author: MILLS, Judge. SHIVERS, Judge, ERVIN, Judge,

text:
    Keith Darnell JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. AI-309.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    Michael E. Allen, Public Defender, Nancy Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Jenkins was convicted of aggravated battery and carrying a concealed firearm. He contends the trial court erred in assessing costs of $10.00 for the Crimes Compensation Fund and $2.00 for the Law Enforcement Training Fund in each judgment entered against him. Jenkins further contends the trial court erred in excluding certain testimony as hearsay in the aggravated battery charge.

Of its own motion, the Court voted to consider this proceeding en banc.

A majority determined that the proposed opinion in this case conflicted with Mobley v. State, 414 So.2d 25 (Fla. 1st DCA 1982), but then agreed to recede from Mobley and adopt the proposed opinion in this case.

The costs issue was not presented to the trial judge. At the sentencing proceeding the judge, in open court and before Jenkins and his counsel, imposed the costs. He then found Jenkins indigent and appointed the public defender to represent him on appeal. It is not apparent that these are inconsistent. Section 27.52, Florida Statutes (1981), establishes the criteria for a determination of indigency. Even the most cursory reading of that statute, as well as common sense, reveals that a defendant may be unable to afford attorneys and the large court costs dealt with in State v. Byrd, 378 So.2d 1231 (Fla.1979), or Arnold v. State, 356 So.2d 862 (Fla. 1st DCA 1978), but is still easily able to pay $12.00 or $24.00. Jenkins was given ample opportunity to object and to convince the trial judge of his inability to pay the charge. He failed to take advantage of either.

Sections 939.05 and 939.15, as well as 924.17, are asserted as protecting Jenkins from the costs assessment. These are the statutes applied in Arnold and Byrd, supra. Neither are applicable to the special costs imposed by Sections 960.20 and 943.25(4), Florida Statutes (1981). See Griggs v. State, 416 So.2d 1270 (Fla. 5th DCA 1982).

We recede from our decision in Mob-ley v. State. A defendant who objects to the imposition of costs under Sections 960.-20 and 943.25(4) shall be required to timely object on the ground of insolvency and shall offer due proof of insolvency in open court.

The trial court must find that the defendant is wholly unable to pay the $12.00 in costs and, if it so finds, shall discharge the defendant from the payment of the $12.00. See Section 939.05. The finding of indigen-cy under Section 27.52 is not applicable to the costs imposed by Sections 960.20 and 943.25(4).

We recognize that our decision may conflict with Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981); Ivory v. State, 419 So.2d 695, (Fla. 2d DCA 1982); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); and Johnson v. State, 419 So.2d 412 (Fla. 2d DCA 1982). It appears, however, that in each of these cases the trial court may have found the defendant insolvent and unable to pay the costs assessed under Section 960.-20 and Section 943.25(4). If this is the case, and the decisions do not specifically say one way or the other, there is no conflict.

Two points are raised against the aggravated battery conviction which require discussion.

Jenkins’ defense was that the victim, Thorne, attacked Jenkins with a knife, requiring Jenkins to shoot Thorne in self-defense. Thome denied the knife attack. A witness, Furlough, testified that shortly before the incident Thorne sat next to Furlough, then approached Jenkins at a “slow run.” Thorne had his knife out when sitting with Furlough, but Furlough was unable to see whether it was out when Thorne approached Jenkins.

Furlough was prepared to testify that Thorne had stated, “I’m going to straighten Keith (Jenkins) up.” This was excluded as hearsay. This was error. The statement, while clearly hearsay, was admissible. Sections 90.803(3)(a) 1 and 2, Florida Statutes (1981), provide an exception for just such a statement of intent. Thorne’s intent as he approached Jenkins was probative of whether his knife was in fact out, which is important to Jenkins’ defense. The statement by Furlough that sometimes Thorne kidded does not indicate a lack of trustworthiness so as to invoke Section 90.803(3)(b) 2. The jury should have been allowed to .consider Thorne’s statement and give it what weight it thought appropriate.

We need not decide whether the use of incorrect penalty instructions is reversible error, but on retrial the appropriate instruction for a case with a mandatory minimum should be used.

No error is asserted in Jenkins’ conviction for carrying a concealed firearm and it is affirmed.

The assessment of costs issue is affirmed and the judgment of conviction for aggravated battery is reversed and this charge is remanded for a new trial.

