text:
    Dean D. BURGESS, Appellant, v. Foster F. BURGESS, Appellee.
    No. XX-407.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    J. LaDon Dewrell and F. Lloyd Blue, Jr. of Dewrell & Blue, Fort Walton Beach, for appellant.
    E. Allan Ramey, DeFuniak Springs, for appellee.
   PER CURIAM.

Appellant wife asserts on appeal that the trial court erred in not granting her a special equity in appellee husband’s solely owned corporation, and in failing to award adequate lump sum alimony and permanent periodic alimony. We see no basis for the asserted special equity and no abuse of discretion in the awards of lump sum and permanent periodic alimony. See, Canakaris v. Canakaris, 382 So.2d 1197, at 1200-1203 (Fla.1980).

On cross-appeal, appellee husband appeals from a portion of the final judgment of dissolution which awarded the wife real property owned in fee simple by the husband’s solely owned corporation, a non-party to the action. We agree that this was error. Feldman v. Feldman, 390 So.2d 1231 (Fla.3d DCA 1980). We REVERSE and REMAND with directions that the trial judge delete Winter Home Lot 92 from the assets awarded to the wife. The wife shall be granted an alternative award equivalent in value, as nearly as practicable, to the deleted asset.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

McCORD, ERVIN and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. McCORD, Judge,

license: Public Domain

text:
    Glenda C. BOATRIGHT, Appellant, v. Donald Ray BOATRIGHT, Appellee.
    No. YY-448.
    District Court of Appeal of Florida, First District.
    March 29, 1982.

      Ernest A. Sellers of Airth, Sellers & Lewis, Live Oak, for appellant.
    William R. Slaughter, II of Slaughter & Slaughter, Live Oak, for appellee.
   PER CURIAM.

We affirm the circuit court’s 1980 order declining to award the wife rehabilitative alimony on her petition to modify the money and property arrangements agreed to at dissolution of the marriage and incorporated in the 1978 dissolution judgment. Though that agreement and judgment did not preclude the wife from future claims of alimony, we find no error in the court’s refusal to disturb existing arrangements except to require the husband to satisfy the mortgage on the home previously awarded the wife, so freeing that asset to fund the wife’s present educational plans. We do not fault Judge McCord’s recital of the basic facts or his judgment of their significance; indeed he makes a persuasive case for modification. But as the question before us is not whether the circuit court’s assessment of the parties’ circumstances was the only proper one, but is instead whether that assessment was a permissible one, which it was, we decline to impose some other view as a matter of law.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and MILLS, J., concur.

McCORD, J., dissents, with written opinion.

McCORD, Judge,

dissenting.

I would reverse the trial court’s denial of rehabilitative alimony because I believe that this case embodies precisely the kind of factual circumstances for which rehabilitative alimony was designed.

The facts establish that when the marriage of the parties was dissolved in 1978 the husband and wife entered into a property settlement agreement which expressly provided that the wife could seek alimony subsequent to the entry of the final judgment and expressly acknowledged that the terms of the agreement were predicated on the financial condition of the parties at that time and that the parties had had a higher standard of living in prior years. At the time of the dissolution, the husband had an average net weekly income of $160.48 ($8344.96 annually); at the time of the hearing on the petition for modification, he had a weekly income of over $400.00 ($20,-800 annually). The wife’s income at the time of dissolution was approximately $5,400 annually. At the time of the hearing on the petition for modification, she had no certain income because she had returned to school to complete her education degree so that she could upgrade her employment from teacher’s aide to teacher; she did anticipate that she might receive $330.00 per quarter in student aid. Although the wife had petitioned for permanent alimony, she specified at the hearing that her claim was for $250.00 per week for two years and that she would claim no further alimony if that were granted.

Under these circumstances, I believe the denial of rehabilitative alimony was a clear abuse of discretion. It appears to me that the wife has succeeded in showing a substantial change of circumstances in both her husband’s and her incomes. Even if she had continued as a teacher’s aide, she would have made only approximately $6,000. The disparity by virtue of the substantial increase in the husband’s income and the lack of substantial change in hers indicates a relevant substantial change in circumstances concerning his ability to pay.

Furthermore, the finding of the trial court that the husband does not have the ability to contribute a periodic sum to the wife without converting and deleting resources obtained in the property settlement is not supported by this record, unless one accepts the husband’s contention that he can dissipate his income by voluntarily taking on expenses for unnecessary items and thereby defeat the wife’s claim for alimony.

      . The trial court ordered the husband to accelerate his mortgage payment on the marital home which was transferred to the wife in the property settlement so as to satisfy the mortgage in full within 15 days, characterizing this order as a grant of rehabilitative alimony. Since this order does not result in any monies being paid to the wife, I do not construe it as being a grant of alimony. I recognize that it does serve to make the asset available for encumbrance by the wife in order to pay for her education, but it does not seem reasonable to set up a situation which requires her to encumber the major asset she received in the settlement in order that the husband should not have to encumber any of his assets or use any part of his greatly increased income in order to assist her with her endeavor to rehabilitate herself.


author: PER CURIAM.

text:
    FRUIT CIRCUS, INC. and Allstate Insurance Company, Appellants, v. Charles ZALIS, Appellee.
    No. AB-321.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellants.
    Jerald Feuer, Miami, for appellee.
   PER CURIAM.

There is no error in the order of the deputy commissioner except for the reservation of jurisdiction to consider the value of a company car as part of the average weekly wage. The claimant did not carry his burden of establishing this inclusion. Therefore, the phrase “but may be considered at a later time” is stricken from the penultimate sentence of paragraph 5.

As modified the order is AFFIRMED.

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


author: McCORD, Judge.

text:
    James LAMBETH, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AD-165.
    District Court of Appeal of Florida, First District.
    March 29, 1982.

      James Lambeth, in pro. per.
    No appearance for appellee.
   McCORD, Judge.

James Lambeth, an inmate at the Avon Park Correctional Institution, appeals from a final order of the Florida Parole & Probation Commission (FPPC) setting his presumptive parole release date (PPRD).

Lambeth was found guilty of and sentenced to concurrent terms of imprisonment for aggravated battery and trespass while armed. After his initial parole interview, the hearing examiner’s panel assigned him a salient factor score of 1 and placed him in the “greatest (most serious — I)” offense characteristic risk category for a matrix time range of 38 to 59 months. Fla.Admin. Code R. 23-19.05. The panel aggravated the matrix time range by 12 months for the concurrent trespass while armed conviction and an additional 15 months for the following reason:

“Weapon used in attack on victim — 11 inch open box end wrench — victim was struck about the body causing great bodily damage.”

The FPPC adopted the panel’s recommendation. Lambeth timely requested review of this determination, but the FPPC found no good cause to modify his PPRD. This appeal ensued.

Section 784.045(1), Florida Statutes, defines aggravated battery as a battery where one “.. . (a) [intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or (b) [u]ses a deadly weapon.” Relying upon Section 947.165(5), Florida Statutes, and Florida Administrative Code Rule 23-19.01, Lambeth urges that the FPPC erred in aggravating his sentence for the use of a weapon in committing the offense because that factor is included in the definition of aggravated battery. At first glance, his argument would appear to have some merit. However, Section 784.045(1) defines aggravated battery as either causing great bodily harm in committing the battery or using a deadly weapon in committing the battery. Since only one of these two actions is necessary to consummate the crime, it is apparent that the sole factor utilized in determining the offense characteristic is the former circumstance of inflicting great bodily harm. Thus, the aggravating factor of “use of a weapon” is separate from and not included within the parameters of the defined offense characteristic. Accordingly, we find that the Commission’s written explanation, although a bit spare, sufficiently distinguishes that aggravating circumstance from the factors which determine the offense characteristic and the salient factor score. See Baker v. Florida Parole & Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and BOOTH, J., concur.

      . ... Factors used in arriving at the salient factor score and the severity of offense behavior category shall not be applied as aggravating circumstances.

      . If the aggravating or mitigating factor is included in the definition of the crime, or if the aggravating or mitigating factor has already been considered and utilized in compiling the salient factor score, such aggravating or mitigating factors shall not be applicable.


text:
    DOCTORS HOSPITAL OF LAKE WORTH and Corporate Group Service, Inc., Appellants. v. Faye ROBINSON, Appellee.
    No. AD-386.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    Harry D. Robinson, West Palm Beach, for appellants.
    J. J. Goodmark of Goodmark & Good-mark, West Palm Beach, for appellee.
   McCORD, Judge.

This is an appeal from a workers’ compensation order awarding to claimant Faye Robinson reimbursement for child care expenses. § 440.13, Fla.Stat. (1977). In view of the unusual nature of this order and the lack of any clear precedential guidance, we find it appropriate to discuss the evidentia-ry basis of the award.

