as a basis for admitting in evidence out-of-court (hearsay) statements of a person alleged to be a co-conspirator 'of the defendant in a criminal case. Such hearsay evidence may be offered in a case in which the crime of conspiracy is charged, in a case in which a substantive offense is charged on a theory of vicarious liability, based on conspiracy, or, theoretically at least, in any other criminal case. As we have pointed out, a co-conspirator’s hearsay statements are admissible only if there is independent evidence of the conspiracy. How much independent evidence is required and who decides whether there is sufficient independent evidence for admissibility are debatable topics, but one point is clear — -that decision is not related to the jury’s determination of guilt or innocence based on all the evidence, including the hearsay. The determination of admissibility in this situation is an evidentiary matter which does not preempt or replace the jury’s function of determining whether a conspiracy has been proven beyond a reasonable doubt in any case in which that determination is required in order to find the defendant guilty.

For the reasons stated above we reverse and remand for a new trial. In view of our disposition of this case, we need not address any other points raised by appellant.

REVERSED AND REMANDED.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . The instruction is as follows:
      CRIMINAL CONSPIRACY F. S. 777.04(3)
      2.06 It is a crime for any person to agree, Crime conspire, combine or confederate with another person or persons to commit a crime.
      2.07 The essential elements of this offense Elements which must be proved beyond a reasonable doubt before there can be a conviction in this case are that:
      1. The defendant had a fully-formed, conscious intent that the crime of (object of conspiracy) would be committed.
      2. In order to carry out that intent the defendant did enter into an agreement, understanding or common plan with (person(s) charged) to cause that crime to be committed either by them, or by some other person.
      It is not necessary that the agreement, understanding, or common plan to commit the crime be expressed in any particular words or that the state prove what words passed between the conspirators. It is sufficient if the words shown to have been used or the acts shown to have been done by the parties, or both together, show beyond a reasonable doubt both elements of the crime of criminal conspiracy.
      When a criminal conspiracy is formed between more than two persons, it is not necessary that each member of the conspiracy be informed of all the acts or plans of all the others. The crime of criminal conspiracy is complete if one person having the fully-formed conscious intent that a crime be committed joins with one or more persons in an agreement the purpose of which is to procure the crime to be committed.

      . Generally, a conspiracy is an express or implied agreement of two or more persons to accomplish, by concerted action, some criminal or unlawful act or to accomplish by criminal or unlawful means some act not in itself unlawful. Bass v. State, 172 So.2d 614 (Fla. 2d DCA 1965); 16 Fla.Jur.2d Criminal Law § 1545.

      . Krulewitch v. United States, 336 U.S. 440, 444, 69 S.Ct. 716, 719, 93 L.Ed. 790, 795 (1949) (Jackson, J., concurring).

      . Id., 336 U.S. at 446, 69 S.Ct. at 720, 93 L.Ed. at 796.

      . Harno, Intent and Criminal Conspiracy, 89 U. of Pa.L.Rev. 624 (1941).

      . This is similar to the vicarious liability imposed by statute on aiders and abettors. § 777.011, Fla.Stat. (1979).

      . Our supreme court has recognized that various courts have required different quantums of proof in this regard, but has not expressed its own choice. Briklod v. State, 365 So.2d 1023, 1026 n. 5 (Fla.1979).


text:
    FRANK EDELEN BUICK COMPANY, Appellant, v. John D. CALVIN, Director, Division of Motor Vehicles, State of Florida, Department of Highway Safety and Motor Vehicles, Appellee.
    No. SS-297.
    District Court of Appeal of Florida, First District.
    May 7, 1980.
   ORDER DENYING MOTION TO DISMISS

Appellee’s motion to dismiss this appeal is denied.

Under Rules 9.110(b) and (c), Florida Rules of Appellate Procedure, if notice of appeal from final agency action is timely filed either with the agency or with the appropriate appellate court, jurisdiction vests in the appellate court. Hines v. Lykes Pasco Packing, 374 So.2d 1132 (Fla. 2d DCA 1979).


author: COBB, Judge.

text:
    In the Interest of P. L. H., a Child, Petitioner, v. The Honorable Jackson O. BROWNLEE, Circuit Court Judge, Fifth Judicial Circuit, Respondent.
    No. 80-373.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Rehearing Denied June 30, 1980.

      Robert Q. Williams of Cauthen, Robuck, Cyrus & Hennings, Tavares, for petitioner.
    No appearance for respondent.
   COBB, Judge.

The minor petitioner, P. L. H., seeks to prohibit the trial court from proceeding with a final adjudicatory hearing, contending (1) his right to discharge under the speedy trial rule and (2) that the cause should have been dismissed because the petition was not timely filed.

On September 18, 1979, complaints of burglary and grand theft were filed against the petitioner with the Division of Youth Services intake officer. On October 30, 1979, a petition was filed charging him with those offenses. On November 3, 1979, a summons was sent to the mother of P. L. H. by certified mail. It was returned undelivered. On November 15, 1979, a capias for P. L. H. was issued, but apparently never served. On March 5, 1980, P. L. H. voluntarily appeared in court with his mother and was appointed counsel. A motion was filed on March 12,1980, to dismiss pursuant to Rule 8.110(e) and a motion to discharge pursuant to Rule 8.180, Florida Rules of Juvenile Procedure, the latter being the juvenile speedy trial rule.

In the motion to dismiss, the petitioner contended that since the petition was not filed within 30 days of the date the complaint was referred to the intake officer as required by Rule 8.110(e), he was entitled to dismissal of the petition. Petitioner concedes that the rule and Section 39.05 subsection (6), Florida Statutes (1979), which provides for a 45-day period, are in conflict. The trial court, noting the conflict, held that the statute was substantive and therefore prevailed over a procedural rule, relying on In the Interest of S. R. v. State, 346 So.2d 1018 (Fla.1977), and State v. Garcia, 229 So.2d 236 (Fla.1969). Since the petition was filed on the 42nd day after the complaint, the motion to dismiss was denied. At the time S. R. v. State, supra, was decided, both the statute and the rule provided for a maximum 30-day period between the complaint and petition, but the language in the statute was mandatory in regard to dismissal whereas the language of the rule was permissive. The Florida Supreme Court held that the statute provided the juvenile a substantive right and substantive statutes supersede procedural rules. Therefore, the statute prevailed and dismissal was mandatory.

