text:
    Prince KENNEDY, Jr., Appellant, v. William TYSON and Lathern Broughton and Morrison Assurance Company, Appellees.
    No. RR-500.
    District Court of Appeal of Florida, First District.
    April 14, 1980.
    Roderick G. Magie of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellant.
    L. Kathleen Horton of Clark, Partington, Hart & Hart, Pensacola, for appellees.
   SHAW, Judge.

Appellant fell and sustained a compensa-ble injury to his left knee on November 7, 1974. On March 8, 1978 he reached maximum improvement and in December of 1978 he was examined by Dr. Batson who opined a 25% permanent partial impairment of the left lower extremity. Appellant’s claim for benefits in excess of the anatomical rating was denied.

The order denying the claim contains findings that appellant’s injury “functionally” exceeds the assigned 25% rating; that appellant’s disability is 35% based solely upon loss of wage-earning capacity and that disability is 50% of the left leg after “considering all factors.” The judge then makes the statement that:

[Tjhis Court feels compelled to limit its award to the schedule set forth in F.S. 440.15(3)(b) in spite of the clear language of F.S. 440.15(3)(s) and the holding of the Supreme Court in Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959). The Industrial Relations Commission has repeatedly held that the Magic City case cannot be used to circumvent the holding in Mims and Thomas Manufacturing Co. v. Ferguson, 340 So.2d 920 (Fla.1976), see H.B.H. Services Corp. v. Powell, IRC Order 2-3388 (1978). The holding in Magic City is clear. The Deputy Commissioner ruled that in spite of the doctor’s testimony to a five percent impairment rating, the Claimant had lost in excess of Vs of the normal use of his left leg.
In my opinion, the case is irreconcilable with the opinion of the Court in Mims. . A careful reading of both the Magic City and Mims cases leads one to the conclusion that it is difficult, if not impossible, to understand how the cases can be reconciled. One can only conclude that the eases are irreconcilable and that the Industrial Relations Commission has opted for the de facto overruling of the Magic City case by Mims.

Appellees concede, and we agree, that the judge misinterpreted Magic City. This perhaps led him to the conclusion that Magic City and Mims are irreconcilable and he is compelled thereby to limit disability to 25% of the leg. In light of this misapprehension we are unable to tell whether he applied the correct law in denying the claim. It is not at all clear in our minds that he was aware that when dealing with a scheduled injury, expert medical testimony is nonconclusive and the judge is free to consider other evidence in arriving at a permanent partial loss or loss of use of the member. On the other hand, he may have concluded that after considering all pertinent evidence the disability to the scheduled member does not exceed 25%.

The order lacks the degree of specificity necessary to enable us to determine how he arrived at his conclusion and we find it necessary to reverse and remand with directions that the judge reconsider his order in light of this opinion.

ROBERT P. SMITH, Jr., and BOOTH JJ., concur.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    N. W. LANCIONE, Appellant, v. CALIFORNIA UNION INSURANCE COMPANY, Appellee.
    No. 79-1014.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The jury found that the plaintiff-appellant had been responsible for the arson which destroyed his insured property. His sole point on appeal claims the right to a directed verdict in his favor on that question. We conclude, to the contrary, that the circumstantial evidence amply, indeed overwhelmingly, supports both the action of the trial court in denying that motion below and the jury’s resolution of the issue. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977); Lopez v. Mechanics & Traders Ins. Co., 125 Fla. 252, 169 So. 670 (1936); see Chafetz v. Underwriters at Lloyd’s London, 332 F.2d 152 (5th Cir. 1964).

Rodgers v. Auto-Owners Ins. Co., 379 So.2d 700 (Fla.2d DCA 1980), upon which the appellant relies, is decisively distinguishable and therefore does not control. Among many other things, the record here, unlike Rodgers, shows that Lancione was actually at the scene of the fire immediately before it took place. The jury was plainly free to reject, as it did, his unsupported and highly dubious “explanation” of that presence. See Songer v. State, 322 So.2d 481 (Fla.1975).

Affirmed.


author: PER CURIAM.

text:
    AL LEVINSON & CO., INC., a Florida Corporation, Appellant, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-1564.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Bereuson & Cahan and David Bercuson, Coral Gables, for appellant.
    Magill & Reid and Kevin P. O’Connor, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Aetna Casualty & Surety Co. v. Mills, 192 So.2d 59 (Fla. 3d DCA 1966).


text:
    Robert L. TANKERSLEY, Appellant, v. Bobby JONES, Interim Director Dade County Public Safety Department and M. R. Stierheim, County Manager, Metropolitan Dade County, Appellees.
    No. 79-1981.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Rehearing Denied May 12, 1980.
    Dean & Gravis and Denis Dean, Sr., Miami, for appellant.

      Robert A. Ginsburg, County Atty. and Vincent P. McGhee, Asst. County Atty., for appellees.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The final order under review which upholds the dismissal of a county police officer by the County Manager of Dade County is affirmed upon a holding that: (a) there was competent, substantial evidence in the record upon which the county manager could reasonably conclude that the police officer herein willfully submitted certain false insurance claims arising from a work related injury in violation of Section 2.210.80 of the Dade County Personnel Rules, and (b) this misconduct was a fit and proper basis upon which to impose disciplinary sanctions against the said police officer. Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla.3d DCA 1976).


author: GLICKSTEIN, Judge.

text:
    Maureen H. SNIFFEN, Appellant, v. John M. SNIFFEN, Appellee.
    No. 78-1782.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Stuart L. Stein of Gedrich & Stein, Fort Lauderdale, for appellant.
    Charles T. Whitelock of Feinstein & Whi-telock, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

By this appeal we are asked to review the propriety of the trial court’s order, clarifying a final judgment which reversed the general master’s report in a marriage dissolution action. We affirm the trial court’s order which requires Mrs. Sniffen either to pay $20,000 or return to Mr. Sniffen bearer bonds with that face value.

In the instant case, Mrs. Sniffen filed a post-judgment petition that Mr. Sniffen be found in contempt for failure to pay and deliver to her certain personal effects and $14,200 in lump sum and rehabilitative alimony as the order of dissolution provided. The trial court filed an order of referral to the general master regarding the petition “as well as any related matter, and any Answers, Responses and Motions filed in opposition thereto.” It should be noted that when the trial judge referred the petition to the general master, the only issue before the court was Mrs. Sniffen’s petition.

Mr. Sniffen subsequently filed a motion for contempt demanding that Mrs. Sniffen remit the $20,000 in bearer bonds, representing the difference between the $180,000 in bonds Mrs. Sniffen had previously turned over and the $200,000 designated in the trial court’s order of dissolution and affirmed by this court’s mandate.

Although Mrs. Sniffen’s petition regarding the amended final judgment was referred to the general master before Mr. Sniffen demanded the additional $20,000 in bonds, the general master undertook to hear all of the motions or petitions filed by the parties. The general master’s report stated that Mrs. Sniffen had returned all bonds in her possession as of the date of the order of dissolution. It found that the Order of Dissolution, in referring to the bearer bonds, only intended Mrs. Sniffen to return what bearer bonds she possessed, and that the court did not require her to make up any deficiency from the original $200,000.

Exceptions to the general master’s report were filed by appellee. The trial court then entered a final judgment and order of clarification which specifically recognized appel-lee’s ownership interest in the additional $20,000 in bearer bonds.

The general master should not have undertaken an interpretation of the order of dissolution referring to the bearer bonds. Even if the trial court’s order of dissolution was in error as to the value of bearer bonds to be delivered to appellee by appellant, there is nothing in the record to reflect an appeal from that specific determination. The return of the bonds was raised in the earlier appeal, appellant did not contest the $200,000 figure; nor does the record reflect that appellant filed any motion pursuant to Florida Rule of Civil Procedure 1.540 to correct the amount. Therefore, the order of dissolution as to the bearer bonds was binding on appellant. Cribb v. Cribb, 261 So.2d 566 (Fla. 4th DCA 1972); Di Martino v. Di Martino, 360 So.2d 1133 (Fla. 3d DCA 1978).

The law is clear that a general master may not go beyond the matter referred to him for determination by the trial court. If the general master reports a matter which was not referred by the trial court, the report as it relates to the unauthorized consideration is a nullity. Waszkowski v. Waszkowski, 367 So.2d 1113 (Fla. 3d DCA 1979). It is questionable whether the order of reference gave the general master authority to consider the meaning of the paragraph relating to the bearer bonds. The question involving any deficiency arose subsequent to the trial court’s referral of the case to the general-master; therefore, the trial judge would not have realized that the referral would involve interpretation of this provision of the judgment.

Conclusions of law made by a master, based upon facts established by the evidence, are not binding' upon the trial court. Bergh v. Bergh, 127 So.2d 481 (Fla. 1st DCA 1961). Having written the judgment, the trial court was in a better position to know its meaning, especially since the record reflects that the court was aware that appellant had cashed in a $20,000 bond at the time the final judgment was issued. As such, the general master’s report relating to the bonds was not binding on the* trial court.

Accordingly, the order of the trial court is affirmed.

AFFIRMED.