ROBERT P. SMITH, Jr., C.J., and McCORD, BOOTH, LARRY G. SMITH, SHAW, JOANOS, THOMPSON and WIG-GINTON, JJ., concur.

ERVIN, J., specially concurs.

SHIVERS, J., dissents in part and concurs in part with opinion with which WENTWORTH, J., concurs.

SHIVERS, Judge,

dissenting in part and concurring in part:

I respectfully dissent on assessment of costs against defendant.

The majority’s logical opinion is almost persuasive. However, for the following reasons I do not agree that these court costs may be assessed against an insolvent defendant.

Section 939.05, Fla.Stat. (1981) provides for the discharge of an insolvent defendant without payment of costs:

939.05 Insolvent defendant discharged without payment of costs. — -In all cases less than capital, when it appears from due proof made in open court that the person convicted is wholly unable to pay costs, and that the judgment has in other respects been complied with, the court before which such person was convicted may discharge him without the payment of costs.

Section 939.15, Fla.Stat. (1981) provides:

939.15 Costs paid by county in cases of insolvency. — When the defendant in any criminal case ... has been adjudged insolvent ... the costs allowed by law shall be paid by the county ....

Section 943.25(4), Fla.Stat. (1981) provides for the funding of a law enforcement training and correctional officer training program:

(4) All courts created by Art. V of the State Constitution shall assess $2 as a court cost against every person convicted for violation .... (emphasis supplied)

Section 960.20, Fla.Stat. (1981) provides for the payment by a convicted person of $10 for the Crimes Compensation Fund, as an additional cost in a case.

960.20 Additional costs. — When any person, ... is convicted of, any felony or misdemeanor under the laws of this state, there shall be imposed as an additional cost in the case, in addition and prior to any other cost required to be imposed by law, the sum of $10. The clerk of the court shall collect and forward $9 of each $10 collected to the Treasurer, to be deposited in the Crimes Compensation Trust Fund. The clerk shall retain the remaining $1 of each $10 collected as a service charge of the clerk’s office. Under no condition shall a political subdivision be held liable for the payment of this sum of $10.

There appears to be no reason to label the $10 costs imposed by section 960.20 and the $2 costs imposed by section 943.25 as “special” costs and segregate them from other costs. The Legislature simply refers to the $2 as a “court cost” and to the $10 as “an additional cost in the case.” The majority have cited Griggs v. State, 416 So.2d 1270 (Fla. 5th DCA, 1982). Although Griggs relates to section 960.20, it does not relate to section 943.25. Upon examination of sections 960.20 and 943.25, it appears that although section 960.20 provides that the county shall not be liable for the payment of the $10 costs, section 943.25 has no such provision concerning the $2 cost. Further, it does not follow that because the county shall not pay the $10 fee, an insolvent defendant must pay it. Where there is an insolvent defendant, the Crimes Compensation Fund just would not receive $10.

The majority provides that a defendant who objects to the payment of costs under sections 960.20 and 943.25(4) shall be required to timely object on the ground of insolvency and shall offer due proof of insolvency in open court. The majority holds that the trial court must find that the defendant is wholly unable to pay the $12 in costs and if it so finds shall discharge the defendant from the payment of $12.

In the case sub judice, the appellant Keith Jenkins on September 1, 1981, executed and filed in the Duval County Circuit Court Clerk’s office Affidavit of Insolvency, stating under oath:

AFFIDAVIT OF INSOLVENCY
Affiant being first duly sworn on oath deposes and says that he is totally insolvent and unable to pay the charges, costs, or fees in this cause, either in whole or in part; that he had no property or other means of payment either in his possession or under his control and that he has not divested himself of any property, either real or personal, for the purpose of receiving benefit from this oath; that he, at this time, is wholly without funds and unless this Court makes and enters an Order adjudging him, this defendant, insolvent, he will be deprived of his rights under the law. This affiant offers himself up to the Court for the purpose of further examination into his insolvency, (emphasis supplied)

On September 1, 1981, the Court entered an Order of Insolvency and Appointment of Public Defender in which it was

ORDERED and ADJUDGED that the defendant be declared to be totally insolvent.

At the sentencing hearing when Mrs. Lewis, defendant Keith Jenkins’ attorney, asked for the appointment of the Public Defender for purposes of appeal, Mr. Jenkins again indicated to the Court he had no money.