While it is true that the right to mandatory dismissal of a juvenile petition filed beyond the statutory time limit is a substantive right, it is also true that the Florida Supreme Court, in promulgating the rule requiring that the petition be filed within 30 days, is prescribing a procedural implementation of a constitutional right. The Legislature, by statute, could shorten this time but cannot lengthen it. See State, Dept. of Health and Rehab. Serv., Div. of Youth Serv. v. Golden, 350 So.2d 344 (Fla. 1977). Therefore, the trial court erred in its denial of the motion to dismiss based upon Rule 8.110(e), Florida Rules of Juvenile Procedure.

Although our determination in regard to the motion to dismiss is dispositive of this petition, we believe the dilemma presented to the trial court by the speedy trial rule in a juvenile proceeding wherein service is not effectuated upon the child within 90 days of the complaint warrants discussion and clarification.

Rule 8.180 provides that an adjudicatory hearing without demand must be held within ninety days of the earliest of three enumerated dates, one of which is the date the complaint is filed with the intake officer. Although sub-section (c) of the rule provides for an extension after hearing, none was specifically ordered by the trial court in this case and it is clear that ninety days from the date of filing of the complaint expired on December 17,1979. Sub-section (b) of the rule provides that dismissal of the petition with prejudice is mandated if the adjudicatory hearing is not begun within ninety days “or an extension thereof.”

On the other hand, section 39.06(7), Florida Statutes (1979), provides:

The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child, a parent, or legal or actual custodian of the child or when the child is taken into custody with or without service of summons and before or after filing of a petition, whichever first occurs, and thereafter the court may control the child and case in accordance with this chapter, (emphasis added)

Rule 8.180 and § 39.05(7), Florida Statutes, read literally, provide that the speedy trial time is incepted, and may expire, without acquisition of jurisdiction of the case or the defendant by the trial court pursuant to Section 39.06(7), Florida Statutes.

The trial judge, faced with this paradox, simply denied the motion for discharge, observing as follows:

The Court further finds that it did not have jurisdiction of the Child until March 5, 1980, at such time as the Child appeared in Court with his mother. Although a strict reading of F.S. 39.05(7)(a) would require dismissal of the Petition with prejudice, the Court is of the opinion that Speedy Trial cannot expire before the Court has jurisdiction of the Child as provided in F.S. 39.06(7).

We believe the only reasonable reconciliation between the jurisdictional statute and the juvenile speedy trial rule is an interpretation that no extension hearing, as provided for by sub-section (c) of the rule, can be held by a court which has no jurisdiction of the case. Therefore, the court must have a reasonable time after jurisdiction attaches within which to consider an extension of the ninety day period even if the extension hearing is subsequent in point of time to ninety days after filing of the complaint or the petition. At that hearing, the court may find that the interest of justice will be served by extending the ninety day period for holding the adjudicatory hearing and reciting the reasons for such extension. Since the rule is silent as to when the extension hearing must be held, we interpret the time therefor as being prior to hearing a motion for discharge or the expiration of ninety days from the date the court acquires jurisdiction of the cause pursuant to section 39.06(7), Florida Statutes, whichever first occurs. Although the trial court’s action at the hearing of March 31, 1980, in denying the motion for discharge, may imply that an extension was justified, there was no motion for extension, hearing thereon, or factual finding reciting the reasons for extension as required. See Fla.R.Juv.P. 8.180(c); Stuart v. State, 360 So.2d 406 (Fla.1978); and J. R. S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979).

Accordingly, the petition for writ of prohibition is granted, and this cause is remanded to the trial court with directions to dismiss the petition with prejudice and discharge the petitioner from custody.

FRANK D. UPCHURCH, Jr., J., concurs.

ORFINGER, J., concurs in result.

      . Since the speedy trial rule is procedural, rather than substantive, the rule supersedes the statute, although they are not in conflict. State ex rel. Maines v. Baker, 254 So.2d 207 (Fla. 1971).


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

text:
    Lucion SPENCER a/k/a Leroy Johnson, Appellant, v. STATE of Florida, Appellee.
    No. SS-260.
    District Court of Appeal of Florida, First District.
    June 16, 1980.
    Rehearing Denied Aug. 18, 1980.
    Lucion Spencer, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant’s Rule 3.850, Florida Rules of Criminal Procedure, motion alleging ineffective assistance of counsel, denial of his right to appeal, and insufficiency of the evidence was properly denied.

Florida law is clear that one may not attack the competency of privately retained counsel, Cappetta v. Wainwright, 203 So.2d 609 (Fla. 1967); O’Quinn v. State, 364 So.2d 775 (Fla. 1st DCA 1978); but see Cuyler v. Suilivan, - U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). There is nothing in the record to indicate that state action was involved in any denial of the right to appeal, Hollingshead v. Wainwright, 194 So.2d 577 (Fla. 1967), and insufficiency of the evidence is not properly raised on a post-conviction motion, Glenn v. State, 271 So.2d 23 (Fla. 2d DCA 1972).

ROBERT P. SMITH, Jr., ERVIN and WENTWORTH, JJ., concur.

ON PETITION FOR REHEARING

ROBERT P. SMITH, Jr., Judge.