DOWNEY, C. J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.

      . The bonds were part of the parties’ earlier appeal to this court which declared Mr. Sniffen sole owner of the $200,000 in bearer bonds possessed by Mrs. Sniffen. However, the amount of the bonds was not questioned. Sniffen v. Sniffen, 352 So.2d 113 (Fla. 4th DCA 1977).


author: HERSEY, Judge.

text:
    Marvin CARLSEN and Marlin Imports, Inc., Appellants, v. Coradino RIVERA, d/b/a Empire Auto Leasing, Reg’d., Appellee.
    No. 78-1979.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P. A. and George L. Moxon, Fort Lauderdale, for appellants.
    Gregory K. Jones of Ruf & Jones, Fort Lauderdale, for appellee.
   HERSEY, Judge.

This is an appeal from a final judgment in a replevin action involving application of a section of Florida’s Uniform Commercial Code.

Appellee, Coradino Rivera, d/b/a Empire Auto Leasing, Reg’d., (a Canadian car leasing agency), leased a 1976 Mercedes Benz 450 SL automobile to one James McEnroe who he knew to be the owner of an automobile dealership. This transaction took place in Quebec, Canada. The automobile lease showed the lessee as James McEnroe and listed his home address, which was different from his business address. Subsequently, McEnroe fraudulently obtained title to the automobile, placing it in the name of his agency, Jimmy McEnroe Auto.

McEnroe sold the automobile to Expo Rent-a-Car, Inc. in Fort Lauderdale, Florida. By virtue of the fraudulent registration obtained by McEnroe, Expo was in a position to procure a facially valid Florida title certificate. Expo then sold the car to Marlin Imports, Inc. On the same day, Marvin Carlsen placed a deposit on the automobile and three days later paid the balance of the purchase price. Title was subsequently issued to Carlsen.

Rivera filed a replevin action against Carlsen and the intervening possessors of the automobile were brought into the action by respective third-party complaints.

On these facts the trial court found that Rivera leased the automobile to McEnroe, an individual; that McEnroe stole the automobile by fraudulently obtaining title; that McEnroe never had ownership or title to the automobile so that any title which he sought to convey was a void title; that all subsequent attempts to convey title were void; and that plaintiff, Rivera, was therefore entitled to possession of the automobile or its value, together with damages for the wrongful detention. The final judgment permitted Carlsen to recover from Marlin; for Marlin to recover from Expo, leaving unanswered the question of whether or not Expo has an enforceable cause of action over and against McEnroe.

The controlling provision of the Florida Uniform Commercial Code is Section 672.-403, Florida Statutes (1977), which provides:

Power to transfer; good faith purchase of goods; “entrusting.”
(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though:
(a) The transferor was deceived as to the identity of the purchaser, or
(b) The delivery was in exchange for a check which is later dishonored, or
(c) It was agreed that the transaction was to be a “cash sale,” or
(d) The delivery was procured through fraud punishable as larcenous under the criminal law.
(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.
(3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the possessor’s disposition of the goods have been such as to be larcenous under the criminal law.
(4) The rights of other purchasers of goods and of lien creditors are governed by the chapters on secured transactions (chapter 679), bulk transfers (chapter 676) and documents of title (chapter 677).

Initially, it is necessary to determine whether there was an entrustment of the automobile. Both under the Code and under prior case law McEnroe could not convey good title or even voidable title if he had stolen the automobile. Section 672.403, Florida Statutes (1977); Avis Rent-A-Car, Inc. v. Harrison Motor Co., 151 So.2d 855 (Fla.2d DCA 1963). While it is true that McEnroe is said to have stolen the automobile, he acquired possession lawfully by virtue of the lease agreement. He then committed larceny by forging the title documents, and converted the automobile by selling it. The distinction is that he obtained possession lawfully and could therefore convey a voidable title which could be perfected upon a sale to a buyer in the ordinary course of business. The statutes make it very clear that any delivery of possession and any acquiescence in retention of possession constitutes entrustment under the statute. This would obviously include a lease arrangement.

Having concluded that there was an en-trustment, the second question to be answered is whether McEnroe was a merchant who deals in goods of that kind.

The record discloses that McEnroe was actively engaged in the business of selling automobiles. The trial court apparently considered the fact that the lease recited McEnroe’s home address rather than his business address as conclusively establishing the intention of the lessor to lease the automobile to McEnroe the individual rather than to McEnroe the automobile dealer. Even assuming this was the intention of the parties to that transaction, the statute clearly does not look to intent but to effect. It is undisputed that McEnroe was in the business of selling cars. In our view that is determinative of this issue. The purpose of this section of the Uniform Commercial Code is to protect the buyer in the ordinary course of business and thus to eliminate impediments to the free flow of commerce. One analysis of this area of the code expressed it in the following language:

The use of . doctrines to protect the original owners was frequently criticized; to permit the owner’s intent to dictate the decision appeared to ignore the rights of the good faith purchaser rather than to weigh them against the owner’s rights. This was regarded as unfair to the purchasers and harmful to the commercial objective of fostering a free flow of goods.
* * * * * *
The Code broadens the entrusting doctrine . . . [and] the intent of the owner, which had been respected in prior law, appears disregarded under this provision of the Code. Note, the Owners Intent and the Negotiability of Chattels: A Critique of Section 2-403 of the Uniform Commercial Code, 72 Yale Law J. 1205.

See also: Comment, Uniform Commercial Code Section 2-403(2), XXI U.Fla.L.Rev. 241.

Quite clearly, then, there was an entrustment of the automobile to a merchant who dealt in goods of that kind.

If McEnroe had sold directly to Carlsen for valid consideration and without notice of the defect in title, then Carlsen would prevail as against the interests of the owner/entrustor. Correría v. Orlando Bank and Trust Co., 235 So.2d 20 (Fla. 4th DCA 1970). Should the result be any different because of the existence of intervening sales? We think not. Carlsen purchased the automobile from Marlin Imports, Inc., which was engaged in the business of selling automobiles. Carlsen had no notice of any defect in the title and in fact obtained a title certificate. Under these circumstances, Carlsen was clearly a buyer in the ordinary course of business. In pre-Code language, McEnroe conveyed voidable title to Expo, who conveyed voidable title to Marlin, who conveyed voidable title to Carl-sen, a bona fide purchaser for value without notice. The Uniform Commercial Code does not change the result. The buyer in the ordinary course of business obtains good title by virtue of Subsection 2 of Section 672.403, Florida Statutes (1977).

We therefore reverse the final judgment and remand the cause for such further proceedings as may be necessary to enable the trial court to enter a judgment in accordance with the foregoing.

REVERSED AND REMANDED.

ANSTEAD and LETTS, JJ., concur.


text:
    Helen F. ASPEY, Appellant, v. AMERICAN SAFETY EQUIPMENT CORPORATION and G & Z Enterprises, Inc., Appellees.
    No. 78-2609.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Allison E. Folds of Anderson & Folds, Gainesville, for appellant.
    Arthur M. Simon of Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellee American Safety and Equipment Corp.
    Edna L. Caruso, West Palm Beach, for appellee G & Z Enterprises, Inc.
   PER CURIAM.

Counsel for the parties to this cause have filed a stipulation which we are treating as a confession of error. See 3 Fla.Jur.2d Appellate Review § 397. Accordingly, the order of summary final judgment entered by the trial court on October 4, 1978 is hereby reversed and the cause is remanded for further proceedings not. inconsistent herewith.

ANSTEAD, LETTS and HURLEY, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Arnold F. IRWIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-2617.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Richard L. Jorandby, Public Defender, Bruce A. Zeidel and Ellen Morris, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant seeks reversal of his sentence to consecutive terms of imprisonment for attempted murder and attempted aggravated battery.

The State filed a four count information charging the appellant with committing four felonies: I, attempted first degree murder; II, burglary; III, aggravated battery; and IY, aggravated assault. The jury returned verdicts of guilty as charged on Counts I, II, and IV and guilty of attempted aggravated battery on Count III. Thereupon the court entered judgment of guilty pursuant to those verdicts and sentenced appellant to twenty years on Count I for attempted murder in the first degree, twenty years on Count II for burglary, five years on Count III for attempted aggravated battery and five years on Count IV for aggravated assault. All of the sentences were to run consecutively.

Appellant contends the trial court committed error in sentencing him to consecutive sentences on Counts I and III because aggravated battery is a lesser included offense under the allegations of Count I.

According to the victims, Stacey and Sherrie Apple, appellant broke into their home and awakened them. While standing at the foot of their bed pointing a shotgun at them, appellant fired the shotgun/, missed Stacey and Sherrie, and hit the bed’s headboard. Stacey Apple leaped out of bed and struggled with appellant. During the course of the encounter appellant shot Stacey in the leg with a pistol and then fled. After he was apprehended appellant gave a statement to the police in which he stated that he had gone to the Apple home to collect some money that Stacey owed him; an argument ensued; Stacey pulled a gun, and shots were fired.