THE COURT: Has your financial situation changed in any way? ■
MRS. LEWIS: Do you have any money?
MR. JENKINS: No.
THE COURT: I will appoint the Public Defender. I know his financial condition has not changed. I will appoint the Public Defender.
MRS. LEWIS: Thank you, Your Hon- or.

Costs should not be assessed against a defendant who has been adjudged to be insolvent. See, Jones v. State, 389 So.2d 1092 (Fla. 4th DCA 1980); Ortiz v. State, 420 So.2d 923 (Fla. 2d DCA, 1982). In the case sub judice the defendant Keith Jenkins has been adjudged to be insolvent and this insolvency affirmed at the sentencing hearing. I would reverse the assessment of the $10 and $2 costs against the defendant. However, I agree that the cause should be reversed and remanded for a new trial on the aggravated battery charge.

ERVIN, Judge,

specially concurring.

Although I concur with the majority in affirming the cost assessment of $12, I would not on this record recede from our prior opinion in Mobley v. State, 414 So.2d 25 (Fla. 1st DCA, 1982). As noted in the majority’s opinion, Jenkins failed to object to the imposition of the costs at the time of the sentencing. He should not be heard to complain for the first time now on appeal that its assessment is invalid. Cf. Spurlock v. State, 420 So.2d 875 (Fla.1982).

I would reserve for another day the disposition of the question on its merits.


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Chief Judge.

license: Public Domain

text:
    Debbie A. CHISOLM and Jerry K. Chisolm, Appellants, v. R & R AUTO PARTS, INC. and American Hardware Mutual Ins. Co., Appellees.
    No. AJ-173.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.

      William Nussbaum of Goldman, Presser & Nussbaum, Jacksonville, for appellants.
    Jack W. Shaw, Jr., of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

This summary judgment for defendant is AFFIRMED. Plaintiff’s step or misstep, upon exiting defendant’s store through the door she previously entered, is not shown by any evidence or inference to have been caused by some structural defect or irregularity of which defendant was reasonably required to give some special notice. Plaintiff conceivably was slightly and momentarily distracted as she left the store, but defendant had no duty, under the circumstances shown here, to anticipate and prevent that. Contrast Spence v. Pen Air Federal Credit Union, 421 So.2d 20 (Fla. 1st DCA 1982).

AFFIRMED.

McCORD and MILLS, JJ., concur.


author: JOANOS, Judge.

text:
    Henry RICH, Appellant, v. COMMERCIAL CARRIER CORPORATION, Appellee.
    No. AJ-227.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    George J. Adler of Meyers, Mooney, Adler & Hammond, Orlando, for appellant.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   JOANOS, Judge.

In this workers compensation case, the claimant appeals the deputy commissioner’s determination that (1) he did not have an assigned permanent physical impairment under American Medical Association’s Guides to the Evaluation of Permanent Impairment; (2) he suffered no wage loss; and (3) employer/carrier (E/C) did not act in bad faith. We affirm in' part, reverse in part, and remand.

Claimant fell and injured his low back on March 3, 1980, while working as a truck driver for E/C. He was treated by Dr. Uricchio, an orthopedist. Claimant reached maximum medical improvement on September 10, 1981.

During his deposition Dr. Uricchio replied affirmatively when asked whether claimant had a permanent impairment based on the AMA Guides. He was then asked what the degree of impairment was, and he replied that it was seven percent of the body as a whole. Later in the deposition, Dr. Uric-chio was questioned, and answered, as follows:

Q. Now, Doctor, did you specifically use the AMA guidelines in coming up with the physical impairment or did you take into consideration other factors?
A. Well, there are also other or additional factors. I did use that as a guideline.
Q. What other factors in addition to the AMA guidelines did you use in coming up with the opinion concerning impairment? A. Just my experience over the years and the fact that he had probably two disc protrusions rather than one.
Q. So, this indication that he has a permanent impairment took into consideration other factors in addition to those factors outlined in the AMA guidelines?
Mr. Adler: Let me object — to make sure Dr. Uricchio understands that you’re asking a question as regards whether or not he has any impairment rather than the degree of impairment—
Mr. Zimmerman: George, it will be your turn in a minute.
Q. My question is, Doctor, did the opinion that you expressed, that is the seven percent impairment, take into consideration other factors in addition to what it says in the AMA guidelines?
A. Yes, sir.

In the order, the deputy found “[t]hat the claimant was not entitled to wage loss from September 9, 1981, to the present, in that there was a job available by the employer and there was no assigned impairment because of the injury of March 10, 1980.”