On October 19, 1978, Robinson suffered a compensable injury to her lower back while attempting to lift a patient at work. Since that time, she has been treated by several physicians, including Dr. Hayslip, a neurosurgeon, who diagnosed her condition as a bulging disc in the spine and nerve root involvement of both the right leg and left arm. Among other things, Dr. Hayslip recommended that Robinson avoid lifting her four-year-old daughter, weighing forty-four pounds, and avoid repetitious bending. Lying in traction was also deemed to be an appropriate therapeutic mode of treatment.

Robinson eventually came under the care of Dr. Blackman, a psychiatrist, for emotional problems that arose as a result of the compensable accident. Blackman diagnosed Robinson as having moderate to severe depressive neurosis, which is manifested by back pain, headaches, and weight gain. This condition is exacerbated by various stressful situations in which Robinson routinely finds herself. One of these stressful situations is presented by the necessity to take care of the needs of her daughter. She testified that her physical condition, including back pain and the necessity to be in traction for six to eight hours a day, caused her to be unable to take care of the needs of her daughter. This inability to meet the normal demands of her child has caused her to become much more nervous and frustrated. Dr. Blackman agreed that Robinson’s continued care for her daughter was a major stress in her life. Thus, he concluded that it would be medically beneficial for the child to be in nursery school in that the removal of the child from the home for several hours per day would lessen the frustrations felt by appellee. This, in turn, would aid in the treatment of her psychiatric condition and facilitate her return to active and fruitful employment.

In light of this factual predicate, we find no error in the deputy’s conclusion that it was medically necessary for Robinson’s daughter to be placed in a nursery school in order to aid her medical recovery and progress and to assess those nursery school expenses against the employer/carrier as a required medical benefit. In reaching this conclusion, we caution against anyone’s misconstruing this opinion as an acceptance of the medical necessity of child care in cases involving circumstances less extreme than those specifically presented here.

AFFIRMED.

ROBERT P. SMITH, Jr, C. J, and BOOTH, J, concur.


text:
    Charles W. SANDERS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-431.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    Appellant pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   PER CURIAM.

The motion to dismiss is denied. The action of the Florida Parole and Probation Commission is affirmed.

ROBERT P. SMITH, Jr, C. J, and McCORD and BOOTH, JJ, concur.


text:
    Lamar Dean BRUNER, Appellant, v. PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-20.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    Appellant pro se.
    No appearance for appellee.
   PER CURIAM.

This petition for writ of mandamus/habe-as corpus has been treated as an appeal. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). The action of the Florida Parole and Probation Commission is affirmed. See Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr, C. J, and McCORD and BOOTH, JJ, concur.


text:
    Freddie D. LYNN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-25.
    District Court of Appeal of Florida, First District.
    March 29, 1982.

      Appellant pro se.
    No appearance for appellee.
   PER CURIAM.

The petition for writ of habeas corpus/mandamus has been treated as a notice of appeal. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). The action of the Florida Parole and Probation Commission is affirmed.

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.


text:
    Pedro Luis PEREZ and Luisa Perez, his wife; Adolfo Rodriguez and Migdalia Rodriguez, his wife Osvaldo Lopez and Josefa Lopez, his wife; and Octavio Valdes and Belen Valdes, his wife, Appellants, v. MAULE INDUSTRIES, INC. and the Insurance Company of North America (INA), Appellees.
    Nos. 80-54 to 80-56, 80-58.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Horton, Perse & Ginsberg and Edward A. Perse, Carroll, Halberg & Meyerson, Miami, for appellants.
    Vernis, Bowling, West, Montalto & Goodman and Stephen N. Montalto, Coconut Grove, Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

This appeal presents the same issue considered by this court in Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979), — whether an injured worker may recover worker’s compensation benefits against a wholly owned subsidiary corporation then bring a separate tort action against the parent corporation though both parent and the subsidiary are covered under the same worker’s compensation policy. On authority of Goldberg, supra, we again affirm the summary judgment granted in favor of the parent corporation.

Affirmed.

      . In Wilkerson v. Gulfstream Land and Development Corporation, 402 So.2d 550 (Fla. 4th DCA 1981), our sister court expressly declined to follow Goldberg v. Context industries, Inc., supra, and reversed a summary judgment granted in favor of the parent corporation.


author: NESBITT, Judge.

text:
    Carmel CARTER, Rodelio Pena, Manuel Vazquez, and M. V. Supplies, Inc., Appellants, v. PENINSULAR FIRE INSURANCE COMPANY, Appellee.
    No. 80-832.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Horton, Perse & Ginsberg and Edward A. Perse, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Jeanne Heyward, Samuel A. Spatzer, Miami, for appellants.
    George, Hartz & McNary and Scott R. McNary, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

After the jury returned a special interrogatory verdict on behalf of the plaintiff, the trial court entered a judgment for the defendant in accordance with a motion for a directed verdict. The plaintiff appeals. We affirm the trial court order.

Carter and her son received personal injuries as a result of a collision with a van driven by Rodelio Pena, who was an employee of M. V. Supplies, Inc. M. V. Supplies, Inc. had previously been owned and operated by Manuel Vazquez, Sr. as a sole proprietorship. Several years prior to the accident, he sold the business to his sons, Orlando and Manuel, Jr., who then incorporated. The vehicle which was involved in the accident was titled in the name of Manuel Vazquez, Sr., but was used in the family business.

Carter commenced an action against Pena, M. V. Supplies, Inc., and its insurer, Peninsular Fire Insurance Company. Peninsular’s multiperil policy with M. V. Supplies, Inc. contained an Employer’s Non-ownership Automobile Liability Insurance Endorsement which provided in pertinent part:

The Company will pay on behalf of the insured, all sums which the insured shall become legally obligated to pay as damages because of:
bodily injury or property damage
. .. arising out of the use in such business, by an employee of the named insured of any non-owned commercial automobile if the use of such commercial automobile is occasional and infrequent . . . [emphasis supplied]

Based on this provision, Peninsular filed an action for declaratory judgment against the aforementioned plaintiffs, as well as Manuel Vazquez, Jr., Orlando Vazquez, and Rode-lio Pena, seeking a determination that no insurance coverage existed under Peninsular’s policy of insurance.

The declaratory judgment action was bifurcated for trial and went to the jury on the single issue of whether the use of the van was occasional and infrequent. The jury found that it was, which activated the policy coverage. Peninsular’s post trial motion for a directed verdict was granted.

The test by which we are governed on review of the granting of a motion for directed verdict is whether there is any reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. The movant admits all of the facts shown in the evidence and admits to every reasonable inference favorable to the adverse party. Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978) and cases cited therein. Where the evidence is in conflict or different conclusions or inferences may be drawn from it, the motion must be denied. Martin v. Kendall, 96 So.2d 668 (Fla. 3d DCA 1957), cert. dismissed, 102 So.2d 727 (Fla.1958). In directing a verdict, the trial court in effect takes an issue away from the jury and decides the issue itself as a matter of law. Scott v. Davis, 188 So.2d 864 (Fla. 1st DCA 1966).

Guided by these standards, our responsibility is to search the record to ascertain whether there is any reasonable evidence to show that the use of the vehicle was occasional and infrequent.

M. V. Supplies, Inc. was engaged in the sale of automotive paint and paint supplies to the automotive repair trade. The corporation owned and used two other vans in addition to Manuel, Sr.’s van, which was involved in the accident. The van contained paint charts, shelves, and other items peculiar to the business. It was generally equipped in the same manner as the two vans owned by the corporation. The defendant, Pena, had been employed by M. V. Supplies, Inc. for approximately three to four months. He performed various jobs around the plant in addition to serving as a delivery man. While the van in question was used less frequently than the other vans, it was the only vehicle ever used by Pena during the course of his deliveries, which were from ten to twenty days a month, over the three to four-month period of his employment. Appellants concede this fact, but claim that it was only used during a small portion of the day. Our review of the record demonstrates, however, that during partial days of utilization, the van was in operation for a period of four to six hours. Orlando testified that the use of the van by M. V. Supplies, Inc. was frequent. Although Mr. Vazquez, Sr. had a set of keys to the van and could use it at any time, in fact, he seldom did.

The insurance premiums for the van were paid for by M. V. Supplies, Inc. The corporation paid for the inspection sticker, license, gas, maintenance, and repair. Such expenses were deducted by the corporation for tax purposes. The van was garaged at the corporate place of business.

The terms “infrequent and occasional” are unambiguous and therefore must be given their natural meaning. Ranger Insurance Company v. Harrell, 286 So.2d 261 (Fla. 2d DCA 1973); Peninsular Life Insurance Company v. Rosin, 104 So.2d 792 (Fla. 2d DCA 1958). “Occasionally” is defined by Webster’s New Collegiate Dictionary (1977 Edition) as “met with, appearing, or occurring at irregular or infrequent intervals.” “Infrequent” is defined as “(1) seldom happening or occurring: RARE, (2) placed or occurring at wide intervals in space or time.” When the words are employed in the conjunctive in the present policy, they further limit the type of use available under the endorsement.