Count I of the information charged that appellant:

. did unlawfully and feloniously, and from a premeditated design to effect the death of Stacey Apple, a human being, did attempt to kill Stacey Apple, and in the course of said attempt used a firearm or other deadly weapon, to-wit: a 12 gauge double barrelled shotgun and a 380 Llama pistol, and in furtherance of said attempt did shoot at the head of Stacey Apple with said shotgun and shoot Stacey Apple with the said pistol, .

Count III of the information charged that appellant:

did intentionally cause bodily harm to Stacey Apple by shooting the said Stacey Apple with a deadly weapon, to-wit: a 380 Llama pistol,

Section 775.021(4), Florida Statutes (1977), provides:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively. (Emphasis supplied.)

The factual circumstances of this case and the allegations of the information would support a finding by the jury that appellant was guilty of attempted murder by shooting Stacey Apple with a 380 Llama pistol, as charged in Count I of the information. The same evidence would also convict appellant of the charge in Count III. Under these facts Count III is a lesser offense included in Count I. The statute would, therefore, preclude appellant from being sentenced for a conviction of the crime charged in Count III. It thus necessarily follows that the statute precludes appellant from being sentenced for a conviction of a lesser offense included in Count III.

Appellant does not attack any judgment and sentence except those entered as to Count III. We therefore reverse only the judgment and sentence with respect to Count III and remand the cause with directions to vacate the sentence on Count III.

REVERSED AND REMANDED, with directions.

ANSTEAD and HERSEY, JJ., concur.


text:
    Frank J. ZOBAC and Grace G. Zobac, his wife, Appellants, v. SOUTHEASTERN HOSPITAL DISTRICT OF PALM BEACH COUNTY, d/b/a Bethesda Memorial Hospital, Appellee.
    No. 79-378.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.

      Edna L. Caruso, and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellants.
    Frank G. Cibula, Jr., of the Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellants, Frank J. Zobac and Grace G. Zobac, his wife, filed a complaint against appellee, Southeastern Hospital District of Palm Beach County, hereafter referred to as Bethesda Memorial Hospital, seeking damages for personal injuries sustained while Mr. Zobac was a patient at the appel-lee hospital. The trial court dismissed the complaint with prejudice because appellant had failed to comply with the Florida Medical Liability Mediation Act.

Appellants’ complaint alleges that while Frank Zobac was a patient in Bethesda Memorial Hospital, he arose during the night to use the bathroom facilities. As he entered the bathroom he first turned to close the door prior to switching on the bathroom light so as not to awaken the other patient in the room; he slipped, fell and injured himself. The complaint further alleges that water left on the bathroom floor by hospital cleaning personnel was responsible for Mr. Zobac’s fall.

Appellee moved to dismiss the complaint because it alleges a claim for damages against a health care provider as defined in Section 768.50(2)(b), Florida Statutes (1977) and that such a suit for the recovery of damages is precluded by Section 768.44, Florida Statutes (1977) unless the plaintiff shall have first submitted such claim to an appropriate medical liability mediation panel. The trial court granted said motion and this appeal ensued.

Section 768.45, Florida Statutes (1977) provides that in a suit to recover damages for negligence against a health care provider the claimant shall have the burden of proving that the provider’s conduct represented a breach of the accepted standard of care for that health care provider. An isolated reading of that statutory section could lead one to assume it was thereby intended to include every type, nature and description of negligence by a health care provider. However, read in context with other statutory and rule provisions applicable to Medical Liability Mediation, it is clear to us that the legislative intent was to submit to Medical Liability Mediation only claims arising out of those acts or conduct which are peculiarly malpractice when committed by a medical or osteopath physician, podiatrist, hospital, or health maintenance organization. Malpractice by definition means “a dereliction from professional duty or a failure of professional skill or learning that results in injury, loss or damage.” It does not in-elude janitorial negligence, for example, or a breach of duty in maintaining the hospital grounds generally required of possessors of land. That the concept of medical liability mediation pertains only to malpractice and not generalized negligence is borne out by an examination of the statutes and rules pertaining thereto. The Florida Medical Liability Mediation Act provides in pertinent part:

(l)(a) Any person or his representative claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization against whom he believes there is a reasonable basis for a claim shall submit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state. (Emphasis supplied.)

Reference to the Florida Rules of Medical Mediation Procedure lends support for the foregoing interpretation. Rule 20.060 provides that the Form of Claim should contain a sentence describing the alleged act of malpractice and a designation of the medical specialty involved in the alleged malpractice. Rule 20.130 provides that the clerk shall submit to those attorneys and physicians on the list from which the panel is to be chosen a questionaire to obtain information about their knowledge and training (ostensibly so the parties can choose panel members who may have the expertise to judge the malpractice action involved).

The few Florida cases on the subject confirm our conclusion. In Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla. 3rd DCA 1977), a seven count complaint filed. Counts I and II alleged negligence and negligent training of hospital employees. These counts were dismissed for failure to comply with the Florida Medical Liability Mediation Act by submission to medical mediation prior to the present suit. Counts III through VII charged false arrest, malicious prosecution, assault and battery, slander and breach of contract. The court held that Counts III through VII had “no connection with medical negligence (malpractice),” thus submission of those counts to medical mediation was not required. Common sense would dictate that panels of doctors, lawyers and circuit judges have no special expertise to determine negligence in a slip and fall case arising in a hospital hall, or a trip and fall over a sprinkler head on the hospital lawn. Talesmen from the county traditionally have been considered competent to determine how a reasonable man would have acted under similar circumstances.

In St. Vincent’s Medical Center v. Oakley, 371 So.2d 590 (Fla. 1st DCA 1979), the court denied a writ of prohibition to prevent the trial court from entertaining a complaint against a hospital for false imprisonment and its sequelae “without first submitting the claim to medical mediation”. The District Court held that “on its face the claim is not for medical malpractice arising from a legitimate doctor/hospital/patient relationship but is rather ... for an entirely different species of intentional tort

Appellee relies upon the case of Mount Sinai Hospital of Greater Miami, Inc. v. Wolfson, 327 So.2d 883 (Fla. 3rd DCA 1976), as authority for the trial court’s dismissal of the instant suit. However, we think the Mount Sinai case is distinguishable because therein the court was dealing with the diagnosis of a patient’s injuries and the professional hospital care afforded her, i. e. the adequacy of the warning system whereby a patient in distress could alert nurses and attendants, and the effectiveness of bed-rails. The issue was malpractice; the departure from a standard of care required of professionals.

The latest case on the subject seems to be Norton v. South Miami Hospital Foundation, Inc., 375 So.2d 42 (Fla. 3rd DCA 1979). There the appellant was allegedly injured by the mechanical failure of equipment used in taking a myelogram. The District Court affirmed the trial court’s dismissal of the complaint for failure to comply with the Medical Mediation Liability Act and based its holding on Riccobono v. Cordis Corp., 341 So.2d 805 (Fla. 3rd DCA 1977). The latter case required submission of a claim for negligence arising out of defective hospital equipment (a defective coronary catheter) to medical mediation. In Norton the majority affirmed on authority of Riccobono. Judge Alan Schwartz concurred specially only because of that court’s prior holding in Riccobono. However, he pointed out that he did not believe either Riccobono or Norton involved malpractice and thus were not appropriate claims for medical mediation.

In our opinion Riccobono and Norton involve facts which bring them much closer to the purpose for which the Act in question was passed. Certainly defective medical equipment is more nearly covered by the Act than defective chairs in the public waiting room of the hospital. But we need not align ourselves with those two cases because our factual situation clearly does not involve malpractice.

We have treated this matter as it was presented to us on the merits. However, an even more compelling reason for reversal is probably the recent decision of the Supreme Court of Florida in Aldana v. Holub, 381 So.2d 231, (1980). In those consolidated cases the Supreme Court held the Florida Medical Liability Mediation Act is unconstitutional. Thus, the trial court’s dismissal of appellants’ complaint for failure to submit the claim to medical mediation would have to be reversed because the Act itself is unconstitutional. Of course, the trial judge did not have the benefit of the Aldana case when he entered the order of dismissal; however, the rule is that an appellate court will dispose of a case according to the law prevailing at the time of the appellate decision, and not according to the law as it existed at the time of the rendition of the judgment being reviewed. Florida East Coast Railway Company v. Rouse, 194 So.2d 260 (Fla.1967); Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla. 1978).

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD and MOORE, JJ., concur.

      . Websters, Seventh New Collegiate Dictionary.


text:
    WOMETCO ENTERPRISES, INC., a Florida Corporation, Appellant, v. Jack FRANK, Individually and d/b/a Lee Myles Transmissions, Appellee.
    No. 79-1274.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Michael J. Getelman, Miami, for appellant.
    Allan L. Hoffman, West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant sued appellee to recover the amount due on a contract wherein appellant ■ leased to appellee an advertising billboard for one year for $4500. Under said contract appellant was required to furnish certain materials and advertising services. Appel-lee failed to make required monthly payments, and appellant sued to recover the balance due on the contract. The case was tried by the court, and at the conclusion of the trial the court entered a judgment for appellee as follows:

The court makes the following findings of fact:

1. The contract between the parties was a written obligation to pay money as described in Florida Statute 208.08 (sic) and should have had documentary stamps affixed to it. As no documentary stamps were affixed, this court is unable to enforce collection of the obligation as to do so, would be to condone a criminal act. It is therefore
ORDERED AND ADJUDGED that the plaintiff WOMETCO ENTERPRISES, INC., a Florida corporation, take nothing by this action and the defendant, JACK FRANK individually and d/b/a LEE MYLES TRANSMISSIONS go hence without day for which let execution issue.