The Florida Supreme Court’s most recent decision on the subject holds as a matter of federal constitutional law that the Sixth Amendment, as applied to the states by the Fourteenth, gives no relief to the criminally convicted for the ineffective assistance of privately retained counsel. Cappetta v. Wainwright, 203 So.2d 609 (Fla. 1967). More recently the United States Supreme Court squarely held that a criminal prosecution is itself sufficient state action to engage the constitutional right to counsel, and that, when a question of ineffective assistance of counsel is presented, there is no distinction between state-provided and retained counsel. Cuyler v. Sullivan, - U.S. -, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The unspoken premise of our brief opinion filed June 16, 1980, must necessarily be that, in the spirit of Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), this court must continue to follow the explicit holding of the Florida Supreme Court on a point of federal constitutional law until that court recedes from it, even when the United States Supreme Court has held to the contrary. On further reflection we recognize that the Florida Supreme Court has never commanded such blind servility from inferi- or Florida courts and has clearly differentiated authoritative United States Supreme Court decisions from “lower federal court rulings.” State v. Dwyer, 332 So.2d 333, 335 (Fla. 1976); see also Board of County Comm’rs of Lee County v. Dexterhouse, 348 So.2d 916, 918 (Fla. 2d DCA 1977), aff’d, 364 So.2d 449 (Fla. 1978). The decisions of the United States Supreme Court on questions of federal constitutional law have direct and controlling effect on our decisions though the Florida Supreme Court has not yet had an opportunity to conform its previously expressed views, which were themselves in conformity with United States Supreme Court decisions as then understood by the Florida Supreme Court.

On rehearing, therefore, we have examined the allegations of appellant’s Rule 3.850 motion concerning the alleged ineffectiveness of appellant’s retained counsel. The allegations are so vague and conclusory as not to require an evidentiary hearing. Meeks v. State, 382 So.2d 673 (Fla. 1980); Tillman v. State, 366 So.2d 1259 (Fla. 1st DCA 1979). The circuit court’s order denying the motion is correct. The petition for rehearing is DENIED.

ERVIN and WENTWORTH, JJ., concur.


text:
    Donald JENKINS, Petitioner, v. STATE of Florida and Lewis Carmichael, Respondents.
    No. WW-425.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.
    Rehearing Denied Oct. 9, 1980.
    Petition for Writ of Mandamus.
    Donald Jenkins, petitioner, pro se.
   PER CURIAM.

This cause is before us on Petition for Writ of Mandamus, asserting error regarding the computation of petitioner’s “gain time.” Rule 33-3.07, Florida Administrative Code, provides a forum for addressing such complaints; petitioner’s failure to assert exhaustion of this administrative remedy precludes relief by way of mandamus. Cribbs v. Fla. Parole & Probation Commission, 379 So.2d 441 (Fla. 1st DCA 1980); Houston v. Fla. Parole & Probation Commission, 377 So.2d 34 (Fla. 1st DCA 1979).

The petition is denied.

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


author: GRIMES, Judge.

text:
    Randy M. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 79-2281.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1980.
    Rehearing Denied Oct. 29, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In this appeal from his conviction for armed robbery, appellant challenges the denial of his motions to suppress identification and evidence.

After reviewing the evidence with respect to the motion to suppress identification in light of the criteria established by the Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 875, 34 L.Ed.2d 401 (1972), we cannot say that the procedures used to procure the identification were so impermissi-bly suggestive as to create a substantial likelihood of misidentification. The record sufficiently supports the denial of that motion.

The ruling on the motion to suppress evidence is more troublesome. Only three witnesses testified at the hearing on this motion. Evelyn Wooten stated that she was working at the Jiffy Food Store in Clewiston shortly after midnight on July 9, 1978, when she was robbed at gunpoint by one man. She described the man and his clothing to the police but did not see the car in which he fled.

Deputy Fennell testified that he heard a BOLO broadcast from Clewiston at about 2:00 a. m. The BOLO gave the following information:

Armed robber, our city, approximately thirty minutes ago; negro male, 6'3", a hundred and eighty pounds with beard, robbed convenience store; vehicle, green Duster with black hood, unknown direction of travel; armed and dangerous.

Deputy Fennell observed a car, which fit the description given in the BOLO, parked in the lot of a closed gas station in Lake Placid. When he approached the car, he saw a black male asleep on the seat and a pistol lying on the console. The sleeping man fit the description given in the BOLO. Deputy Fennell then requested a backup unit. After its arrival, the officers reached into the window in order to get the gun and arrested appellant for the Clewiston robbery. They seized $106.40 in currency and coins and eight .32 caliber bullets from appellant’s pockets. They also seized the gun and a hospital shirt with the word “Shands” on it which appellant was wearing. The third witness was Jim Benton, one of the backup officers, who corroborated Fennell’s testimony.

Appellant argues that since the source of the description of the car given in the BOLO was never revealed, the arrest, made on the basis of the BOLO, was without probable cause, and that because the arrest was unlawful, the seizure of various items of evidence was also unlawful. We agree up to a point.

In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the Court held that a BOLO does not itself provide probable cause. The officer issuing the BOLO must have had probable cause in order for an arrest based only on the BOLO to be lawful. Thus, the determining factor is whether the information provided to the officer who issued the BOLO came from a reliable source. St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978).

The only witness called who had been at the scene of the robbery was Mrs. Wooten. She could not have provided the description of the car because she did not see it. Consequently, there was no evidence of the source of the description of the car or anything which would demonstrate the reliability of that source. Therefore, because the officers relied solely on the BOLO to provide probable cause for the arrest and because the car description was the most significant aspect of the BOLO, the state did not meet its burden of showing that the search was made incident to a lawful arrest.

However, our analysis cannot stop here. The automobile and its occupant matched the description given in the anonymous BOLO. Even without the observation of the gun, this was enough indicia of reliability to justify an intrusion in the nature of a “stop and frisk”. State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979); Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980). Obviously, the officers could take possession of the gun to protect themselves during the course of their investigation. Florida’s “Stop and Frisk Law” itself, permits the seizure of a weapon. § 901.151(5), Fla.Stat. (1979). Therefore, the gun, unlike the other items, was properly admitted into evidence at the trial.