The deputy overlooked or incorrectly evaluated the evidence as to the existence of a permanent impairment. While Dr. Ur-icchio’s testimony may not have supported a finding that claimant incurred a permanent impairment of seven percent of the body as a whole, his testimony that he considered factors in addition to the AMA Guides in arriving at the seven percent rating does not render his testimony invalid as to the existence of some permanent impairment, which is the prerequisite to wage loss benefits under Section 440.15(3)(b), Florida Statutes. See Deinema v. Pierpoint Condominiums, 415 So.2d 811 (Fla. 1st DCA 1982); Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981).

This erroneous finding by the deputy as to the existence of a permanent impairment may have had an impact on the simultaneous finding that because there was a job available with E/C, claimant suffered no wage loss. Therefore we remand for reconsideration of the question whether claimant suffered a wage loss, in light of our reversal as to the existence of a permanent impairment.

The deputy did not err in finding that no bad faith on the part of the E/C had been shown, therefore that finding is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Loleta Robin JOHNSON, Appellant, v. James Stanley JOHNSON, Appellee.
    No. AL-224.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    Carroll Cayer, Jacksonville, for appellant.
    Frederic C. Buttner, Jacksonville, for ap-pellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The circuit court changed permanent custody of the parties’ four-and-a-half year-old daughter from the mother, to whom permanent custody had been granted by stipulated judgment dissolving the marriage two years earlier, to the father. On the mother’s appeal we have carefully examined the record for evidence tending to show, as required for change of custody previously ordered by judicial decree, that the mother’s custody substantially changed the child’s living conditions in a way adversely affecting the child. Lisenby v. Lisenby, 419 So.2d 354 (Fla. 1st DCA 1982); Culpepper v. Culpepper, 408 So.2d 782 (Fla. 2d DCA 1982).

Putting aside credibility questions as beyond our province, we find substantial competent evidence that the child’s welfare was in fact adversely affected in the mother’s custody: she moved to Canada, where she had no stable immigration status and was financially dependent upon a man in process of divorce, with whom she lived in expectation of eventual marriage; the child displayed anxiety over the situation, as evidenced by spontaneous statements that were admissible to show her state of mind, section 90.803(3), Florida Statutes (1981); and the child lost, during her Canadian absences, a regular and continuing relationship with her Jacksonville father, which on this particular record could have been regarded as especially beneficial. Although the circuit court’s order did not articulate these factors, which would have been desirable, it is enough that the record displays them.

Lisenby and Culpepper make clear that proceedings for changing child custody once judicially decreed are not occasions for monitoring, in morally judgmental terms not demonstrably related to the child’s welfare in fact, the post-dissolution sexual or other personal conduct of the custodial parent. See also Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). We find no suggestion here that the able circuit judge departed from the appropriate standard. We note that the modification order reserves ample visitation privileges to the mother.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    Adolfo DIEGO, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-305.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    Adolfo Diego, pro se, appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   JOANOS, Judge.

Appellant contends the Parole and Probation Commission (Commission) erred in assigning his presumptive parole release date. We disagree and affirm.

An inmate’s term may be extended beyond the matrix guidelines by reason of aggravating factors, but the Commission must give a written explanation for the extension. Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980). This was done in this case.

The Commission did not err in aggravating appellant’s PPRD because of the offense involving the use of a dangerous weapon, the offense resulting in great bodily harm and there being multiple separate offenses. Fla.Admin.Code Rules 23-21.-10(4)(a)(l)(a), (b) and (h).

SHAW and WIGGINTON, JJ., concur.


text:
    Roosevelt HOPKINS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-373.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.

      Roosevelt Hopkins, pro se, appellant.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   JOANOS, Judge.

Appellant contends the Parole and Probation Commission (Commission) erred in assigning his presumptive parole release date (PPRD). We disagree and affirm.

Application of objective parole guidelines to appellant’s 1965 convictions does not violate the ex post facto clause. See Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

The Commission properly used the most severe crime to determine the salient factor score, then used the other counts as aggravating factors to determine appellant’s PPRD for the 1965 convictions. Fla.Admin. Code Rule 23-21.10(4)(a)(l)(h).

SHAW and WIGGINTON, JJ., concur.


text:
    William L. MENES, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AM-182.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    William L. Menes, pro se, appellant.
    Earl H. Archer, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   JOANOS, Judge.

Appellant contends that the Parole and Probation Commission erred in assigning his presumptive parole release date (PPRD). We disagree and affirm.