The statutory section referred to in the final judgment as 208.08 is actually Section 201.08, Florida Statutes (1975). In pertinent part that statute requires that a documentary stamp tax be paid upon promissory notes, written obligations to pay money, assignments of salaries, wages or other compensation, and on mortgages, trust deeds, and security agreements. Failure to pay the tax constitutes a misdemeanor.

In our judgment the statute in question is simply not applicable. This contract is one requiring appellant to lease equipment and furnish services to appellee for a fixed amount. The requirement for appellee to pay is, of course, contingent upon appellant’s furnishing the equipment and services promised. It is not of the same class of commercial instruments as promissory notes, which are unconditional promises to pay money. The specific question now before us (whether Section 201.08 applies to contracts for outdoor advertising displays) was presented to the First District Court of Appeal in State v. Peterson Outdoor Advertising Company, 296 So.2d 120 (Fla. 1st DCA 1974). That court rejected the contention that such a contract is subject to the documentary stamp tax requirements of Section 201.08, saying:

Florida Statute 201.08(1), F.S.A. provides that ‘[o]n promissory notes, non-negotiable notes, written obligations to pay money, assignment of salaries, wages, or other compensation’ there shall be a tax of fifteen cents on each one hundred dollars or part thereof of the indebtedness. The sole issue presented by this appeal is whether the contract Peterson executes with its customers for outdoor advertising space is within the meaning of Florida Statute 201.08(1), F.S.A. as a written obligation to pay money and thus subject to the tax imposed by the statute.
Peterson is in the business of constructing and leasing outdoor advertising displays. Peterson requires its prospective advertising customers to enter into a contract which obligates Peterson to provide the customer with printed outdoor advertising displays at a designated location for a specified period of time and to make changes in the displays from time to time. In exchange for this obligation the customer agrees to pay Peterson a specified amount due in monthly installments and agrees that if it fails to make the monthly payments then Peterson can consider the entire contract breached and the full amount immediately due. In addition, the customer agrees that if he breaches the contract he will, reimburse Peterson for any losses which include interest expense, court costs and attorneys’ fees. While the contract in question obligates the customer to pay money to Peterson, this obligation is not unconditional but is dependent upon Peterson performing certain advertising services.
The Revenue Department apparently concedes that the contract in question is not a promissory note or a non-negotiable note. It (sic) sole contention is that the contract is a ‘written obligation to pay money’. We pause to note that most written contracts between parties contain a clause that requires the payment of money. Such a clause or provision is not the test for penning the taxpayer and shearing him.
* * * *
The Supreme Court of this state has, on numerous occasions when construing F.S. 201.08, F.S.A., held that the statute is applicable only to commercial instruments which are of the same class as a promissory note or non-negotiable note. The distinguishing characteristic of a promissory note or non-negotiable note is that it is an unconditional promise to pay. The contract here is question does not contain an unconditional promise to pay. Thus, under the doctrine of ejusdem gen-eris, the applicable principles of statutory construction, and the decisions of our Supreme Court, we hold that the contract in question is not subject to the tax imposed by Florida Statute 301.08(1), F.S.A. 296 So.2d at 120-121 (footnotes omitted).

We agree with the foregoing decision and conclude the trial court erred in entering a judgment contrary thereto.

Appellee contends that appellant failed to prove appellee signed the contract in question and thus appellant was precluded from recovering in any event. The record reflects that appellee filed a general denial to appellant’s complaint which alleged the contract between the parties. Appellee also alleged affirmatively that he had signed the contract as an agent of Lee Myles Transmissions and not individually. During the trial the contract was marked as “Pet # 1 subj. to proof of Frank signature.” A letter from Frank to appellant marked “Pet # 3 subj. to authenticity” contains an admission that Frank signed the contract. Also, the final judgment refers to “the contract between the parties.” We find it implausible that the trial court would have decided the case on the documentary stamp tax issue if he had found that appellant had not proven the existence of the contract. However, because we have no transcript of the trial, and because the notations on the exhibits leave some doubt as to whether the appellant proved there was a contract between the parties, we believe justice would be best served if we remanded the cause to the trial court for an express determination of that question.

Accordingly, the judgment appealed from is reversed and the cause is remanded to the trial court with directions to determine whether the alleged contract in question was signed by appellee Frank. The trial court is authorized to take further testimony, if such testimony is necessary to resolve that question. If the trial court finds the alleged contract was signed by Jack Frank, then judgment should be entered for appellant for the amount due thereon. If the court finds that the alleged contract was not signed by Jack Frank, then judgment should be entered for appellee.

REVERSED AND REMANDED with directions.

ANSTEAD and HERSEY, JJ., concur.


text:
    Eric Bruce SLOMAN, Appellant, v. FLORIDA POWER AND LIGHT CO., Appellee.
    No. 79-1632.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.

      Alan S. Fishman of Robert D. Hurth, P. A., Fort Lauderdale, for appellant.
    Peggy J. Tribbett and Paul R. Regens-dorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   DOWNEY, Chief Judge.

Appellant seeks review by plenary appeal of a nonfinal order, the decretal part of which provides: “The defendant’s motion for Summary Judgment is granted.” Thereafter the order recites the reasons for the court’s granting the motion. Although it seems clear that the circuit court intended the order to conclude the litigation, the order does not contain any magic words demonstrating finality. This jurisdictional defect was not noticed until this court began preparing the case for oral argument. Whereupon we requested counsel to obtain the entry of a final judgment. Counsel have complied with our request and a certified copy of said judgment has been filed here. Thus, we now acknowledge that jurisdiction over this cause is vested in this court.

Our authority for thus proceeding is Williams v. State, 324 So.2d 74 (Fla.1975), in which the Supreme Court of Florida stated:

. we also hold that a notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. 324 So.2d at 79.

The wisdom of that rule is obvious. Dismissal of this appeal, particularly at this juncture when the case is perfected and ready for oral argument, would seem to be a nonproductive waste of counsels’ time and the parties’ money. Upon dismissal appellant would simply proceed to have the circuit court enter a final judgment, and then appellant would perfect a new appeal. Instead, we chose to make use of the rule laid down in Williams, supra, and hold that the notice of appeal prematurely filed in this cause remained in limbo until the final judgment was rendered, whereupon the notice of appeal matured and jurisdiction vested in this court.

Upon consideration of the merits of the appeal we find no reversible error demonstrated. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.


text:
    Johnny Lee BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1676.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

, Appellant was charged in six counts with violating his probation. At the conclusion of the hearing on said charges on June 11, 1979, the trial judge announced that he found from the proof adduced that appellant had violated the condition of probation set out in Paragraph I of each of the affidavits and warrants in that appellant failed to submit monthly reports from April through December 1978, in violation of Condition # 2 of his probation orders. However, the Order of Revocation of Probation, entered on August 13,1979, found the appellant had violated his probation as alleged in all six counts of the affidavits.

Appellant contends the trial court was incorrect in its written order and the State concedes the mistake. A review of the transcript of the probation violation hearing supports this concession. It is apparent that in reducing the order to writing some eight weeks later the trial court overlooked his limited findings at the hearing. This case is not unlike Gadson v. State, 368 So.2d 429 (Fla.2d DCA 1979), wherein much the same oversight took place.

Appellant also attacks the finding that he violated Condition # 2 requiring him to submit monthly reports. There is no merit to appellant’s contention in this regard. There was direct evidence of this violation corroborated by testimony of an admission by appellant.

Accordingly, the judgment and sentence appealed from are affirmed, but the cause is remanded with directions to strike from the two orders dated August 13, 1979, revoking appellant’s probation, the findings that appellant violated Conditions # 4 and # 9.

AFFIRMED AND REMANDED with directions.

DOWNEY, C. J., and ANSTEAD and HERSEY, JJ., concur.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Ernest J. OUELLETTE, Appellee.
    No. 79-1792.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.

      Michael J. Satz, State’s Atty., 17th Judicial Circuit, and Patti Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Stuart L. Stein, Fort Lauderdale, for ap-pellee.
   MOORE, Judge.

It is not necessary to recite the facts in this search and seizure case. The trial court granted appellee’s motion to suppress contraband because the search was predicated on the arresting officer’s belief that marijuana was a controlled substance proscribed by Section 893.03(l)(c) Florida Statutes (1977), which the trial judge had previously declared unconstitutional. Since then, the Florida Supreme Court has again upheld the classification of cannabis as a controlled substance. Town v. State ex rel. Reno, 377 So.2d 648 (Fla.1979); Hamilton v. State, 366 So.2d 8 (Fla.1978).

Accordingly, the order suppressing the contraband is reversed and this cause remanded with directions to the trial court to consider the remaining points raised by the motion to suppress.