To recapitulate, the court should have suppressed the money, the bullets and the shirt because the officers lacked probable cause under the anonymous BOLO to make the arrest and thereby seize these items. The court properly admitted the gun because facts observed by the officers sufficiently matched the BOLO so as to give them .the right to make a “stop and frisk” investigation and thereby seize the gun which was in plain sight.

We reverse the judgment and remand the case for a new trial.

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

      . Presumably, Mrs. Wooten furnished the robber’s description contained in the BOLO, but this was so generalized that, standing alone, it could not have provided probable cause for the arrest of a person a substantial distance from the crime scene two hours after the crime was committed.

      . From our review of the trial testimony we doubt that the BOLO actually came from an anonymous source, but for the reasons discussed above we must treat the BOLO as anonymous.

      . Even though appellant’s shirt could not be introduced into evidence, this would not prevent the officers from describing it upon retrial since it was in plain view.


author: LETTS, Chief Judge.

text:
    WACKENHUT CORPORATION, Appellant, v. Joseph F. MAIMONE, Appellee.
    Nos. 79-2419, 79-2599.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied Nov. 21, 1980.

      Richard H. W. Maloy of Richard H. W. Maloy & Associates, P.A., Coral Gables, for appellant.
    Hal P. Dekle and Joseph Nazzaro, Tampa, for appellee.
   LETTS, Chief Judge.

Involved here is an appeal from a jury verdict predicated on tortious interference with a contractual or business relationship. The jury awarded $90,000 in compensatory damages, and punitive damages in the sum of $150,000 based on civil conspiracy. We reverse, holding that the judge should have directed a verdict in favor of the defendant.

The essential facts are that the guard who successfully obtained the jury awards was employed by Wackenhut and placed in charge of providing security services for a Food Fair supermarket warehouse. Thereafter he quit his employ, formed his own security firm and, in violation of a covenant not to compete for two years, seduced Food Fair’s custom away from Wackenhut. That seduction however is not the basis for the case now before us which instead evolves from Wackenhut’s successful campaign to win back the supermarket’s security custom, whereupon the instant suit against Wackenhut was filed by the ousted successor who had initiated the entire controversy by violating his covenant not to compete.

The tort of intentional interference with a contractual or business relationship has of late emerged from relative obscurity to provide a quite fashionable basis for contemporary law suits. It is not our intent here to “deep six” this venerable remedy which made its first appearance in modern times in Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (1853), but we are convinced it is being misapplied, a circumstance which we hope in some measure to rectify by this opinion.

We begin, by confirming our holding in Lake Gateway Motor Inn v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978) cert. den. 368 So.2d 1370 (Fla.1979) and reiterated that this tort requires:

1. the existence of an advantageous business relationship under which the plaintiff has legal rights;
2. an intentional and unjustified interference with that relationship; and
3. damage to the plaintiff as a result of the defendant’s actions.

The first and third of these requirements present little problem in definition or determination, but the second involves the application of words such as “unlawful” “intentional” “unjustified” “malicious” “interfering” and the like. As the Harvard Law Review characterizes these expressions, they are “. . an agglomeration of catch-words” which have come into usage because of “. . . the search, foredoomed to failure, for a rule of thumb which will justly dispose of any set of facts with the precision of a cream-separator” 37 Harv.L.Rev. 143, 144 (1924). No doubt we cannot now achieve such precision where so many others have failed, but at least we can do so relative to this particular case and thus help preserve the competitive free enterprise system which forms the basis for the American economy and our very way of life.

Conceding that the intention to interfere with a contractual or business relationship is present under the facts of this case, we must first decide what the ultimate purpose and object was in so interfering. There can be no doubt that the ultimate purpose here was to regain lost business and there is nothing wrong with that. Competition for business is not per se an actionable interference even though it is intentional. However, as Dean Prosser puts it, we must agree that the modern day concept of the tort here considered supports the theory that clear allegations of an intentional interference with an existing contractual or business relationship, coupled with legal rights and damage, state a prima facie case. William L. Prosser, Torts 942 (4th Ed. 1971). Thus we agree that in the face of such allegations the burden shifts to the interferer to establish that the interference was justified. In the words of Dean Prosser, this “justification” is better understood as a showing that the “. . . interference is privileged by reason of the interests furthered by his conduct . Where the contract interfered with is terminable at will, the privilege of competition has been recognized. In such a case there is no contract right to have the relation continued, but only an expectancy . With such an expectancy ... a competitor has the privilege of interference in order to acquire the business for himself.” Prosser, supra, 943 [emphasis supplied].

We agree with and adopt this statement and agree further that it encompasses employment contracts as well as contracts for goods and other services. Applying our adoption to the case at bar, the contract here was terminable by either party upon 30 days notice and absent a showing that Wackenhut sought to short circuit payment for the security services during any such 30 days, there was nothing wrong with Wackenhut’s solicitations for the business.

Passing now to whether Wackenhut sought the recovery of its lost custom spitefully or with personal malice, we agree completely with Judge Schwartz who, in the case of Ethyl Corporation v. Balter, 386 So.2d 1220 (Fla. 3d DCA Case No. 78-994, opinion filed July 8, 1980), opined that if the privilege to protect or further ones legitimate economic situation is present, the concomitant presence of malice or ill will, and the expression thereof, is not actionable as a tortious interference.

As to the case at bar, we have studied the record and find nothing which would support a tortious interference action even in compensatory damages. A fortiorari, as to the punitive aspect, this cause must be reversed. See Lake Gateway, supra, at p. 772 and Porter v. Wilson, Walch, Fortner, Robinson, 384 So.2d 190 (Fla.2d DCA 1980).

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH.

ANSTEAD and HURLEY, JJ., concur.