Aggravation for multiple offenses with concurrent sentences is proper. Sala v. Florida Parole and Probation Commis sion, 414 So.2d 263 (Fla. 1st DCA 1982). Commission of an offense while on bond may be used to aggravate a PPRD. Fla. Admin.Code Rule 23-21.10(4)(a)(2)(a).

SHAW and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Joseph A. BENNETT, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AM-194.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    Joseph A. Bennett, pro se, for appellant.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Bennett appeals from the Florida Parole and Probation Commission’s establishment of his presumptive parole release date. He argues that the commission has not used the offense severity characteristic applicable to his offense of conviction in establishing his presumptive parole release date. We agree and reverse.

In April, 1979, Bennett was arrested and charged by information with the offense of armed robbery and that:

[I]n the course of committing said robbery, carried a weapon, to-wit: a knife, contrary to the provisions of Section 812.-13, Florida Statutes.

At the sentencing hearing, in response to advice by both trial counsel and the presiding judge that a jury trial could very easily get him the maximum thirty years if found guilty, Bennett pled guilty and was so adjudged. He was placed on probation, but on January 30,1981, Bennett was sentenced to a prison term of ten years for violation of his probation on the armed robbery sentence.

At the initial parole interview, the hearing examiner set the severity of offense behavior as “first degree felony — armed robbery,” and ultimately assessed Bennett 118 months, including aggravating factors. The commission, discounting the aggravating factors, rescored appellant and placed him in the severity rating of “armed robbery — life felony” and set the maximum of 120 months for Bennett to serve before eligibility for parole. Bennett filed for review complaining that his judgment and sentence for armed robbery were pursuant to Sections 812.13(2)(b) and 775.082(3)(b), Florida Statutes, which only provide for a maximum of thirty years, and asked that he be placed back in the severity offense behavior reflective of that degree of felony. The commission panel reviewed Bennett’s case but refused to change the presumptive parole release date noting that “the PSI states you carried a knife during the course of this robbery and a knife is a deadly weapon.”

There is no dispute as to the facts, procedure or that Bennett was informed against, pled to, adjudged and sentenced under Section 812.13, Florida Statutes. The dispute arises as to whether subsection (2)(a) or (2)(b) is applicable for establishing the present offense of conviction and thus placement in the proper matrix.

Section 812.13 defines the offense of robbery and specifies various degrees thereof depending on whether, in committing the offense, the offender carried a weapon, carried a firearm or other deadly weapon, or did not carry a weapon. Although neither the information nor the judgment clearly specifies which subsection of the referenced statute applied in Bennett’s case, the information more clearly tracked Section 812.13(2)(b) that “in the course of committing said robbery, carried a weapon, to-wit: a knife ...” Nowhere in the record is there a reference to “a firearm or other deadly weapon” as is required by subsection (2)(a). The presentence investigation reflects Bennett to have produced a knife upon demanding money from the Zippy Mart Store clerk. Nevertheless, the state’s attorney did not deem that action of such importance or magnitude as to charge Bennett under Section 812.13(2)(a). Nor does the record reflect a proffer of evidence or prima facie showing upon Bennett’s plea of guilt that the knife, being a weapon, was raised to the status of a deadly weapon upon a determination of its likelihood to produce death or great bodily injury. See State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974). Although a knife is a weapon, we are not prepared to say that it is inherently a deadly weapon or rises to that status without resolution of the factual question by the finder of facts at trial. State v. Nixon, supra.

That burden not having been met, we conclude that Bennett was adjudged guilty and sentenced based upon his plea to the information charging the offense of robbery wherein he carried a weapon, to-wit: a knife, contrary to the provisions of Section 812.13(2)(b). That crime is a felony of the first degree and Bennett was correctly sentenced pursuant to the penalties set forth in Section 775.082(3)(b).

The commission was thereafter bound to establish Bennett’s severity of offense behavior rating defined in Rule 23-21.01(40) as the statutorily assigned degree of felony or misdemeanor for the present offense of conviction. Indeed, Commission Rule 23-21.08 requires that the severity of offense behavior shall reflect the present offense of conviction’s degree of felony or misdemean- or.

Although the commission must necessarily have broad discretion to carry out its designated duties, it must nevertheless maneuver within the confines of reasona^ bleness, our laws and its rules. Accordingly, we reverse and remand with instructions for the commission to correct the offense characteristic to reflect Bennett’s present offense of conviction to be robbery while carrying a weapon being a felony of the first degree with a maximum statutory sentence of thirty years and reestablish Bennett’s presumptive parole release date.