LETTS and HERSEY, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge, specially

text:
    William A. LORD, Appellant, v. FIRST BANK AND TRUST OF PALM BEACH COUNTY, LAKE WORTH DIVISION, a Florida Banking Corporation, Appellee.
    No. 79-2349.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    William A. Lord, pro se.
    Richard J. Barron of Hamilton, James, Merkle & Young, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MOORE and HERSEY, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, specially

concurring:

This is an appeal from an order compelling discovery in. proceedings in aid of execution. The appellant is one of four guarantors to a promissory note, all of whom suffered a substantial judgment. Two of the guarantors not involved in this appeal filed a supersedeas bond and appealed the final judgment. The appellant in this case also filed an appeal from the final judgment; however, he failed to post a superse-deas bond.

During the pendency of the appeal the judgment creditor commenced proceedings against the appellant in aid of execution. The appellant contended that since two of the judgment debtors had filed a supersede-as, the judgment creditor could not proceed against him by way of execution. He therefore refused to answer interrogatories in aid of execution and the court entered an order compelling him to do so. He then filed a motion for stay and protective order which was denied by the trial court and subsequently filed a motion here for review of that denial. We denied that motion.

The issue is whether or not a supersedeas bond filed by the two other guarantors inures to the benefit of the appellant in this case. Although we have not been cited any Florida law directly on point , the general rule appears to be that parties appealing severally must file separate supersedeas bonds, or where two or more defendants unite in appealing, they may join in a single supersedeas bond which then must be worded so as to bind each of them. 4 Am.Jur.2d, Appeal and Error, § 325, p. 809. The appellant here has not joined in any supersedeas bond and he is appealing severally. Accordingly, I agree that the trial court’s order should be affirmed.

      . But see Dunes Enterprises, Inc. v. Papandrea, 179 So.2d 580 (Fla. 3d DCA 1965).


author: SHARP, Judge.

text:
    Charles Gale GOSNEY, Appellant, v. STATE of Florida, Appellee.
    No. 78-2334/T4-272.
    District Court of Appeal of Florida, Fifth District.
    April 16, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Gregory C. Smith, Legal Intern, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Charles Gale Gosney was convicted of aggravated assault and attempted aggravated assault after a jury trial. He raises two primary points on appeal: first, that the prosecutor’s remarks during voir dire examination constituted improper comment on the appellant’s right to remain silent; and second that certain comments by the prosecutor during closing argument were so inflammatory and outrageous as to have denied him a fair trial.

While the prosecutor was addressing the prospective jurors, he asked whether any of them would not want to serve on the panel because it was an aggravated assault case. One juror responded: “I’m not sure if I could be open-minded, or not. I might be but I know I really don’t understand violent people, and I don’t know if I’ll be prejudiced, or not.” The juror continued to express doubts about being open-minded. The prosecutor then said: “Well, of course, at this point you all don’t really know the facts of this case, and it wouldn’t really be fair to discuss them with you. But if you were picked on the jury, do you think you could wait until you’ve heard the state’s side and the defense’s side, all the evidence in the case?” Defense counsel objected and moved for a mistrial on improper comment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Clark v. State, 363 So.2d 331 (Fla.1978). The trial court took the matter under advisement, but before the prosecution completed its case, it denied the motion. The appellant took the stand in his own defense and testified about the events leading to the charges against him. His testimony was contradicted by the state’s witnesses Clara Randall and Philip A. France, and the jury chose to believe them rather than Gosney.

Whether or not the prosecutor’s remark is improper comment depends upon the full context in which it was made at the voir dire, and whether the jury could fairly conclude the prosecutor meant that the defendant, if innocent, could explain the circumstances, but if guilty, would not. David v. State, 369 So.2d 943 (Fla.1979). The context of these challenged remarks related to whether a juror could keep an open mind, until both the state and the defense presented their “sides” of the case. The “side” of a case could be other witnesses, and argument by counsel. It need not be construed as a reference to testimony by the defendant, and in the context in which the remarks occurred — a quarrelsome juror uncertain about keeping an open mind — we do not think the jurors fairly or even possibly understood it as a reference to the defendant’s possible future failure to testify at the trial. State v. Jones, 204 So.2d 515 (Fla.1967).

The testimony established that the appellant threatened Clara Randall with a knife carried in his hand; and that she retreated to her home, locked the screen and obtained a gun to defend herself. She said he had a wild, angry look in his eyes, and she was very frightened. Philip A. France, Mrs. Randall’s insurance agent, drove up to her house, but upon seeing the appellant, he decided not to stop. Gosney waived his arms and frightened France by the wild angry look on his face. France noted the motorcycle chain on his belt, and the knife sheath and belt around his waist. He saw Gosney running after him, with his hands near the knife sheath. France speedily turned his car around and sped past Gosney, out of the neighborhood.

Gosney testified that he had previously been convicted of some unspecified crimes, and that he kept three Doberman Pinchers at his home. When the police arrested him shortly after his encounters with Clara Randall and Philip France, they found two knives on his person, one a large hunting type knife in a sheath on his belt, and a motorcycle chain. He said he used the buck knife for “wiring purposes” at his work, but he was not working that day. He did not explain the presence of the motorcycle chain. Gosney testified that he thought Philip France was trying to run him down in the car, and that if he’d caught him, he intended to harm him. He also testified that he was angry and extremely mad that day. He thought Clara Randall’s husband shot a pistol at him the night before.

In his closing argument the prosecutor said: “What kind of a guy is the defendant? . . . The defendant is the kind of person who thinks the world is out to get him.” Defense counsel objected, but' the trial court ruled it was a proper comment on the evidence. Considerable latitude is allowed the prosecutor in closing argument, and logical inferences based on the record are permissible. Whitney v. State, 132 So.2d 599 (Fla.1961); Spencer v. State, 133 So.2d 729 (Fla.1961). These appear to fall within the permissible realm.

The prosecutor, continuing with his closing argument, said:

First of all he owns three Doberman Pinchers. Does that say anything about his character, his point of view. . .
That his motive for the whole thing, the defendant is paranoid. .
Now, is that the action of a rational person who is just going up the street to get some cold drinks.
This is the kind of a knife that an unreasonable person carries around, a paranoid criminal type of person. .

Defense counsel failed to object to any of these statements. In fact, defense counsel repeated the prosecutor’s language at least twice, denying that the evidence showed appellant was a “paranoid criminal type.” Because no timely objection was made, we cannot review these comments as grounds to reverse this appeal. Thomas v. State, 326 So.2d 413 (Fla.1976); State v. Jones, 204 So.2d 515 (Fla.1967).

AFFIRMED.

DAUKSCH, C. J., and SHARP, G. K., Associate Judge, concur.

      . Ultimately this juror was excused and did not serve on the jury panel.


author: GRIMES, Chief Judge.

text:
    STATE of Florida, Appellant, v. Leroy Franklin CLADD, Appellee.
    Nos. 79-1864, 79-1865.
    District Court of Appeal of Florida, Second District.
    April 16, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for apipellee.
   GRIMES, Chief Judge.

This appeal involves the question of whether a husband can be guilty of burglary of an apartment occupied by his estranged wife.

The state charged appellee with having committed the crimes of burglary and attempted burglary on consecutive days. He filed a motion to dismiss alleging certain facts relative to the charges. The state did not deny these facts but produced the testimony of the victim in order to furnish additional details. The court dismissed the charges upon the authority of Vazquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977).

The record reflects that appellee and his wife had been separated for approximately six months, although there was no formal separation agreement or restraining order. The wife had rented a separate apartment in which appellee had no’ ownership interest. One morning, appellee broke through the locked door of the apartment with a crowbar, struck his wife in the mouth and tried to throw her over the second floor stair railing. Early the following morning he came back and attempted to break in again but left when the police arrived.

While Vazquez is partially distinguishable on the facts, its rationale is directly on point. In Vazquez the parties had been physically separated for a year, and as in the present case there were no legal separation or restraining orders. The bills to the apartment in which the wife continued to live were still made out in the husband’s name, but he had not paid them. The husband broke into the apartment and injured his wife by striking her with his fists. The district court of appeal affirmed a conviction for battery but reversed a burglary conviction. The court held that consortium, which is one of the essential characteristics of the marriage relationship, includes the right of one spouse to be with the other. Hence, the court reasoned, the husband had a legal right to be with his wife on the premises at the time of the entry and as a consequence could not be convicted of burglary.

With all due respect, we are constrained to disagree with Vazquez. We find more persuasive Judge Haverfield’s dissenting opinion in which he stated that when the husband abandoned the marital abode and no longer retained the key or any ownership interest, he violated the possessory rights of another by breaking into the apartment and therefore was guilty of burglary.

The majority opinion in Vazquez emphasizes that domestic disputes ought ordinarily to be treated as civil matters rather than ones involving the harsh penalties of the criminal process. This is a sound observation, but there is nothing in the burglary statute which states that it is inapplicable to marital disputes. The answer to keeping most marital acrimony out of the criminal courts lies in the sound exercise of discretion by our state attorneys. Assuming the truth of the facts reflected by the record, this case is a good illustration of the occasional dispute in which prosecution is warranted.