      . Maimone v. Wackenhut Corporation, 329 So.2d 332 (Fla. 3d DCA 1976) cert. den. 342 So.2d 1102 (Fla. 1977). Note the two year covenant has long since expired.


text:
    R.P., R.D., R.J.G., G.D.L., R.P., M.A.B., J.S., F.L.B., B.L.F., Z.K.T., A.B.S., C.C., S.S., K.T., T.W.K., G.E.J., D.J., J.B., M.M., G.J., I.A.D., W.D., T.E.C., W.P.W., J.R.H., R.B., and C.A.H., Children, Appellants, v. STATE of Florida, Appellee.
    Nos. OO-452, OO-453, PP-24, PP-77, PP-78, PP-153, PP-155, PP-156, PP-211, PP-212, PP-213, PP-230, SS-90, SS-420, TT-334, TT-472, TT-473, TT-481, UU-3, UU-5, UU-222, UU-223, UU-285, UU-286, UU-328, UU-475, UU-476, W-428, and WW-128.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1980.
    Rehearing Denied Oct. 31, 1980.

      Michael J. Minerva, Public Defender, Margaret Good, Harold W. Long, Jr., and Nancy A. Daniels, Asst. Public Defenders, for appellants.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

Each of the twenty-seven Appellants are juveniles who escaped from the Jacksonville Youth Development Center (JYDC) and were subsequently charged with escape from a “training school”, a third-degree felony pursuant to Section 39.112, Florida Statutes (1979):

ESCAPES FROM A JUVENILE FACILITY. -An escape from any training school or secure detention facility maintained for the treatment, rehabilitation, or detention of children who are alleged to be found to have committed delinquent acts or violations of law constitutes escape within the intent and meaning of s. 944.-40 and is a felony in the third degree. [Emphasis supplied]

Based on all the evidence presented during the hearings, the several trial judges found that the JYDC is a training school within the scope of the above-referenced statute, denied motions to dismiss asserting otherwise, and accepted pleas of nolo con-tendere reserving rights to appeal.

The Appellants argue that, because the JYDC was not expressly designated as a training school in the Department of Health and Rehabilitative Services’ (HRS) Rule Chapter 10H-1.03(7), Florida Administrative Code, it could not be a training school within the meaning of the statute. We disagree. The administrative rule does not affect construction of the penal statute; rather, the Legislature is the sole repository of legislative power. Art. Ill, § 1, Fla. Const. The several trial judges found that, because the JYDC had all the attributes of other institutions in Florida specifically designated as training schools by HRS, it is a training school within the meaning of the statute. These findings were based on competent evidence and comport with a reasonable construction of the statute. Appellants have also directed our attention to Chapter 80-290, Section 1, Laws of Florida. By that enactment, the Legislature amended Section 39.01 by adding subsection (36) defining “training school” as specifically named institutions not including the JYDC. This statutory provision became effective on July 1, 1980, and was certainly no help to the trial judges in these cases as they construed Section 39.112. There is no intention expressed in the new statute that it is to apply retroactively, and we decline to give such effect to it in these cases. See, Art. X, § 9, Fla. Const.

Two young Appellants also argue that Section 39.112 is unconstitutional under Article III, Section 6, Florida Constitution, inasmuch as it purports to amend Section 944.40 by reference to its title only. That statutory provision states:

ESCAPES; PENALTY.-Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony in the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutively to any former sentence imposed upon any prisoner.

Section 39.112 provides, in relevant part, that escape from the described institutions is “escape within the intent and meaning of s. 944.40 . .” Section 944.40, however, sheds no light on the meaning of “escape”, nor does it otherwise illuminate the provisions of Section 39.112. Thus, the phrase “within the intent and meaning of s. 944.40 . ” is, in effect, mere surplus-age. Section 39.112 simply enlarges the class of individuals to whom the crime of escape is applicable. It “is complete and intelligible in itself without reference to the act it purports to amend . . and, as such, does not violate the provisions of Article III, Section 6, Florida Constitution. Lipe v. City of Miami, 141 So.2d 738, 743 (Fla.1962).

Ten of the Appellants similarly contended before the respective trial judges that Section 39.112 was unconstitutional under Article III, Section 6, of the Florida Constitution. These appeals were filed prior to April 1, 1980, the effective date of amended Article V, Section 3(b)(1), Florida Constitution (1980). We therefore deem ourselves without jurisdiction to entertain these appeals and, pursuant to Florida Rule of Appellate Procedure 9.040(b), transfer these causes to the Florida Supreme Court.

Otherwise, the judgments appealed from are AFFIRMED.

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

      . R.B., Case No. VV-428; C.A.H., Case No. WW-128.

      . G.E.J. v. State, Case No. TT-481; J.B. v. State, Case No. UU-5; D.J. v. State, Case No. UU-3; M.M. v. State, Case No. UU-222; G.J. v. State, Case No. UU-223; I.A.D. v. State, Case No. UU-285; W.D. v. State, Case No. UU-286; T.E.C. v. State, Case No. UU-328; W.P.W. v. State, Case No. UU-475; J.R.H. v. State, Case No. UU-476.

      .See former Florida Rule of Appellate Procedure 9.030(a)(l)(A)(ii) (1977).


author: GLICKSTEIN, Judge.

text:
    O. C. HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1632.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 1980.
    Rehearing Denied Nov. 19, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was indicted for first degree murder and found guilty of second degree murder. The trial court instructed the jury on first and second degree murder and manslaughter, but over appellant’s objection, not on third degree murder. Appellee concedes this was error, leaving for our determination whether the error was harmless.

We start by noting that our sister court in dicta recognized:

We have been unable to discover a case where the harmless error rule was applied in a case where the trial court failed to instruct the jury as to lesser degrees of the offense charged.

Johnson v. State, 314 So.2d 248, 250 (Fla.1st DCA 1975).

Although conceding error appellee argues that since the jury was given an instruction on manslaughter, a felony of the same degree with the same penalties as third degree murder, they could have pardoned appellant had they so desired by returning a verdict of manslaughter. We disagree and interpret the supreme court’s reasoning culminating with Abreau v. State, 363 So.2d 1063 (Fla.1978), differently.

We believe that Abreau, supra, requires of an appellate court to find error harmful per se where the omitted instruction is for the degree of the offense immediately lesser than the degree of conviction. This application was properly applied in Butler v. State, 379 So.2d 715 (Fla.5th DCA 1980).