Having viewed the record as did the able trial judge, we entirely agree with the conclusion that the use of the vehicle was too substantial to fall within the ambit of occasional or infrequent use. Consequently, we find that in accordance with defendant’s motion for directed verdict the trial court properly decided as a matter of law that coverage should be denied.

Affirmed.


text:
    Carl MORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1754.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, and Diane V. Ward, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

This is an appeal by the defendant, Carl Morris, of the sentences imposed following his convictions for aggravated assault and unlawful possession of a firearm while engaged in a criminal offense.

The trial court sentenced the defendant under the Youthful Offender Act to a three-year term of imprisonment, followed by two years’ probation, and also ordered that the defendant serve a three-year minimum because the crime involved a firearm, Section 775.087(2), Florida Statutes (1979), but suspended the entry of the possession charge.

We affirm the action of the trial judge in all regards, except we modify the provision of the sentence requiring a three-year minimum of time served by striking this provision from the sentence. See: State v. Hegstrom, 401 So.2d 1343 (Fla.1981); Whitlock v. State, 404 So.2d 795 (Fla. 3d DCA 1981); Guerrero v. State, 407 So.2d 261 (Fla. 3d DCA 1981). Because there is a provision in Section 958.05(3), Florida Statutes (1979) for a minimum one-year sentence under certain circumstances, we return the matter to the trial court for further consideration.

Affirmed in part, reversed in part with directions.


text:
    The STATE of Florida, Appellant, v. Randy FERGUSON, Appellee.
    No. 80-2147.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Paul Morris, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

We have for review an order of the trial court suppressing certain statements made by the defendant Randy Ferguson to the police. The sole basis for suppressing the statements was the trial court’s determination that: (1) the statements constituted “the direct product of a confrontation between the defendant and the written confessions obtained by co-defendants Sands and Thomas,” and (2) “the statements of the co-defendants were illegally obtained” in that (a) “the statement of Sands was the fruit of the execution of a fatally defective search warrant,” and (b) “[t]he statement of Thomas was the fruit of an arrest in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and the principles enunciated therein.” In short, the trial court below suppressed the defendant’s statements because they constituted the fruit of confessions obtained from third parties by the police in violation of the said third parties’ Fourth Amendment rights.

We are compelled to reverse the order under review, because, concededly, the police at no time violated the Fourth Amendment rights of the defendant — only, allegedly, the Fourth Amendment rights of third parties. The law is well-settled that “ ‘suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and co-defendants have been accorded no special standing.’ ” Brown v. State, 245 So.2d 68, 74 (Fla.1971), quoting with approval from Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969); see also United States v. Salvucci, 448 U.S. 83, 87 n.4, 100 S.Ct. 2547, 2551 n.4, 65 L.Ed.2d 619 (1980); United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981); St. John v. State, 400 So.2d 779, 780 (Fla. 1st DCA 1981). As such, the defendant Ferguson herein had no standing to complain that the police allegedly violated the Fourth Amendment rights of Sands and Thomas; and, as the police, concededly, did not violate the defendant’s Fourth Amendment rights, it follows that the trial court committed reversible error in suppressing the said defendant’s statements to the police based on Fourth Amendment grounds. The order under review is, accordingly, reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.


author: DANIEL S. PEARSON, Judge.

text:
    James A. DILLMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2250.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

The State established by adequate proof that the defendant, a prisoner in Colorado who had requested final disposition of a detainer resulting from pending Florida charges, see Section 941.45(3), Florida Statutes (1979), did within 180 days of his request evince his unwillingness to waive extradition. We hold that the defendant’s subsequent insistence on his right not to be returned to Florida without a full and com-píete extradition hearing was an effective revocation of his earlier waiver of extradition and deprived him of any right to be tried within 180 days of his request under Section 941.45(3)(a), Florida Statutes (1979), or Florida Rule of Criminal Procedure 3.191(b)(3) (1979), see O’Bryan v. State, 326 So.2d 83 (Fla. 1st DCA 1976). Accordingly, we affirm the trial court’s denial of the defendant’s motion to dismiss under the statute and motion for discharge under the rule.

However, because the State, over the defendant’s objection, persisted in eliciting statements of the defendant made to a State witness, which statements implicated the defendant in a murder totally unrelated to the armed robbery charge being tried and established nothing more than the criminal propensities of the defendant, we are compelled to reverse the defendant’s conviction and remand the cause for a new trial. Rodriguez v. State, 372 So.2d 1167 (Fla. 3d DCA 1979); Paul v. State, 340 So.2d 1249 (Fla. 3d DCA), cert. denied, 348 So.2d 953 (Fla.1977). See Williams v. State, 110 So.2d 654 (Fla.1959).

Affirmed in part; reversed in part and remanded for a new trial.

      . A request for final disposition is deemed to be a waiver of extradition. § 941.45(3)(e), Fla. Stat. (1979).

      . Our holding makes it unnecessary to address the State’s various other contentions in support of the trial court’s order.

      . While the defendant’s objection on hearsay grounds to his own admission was off the mark, his objection on the grounds that the statements were irrelevant and prejudicial, made before trial in a motion in limine and during trial, were well taken. The fact that these statements were made by the defendant does not, of course, entitle them to admission. See, e.g., Paul v. State, 340 So.2d 1249 (Fla. 3d DCA), cert. denied, 348 So.2d 953 (Fla.1977); Jenkins v. State, 177 So.2d 756 (Fla. 3d DCA 1965); Minturn v. State, 136 So.2d 359 (Fla. 3d DCA 1962); Hooper v. State, 115 So.2d 769 (Fla.3d DCA 1959).

      . The State’s witness (Wake) related a conversation between the defendant and one Kiever (who was charged, but not tried, with the defendant in the present case) in which the defendant, having heard Kiever’s admission that he killed someone during a poolroom fight, purportedly stated, “Man, that was a coldblooded scene.” The witness further testified that the defendant then placed a scorpion ring on his finger and made a sinister remark that he was like a scorpion, which when “he stings you, you’re going to die.”


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    Howard HERRING, Appellant, v. The STATE of Florida, Appellee.
    No. 81-162.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Solomon & Mendelow and Harold Mende-low, Miami Springs, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Despite the defendant’s contention that he committed a single crime susceptible to a single conviction and sentence, the record reflects each of the fifteen counts of grand theft, second degree, constituted a separate offense. We do find, however, that each of the concurrent sentences imposed exceeded the five-year maximum allowable by law. §§ 812.014(2)(b), 775.-082(3)(d), Fla.Stat. (1979). Accordingly, we vacate the sentences and remand for resen-tencing. Because it appears to have been its intent that the defendant receive a ten-year sentence, the trial court may, if it chooses, accomplish that sentencing goal by imposing consecutive sentences.

We acknowledge that our authorization of this change from concurrent to consecutive sentences directly conflicts with the decision of our sister court in Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979). We believe, however, that Pahud was wrongly decided ab initio and, moreover, has been overruled, sub silentio, by Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981).

I.

In Pahud, the defendant was sentenced to two concurrent twenty-year terms of imprisonment. He moved to vacate both sentences as being in excess of the statutory maximum of ten years. The trial court vacated the sentences and resentenced Pa-hud to two ten-year terms to run consecutively. Pahud appealed. The appellate court, acknowledging that it “would be inclined not to view this as an enhanced sentence for we see little if any difference in the result,” felt bound by existing case law to reverse. Our review of the cases relied on in Pahud points us in an opposite direction.

A.

The court’s reliance in Pahud on Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972), and United States v. Sacco, 367 F.2d 368 (2d Cir. 1966), is misplaced. Those cases held that a trial court is not free to change a valid and unchallenged sentence.

In Brown v. State, supra, the defendant was sentenced on March 16, 1971, to five years imprisonment for possession of narcotics and five years for sale of narcotics, the sentences to run consecutively. On the following day, the trial court, sua sponte, resentenced the defendant to ten years on the sale count to run consecutively to the possession count. Brown then moved to vacate the five-year sentence for possession and the ten-year sentence for sale. But unlike Pahud and unlike Herring in the case before us, Brown never sought to have vacated the five-year sentence for sale imposed on March 16. Significantly, the appellate court stated:

“The [State’s] reasoning [that the new sentence may be greater or may differ materially in effect from the previous sentence] would be correct if the entire March 16th sentence were invalid. Such, however, is not the situation here. Only the separate sentence for possession was illegal. The five year sentence for sale was not invalid by itself. Where two separate judgments or sentences are imposed together the legality of each must be determined separately.” Brown v. State, supra, at 29. (emphasis supplied).