Our supreme court recognized that there are exceptions to the strict application of the doctrine of marital unity when it held that one spouse can be guilty of larceny of the other’s separate property. State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946). Until the marriage bonds are dissolved, it may be that each spouse has the legal right to the other’s company. However, we do not believe that this includes the right to enter the other’s apartment without permission with the intent to,assault the other. Upon the facts as stated, we hold that burglary and attempted burglary convictions could stand. Therefore, the order of dismissal is

REVERSED.

BOARDMAN and RYDER, JJ., concur.

      . Entering a private structure of another without permission with intent to commit an assault and in the course thereof making an assault.

      . Attemtping to enter a private structure of commit an assault. another without permission with the intent to


author: OTT, Judge.

text:
    Elijah WOOTEN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1159.
    District Court of Appeal of Florida, Second District.
    April 18, 1980.
    Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of three separate criminal charges: attempted robbery with a deadly weapon; burglary in the course of which he committed an assault; and attempted sexual battery with the use of a deadly weapon. After proper notice and a hearing, appellant was sentenced as an habitual offender pursuant to Section 775.084, Florida Statutes (1977).

The court determined to give the appellant ten-year concurrent terms for attempted sexual battery and attempted robbery, to run consecutively to a life sentence for the burglary charge. His oral announcement of the sentences, however, erroneously assigned the life sentence to the attempted sexual battery charge and a ten-year sentence to the burglary charge. Counsel immediately advised the court of its error. The record shows that the court promptly corrected the error. However, the written judgment and sentence reflected the original erroneous sentence. Thus, we remand this case so that the trial court can amend the written judgment and sentences to correctly reflect the sentences imposed.

We have examined the other points raised by appellant and find them to be without merit.

Accordingly, we affirm appellant’s convictions on the three charges, but set aside the sentences and remand with directions that appellant’s written sentences be corrected to show that appellant was sentenced to concurrent ten-year terms for attempted sexual battery and attempted robbery, to run consecutively to a life sentence for burglary. Appellant need not be present for this purpose.

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


author: BOOTH, Judge.

text:
    Frances Frisch HEBERT, Appellant, v. Francis Joseph HEBERT, Appellee.
    No. MM-208.
    District Court of Appeal of Florida, First District.
    April 22, 1980.

      Michael William Mead, James W. Middleton of Middleton & Mead, Fort Walton Beach, for appellant.
    Michael Jones, D. Michael Chesser of Shelby, Chesser, Wingard, Barr & Jones, Fort Walton Beach, for appellee.
   BOOTH, Judge.

This cause is before us on appeal and cross-appeal from the final judgment of dissolution of marriage, which judgment is, in pertinent part, as follows:

The Court finds that the wife is too ill at the present time to be self-sustaining and is therefore awarded rehabilitative alimony in the sum of $500 per month for a period of two (2) years, payable the first day of each month, beginning September 1, 1978. The Court specifically reserves jurisdiction of this issue to determine at the expiration of said period if the wife’s health has been restored. Should the wife die or marry within the said two years, all alimony payments shall terminate.

On appeal, the appellant/wife contends the trial court erred in failing to award permanent alimony. The amount of the alimony awarded is not an issue on appeal. We have reviewed the record and find that the evidence amply supports the trial court’s finding that the wife is too ill to work at this time. We consider that the above-quoted judgment awarding rehabilitative alimony does not constitute a finding that the wife is not eligible for permanent alimony. On the contrary, the trial court has specifically reserved jurisdiction of this issue to be determined at the end of two years. At that time, the trial court will appropriately take into consideration the state of appellant’s health, as well as the other factors bearing on her entitlement to an award of permanent alimony, as most recently stated by the Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197 (1980), and in accord with Florida Statutes § 61.08, and the decisions of this court in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1974), and Collinsworth v. Collinsworth, (Fla. 1st DCA opinion filed Feb. 15, 1980).

Appellant also contends the trial court erred in limiting her to a one-half interest in the jointly held marital domicile and in allowing appellee a 90-day option to purchase her interest at a set amount. The record fails to establish that the trial court abused its discretion in making these determinations. Although the wife initially contributed more than half the purchase price of the house from her separate funds, the husband subsequently repaid her the excess of her contribution over one-half; and the parties entered into an agreement reciting their intention that each have an identical investment in the house. Based on these facts, the trial court denied the wife a special equity.

Concerning the option to purchase allowed to the husband, we note that the husband is given custody of the two minor sons of the parties, a matter not at issue on this appeal, and that the option arrangement facilitates maintenance of the family home for the benefit of the children and the parent having custody. The amount of the option is supported by evidence of record as to the present value of the home, and the time allowed for exercise of the option is reasonable.

Other points on appeal and on cross-appeal have been considered and found to be without merit.

Accordingly, the judgment below is AFFIRMED.

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


author: LARRY G. SMITH, Judge.

text:
    Rubin James MAULDIN, Appellant, v. STATE of Florida, Appellee.
    No. PP-174.
    District Court of Appeal of Florida, First District.
    April 22, 1980.

      Rubin James Mauldin, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

This is an appeal from a denial of a motion for post-conviction relief. The trial court found that the motion, which alleges ineffective assistance of counsel, was without merit. We affirm.

Appellant was charged with the first degree murder of his father-in-law, Richard Bell. Prior to trial, he notified the State that he intended to rely on the defense of insanity caused by long, continuous and excessive use of alcohol. The jury convicted appellant of the crime charged. On appeal, this court affirmed the trial court’s instructions on insanity and on intoxication as rendering a person incapable of a crime requiring specific intent and the Supreme Court denied certiorari. Mauldin v. State, 351 ,So.2d 753 (Fla. 1st DCA 1977), ceft. den. 362 So.2d 1055 (Fla.1978).

In the affidavit attached to his motion, appellant relates his long history of alcoholism and alleges that his attorney never took a full history of this addiction. He claims his attorney did not present his defense to the jury and he argues that his attorney should have sent him to a psychiatrist. Finally, he states that he could not answer many of his attorney’s questions about the day of the shooting because so much of the day was like a dream and he couldn’t distinguish what actually happened from what he imagined happened.

After reviewing the record, we agree with the trial judge that the facts in this case conclusively show that appellant’s attorney did present his defense that chronic alcoholism, not he, was directly responsible for the killing. At his trial, appellant testified in his behalf that he had been drinking heavily the morning of the murder and had returned home “full of liquor.” He did not remember arguing with his wife over the deed to his house, which apparently belonged to his father-in-law, but he did remember going to the home of Mr. and Mrs. Bell. At the Bell house, he recalled “standing up in the door.” Although he did not remember having any words with Mr. Bell, he was conscious of a gun going off but he did not know if he had fired it. He went to sleep on the porch and recalled running down the street with Deputy Poppell while in handcuffs. The next thing he remembered was waking up in jail. In addition to his testimony, there was testimony from several defense witnesses that appellant had been a heavy drinker for years. One drinking companion testified to appellant’s strange behavior for several months preceding the shooting. He stated that on the morning of the shooting, he noticed appellant was crying while walking home from the bar and he commented that this was highly unusual behavior for appellant. Finally, in his closing argument to the jury, appellant’s counsel urged the jury to consider the evidence of intoxication as it related to temporary insanity and the appellant’s ability to form the specific intent necessary for premeditated murder.

In spite of this testimony, the jury was obviously persuaded by other testimony that appellant intended the death of the deceased. The record reveals the testimony of several people, who testified that after the shooting, appellant told them he had shot Bell. Further, Bell’s widow testified that appellant came to their house asking about a deed, and when he was told the deed couldn’t be obtained, he took a gun from under his shirt and shot Bell several times. This evidence, and the appellant’s recollection of events immediately preceding the shooting and afterwards, supports the jury’s verdict. See Young v. State, 162 So.2d 297 (Fla. 3rd DCA 1964); Shaw v. State, 228 So.2d 619 (Fla. 2nd DCA 1969); Allen v. State, 264 So.2d 866 (Fla. 1st DCA 1972).

Concerning appellant’s contention that his counsel should have had him see a psychiatrist (and presumably call the psychiatrist as a witness), we note that the decision not to call certain defense witnesses is ordinarily a matter of personal judgment on the part of defense counsel. Consequently, it is not a proper predicate for a collateral attack on the competence of counsel unless it is so irresponsibly exercised as to constitute “inadequate” representation. State v. Eby, 342 So.2d 1087, 1089 (Fla. 2nd DCA 1977). The test of effective assistance of counsel is whether counsel was reasonably likely to render and did render reasonably effective counsel based on the totality of the circumstances. Meeks v. State, 382 So.2d 673 (Fla.1980). In our view, the record here reveals a reasonable and adequate presentation to the jury of evidence supporting appellant’s defense of insanity caused by intoxication. Accordingly, appellant is not entitled to any post-conviction relief on his claim of ineffective representation by trial counsel.