Therefore, we REVERSE and REMAND for a new trial.

HERSEY, J., and WETHERINGTON, GERALD T., Associate Judge, concur.

      .Florida Rule of Criminal Procedure 3.490 provides:
      If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense. (Emphasis added)

        Accord Brown v. State, 206 So.2d 377, 381 (Fla.1968), interpreting Section 919.14, Florida Statutes (1965), the predecessor to the above rule.

      . Compare Sections 782.04(4) and 782.07, Florida Statutes (1979).

      . Abreau v. State, 363 So.2d 1063 (Fla.1978), held that it is reversible error per se when the jury is not instructed on the next immediate lesser offense from the offense charged if they return a verdict for the offense charged. We believe, as did Butler v. State, 379 So.2d 715 (Fla.5th DCA 1980), that the logical extension of Abreau is that it is also reversible error per se when the jury is not instructed on the next immediate lesser offense than the offense of conviction.


author: LILES, WOODIE A., Associate Judge (Retired). LARRY G. SMITH, Judge,

text:
    Kathleen C. WRIGHT, Appellant, v. STATE of Florida, COMMISSION ON ETHICS, Appellee.
    No. PP-279.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1980.
    Rehearing Denied Nov. 17, 1980.
    Zebedee W. Wright, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   LILES, WOODIE A., Associate Judge (Retired).

Kathleen C. Wright was a school teacher in the Broward County school system from September, 1958, until June, 1978. In May, 1961, she attained tenure (continuing contract status) with the Broward County School Board (“School Board”) pursuant to Section 231.36(3)(a), Florida Statutes. In 1974, she ran for and was elected to a position on the School Board. In 1975, the Florida Legislature enacted Section 112.-313(10), Florida Statute, which provides:

EMPLOYEES HOLDING OFFICE.—
(a) No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer.
(b) The provisions of this subsection shall not apply to any person holding office in violation of such provisions on the effective date of this act. However, such a person shall surrender his conflicting employment prior to seeking reelection or accepting reappointment to office. [Effective date: October 1, 1975]

It should be noted that subsection (b) grandfathered in any person holding office on the effective date of said statute but provided that such person shall surrender his or her conflicting employment prior to reelection. After taking a personal leave of absence without pay in June, 1978, Mrs. Wright ran for and was reelected to a position on the School Board. A complaint was the filed against her for violating Sections 112.313(10)(a) and (b), Florida Statutes. Following a hearing, the State of Florida, Commission on Ethics, found Mrs. Wright to be in violation of the above-cited statutory provisions and gave her sixty days to bring herself into compliance with the law.

This apparently is a case of first impression regarding the application of Section 112.313(10), and the question recurs on what a person is required to do to surrender his or her conflicting employment. The state argues that, because of her continuing contract status, Mrs. Wright remains an employee of the School Board under Section 231.09, Florida Statutes. We disagree.

In City of Boca Raton v. Mattef, 91 So.2d 644 (Fla.1956), the Florida Supreme Court set forth the following definition of “employee”:

An employee is one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done. Id., at 647.

While the cited case dealt with the employer-employee relationship in terms of a tort action, we believe that the above definition provides an appropriate analytical framework for determining whether Mrs. Wright is, indeed, an employee of the School Board. Turning to the facts of this case, it is undisputed that Mrs. Wright performs no teaching services for, nor does she receive any compensation from, the School Board. While she is on leave, the School Board does not and cannot exercise any control over her. Therefore, we conclude that Mrs. Wright, by taking a leave of absence without pay, is no longer an “employee” of the School Board. In a very real sense, she has surrendered her employee status. The mere fact of her continuing contract creates only an expectancy of future employment. This expectancy, however, cannot be equated with or transformed into employee status.

The manifest purpose of Section 112.313(10), Florida Statutes, is to prevent a public employee or officer from holding two positions of employment or office at the same time when these positions are in conflict. This statute, however, does not purport to prevent a school teacher, who is on leave of absence without pay, from performing a valuable public service as a member of a school board. Mrs. Wright has ceased to be an employee of the Broward County School Board. She has surrendered her employment. The fact that she may or may not return to the classroom is a prospective event which neither the Commission nor this Court need be concerned with at this time.

Accordingly, for the reasons expressed above, we REVERSE the decision of the State of Florida, Commission on Ethics.

SHAW, J., concurs.

LARRY G. SMITH, J., dissents.

LARRY G. SMITH, Judge,

dissenting with opinion.

I cannot agree that an employee “on leave” is any less an employee. By definition, one on leave is only temporarily absent. A teacher on continuing contract has acquired a valuable property right, more than a mere “expectancy” of employment. Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978). There is a statutorily protected right to employment which cannot be divested by means other than those specified in the statute, Chapter 231, Florida Statutes, particularly Section 231.36(3)(e), (4), (6), and Section 231.44. See McDowell v. School Board of Suwannee County, 365 So.2d 454 (Fla. 1st DCA 1978).

The majority agrees that the purpose of Section 112.313(10) is “to prevent a public employee or officer from holding two positions of employment or office at the same time when these positions are in conflict.” In my opinion the “conflict” in the two positions-that of School Board member and teacher-is only minimally reduced by the failure to receive pay while serving on the Board. The significant conflicts still remain. A School Board member is required to deal with many matters directly affecting the teachers in any system, such as their suspension, disciplining or discharge, the granting of annual or continuing contracts, and in determining even what teacher positions shall be continued or discontinued. A Board member-teacher with a continuing contract right to resume employment in the school system after completion of Board service might be vitally affected by any number of decisions pertaining to the teaching staff. A teacher would be directly affected by any decision made by the School Board relating to the terms and conditions of employment that the returning continuing contract teacher would be subject to and enjoy. There is inherent in such a relationship a conflict between “public duty” and “private interests,” which is constitutionally objectionable. Article III, Section 18, Florida Constitution.