To the same effect is United States v. Sacco, supra. There, the court imposed a valid five-year sentence on Count I and an invalid seven-year sentence on Count II to run concurrently. The defendant attacked the sentence on Count II only as being in excess of the five-year maximum. The trial court then transposed the sentences, imposing the seven-year sentence on Count I and the five-year sentence on Count II. The appellate court merely held that the valid and unchallenged sentence on Count I could not be increased.

B.

A second line of cases relied on in Pahud is represented by Kennedy v. United States, 330 F.2d 26 (9th Cir. 1964), and Duggins v. United States, 240 F.2d 479 (6th Cir. 1957), which, while arguably supporting Pahud, are, in our view, wrongly decided. In both, the defendant, sentenced on multiple counts, moved to vacate ten-year sentences imposed in excess of a five-year statutory maximum on certain of the counts. The trial courts reduced the challenged sentences to five years, but ordered that they run consecutively (not, as in the initial sentences, concurrently) with other valid and unchallenged five-year sentences. The appellate courts reversed, reasoning that although the only changed sentences were those which were attacked by the defendant, the defendant had a vested interest in so much of the original sentence that was valid — its concurrency with other unchallenged sentences — which was not subject to change., This concept, that the concurrency aspect of a vacated sentence is forever sacrosanct and immune from change, is, in our view, erroneous. The cases which hold that an unattacked legal sentence cannot be disturbed when an illegal sentence is set aside and a new sentence imposed arise in a setting where a sentence on one count is legal and the sentence on another, illegal. In that context, the legal sentence is considered untouchable because it is self-contained. The error of Kennedy-Duggins, carried on in Pahud, is to pervert the “part legal-part illegal” rule by applying it to a single sentence on a single count and to declare that there is some vestigial legal part to an illegal sentence which must remain undisturbed when the illegal sentence is set aside. This “once concurrent-always concurrent” declaration simply flies in the face of the long-standing proposition that when, at the defendant’s behest, a sentence is invalidated, the slate is wiped clean, and

upon resentencing, any sentence which originally could have been imposed may be imposed. Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711 (1900) (holding constitutional state statute which provided, in pertinent part, “[W]hen a final judgment in a criminal case is reversed by the supreme judicial court on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had.”); Robinson v. Warden, Maryland House of Corrections, 455 F.2d 1172 (4th Cir. 1972) (slate wiped clean when prisoner seeks reduced sentence under state statute providing for review by three-judge panel); Kitt v. United States, 138 F.2d 842 (4th Cir. 1943) (when appellate court remanded for resentencing, the trial court was not restricted by the terms of the prior sentences, but instead could impose such sentences as were within the law as if no prior sentence has been imposed); State ex rel. Rhoden v. Chapman, 127 Fla. 9, 10, 172 So. 56 (1937) (“where, at the request of a convicted defendant, or at his instance . . . the court has vacated or annulled its presently imposed sentence . . . the court may .. . impose a new sentence upon the original judgment of conviction, even though such new sentence is greater, or materially different in effect from that first imposed and thereafter vacated.”).

II.

Whatever vitality there may once have been in the Kennedy-Duggins-Pahud line, it is certainly now apparent that it should no longer sire successors. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held that a more severe sentence upon reconviction offends neither the double jeopardy nor equal protection clauses of the Constitution. The only constitutional basis for attack on a second sentence after the first has been set aside is found in the due process clause of the Constitution which is offended only if the enhancement punishes the defendant for the exercise of rights guaranteed him. Specifically rejected in Pearce is the notion that for double jeopardy purposes, the imposition of a sentence is an “implied acquittal” of any greater sentence. See United States v. DiFrancesco, 449 U.S. 117, 135 n. 14, 101 S.Ct. 426, 436 n. 14, 66 L.Ed.2d 328, 345 n. 14 (1980). The rejection of the notion that there is some vested right in the length of a sentence necessarily includes the rejection of the notion that there is a vested right in any other part of a sentence. It is now quite simply the case that a criminal sentence, once pronounced, is not accorded the constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. United States v. DiFrancesco, supra.

Consistent with the Pearce-DiFrancesco view of the limited reach of the double jeopardy clause is Villery v. Florida Parole & Probation Commission, supra. There the court held that incarceration pursuant to a split sentence or as a condition of probation which exceeds one year is invalid. Surely, were the theory of Kennedy-Duggins-Pa-hud correct, then a defendant seeking to set aside a sentence imposed in violation of Villery would have a vested interest in the legal part of the sentence, that is, the incarceration of less than one year and the probationary term, and therefore, the trial court, in correcting the sentence, could not disturb those parts. But Villery places no such restriction on the trial court:

“In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment . . . . ” 396 So.2d at 1112.

The sentence of imprisonment which may be imposed under Villery may equal the original total term of probation, giving credit for time already served in prison. Thus has Villery, mercifully, dealt the death blow to Pahud.

III.

Therefore, since a defendant who successfully seeks to set aside his sentence has no residual rights in the original sentence, the only remaining possible justification for Kennedy-Duggins-Pahud is that the change from concurrent to consecutive sentences constitutes an enhancement of the defendant’s sentence in violation of due process rights guaranteed by North Carolina v. Pearce :

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U.S. at 725-26, 89 S.Ct. at 2080-81 (footnote omitted).

But no violation of due process occurs when sentences vacated at the defendant’s instance are changed to accomplish the trial court’s previously declared sentencing goal. Even if, arguendo, under Kennedy-Duggins-Pahud such a change were deemed an enhancement of the original penalty, it is, definitively, non-vindictive. Finally, because this change creates no concern about an unspoken retaliatory motivation, no separate reason justifying the change need affirmatively appear on the record to satisfy North Carolina v. Pearce, supra.

Affirmed in part; reversed in part, and remanded for resentencing.

BASKIN, Judge

(specially concurring).

While I am in accord with the majority holding insofar as it permits resentencing up to an aggregate sentence of ten years imprisonment, I believe United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) is inappropriate as a foundation for decision.

In DiFrancesco, the government, acting pursuant,, to 18 U.S.C. § 3576 (1976), which affords it a limited right to appeal, sought to increase a sentence it considered too lenient. In the case before us, defendant Herring is the party appealing and, for that reason, is subject to the protections enunciated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). DiFrancesco clearly expresses the supreme court’s intent: “We are not inclined to overrule Pearce.” 449 U.S. n. 14 at 135, 101 S.Ct. n. 14 at 436, 66 L.Ed.2d n. 14 at 345. Thus, any semblance of vindictive action in increasing Herring’s sentence would offend the supreme court prohibition against deterring a defendant’s exercise of his right to appeal and would suggest a denial of due process. For that reason, the trial court may not, upon remand, impose consecutive sentences totaling more than the original ten-year sentences without record justification.

      . The new aggregate sentence may not exceed ten years unless the excess can be justified under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See discussion, infra.

      . The twenty-year sentences were permissible only if imposed after a court-ordered psychiatric examination, which condition precedent was not satisfied.

      . Brown’s challenge to the possession sentence was under then existing case law prohibiting the imposition of separate sentences for two offenses which are facets of a single transaction. The law was changed in 1976 with the enactment of Section 775.021(4), Florida Statutes, requiring the court to sentence separately for each criminal offense committed during the course of one criminal transaction or episode. See Hegstrom v. State, 401 So.2d 1343 (Fla.1981). Brown’s challenge to the ten-year sentence for sale was based on the proposition that the trial court was not empowered to enhance the five-year sale sentence imposed the day before. While Brown v. State is inapposite to the case before us, we question whether, in light of recent developments in the area of the applicability of double jeopardy to resentenc-ing, see, particularly, United States v. Busic, 639 F.2d 940 (3d Cir. 1981); United States v. Hodges, 628 F.2d 350 (5th Cir. 1980), the result in Brown would be the same today.