Next we consider appellant’s contention that he was unable to answer many of his attorney’s questions about the day of the shooting. We interpret his complaint to be that he was not accorded due process because he was unable to properly assist in his own defense and, therefore, was incompetent to stand trial. However, we cannot agree.

Appellant claims that he could not remember the events of the day in question well enough to answer many of his attorney’s questions. We recognize that a defendant’s ability to recollect the circumstances surrounding a shooting is important. Nevertheless, amnesia, in and of itself, does not, per se, render him incapable of standing trial or of receiving a fair trial. Robbins v. State, 312 So.2d 243, 245 (Fla. 2nd DCA 1975). Appellant has simply made a bare conclusory allegation, that he was unable to answer some questions. He does not allege the questions he was unable to answer or their importance to his defense. Since appellant has not demonstrated through allegations of fact a deprivation of a constitutional right, his motion for relief was properly denied. Whitlow v. State, 256 So.2d 48 (Fla. 2nd DCA 1971).

Lastly, we note that the trial judge did not attach the portion of the record or file relied upon in denying appellant’s motion as is required by Rule 3.850, Florida Rules of Criminal Procedure, and this court’s decision in Calhoun v. State, 362 So.2d 726 (Fla. 1st DCA 1978). Nevertheless, because we were able to obtain the record from the file of appellant’s prior appeal, we do not deem it necessary to reverse on this point.

Accordingly, the order is AFFIRMED.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.


text:
    SAMBO’S RESTAURANT and Insurance Company of North America, Appellants, v. Shahiddah Bilal PATTERSON, Appellee.
    No. TT-467.
    District Court of Appeal of Florida, First District.
    April 22, 1980.
    C. Thomas Ferrara, of Pitts, Eubanks & Ross, Orlando, for appellants.
    Edward H. Hurt, Orlando, for appellee.
   PER CURIAM.

The parties having stipulated that the issue raised in this appeal has been decided by a recent ruling of this Court, the cause is reversed and remanded for reconsideration in light of this Court’s opinion in East Coast Tire Company v. Denmark, Case No. PP-482, Opinion filed March 25, 1980, not yet reported.

MILLS, C. J., and McCORD and LARRY G. SMITH, JJ., concur.


text:
    Daniel Anthony WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1749.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is affirmed upon a holding that: (a) the defendant in this case was “taken into custody” for speedy trial purposes under Fla.R.Crim.P. 3.191(a)(1) when he was arrested by the FBI on March 8, 1978 in New York and thereafter formally charged by information, (b) the defendant was not “taken into custody” under the above speedy trial rule when he was detained, questioned and released by the Dade County Public Safety Department on December 31, 1977, as he was never formally arrested and charged at that time, and (c) the trial court properly denied the defendant’s motion to discharge based on the speedy trial rule as more than 180 days had not elapsed under Fla.R.Crim.P. 3.191(a)(1) between the time the defendant was “taken into custody” in this cause and the time the motion for discharge was filed. State v. Robbins, 359 So.2d 39 (Fla. 2d DCA 1978). State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977) cert. denied 358 So.2d 129 (Fla.1978); Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976) cert. denied 348 So.2d 953 (Fla.1977); compare: State v. N.B., 360 So.2d 162 (Fla. 1st DCA 1978); Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976).


text:
    CHEMICAL REALTY CORPORATION, a New York Corporation, Appellant, v. FLAGLER CENTER BUILDING LOAN CORPORATION et al., Appellees.
    Nos. 79-476, 79-545.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and David L. Ross, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appel-lees.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The final orders under review dismissing the instant mortgage foreclosure action and imposing certain fees [for the court commissioner, the co-conservator and their attorneys] upon the appellant Chemical Realty Corporation, which orders were entered by the trial court subsequent to our mandate in Flagler Center Building Loan Corp. v. Chemical Realty Corp., 363 So.2d 344 (Fla. 3d DCA 1978), are affirmed upon a holding that: (a) our prior decision in this cause reversed the mortgage foreclosure judgment then under review in its entirety and remanded the cause to the trial court with directions to dismiss the action, Flagler Center Building Loan Corp. v. Chemical Realty Corp., 363 So.2d 344, 350 (Fla. 3d DCA 1978), (b) the trial court orders now under review fully comply with our prior mandate, and, in view of the required order of dismissal of the action, properly reassess the fees for the court commissioner, co-conservator and their attorneys against the appellant Chemical Realty Corporation who originally brought the instant mortgage foreclosure action and is now the losing party, Jackson v. H.M. Wade Manufacturing Co., 105 Fla. 560,142 So. 228 (1932), and (c) the discussion in our prior opinion herein relating to the commissioner’s fees and costs and the commissioner’s attorneys fees merely concluded that there had been no stipulation on such fees and did not affirm that portion of the final judgment as, indeed, our decision clearly reversed the final judgment in its entirety and remanded with directions to dismiss the action. Flagler Center Building Loan Corp. v. Chemical Realty Corp., 363 So.2d 344, 348-49 (Fla. 3d DCA 1978).


text:
    Hazel SMITH, etc., Appellant, v. Robert WILLNER, M.D., et al., Appellees.
    No. 79-641.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Horton, Perse & Ginsberg, and Edward A. Perse, Pelzner, Schwedock & Finkelstein, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, for appellees.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Quinn v. Millard, 358 So.2d 1378 (Fla.3d DCA 1978); Salinetro v. Nystrom, 341 So.2d 1059 (Fla.3d DCA 1977).


text:
    Charles CAPORALE and Karen Caporale, Appellants, v. RALEIGH INDUSTRIES OF AMERICA, INC., a Foreign Corporation, et al., Appellees.
    No. 79-757.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.

      Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and T. E. Scott, Talburt, Kubicki & Bradley, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Leland E. Stan-sell, Jr. and Robert A. Glassman, Miami, for appellees.
    Before SCHWARTZ, J., and PEARSON, TILLMAN and EZELL, BOYCE F., Jr. (Ret.), Associate Judges.
   PER CURIAM.

The Caporales, plaintiffs below in this products liability suit for personal injuries, appeal the final judgments entered pursuant to directed verdicts granted to the defendants at the close of the evidence. We reverse as to both defendants.

Charles Caporale was injured as a result of a bicycle accident and filed suit against both Raleigh Industries of America, the manufacturer-distributor, and Raleigh Bicycles of North Dade, the retailer and assembler of the machine. Claiming that his accident and injuries were caused by the front wheel falling off the bicycle, Caporale and his wife sued the defendants on theories of negligence, breach of warranty, and strict liability in tort. The evidence presented at the trial below and considered here in the light most favorable to the Caporales is described as follows.

Charles Caporale purchased a bicycle from Raleigh Bicycles of North Dade. Since the manufacturer shipped the bicycles in parts, the retailer had to assemble the type bicycle selected by Mr. Caporale. Unbeknownst to Caporale, the particular bike he selected came equipped with a “quick-release” front wheel. This type wheel is fastened onto the frame of the bicycle with a locking lever that fits into a specially designed axle rather than with the nuts and bolts customarily used.

Caporale used the bicycle once or twice a week for about three months prior to the accident. At the time of the accident, Ca-porale was riding through a parking lot. He went over a speed bump and both he and the “quick-release” wheel were separated from the bike.

Caporale could not recall the accident, but an eye witness testified that Caporale was riding at a normal speed as he crossed the bump. The witness could not, however, determine whether Caporale or the front wheel left the bicycle first.

Caporale also presented the testimony of an expert witness who averred that the bicycle in question, particularly the “quick-release” mechanism, was misassem-bled at the time of the accident. The expert further postulated that had the bicycle been properly assembled at the time of purchase, it would not have needed further adjustment nor would it have become dangerously loosened through normal use. This testimony, coupled with Caporale’s statement that he had not tampered with the assembly of the bicycle since the time of purchase, created a question for the jury as to whether the bicycle was improperly assembled by Raleigh Bicycles of North Dade and whether the improper assembly caused the accident. Thus, the trial court erred in directing a verdict in favor of the defendant-retailer. Mareano v. Puhalovich, 362 So.2d 439 (Fla. 4th DCA 1978).

Furthermore, the manufacturer, Raleigh Industries, will be liable for injury caused by the improper assembly, if any, of the bicycle by Raleigh Bicycles of North Dade. Raleigh Industries clearly contemplated that the bicycle would be fully assembled by an authorized dealer. The manufacturer implicitly guaranteed that such assembly would be properly done. (Raleigh Bicycles of North Dade was an authorized dealer of the manufacturer.) The manufacturer cannot now disclaim liability for injuries to the ultimate purchaser of a product where the manufacturer knowingly relies on its dealer to put the product in a finished state. Sabldff v. Yamaha Motor Co., 113 N.J.Super. 279, 273 A.2d 606 (1971); Yandermark v. Ford Motor Co., 61 Cal.2d 256, 391 P.2d 168, 37 Cal.Rptr. 896 (1964). The manufacturer’s argument that the authorized dealer is an independent contractor and that, therefore, the manufacturer is not responsible for the dealer’s action, is not persuasive. The manufacturer instructed the dealer in the assembly of the bicycle and implicitly made the dealers’ service its own. See generally: Favors v. Firestone Tire & Rubber Co., 309 So.2d 69 (Fla. 4th DCA 1975). But see: Chrysler Airtemp v. Stevens, 346 So.2d 1236 (Fla. 2d DCA 1977). Consequently, a directed verdict should not have been entered in favor of the manufacturer either. The evidence presented jury questions of whether there was an improper assembly of the bicycle and whether the misassembly, if any, was the proximate cause of the plaintiffs’ injuries. Therefore, these final judgments in favor of the defendant-appellees are reversed and the cause is remanded for further proceedings in accordance with this decision.