The view taken by the majority places the teacher-board member in the untenable position of being recognized as a “public employee,” by the Florida Public Employees Relations Commission, for collective bargaining purposes, United Faculty of Miami-Dade Community College, FEA/United AFT, AFL- CIO and Miami-Dade Community College, 4 FPER ¶ 4173 (1978), since the teacher is merely “on leave” from employment, while at the same time entitled to vote as a member of the employer-board. This result, in my opinion, flies directly in the face of the statutory prohibition of Section 112.313(10), that “No employee ... of a county, ... or other political subdivision of the state shall hold office as a member of the governing board, . . . which is his employer while, at the same time, continuing as an employee of such employer.”

Appellant cites Section 231.36(7)(b), Florida Statutes (1979), which was enacted by the legislature in 1972, in support of her contention that service on county school boards by teachers under continuing contract has received legislative approval. That Section provides:

(Section 231.36, Florida Statutes)
(7) The school board of any given district may, at its own discretion:
* * * s}: * sjs
(b) Grant to a classroom teacher holding a continuing contract status who has served as school board member in that district, at the completion of his service as school board member, a continuing contract as classroom teacher. Service as school board member shall be construed as continuous teaching service in the public schools of this state, (emphasis supplied)

There is, however, nothing in the wording of this provision or related statutes manifesting any intention on the part of the legislature for a teacher to maintain his or her job as a member of the teaching staff of the county school system while at the same time serving as a member of the employer-school board. This particular provision, relating to service by teachers as school board members, had its genesis in a similar provision enacted in 1959 (§ 1, Chapter 59-359, Laws of Florida (1959)), applying to continuing contract teachers who have served as superintendent of public instruction. The 1959 amendment, which is currently codified in Section 231.36(7)(a), Florida Statutes (1979), provided:

(Section 231.36, Florida Statutes (1959)) (4) The county board of public instruction of any given county may, at its own discretion, grant to a person who has served as county superintendent of public instruction in that county, at the completion of his service as superintendent, a continuing contract as a classroom teacher. Service as superintendent shall be construed as continuous teaching service in the public schools of this state, (emphasis supplied)

In both the 1959 and 1972 provisions, use of the phrase “may, at its own discretion,” implies a recognition by the legislature that service as an elective school board member would terminate the vested rights of a teacher on a continuing contract to assert that right after teaching service had been interrupted by the period of service on the board. Otherwise, the legislature would have had no reason to authorize the board-to grant a continuing contract to a returning teacher. Although it is difficult to say with any degree of certainty, it would appear reasonable to assume that the addition of subsection (4), 1959 amendment to Section 231.36, was prompted by the interpretation of prior law as stated in Attorney General’s Opinion 057-2 (January 4, 1957), holding that since the statutes did not authorize the granting of teacher’s leave for the purpose of serving on a school board, even though granted leave by the board a teacher would lose continuing contract rights under Section 231.36 by serving on the board and being absent from the teaching position during that period of service.

The 1959 amendment effectively protected a teacher against loss of continuing contract status by virtue of taking a leave of absence which the board was not authorized by law to approve; but it left the board free, at the completion of the teacher’s service as school superintendent (or school board member under the 1972 amendment), to rehire the teacher on a continuing contract basis or not, in the board’s discretion. The Commission’s construction of the 1975 Code of Ethics under review, which requires surrender of the teacher’s teaching position, as opposed to a mere leave of absence, is consistent with the legislative scheme, as indicated, which allows but does not require rehiring of the teacher on a continuing contract; but at the same time such a construction has no effect upon the discretion of the board and the rights of the teacher under Section 231.36(7)(a) and (b), and there is no forfeiture of the teacher’s continuing contract status if rehired by the same school board, or by a school board in another county.

Although it may be recognized that application of the 1975 amendment, as construed by the Commission, may deprive school boards of the benefit of some of those citizens best qualified to serve the county school system, the same could be said of the amendment’s application to many other boards, commissions or agencies of the state. This, in my opinion, furnishes no basis upon which the court may hold that school teachers enjoy an exemption from the operation of the statute, since the creation of any such exemption or exception would be a function of the legislature, not the court.

I would affirm the decision of the Commission on Ethics.

      . The question answered by Attorney General’s Opinion 057-2 is:
      QUESTION:
      If a written request for a leave of absence from instructional duties was made by an employee and duly granted by a board of public instruction to assume duties of a county elective office in the administrative capacity of county superintendent, has the individual concerned lost his rights under the continuing contract law, § 231.36, F.S.?
      The concluding paragraph of the opinion states:
      In view of the above, your question must be answered in the affirmative, assuming that the individual in question accepted the leave and was absent from his teaching job during the past four years.

      . There is only one court decision construing Section 231.36(7). In Board of Public Instruction of Dixie County v. Locke, 243 So.2d 6 (Fla. 1st DCA 1970), this court affirmed the trial court’s ruling that under the circumstances presented, the school board had erred in failing to hire a past superintendent, who had a valid continuing contract, as a teacher. In reaching this result, the court did not construe the first sentence of Section 231.36(7), with which we are concerned but merely construed the second sentence of the statute which provided that “service as a superintendent shall be construed as continuous teaching service . . . . ” The case is further inapplicable since it was decided pri- or to the 1975 Code on Ethics and does not touch upon the issues presented here.


author: BASKIN, Judge.

text:
    Michele PRICE, Appellant, v. John W. PRICE, Appellee. John W. PRICE, Appellant, v. Michele PRICE, Appellee.
    Nos. 79-1158, 79-1322.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1980.
    Rehearing Denied Nov. 14, 1980.

      Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen, and Ray H. Pearson, Miami, for John W. Price.
    Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for Michele Price.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Michele Price seeks to overturn portions of the final judgment of dissolution pertaining to alimony and expenses in connection with maintaining her home. In a consolidated appeal, her husband, John Price, challenges provisions requiring him to pay court costs and a portion of his former wife’s attorneys’ fees. The wife has cross-appealed. We affirm in part and reserve in part.