      . This rule that added punishment under a valid and unchallenged sentence cannot be imposed to offset the defendant’s successful challenge to an invalid sentence on a separate count, see also Chandler v. United States, 468 F.2d 834 (5th Cir. 1972); United States v. Welty, 426 F.2d 615, 619 (3d Cir. 1970) (Welty I), has been applied in other contexts to any increase in an unchallenged valid sentence. See, e.g., Safrit v. Garrison, 623 F.2d 330 (4th Cir. 1980); United States v. Vera, 615 F.2d 1152 (6th Cir. 1980); United States v. Frady, 607 F.2d 383 (D.C.Cir.1979); United States v. Adams, 362 F.2d 210 (6th Cir. 1966). But see United States v. Busic, supra; United States v. Hodges, supra; United States v. Welty, 468 F.2d 594 (3d Cir. 1972) (Welty II). Since the case before us does not involve a change in a valid and unchallenged sentence, see, e.g., Troupe v. Rowe, 283 So.2d 857 (Fla. 1973), we need not consider whether a sua sponte change which does not increase the combined sentences on several counts and is made to correct the erroneous transposition of the intended sentences, see Chandler v. United States, supra; United States v. Sacco, supra; compare United States v. Busic, supra, and United States v. Hodges, supra (where sentence on challenged counts vacated as impermissible in light of other valid sentences on separate counts, valid sentences could be vacated and sentences thereon increased without offending double jeopardy), should be constitutionally permissible, despite the usual double jeopardy proscription against a change in a final and valid sentence. See United States v. Sacco, supra, at 370 (Lumbard, C. X, dissenting).
      “The majority opinion, in my view, is a bootstrap argument which justifies reversal of the order of the district court by calling it a name and that name is ‘increasing the sentence.’ This is simply contrary to fact. The district judge was not increasing the sentence when he corrected the record. The sentence remained the same; the record was merely corrected so that the seven-year sentence would rest on the basis which was always there, namely, the conviction on count one. No one noticed the error at the time of sentence; no one supposed that the judge was doing anything beyond his power. The judge was in error not as to his power to impose a seven-year sentence but only as to which count gave him the power. What he did at the time of the sentence was correctly done except for the inadvertent error of miscalling the count.”

        Compare State v. Farber, 409 So.2d 71 (Fla. 3d DCA 1982); Neidinger v. United States, 647 F.2d 408 (4th Cir. 1981); United States v. Ford, 632 F.2d 1354 (9th Cir. 1980) (inadvertent sentences corrected before sentences became final).

      . It is difficult to discern from United States v. Best, 571 F.2d 484 (9th Cir. 1978), also relied on in Pahud, whether the defendant attacked each of the three sentences imposed or whether the court simply changed an unattacked sentence. There the defendant received three six-month sentences to run concurrently along with three years probation. The opinion does not indicate whether the probation was added on each of the three sentences. The defendant successfully asserted that the probationary term was invalid, since six months incarceration was the maximum. On resentencing, the trial court changed the six months incarceration on Counts II and III to three years probation to run consecutively to Count I. The resentence was held invalid. Since Best cites to Kennedy, we read it to fall into the vested interest class of cases.

      . It is certainly arguable that making the newly imposed sentence consecutive instead of concurrent to an unchallenged valid sentence is, in effect, a change in the unchallenged valid sentence from concurrent to consecutive. Had this been the rationale of Kennedy and Dug-gins, then these cases would stand for no more than the rule announced in Brown and Sacco and, in the same manner, would be distinguishable from Pahud and the present case. Such a rationale, however, is not as readily available in cases (as Kennedy and Duggins) where more than one sentence is successfully attacked as invalid. In such cases, the new sentences on the invalidated counts could be made consecutive to each other.

      . This long-standing proposition is still standing, qualified only by the proviso that the re-sentence does not violate due process. See United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); North Carolina v. Pearce, supra, n. 1, discussed infra.

      . In Murphy, the court distinguished Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), on the grounds that (a) in Lange the original sentence had been fully satisfied, and (b) Lange sought his release, not a vacation of the sentence. This distinction is overlooked in Pahud, which relies on Lange. The limited precedential value of Lange, as well as United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1930) (a court is empowered to reduce a sentence after service has begun), also relied on in Pahud, is made clear in United States v. DiFrancesco, supra, n. 7. Indeed, one court has noted the pervasive and misleading influence of the “now discredited decisions” in Lange and Benz. See United States v. Busic, supra, n. 3.

      . In Kennedy v. United States, supra, the court attempted to distinguish the contrary holdings in Murphy v. Massachusetts, supra, and Kitt v. United States, supra, on the basis that Murphy and Kitt involved remands from appellate courts, whereas “in the instant case the original sentences were imposed by the District Court and the same court did the resentencing without any mandate from an appellate court,” Kennedy v. United States, supra, at 29. While under this analysis the present case falls clearly within Murphy and Kitt, we simply cannot rely on this distinction without a difference. The fact that a defendant’s conviction is overturned on collateral rather than direct attack is irrelevant to the question of whether he can be retried, North Carolina v. Pearce, supra, n. 1; United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). The difference between resentencing after retrial rather than after appeal is a conceptual nicety only. United States v. DiFrancesco, supra, n. 7. Courts are empowered to grant new trials and to correct sentences, and it is incongruous to accord greater relief (no resentencing allowed) to one who proceeds collaterally than to one whose rights are vindicated on direct review. United States v. Tateo, supra, 377 U.S. at 466, 84 S.Ct. at 1589.

      . Pearce requires that credit for time served under the first sentence be given.

      . The genesis of Villery was the complaint that lengthy imprisonment as a condition of probation denied the prisoner parole consideration. The court in Villery undoubtedly assumed that a change from probation to an equal amount of incarceration would not result in any actual additional incarceration for the prisoner, who would theoretically be released on parole no later than he would be released on probation. However, where that is not the case, and a prisoner is “punished” for exercising rights granted by Villery, a due process issue under North Carolina v. Pearce, supra, is presented. The imposition of a penalty upon a defendant for successfully pursuing a noncon-stitutional rather than constitutional right is no less a violation of due process. North Carolina v. Pearce, supra, 395 U.S. at 724, 89 S.Ct. at 2080.

      . This is apparently the rationale of Holloway v. State, 360 So.2d 140 (Fla. 2d DCA 1978), where the court condemned a resentencing after successful appeal and retrial of one case. The new sentence, originally concurrent to two other cases, was made consecutive.

      . If, however, the new sentence exceeds ten years, the trial court will have to justify the excess by making its reasons “based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” affirmatively appear in the record. See n. 1, supra.

      . Florida has no provision permitting the state to appeal a defendant’s sentence. The Habitual Offender Act, section 775.084, Florida Statutes (1979), although similar to the statute reviewed in DiFrancesco, does not authorize a state appeal.


text:
    Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, deceased, Appellant, v. Miriam J. PEARL and K.S.T.O. Corporation, Appellees.
    No. 81-562.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Ratiner & Glinn, Miami, for appellant.
    Lyons & Smith and Allen Kominsky, Miami, John Kirk McDonald, Coral Gables, and Claudia B. Greenberg, Miami, for ap-pellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Like the threat of a lawsuit or the filing of a complaint, a judgment establishing liability but not determining or fixing any monetary amount of damages does not constitute a cognizable lien pursuant to Section 55.10, Florida Statutes (1979). It is simply an expectancy.

Affirmed.


text:
    Edward D. JELLOW and Carmella Jellow, his wife, Appellants, v. The KEYES COMPANY, a Florida corporation, Appellee.
    No. 81-634.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Stanley Haves, Miami, for appellants.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellee.

      Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Broward National Bank of Fort Lauderdale v. Bethel, 341 So.2d 1012 (Fla. 4th DCA 1977); Schmidt v. Bryant, 312 So.2d 209 (Fla. 1st DCA 1975); Stolen v. Metropolitan Life Insurance Company, 287 So.2d 694 (Fla. 3d DCA 1974).


text:
    John C. FRITZ and Joyce Waldin Fritz, Trustees, Appellants, v. CITY OF HIALEAH, a municipal corporation of the State of Florida, Appellee.
    No. 81-1022.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Anthony J. O’Donnell, Jr., Fort Lauderdale, for appellants.
    Ralph Miles, City Atty. and William G. Wetzel, Jr., Asst. City Atty., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

It appearing to the court that during the pendency of the appeal the matter has become moot, the trial court’s judgment is vacated and the cause remanded with directions that the cause be dismissed. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Town of Palm Beach v. Gradison, 298 So.2d 443 (Fla. 4th DCA 1974); Town of Palm Beach v. First Bank and Trust Co. of Boca Raton, 298 So.2d 443 (Fla. 4th DCA 1974); Town of Palm Beach v. Royal Palm Beach Hotel, Inc., 298 So.2d 439 (Fla. 4th DCA 1974).

Remanded with directions.


text:
    W. L. PHILBRICK and Christine J. Philbrick, his wife, substituted for W. L. Philbrick, Inc., Appellants, v. Ronald A. WEDEL and Doris N. Wedel, his wife, Appellees.
    No. 81-1049.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Richard H. W. Maloy & Associates, Coral Gables, and Claudia B. Greenberg, Miami, Padgett, Teasley, Niles & Shaw, Coral Gables, for appellants.
    Shapiro & Leder and Paul D. Breitner, Miami, for appellees.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M., (Ret.), Associate Judge.
   PER CURIAM.