In light of our disposition of the foregoing, we need not reach the other issues raised by the appellants.

Reversed and remanded.

      . Raleigh Industries of America, the exclusive American distributor of the bicycles, is deemed the manufacturer under Florida law. Edwards v. California Chemical Co., 245 So.2d 259 (Fla. 4th DCA 1971).

      . A warranty, extended by Raleigh Industries with each bicycle it manufactured, reads in part:
      “Raleigh Industries of America, Inc. (‘Raleigh’) warrants its bicycles to be free of any defects in workmanship or material under normal use as expressly provided under this warranty. “Each Raleigh bicycle will be fully assembled by an Authorized Raleigh Dealer at the time of purchase.”


text:
    Robert DANIELS, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 79-891.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Horton, Perse & Ginsberg and Arnold Ginsberg, Brumer, Cohen, Logan, Kandell & Redlus, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See Skelton v. State, 349 So.2d 193 (Fla.3d DCA 1977); Trivette v. State, 244 So.2d 173 (Fla.4th DCA 1971); State v. Outten, 206 So.2d 392 (Fla.1968).


author: PER CURIAM. HUBBART, Judge

text:
    Robert MILLER, Appellant, v. DADE COUNTY, a Political Subdivision of the State of Florida, Charles Holt, Individually, Appellees.
    No. 79-1059.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.

      Susan Goldman, Colson & Hicks, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for appel-lees.
    Before HUBBART and NESBITT, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant seeks reversal of an order requiring a new trial or, in the alternative, a remittitur. The reasons recited by the trial court in its order together with the record proper indicate the verdict may have been influenced by inflammatory statements concerning matters outside the record made during summation. The trial court, because of its superior vantage point, had broad discretion in this matter. Cassat Avenue Mobile Homes, Inc. v. Bobenhausen, 363 So.2d 1065 (Fla.1978); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); City of Miami v. Graham, 311 So.2d 697 (Fla. 3d DCA 1975); cert. denied 330 So.2d 17 (Fla. 1976).

No abuse of this discretion having been demonstrated, the decision of the trial court is hereby affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would reverse the order appealed from and remand the cause to the trial court with directions to reinstate the jury verdict and render a judgment for the plaintiff thereon. In my view, the trial court acted as a seventh juror in ordering the remittitur under review as the reasons appearing in the new trial order do not support the trial court’s conclusion that the verdict was contrary to the weight of the evidence and excessive. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977); Lassitter v. Intern. Union of Op. Engin., 349 So.2d 622, 626-627 (Fla.1976); Corbett v. Seaboard Coastline Railroad, 375 So.2d 34 (Fla. 3d DCA 1979). Moreover, the alleged inflammatory statements mentioned in the majority opinion do not appear as a ground for the remittitur in the order appealed from and were, in any event, woefully inadequate as a ground for reducing this jury verdict. White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978). Finally, my review of City of Miami v. Graham, 311 So.2d 697 (Fla. 3d DCA 1975), convinces me that the facts of such case are so significantly different from the instant case that the decision therein rendered cannot govern the outcome here. I would reverse and remand as indicated above.


text:
    Albert E. HAGUE, Appellant, v. Mary C. HAGUE, Appellee.
    No. 79-1398.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.

      Marvin & Shepperd and Dennis P. Shep-perd, Miami, for appellant.
    Francis E. Holden, Jr., Hialeah, for appel-lee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The husband appeals the award (as lump sum alimony) of his one-half interest in the marital home of the parties and also the award of permanent alimony to the wife.

As to the lump sum award of the home, we affirm. See the conclusion and opinion expressed on motion for rehearing in MacDonald v. MacDonald, 382 So.2d 50 (Fla. 2d DCA 1980), wherein the Second District Court of Appeal said, in referring to the opinion of the Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980):

“. . . while not referring to the cases by name . . . clearly tempered the requirement of a positive showing of necessity for lump sum alimony [with respect to the award of the husband’s interest in the marital home] which it announced in Meridith v. Meri-dith, 366 So.2d 425 (Fla.1978), and Cummings v. Cummings, 330 So.2d 134 (Fla. 1976) . . .”

See also the discussions of Canakaris in our opinions in Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980), and Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980).

As to the award of permanent alimony, we also affirm. In light of the 31-year duration of the marriage, the age of the wife upon dissolution, the nominal amount of the award, to wit: $40.00 per month, the ability of the husband to pay said nominal award and the needs of the wife, we cannot say the trial judge abused his discretion in entering an award for permanent alimony. Therefore, we are required to affirm that award. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979) adopting Judge Hubbart’s dissent in Rosenberg v. Rosenberg, 352 So.2d 867 (Fla. 3d DCA 1977).

Affirmed.


text:
    Estrella FEBLES, Appellant, v. Morris KIEL d/b/a The Hamilton Apartments and Old Republic Insurance Company, a corporation, Appellees.
    Nos. 79-1410, 79-1595.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.

      Ser, DeCardenas, Levine, Busch & Allen and Elliott Heywood Lucas, Miami, for appellant.
    Pyszka, Kessler & Adams and John B. Batman, Greene & Cooper and Marc Cooper, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Laskey v. Smith, 239 So.2d 13 (Fla.1970); Savoca v. Sherry Frontenac Hotel Operating Company, Inc., 346 So.2d 1207 (Fla. 3d DCA 1977); City of Hollyood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977), and Healy v. Atwater, 269 So.2d 753 (Fla. 3d DCA 1972).


text:
    Ann GROSS, Appellant, v. ASPHALT MATERIAL & PAVING CO., INC., and the Insurance Company of North America, Appellees.
    No. 79-1760.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Morton S. Braverman, North Miami Beach, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and William R. Wicks, III, Miami, for appel-lees. ■
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

On April 11, 1976, the plaintiff-appellant tripped and fell while crossing Collins Avenue (State Road A1A) near its intersection with 67th Street on Miami Beach. Ms. Gross sued the present appellee, Asphalt Material & Paving Company, Inc., which was engaged in repaving the area under a contract with the Florida Department of Transportation. She claimed that it had created a “bump” or “rise” in the street which had caused the accident. The trial judge granted summary judgment for the defendant, which we reverse.

The primary basis of the ruling below seems to have been the conclusion that the appellee was not liable for the injury under Slavin v. Kay, 108 So.2d 462 (Fla.1959). The Slavin doctrine serves to relieve a contractor from liability for obvious defects when the work has been completed and turned over to and accepted by the owner. See El Shorafa v. Ruprecht, 345 So.2d 763 (Fla. 4th DCA 1977), and cases cited. In this case, the record shows that the project in question was not completed and accepted by the D.O.T. until April 22, 1976, eleven days after the accident. There was therefore an unresolved issue as to whether “the work remained in [the defendant’s] charge,” so as to render it liable as the “possessor” of the roadway at the time of the fall. Cockerham v. R. E. Vaughan, Inc., 82 So.2d 890 (Fla.1955). Specifically, we reject the defendant’s contention that the mere inspection and approval of the work in a particular portion of the street by a D.O.T. employee would serve, as a matter of law, to exonerate the asphalt company from responsibility for that area. Until formal acceptance of the entire project by the owner, the contractor remains in control of the work and thus responsible for the correction of any defect it has created. Its liability, in other words, does not cease until the owner’s begins. See Lubell v. Roman Spa, Inc., 362 So.2d 922 (Fla.1978). The question of whether that process had been completed when Ms. Gross was hurt was not properly resolved by summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Compare Leveridge v. Lapidus, 105 So.2d 207 (Fla. 3d DCA 1958).

Since we also find that the defendant did not conclusively establish its non-liability for the accident on any other basis, see Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977), the summary judgment under review is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.


text:
    S. T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1804.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We reverse the adjudication of delinquency on a finding of attempted burglary because of a variance between the petition, which laid ownership of the premises in one Minnie Hill, and the proof, which showed temporary ownership, possession and control was in a tenant named Simmy. Haugland v. State, 374 So.2d 1026 (Fla. 3d DCA 1979). The reversal is without prejudice to file an amended petition for delinquency properly alleging temporary ownership, possession and control, provided the offense is not barred by limitations and the offender is still a juvenile.

Reversed and remanded.


text:
    Isabel YERO and Emilio Yero, her husband, Appellants, v. Juan SAIZARBITORIA, Appellee.
    No. 79-1957.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Lidsky, Crespo & Friedlieh and Neil I. Maryanoff, Coral Gables, for appellants.
    Manuel Vazquez and Alexander Kent, Coral Gables, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.442.