SHAW and JOANOS, JJ., concur.

      . 812.13 Robbery.—
      (1) • • ■
      (2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
      (b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.083, or s. 775.084.


text:
    Bobby R. LYONS, Appellant, v. STATE of Florida, Appellee.
    No. AO-154.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.
    Bobby R. Lyons, pro se, appellant.
    No appearance for appellee.
   JOANOS, Judge.

In a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850, appellant challenged the voluntariness of his guilty plea, the prosecution’s failure to disclose favorable evidence and the presence of a juror during plea bargaining. The motion was properly denied as it consisted of conclusory allegations lacking adequate statements of factual support.

In addition, appellant has previously filed a 3.850 motion stating the same grounds for similar relief. Lyons v. State, No. GG-354 (Fla. 1st DCA 1977), voluntarily dismissed December 23, 1977. This prior dismissal precludes further review. Fla.R.Crim.P. 3.850.

SHAW and WIGGINTON, JJ., concur.


author: MILLS, Judge.

text:
    James W. HOLT, Appellant, v. STATE of Florida, Appellee.
    No. AH-150.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1982.

      Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Holt, an indigent defendant, appeals his conviction for burglary and grand theft and the trial court’s imposition of costs upon him. We affirm.

Holt contends that the trial court erred in permitting the State’s expert witness to respond to a hypothetical question which assumed facts which were not yet in evidence. This contention is without merit because sufficient facts to form the basis of the hypothetical question were established later in the trial.

It also was not error for the trial court to refuse to charge the jury separately on circumstantial evidence. Walker v. State, 414 So.2d 22 (Fla. 1st DCA 1982).

There was no reversible error in the imposition of costs. Jenkins v. State, 422 So.2d 1007 (Fla. 1st DCA 1982).

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.


author: PER CURIAM.

text:
    Joe Nathan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AH-377.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1982.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Defendant appeals his conviction of robbery with a firearm. In one of the five points raised on appeal, the defendant alleges that the trial court erred in assessing a $10.00 fee pursuant to § 960.20, Fla. Stat. (Crimes Compensation Trust Fund) and in assessing a $2.00 fee pursuant to § 943.25(4), Fla.Stat. as part of his judgment and sentence because he is indigent. However, there is no record evidence that defendant presented an objection below to the assessment of these costs or that he raised this error by post-trial motion. Accordingly, this point is not preserved for purposes of appeal. We find no error in the remaining points raised by defendant and affirm his judgment and conviction.

MILLS, BOOTH and THOMPSON, JJ., concur.


text:
    EVERWEAR PRODUCTS COMPANY and Aetna Insurance Company, Appellants, v. Denise HOLLOWAY, Appellee.
    No. AK-75.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.

      James H. Smith of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellants.
    Stephen L. Rosen of Morris & Rosen, Tampa, for appellee.
   JOANOS, Judge.

In this workers’ compensation appeal the employer and carrier (E/C) contest the deputy commissioner’s findings in an order dated January 27, 1982, that claimant reached maximum medical improvement (MMI) on September 9, 1981, is entitled to temporary total disability (TTD) benefits for the periods from August 21, 1980, to December 4, 1980, and from December 4, 1980 to September 9, 1981, and that E/C must pay for an examination by Dr. Daniel J. Sprehe. We reverse in part, affirm in part, and remand.

Claimant was injured in a compensable accident on April 7, 1980. Her treating physician, Dr. Yamokoski, thought she would be able to return to light work by June 9, 1980, and return to full duty two weeks later. Dr. Pasach, to whom claimant was referred by the treating physician, saw claimant on May 16, 1980, and June 27, 1980, and in a letter dated July 80, 1980, said claimant could at least have returned to light duty as of June 27, 1980. An examining physician, Dr. Martinez, said claimant was able to return to work without producing further injury as of August 20,1980. He recommended light duty work without heavy lifting, bending, or straining. He did not think claimant was disabled. Initially, E/C paid TTD benefits through June 9, 1980.