The Price marriage lasted seven years. No children were born from this marriage, but John has four children from his former marriage, and Michele has a child from her former marriage. The parties were financially able to enjoy a high standard of living. Michele, forty-four, had been a stewardess for over twenty years. Her annual salary had increased to approximately $23,-000 at the time of the hearing. She continued to work for the airlines and enjoyed medical, pension, and other benefits. John, fifty-nine, had a net worth of over one million dollars and inherited bank stock worth $750,000, which was a majority interest in the bank. His stock returned an annual dividend of $25,000. His yearly income is $40,000.

The trial court awarded Michele no permanent alimony, finding she was well able to provide for her own living expenses but awarded her $24,000 lump sum alimony payable in twenty-four installments. In addition, the court ordered the marital home sold with the one-half interest in the home awarded to Michele. The parties were to bear equally the expense of the mortgage payments and property taxes pending the sale. The court also ordered John to pay $7,500 of Michele’s $10,000 attorneys’ fees.

The wife cites as error the trial court’s failure to award her permanent alimony. She contends she is unable to maintain the standard of living set by the marriage. She complains, in addition, of the court’s failure to retain jurisdiction to determine her needs at the expiration of the installment payments. She claims the $24,000 is inadequate when her needs and contributions to the marriage are taken into consideration. The wife also asserts as error the trial court’s failure to reimburse her for paying her husband’s share of the expenses on the home prior to its sale, payments she made from her temporary alimony.

We find no abuse of discretion in the alimony award determined by the court. The supreme court clarified the role of the trial court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). When the action of the trial court is discretionary, appellate courts must consider whether the trial court action was arbitrary, fanciful, or unreasonable. “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, supra at 1203. The alimony award entered by the trial judge may not be disturbed unless his decision failed to meet the “reasonable” test.

In exercising its broad discretion concerning whether to award lump sum or permanent periodic alimony, the trial court was required to consider all circumstances in order to insure “equity and justice between the parties.” § 61.08, Fla.Stat. (1977). Permanent periodic alimony awards must be predicated upon consideration of needs and abilities, taking into account the wife’s earnings, abilities, age, health, and education, in light of the duration of the marriage and the standard of living of the parties. Canakaris v. Canakaris, supra at 1201-02. Under the circumstances of this case, reasonable men could differ as to the propriety of the action taken by the trial court. We, therefore, affirm the award.

We find no abuse of discretion in the court’s failure to retain jurisdiction to enter periodic alimony at the expiration of the lump sum installments. Although retention of jurisdiction is permitted, Canakaris v. Canakaris, supra; Hyatt v. Hyatt, 315 So.2d 11 (Fla. 3d DCA 1975); Langston v. Langston, 251 So.2d 625 (Fla. 3d DCA 1972), it is not required. Elkins v. Elkins, 287 So.2d 119 (Fla. 3d DCA 1973); Poe v. Poe, 263 So.2d 644 (Fla. 3d DCA 1972). Cf. Greene v. Greene, 256 So.2d 258 (Fla. 3d DCA 1972) (where alimony provisions would probably terminate at a time when the wife had no other income).

We do find error, however, in the trial court’s failure to credit the wife for the interest on mortgage payments she made under the terms of the final judgment. The judgment states:

Prior to the closing of the sale of the former marital home, the Petitioner/Wife shall be entitled to occupy the same should she so choose. If she occupies the same, she shall pay and keep current the mortgage and be responsible for her own expenses for utilities and the like. From the net proceeds at the closing on the sale of the home the Petitioner/Wife shall be reimbursed for an amount equal to one-half of the principal payments she has made on the mortgage from the June 15, 1979 [date] to the date of sale, which sum represents the payment of principal for the undivided one-half interest of the Respondent in the house.
At the closing of the sale of the marital home, each party shall receive one-half of the net proceeds therefrom as may be adjusted as provided for herein.

“The law is well-settled that a spouse who reduces the mortgage principal on a marital home jointly held as tenants in common with his ex-spouse is entitled upon sale of the home to a credit for the mortgage principal reduction allocable to his ex-spouse’s interest in the home.” Rutkin v. Rutkin, 345 So.2d 400, 401 (Fla. 3d DCA 1977). The credit is chargeable against the ex-spouse’s share in the proceeds of the sale. Rutkin v. Rutkin, supra ; Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976); Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968). Credit at the time of sale of the home should be given for such items as mortgage interest, taxes, insurance, and repairs paid in excess of the wife’s half interest. Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975); Lyons v. Lyons, supra. Accordingly, we remand for further proceedings to determine the amounts paid for interest to be credited to the wife.

We do not consider the merits of the wife’s claim for reimbursement of payments in connection with the house made from her temporary alimony award prior to final judgment. Her arguement that she was required to pay the husband’s half of the charges against the property, and is therefore entitled to a credit at time of sale toward those expenses incurred prior to the final judgment, was not presented to the trial court and is therefore waived. Reinhard v. Bliss, 85 So.2d 131 (Fla.1956); Ballen v. Plaza Del Prado Condominium Association, Inc., 319 So.2d 90 (Fla. 3d DCA 1975).

We next consider the husband’s consolidated appeal. He contends he should not have been required to pay $7,500 toward the wife’s attorneys’ fees of $10,000 and costs as she had the means to provide them. We hold this award to be within the discretion of the trial judge and find no abuse. Canakaris v. Canakaris, supra; Taplin v. Taplin, 386 So.2d 1199 (Fla. 3d DCA 1980); Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977); Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). The wife’s contention on her cross-appeal that the husband should have been required to pay the entire amount is without merit. Cf. Pusey v. Pusey, 386 So.2d 269 (Fla. 3d DCA 1980) (given the financial position of the respective parties, the trial court erred in awarding the wife attorneys’ fees).

For the foregoing reasons, the decision of the trial court is affirmed in part and reversed in part; the cause is remanded for further proceedings.