The final judgment of specific performance which is under review by this appeal is reversed upon a holding that there was never an enforceable contract entered into by the parties herein because: (a) the financing portion of the subject agreement was, in our view, entirely indefinite in its terms and was, therefore, not susceptible to a decree of specific performance, see e.g., Chaney v. Brown, 158 Fla. 489, 29 So.2d 209 (1947); Maloy v. Boyett, 53 Fla. 956, 43 So. 243, 245 (1907); Brown v. Dobry, 311 So.2d 159 (Fla. 2d DCA 1975), and (b) the plaintiff buyers, Ronald Wedel and Doris Wedel, in any event, never accepted the financing portion of the subject agreement, but made a counter proposal thereon, which was never acted upon by the defendant sellers W. L. Philbrick and Christine Philbrick. See e.g., Mehler v. Huston, 57 So.2d 836 (Fla.1952); Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (1947); Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92, 93-94 (1910); Brickell Townhouse, Inc. v. Hirschfield, 404 So.2d 153 (Fla. 3d DCA 1981); Mintzberg v. Golestaneh, 390 So.2d 759 (Fla. 3d DCA 1980). The cause is, accordingly, remanded to the trial court with directions to enter a judgment in this action for the defendant sellers, W. L. Philbrick and Christine Philbrick.

Reversed and remanded.


text:
    William ROSCOE, Jr., a/k/a Willie Stephenson a/k/a Michael Sawyer, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1133.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Bennett H. Brummer, Public Defender and William A. Meadows, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Jefferson v. State, 298 So.2d 465 (Fla. 3d DCA 1974).


text:
    Aida BARREIRO, Appellant, v. Armando V. BARREIRO, Appellee.
    No. 81-1213.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Abrams & Abrams and Carol R. Gersten, Miami, for appellant.
    No appearance for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The Barreiros, preparatory to the commencement of proceedings to dissolve their marriage, entered into a property settlement agreement. Of significance to this appeal is that the husband agreed that (1) the wife, despite her announced intention to leave Florida, was to have the custody of the Barreiros’ seventeen-month-old child; and (2) “[i]n connection with the negotiation and execution of this Agreement and in connection with any action for dissolution of marriage, ... to pay one-half of the attorneys’ fees and costs incurred by the wife, said one-half being $460.00.”

Aida filed her petition for dissolution, which asked, inter alia, that the court ratify and approve the agreement. Armando, having a change of heart and mind, counter-petitioned seeking to prevent the wife from leaving Florida and thereafter, by amendment to his counter-petition, seeking custody of the child. With that, the wife moved for attorneys’ fees.

Nearly six months and over fifty hours of custody litigation later, the trial judge awarded the wife custody of the minor child, dissolved the marriage, approved and adopted the property settlement agreement, and reserved jurisdiction on the wife’s motion for attorneys’ fees.

Before the hearing on attorneys’ fees could be held, the trial judge who reserved jurisdiction was succeeded in office and the case reassigned. His replacement, after hearing uncontroverted testimony supporting a fee of no less than $6,000, refused to award any additional fees for the expressed reason that he believed he was “stuck with what’s in the file,” that is, the final judgment of dissolution ratifying the property settlement agreement, which provided for $460 only.

In our view, the trial judge was no more “stuck with what’s in the file” than Aida Barreiro was stuck with her agreement to accept $460. It is all too obvious that when Mr. Barreiro abrogated his agreement that Aida have custody of the child, resulting in totally unanticipated custody litigation and attendant attorneys’ fees, Aida’s agreement to accept $460 was abrogated as well. Moreover, the ratification and acceptance of the property settlement agreement in the final judgment of dissolution cannot reasonably be construed as precluding an award of additional fees to Aida, particularly in light of the fact that the very same paragraph of the judgment provides for a specific retention of jurisdiction to award additional attorneys’ fees to the wife. Therefore, for these reasons, we reverse the Order Denying [sic] Attorneys Fees, which awarded the wife attorneys’ fees of $460 as limited by the property settlement agreement. We remand the cause to the trial court to award to the wife such additional fees reasonably incurred by her in connection with the litigation which was engendered by the husband seeking custody of the minor child.

Reversed and remanded.

      . Paragraph 6 of the Final Judgment reads: “The court ratifies and accepts the Property Settlement Agreement entered into between the parties and makes it a part of this Final Judgment of Dissolution of Marriage by reference, and the Court will retain jurisdiction for the purpose of enforcing the terms and conditions in said Agreement as modified with regard to visitation and for otherwise modifying said Agreement as from time to time may become necessary, and to award additional attorneys fees to the Petitioner/Wife.”

      . The appellant invites us to alternatively hold on the authority of Young v. Young, 322 So.2d 594 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 466 (Fla.1976), that, in any event, the trial court was authorized to award her additional attorneys’ fees despite her agreement to accept $460. Because the fee agreement was so clearly abrogated in the present case, we decline the invitation.

      .The trial judge may, if he deems it necessary, take additional testimony. While he commented at the attorneys’ fees hearing that he thought the wife deserved additional fees, we cannot conclusively discern that he meant that $6,000 was appropriate or that some other additional award was appropriate.


text:
    CARIBBEAN FREIGHTERS INTERNATIONAL, INC., Appellant, v. D. Clayton WILLIAMS, Jr., individually, Appellee.
    No. 81-1275.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Flynn, Rubio & Tarkoff and H. Frank Rubio, Jr., Miami, for appellant.
    Madigan, Parker, Gatlin, Swedmark & Skelding and Julius F. Parker, Jr., Tallahassee, for appellee.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970); Fla.R.Civ.P. 1.500(c).


author: BASKIN, Judge. LETTS, Judge,

text:
    ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN), a non-profit corporation, Verna Lee Dukes; Alberta Gidden, individually and on behalf of all those similarly situated, Appellants, v. CITY OF FLORIDA CITY, a municipal corporation; John Calualtti, in his capacity as mayor of Florida City; Otis Wallace; Juanita Smith; Arturo De Leon; Jennie Notaro, in their official capacity as city commissioners of the City of Florida City, Appellees.
    No. 81-1297.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Joseph P. Hoffman, Coral Gables, for appellants.
    Joseph F. Tomassi, Homstead, for appel-lees.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   BASKIN, Judge.

Property owners filed a class action suit against Florida City challenging sewer assessments. They contested the validity of assessments for inaccessible sewers which they asserted conferred no special benefit on their property. They urged the court to grant summary judgment. The City also filed a motion for summary judgment in which it contended the assessments were legal and that the property owners received special benefits from the sewer system. The court agreed with the City and entered summary judgment in its favor. Finding that genuine issues of material fact concerning the question of special benefit precluded the entry of summary judgment, we reverse.

Section 170.01, Florida Statutes (1975) provides that cities, towns, or municipal corporations may levy and collect special assessments upon “abutting, adjoining, contiguous or other specially benefited property.” Special assessments should not exceed the benefits conferred upon the property improved. Stockman v. City of Trenton, 132 Fla. 406, 181 So. 383 (1938). Appellants contend that parcels of land which are not connected to the system are not specially benefited and that members of the class it represents cannot hook up to the system, citing Crowder v. Phillips, 146 Fla. 428, 1 So.2d 629 (1941); see also 7800 Building, Inc. v. City of South Miami, 305 So.2d 860 (Fla. 3d DCA 1974); City of Miami v. Brinker, 342 So.2d 115 (Fla. 3d DCA 1977). The City, on the other hand, asserts that property owners receive a special benefit from gravity sewers, pump stations, force mains, and the sewage treatment plant. Although the area the City claims will benefit from the improvements includes the entire city, it is apparent that some property owners cannot connect with the system unless they install their own gravity feed lines. Because the gravity feed lines would be required to reach from their property to the nearest city force main, their installation would be both financially and practically impossible.

The question of special benefit presents an issue of fact. See Meyer v. City of Oakland Park, 219 So.2d 417 (Fla.1969); City of Fort Meyers v. State of Florida, 95 Fla. 704, 117 So. 97 (Fla.1928); Snell Isles Homes, Inc. v. City of St. Petersburg, 199 So.2d 525 (Fla. 2d DCA), cert. denied, 204 So.2d 210 (Fla.1967); City of Hallandale v. Meekins, 237 So.2d 318 (Fla. 4th DCA 1970), cert. discharged, 245 So.2d 253 (Fla.1971). Unless a special benefit to the property owners exists, the City’s issuance of a bond for sewer improvements, without a vote of the electors, violates Article VII, section 12 of the Florida Constitution (1968).

For these reasons, we reverse the summary judgment entered by the trial court and remand for further proceedings.

LETTS, Judge,

specially concurs.