As of the deputy commissioner’s order dated December 4,1980, there was no medical evidence that claimant had reached MMI. The deputy expressly made no finding as to MMI, but found, based on Dr. Martinez’s report, that claimant was capable of returning to gainful employment on August 20, 1980, but despite the lack of finding she had reached MMI, she was not entitled to temporary partial disability compensation from that date to December 4, 1980, due to an unsuccessful attempt to return to work. He found she had been unsuccessful “because of economic conditions rather than due to any physical limitations imposed by the industrial accident.” He awarded TTD benefits from June 9, 1980, to August 20, 1980. This order was not appealed.

As of December 5, 1980, Dr. Pasach thought claimant had reached MMI with no anatomic impairment. It was his opinion that claimant was a malingerer. Apparently based on this opinion, claimant sought psychiatric evaluation on January 8, 1981. Claimant applied for a hearing on the issues of entitlement to TTD or TPD benefits from August 21,1980, until claimant was no longer temporarily disabled and for treatment by a psychiatrist, among other things. On August 18, 1981, claimant filed a petition for modification of the order of December 4, 1980, asserting a change of condition or a mistaken determination of fact regarding claimant’s status as TTD or TPD.

On September 9, 1981, Dr. Sprehe, a psychiatrist, examined claimant.' It was his opinion that claimant was depressed, and that this was due in part to the industrial injury, but that she was hostile to the idea of psychiatric treatment and would not benefit from it, therefore she had reached MMI from a psychiatric standpoint. Another psychiatrist, Dr. Forman, also examined claimant. He did not think claimant had any psychiatric problems related to the accident.

On January 27, 1982, the deputy entered the order on appeal, finding that claimant had requested a psychiatric evaluation in order to determine whether she was a malingerer as Dr. Pasach suggested, or was suffering a psychiatric injury as a result of the accident. The deputy accepted Dr. Sprehe’s opinion over that of Dr. Forman and found she had a psychiatric injury related to the accident, but was not amenable to treatment and had reached MMI as of September 9,1981. In addition, the deputy found the claim for psychiatric evaluation and treatment to have been reasonable under the circumstances and ordered the E/C to pay for Dr. Sprehe’s evaluation. With regard to TTD benefits, the deputy found:

That the claimant has made a reasonable job search and that, although work was available at the places the claimant contacted or applied, she was unable to obtain employment. I find that the claimant’s job search included a variety of employments which could be considered to be lighter type duty. The Employer/Carrier made no effort to assist the claimant in obtaining employment; Therefore, the undersigned Deputy Commissioner finds that the Order of December 4, 1980 should be modified and that the claimant is entitled to temporary total disability compensation from August 21, 1980 through September 9, 1981, the date she was examined by Daniel J. Sprehe, M.D.

We agree with E/C’s contention that the modification of the December 4, 1980, order with regard to TTD was unjustified. The record does not support an implicit finding of change of condition or mistake of fact with regard to claimant’s status between August 21,1980, and December 4, 1980. Reanalysis of the prior record and a change of conclusions is not a sufficient justification for modification. McKenney v. School Board of Palm Beach County, 408 So.2d 655 (Fla. 1st DCA 1981). Appellee argues that the deputy did not rule on a claim for TTD for the period from August 21, 1980, to December 4, 1980, in the December 4, 1980 order, thus a petition for modification was unnecessary to the award of TTD benefits for that period. This position is unacceptable in light of the findings in that prior order that claimant was entitled to TTD from June 9, 1980, to August 20,1980, was able to return to some form of gainful employment after that date based on Dr. Martinez’s report, but was not entitled to TPD benefits after that date because of an unsuccessful job search. Clearly the deputy ruled on claimants entitlement to any form of temporary disability benefits through the December 4, 1980 order, which was not appealed. See Belle v. General Electric Co., 409 So.2d 182 (Fla. 1st DCA 1982).

The deputy also erred in finding that claimant reached MMI from a psychiatric standpoint on September 9, 1981. “The date of maximum medical improvement marks the end of temporary disability and the beginning of permanent disability. Maximum medical improvement is the date after which recovery or lasting improvement can no longer reasonably be anticipated.” Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969). The reasons given by Dr. Sprehe, and accepted by the deputy, for assigning September 9, 1981, as the date of MMI from a psychiatric condition do not correlate with this definition. Dr. Sprehe merely evaluated claimant’s condition on that date, he did not do anything that could be identified as changing her status from “healing” to “no further improvement reasonably anticipated.” See generally Sunland v. Woods, 413 So.2d 161 (Fla. 1st DCA 1981). Dr. Sprehe’s express reason for assigning September 9, 1981, as the date of MMI was that he did not think claimant would seek psychiatric treatment. At no time did claimant receive treatment for a psychiatric condition. We remand for a redetermination of MMI based on the medical testimony as to the portion of claimant’s injury that was treated and evaluated by Drs. Yamokoski, Pasach, and Martinez.