I agree with the result in this case, but am apprehensive that the majority opinion gives the impression that certain of the owners, who would have to install gravity feed lines to connect with the system, conclusively received no special benefit. If that were true, the result would be a summary judgment in their favor instead of the City. That is not, if I understand it correctly, what we intend. We intend only to hold that there are issues of fact which preclude the entry of summary judgment for either side.


author: HENDRY, Judge. LETTS, Judge,

text:
    QUICK & REILLY, INC., a New York corporation, and Q & R Clearing Corporation, etc., Appellants, v. Morton J. PERLIN and Charlotte W. Perlin, Trustees, Sam Perlin Co. Employee Profit Sharing Trust, Appellees/Cross-Appellants.
    No. 81-1335.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Blank, Williams & Benn and Irwin S. Rever, West Palm Beach, for appellants.
    Morton J. Perlin, Miami, for appel-lees/cross-appellants.
    Before HENDRY and BASKIN, JJ., and LETTS, GAYIN K., Associate Judge.
   HENDRY, Judge.

Appellants Quick and Q & R appeal from an order denying their motion to vacate final judgment and open default pursuant to Florida Rule of Civil Procedure 1.540(b). The Perlins, plaintiffs below, cross-appeal from the denial of their motion for attorney’s fees.

The Perlins filed suit against their stockbroker, Quick, and its clearing corporation, Q & R, for failing to deliver 400 shares of stock purchased by them. Money damages, interest, costs and attorney’s fees were sought under Section 517.211, Florida Statutes (1979), which provides various remedies for securities violations. After appellants failed to respond, a default was entered and the Perlins moved for entry of final judgment seeking rescission of the transaction on the basis that when the stock was finally delivered to them (after suit was filed) that the value was half that on the date of purchase.

The final default judgment entered April 3, 1980 provided that the stock certificates be endorsed by the Perlins and held in the court’s registry for appellants, and awarded the Perlins the purchase price of the stock plus interest, costs and attorney’s fees. Quick filed a motion to vacate judgment and open default on May 7, 1981, alleging grounds of inadvertence or excusable neglect and asserting that the complaint failed to state a cause of action for statutory rescission. On June 11, 1981, the trial court entered a final order denying Quick’s motion to vacate default and denying the Perlins’ motion for attorney’s fees. Quick now appeals contending that the default should have been vacated pursuant to Rule 1.540(b)(4) or (5), and challenging the award of attorney’s fees to the Perlins on the default judgment. The Perlins, in turn, cross-appeal from the denial of their motion for attorney’s fees on the final order. We affirm.

Quick’s first point, that the trial court erred in refusing to set aside the default, is without merit. Except for (b)(4) and (5), which were not raised in the motion to vacate and therefore need not be considered on appeal, see Nicholas v. First Interstate Development Corp., 315 So.2d 238 (Fla. 4th DCA 1975); Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973), all grounds for relief under Rule 1.540 were lost by passage of time since the motion was made more than one year after entry of final judgment. August v. August, 350 So.2d 794 (Fla. 3d DCA 1977); Craven v. J. M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969). Assuming, arguendo, that these grounds [1.540(b)(4) and (5) ] had been properly raised in the motion to vacate, the result would be the same. A motion to vacate a final judgment lies under Rule 1.540(b)(4) where the judgment is void for lack of jurisdiction or proper due process notice. See, e.g, Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980); Saharuni v. Saharuni, 343 So.2d 674 (Fla. 2d DCA 1977); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970). Here, there was no allegation by Quick' that the trial court lacked jurisdiction or that proper service of process was not effected. Nor could relief have been afforded appellants under Rule 1.540(b)(5) by which a party may be relieved from a final judgment where the judgment has been satisfied, released or discharged. Although Quick asserts that its transmission of the stock to the Perlins after suit was filed “satisfied” their claims, the rule requires that the judgment be satisfied and at that time no judgment had, as yet, been entered. Thus, relinquishment of the stock did not effectively discharge the judgment.

Having determined that the trial court properly denied appellants’ motion to vacate, the more difficult question is whether the award of attorney’s fees in this case was proper.

In what appears to be a case of first impression in this state, the trial court awarded Morton Perlin, an attorney and plaintiff below, fees for being the prevailing party in an action brought pursuant to Section 517.211, Florida Statutes (1979), which provides, in relevant part:

517.211 Remedies available in cases of unlawful sale.—
¡}C 5{5 5}C S}C # #
(6) In any action brought under this section, including an appeal, the court shall award reasonable attorneys’ fees to the prevailing party unless the court finds that the award of such fees would be unjust.

Appellants have assailed this award as improper since Mr. Perlin was representing himself and did not employ outside counsel.

The reported cases in the country on whether a lawyer who appears in propria persona has the right to recover attorney’s fees are in conflict. Appellant has not brought to our attention, nor have we unearthed any valid reason to deny an attorney legal fees for acting as his own counsel. We conclude, therefore, that the trial court properly awarded Mr. Perlin attorney’s fees upon entry of the final default judgment. In reaching this conclusion, we align ourselves with a narrow majority of jurisdictions which have passed on the issue. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980) (Hawaii); Wells v. Whinery, 34 Mich.App. 626, 192 N.W.2d 81 (Ct.App.1971); Winer v. Jonal Corp., 169 Mont. 247, 545 P.2d 1094 (1976); Henn v. Clifford J. Heath, Inc., 101 N.J.Eq. 347, 139 A. 406 (Ch.Ct.1927), aff’d, 102 N.J.Eq. 596, 141 A. 769 (1928); McMahon v. Schwartz, 109 Misc.2d 80, 438 N.Y.S.2d 215 (Civ.Ct.1981); Hamilton v. Telex Corp., 625 P.2d 106 (Okla.1981). But see O'Connell v. Zimmerman, 157 Cal.App.2d 330, 321 P.2d 161 (Ct.App.1958); Cheney v. Ricks, 168 Ill. 533, 48 N.E. 75 (1897); Westenberger v. Bernard, 160 So.2d 312 (La.Ct.App.1964); Parquit Corp. Ross, 273 Or. 900, 543 P.2d 1070 (1975). See generally Petrites v. J. C. Bradford & Co., 646 F.2d 1033 (5th Cir. 1981) (Florida Blue Sky law permits award of attorney’s fees in action for securities fraud against brokerage firm and their salesmen); Annot., 78 A.L.R.3d 1119 (1977) (right of party who is attorney and appears for himself to award of attorney’s fees against opposing party as element of costs).

We find no merit, however, in Mr. Perlin’s cross-appeal, assigning as error the trial court’s refusal to award attorney’s fees on the final order denying the motion to vacate. The statute under which fees were awarded in this case, Section 517.211, supra, provides that such fees shall be awarded unless the court finds this would be unjust. Because Mr. Perlin had already been awarded a fee for prevailing in this suit, the judge below may well have concluded that another fee stemming from the motion to vacate was excessive and unjust. Accordingly, we will not second-guess the judge’s discretion on this point.

The order is affirmed.

LETTS, Judge,

concurring in part and dissenting in part.

I concur in the trial court’s refusal to set aside the default, but disagree with the upholding of the attorneys fee award.

My quarrel with the majority is not because the award accrued to an attorney who represented himself, it is because I do not believe attorneys fees could be awarded at all.

In my view, under the facts of this ease, there existed no cause of action under Chapter 517, nor was one properly pled. Among other things relief by rescission was not even prayed for in the complaint. That being so I must in part dissent.

      . To eliminate any confusion, we point out that the Perlins received an award of attorney’s fees on the original final default judgment, but were refused such fees on the order denying the appellants’ motion to vacate judgment and open default entered on June 11, 1981, the subject of this appeal.

      . See Weaver v. Laub, 574 P.2d 609 (Okla.1977), where the court summarizes the policy considerations on the issue. The court finally determined that if certain dangers can be minimized, fees should be awarded.


author: FERGUSON, Judge.

text:
    The STATE of Florida, Appellant, v. Zeb ADDERLY, Appellee.
    No. 81-1665.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Michael J. Korvick, John H. Lipinski, Miami, for appellee.
    Before BARKDULL and DANIEL S. PEARSON, and FERGUSON, JJ.
   FERGUSON, Judge.

Adderly was charged by information with aggravated assault and unlawful possession of a firearm while engaged in a criminal offense. He moved to dismiss, by unsworn motion, on the grounds that the state would be unable to prove all the essential elements of the offenses because the victim had since died from unrelated causes. The sufficiency of the charging instrument is not challenged.

A motion to dismiss an information on grounds that there are no material issues of fact and the undisputed facts which the state will present do not establish a prima facie case of guilt against the defendant must conform to Florida Rule of Criminal Procedure 3.190(c)(4) requiring that the facts be specifically alleged and the motion sworn to. See State v. Davis, 243 So.2d 587 (Fla.1971); State v. Brooks, 388 So.2d 1291 (Fla.3d DCA 1980).

Having determined that Adderly’s motion could have been made only pursuant to Rule 3.190(c)(4), supra, we hold that the trial court erred in granting the motion to dismiss because, (1) the motion lacked specific factual allegations and (2) the motion was not sworn to by the defendant. State v. Aaron, 409 So.2d 1214 (Fla.3d DCA 1982); State v. Holder, 400 So.2d 162 (Fla.3d DCA 1981).

Adderly also moved to dismiss on grounds that three police officers failed to appear for deposition. We have repeatedly held that the state is not obliged, at pain of dismissal, to produce witnesses for deposition. State v. Mesa, 395 So.2d 242 (Fla.3d DCA 1981); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla.3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla.3d DCA 1974).

Reversed and remanded for further proceedings.

      . We assume that the defendant’s motion was based on a perceived inability of the state to prove that the victim was in fear of imminent violence — an essential element of assault. Though unnecessary to a disposition of this appeal, we note that fear of imminent violence may be inferred by the finder of fact from all the circumstances and all inferences on a motion to dismiss are to be resolved against the defendant. As a matter of law Adderly would not, on this record, have been entitled to a discharge even had the motion been procedurally correct. See, e.g., State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981); McClain v. State, 383 So.2d 1146 (Fla.4th DCA 1980), pet. for rev. denied, 392 So.2d 1376 (Fla.1980); Gilbert v. State, 347 So.2d 1087 (Fla.3d DCA 1977).


text:
    Johnny BURGESS and Brenda Burgess, his wife, Appellants, v. UNITED SYSTEMS ENTERPRISES, INC. and Kent Insurance Company, Appellees.
    No. 81-1717.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Leesfield & Blackburn and Mark A. Dres-nick, Miami, for appellants.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972); Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla.3d DCA 1980).


text:
    GOODWILL INDUSTRIES OF SOUTH FLORIDA, INC., Appellant, v. NORTHEASTERN FIRE INSURANCE COMPANY OF PENNSYLVANIA, Appellee.
    No. 81-1721.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    George C. Vogelsang, Miami, for appellant.
    Joe N. Unger, Miami, Pomeroy, Betts & Pomeroy, Fort Lauderdale, for appellee.
    Before BARKDULL and DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Affirmed on the authority of American Home Assurance Company v. Keller Industries, Inc., 347 So.2d 767 (Fla.3d DCA 1977).


text:
    M.R.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1724.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John S. Roben-alt, Asst. Atty. Gen., for appellee.
    Before BARKDULL and DANIEL S. PEARSON, and FERGUSON, JJ.
   FERGUSON, Judge.

The issue on appeal is whether the trial court erred in adjudicating M. R. R., a juvenile, delinquent for aggravated assault with a deadly weapon where the State conceded that M. R. R. had used a starter gun. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(A).

If the instrument used in an assault is a firearm as defined by Section 790.-001(6), Florida Statutes (1981), then that instrument is a deadly weapon as a matter of law for the purpose of the aggravated assault statute, Section 784.021(l)(a) Florida Statutes (1979), regardless of whether it is loaded or capable of being fired. See, Warren v. State, 332 So.2d 361 (Fla.3d DCA 1976) (pistol is a deadly weapon whether operable or inoperable). See, e.g., Machado v. State, 363 So.2d 1132 (Fla.3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979) (trial judge in ruling that pistol was “firearm” correctly did not consider operability). Cf. Bass v. State, 232 So.2d 25 (Fla. 1st DCA 1970) (stating gun is deadly weapon whether loaded or unloaded, but finding question was for jury).

Where the instrument used is not a firearm as statutorily defined, Florida courts also 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 purposes of the aggravated assault statute. Whether the instrument is used as a deadly weapon under the circumstances of the case becomes a question of fact to be resolved by the trier of fact. See Goswick v. State, 143 So.2d 817 (Fla.1962) (nature of weapon characterizes assault as aggravated; whether steel rod was deadly weapon was jury question); McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978) (cigarette lighter neither statutorily defined as weapon nor used or threatened to be used as weapon when merely pointed at victim as if were gun); J. M. C. v. State, 331 So.2d 366 (Fla. 3d DCA 1976) (upholding jury determination of stick as deadly weapon); State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974) (whether pocket knife is deadly weapon is for trier of fact); Forchion v. State, 214 So.2d 751 (Fla. 3d DCA 1968) (whether stick was deadly weapon was question for jury). See, e.g., Austin v. State, 336 So.2d 480 (Fla. 3d DCA 1976) (chemical spray was not deadly weapon); Rogan v. State, 203 So.2d 24 (Fla. 3d DCA 1967) (flower pot not deadly weapon), and cases collected, footnote 1, in Rogan v. State, supra at 25.

Since the State concedes that the instrument in this case was a starter gun, we must determine whether the trial court could find as a matter of law that M.R.R. used a deadly weapon. The relevant part of Section 790.001(6) provides: “Firearm” means any weapon (including starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive.

A starter gun is not designed to fire a projectile. It was then the State’s burden to prove that the starter gun could expel a projectile by the action of an explosive, or that it could readily be converted to do so. See M. M. v. State, 391 So.2d 366 (Fla. 1st DCA 1976), cert. denied, 411 So.2d 384 (Fla.1981) (starter gun could not be readily converted). On this question no evidence was presented. Because the state failed to prove that the “fake gun” in this case was a deadly weapon either because it was a firearm as statutorily defined and thus a deadly weapon per se, or because it was in fact used as a deadly weapon, the finding that the instrument was a deadly weapon cannot stand. Accordingly, we reverse the adjudication of delinquency based on aggravated assault with directions that the trial court enter an adjudication of delinquency based on simple assault.

Reversed and remanded.


text:
    The AETNA CASUALTY AND SURETY COMPANY, Appellant, v. CHARLIE’S AUTO PARTS AND SERVICE COMPANY, INC., Appellee.
    No. 81-1820.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Britton, Cohen, Kaufman, Benson & Schantz and J. Robert Olian, Miami, for appellant.
    Robert C. Eber, Miami, for appellee.
    Before BASKIN and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).


text:
    William PALMIERI, Petitioner, v. The STATE of Florida, Respondent.
    No. 81-2628.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for petitioner.

      Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for respondent.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   NESBITT, Judge.

This is an application for writ of common law certiorari to review an order of the Circuit Court of the Eleventh Judicial Circuit, Appellate Division, affirming the defendant’s misdemeanor conviction emanating from the county court. We have appellate jurisdiction to review such an order by common law certiorari. State v. Katz, 108 So.2d 60 (Fla.3d DCA 1959).

The focal point for our consideration is whether the State presented a sufficient showing of the unavailability of a key witness to permit the use of his deposition testimony at trial. We hold that the State was unsuccessful in this regard.

Rule 3.190(j), Florida Rules of Criminal Procedure, provides for the perpetuation of deposition testimony after the filing of an indictment or information. Subsection (6) of that rule admonishes that “[n]o deposition shall be used or read in the evidence when the attendance of the witness can be procured.”

In the instant case, the State properly obtained an order from the county court authorizing the perpetuation of the subject witness’ testimony under the cited rule. The deposition was taken with at least the tacit understanding that it would not be used unless the State attempted and failed to procure the witness’ attendance at trial. When the trial commenced, the assistant state attorney announced that the witness was unavailable. Upon questioning by the court, the prosecutor informed that the witness had said he was going to Los Angeles and didn’t expect to be at the proceedings. The prosecutor had given his professional card to the witness, instructing him to telephone if he returned to town. The State had also mailed a subpoena to the witness at his local address, but since the regular mail had been used, the trial court could not determine whether the subpoena was ever received. Admittedly, nothing more was done to procure this witness’ attendance. Over objection, the deposition was allowed into evidence and the defendant was convicted. The witness’ testimony was the only testimony available by which the State made out a prima facie case.

There is a clear constitutional preference for in-court confrontation of witnesses. U.S.Const. amend. VI; Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 607 (1978); Art. I, § 16, Fla.Const.; State v. Dolen, 390 So.2d 407 (Fla. 5th DCA 1980). The purpose of the confrontation clause is to afford an accused the fundamental right to compel a witness “to stand face to face with the jury [or trier of fact] in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255, 258 (1968).

It is obvious that the State did not meet its burden under Rule 3.190(j), supra, to procure the attendance of the absent witness. See Shreve v. State, 361 So.2d 221 (Fla. 1st DCA 1978).

The error complained of constituted a departure from the essential requirements of law. Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964); Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979). We are compelled to grant certiorari and quash the circuit court’s judgment of affirmance with directions to order reversal of the defendant’s conviction before the county court.


text:
    Jimmy Lee ASHLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-322.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Jimmy Lee Ashley, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

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


text:
    James Edwin COE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-464.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    James Edwin Coe, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON 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.