Reversal of the determination of the date of MMI necessitates reversal of the award of TTD from December 4, 1980, to September 9, 1981.

We cannot say the deputy erred in ordering E/C to pay for the evaluation by Dr. Sprehe which arguably came about in conjunction with the treatment and evaluation provided by Dr. Pasach. We have not overlooked the line of cases referenced by appellant, including Mariposa, Inc. v. Green, IRC 2-3598 (1978); Rinker Materials Corp. v. Ingraham, IRC 2-3150 (1977); Sunland Training Center v. Turcotte, 9 FCR 159 (1975) and Rippy v. P.C. Martino & Co., 5 FCR 120 (1962).

AFFIRMED in part, REVERSED in part and REMANDED.

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


author: WENTWORTH, Judge.

text:
    Harry LANE, Appellant, v. WALTON COTTRELL ASSOCIATES & Maryland Casualty Co., Appellees.
    No. AK-81.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    Ira J. Druckman, Miami, for appellant.
    Stephen W. Bazinsky, of Walton, Lan-taff, Schroeder & Carson, Fort Lauderdale, for appellees.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order wherein his request for alternative housing arrangements was denied. We affirm the order appealed.

Claimant was rendered paraplegic as the result of an industrial accident, and his confinement to a wheelchair prohibited him from returning to his prior residence. A claim was made for “suitable housing;” employer/carrier has obtained rental housing for claimant, and has agreed to make such modifications as are required to make the residence wheelchair-accessible. Employer/carrier may thereby fulfill its obligation, in the circumstances of this case, of providing a wheelchair-accessible environment for claimant. See generally Peace River Electric Corp. v. Choate, 417 So.2d 831 (Fla. 1st DCA 1982).

The order appealed is affirmed.

McCORD and BOOTH, JJ., concur.


text:
    Archie DANIELS and Michael Dunn, Appellants, v. STATE of Florida, Appellee.
    No. AL-286.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    Michael Allen, Public Defender, Tallahassee, and Brandt W. Davis, Asst. Public Defender, Apalachicola, for appellants.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Defendants appeal their judgments and sentences for dealing in stolen property. They contend that § 812.025, Fla.Stat. precludes them from being charged and tried in Franklin County for dealing in stolen property when they had been previously charged and convicted in Gulf County of grand theft involving the same property. We agree and reverse.

The defendants stole a television set in Gulf County, and sold it in Franklin County. The defendants were charged in Franklin County with dealing in stolen property. They had been previously charged and convicted in Gulf County for grand theft involving the same television set which they sold in Franklin County. The state does not contest the fact that the offenses arose out of the same scheme and course of conduct. Defendants contend that pursuant to § 812.025 they cannot be convicted of both dealing in stolen property and of grand theft of the same property.

Section 812.025 provides:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts, (emphasis added).

Section 812.025 clearly prohibits a conviction of both crimes if charged in the same information and there is no reason for a different interpretation merely because the defendants here were charged in separate informations in separate counties. Hudson v. State, 408 So.2d 224 (Fla. 4th DCA 1981). There is no reason why a person cannot be convicted of theft of property and also be guilty of dealing in the same stolen property in the absence of the prohibition in § 812.025. See Coley v. State, 391 So.2d 725 (Fla. 1st DCA 1981). However, the legislature has seen fit to prohibit the conviction of both theft and of dealing in the same stolen property and it is the prerogative of the legislature and not this court to make any change.

The defendants’ Franklin County convictions and sentences for dealing in stolen property are reversed.

ROBERT P. SMITH, Jr., C.J., and SHIVERS and THOMPSON, JJ., concur.

      . Although appellants in their brief say two television sets were involved and the state does not contest this fact, the record indicates only one television set was stolen and sold.


author: MeCORD, Judge.

text:
    Brian Mark FALK, Appellant, v. Marlene H. FALK, Appellee.
    No. AL-348.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    James Harold Thompson of Thompson & Arrington, Tallahassee, for appellant.
    P. Kevin Davey of Douglass, Davey & Cooper, Tallahassee, for appellee.
   MeCORD, Judge.

Appellant husband appeals that portion of the final judgment of dissolution of the parties’ marriage that awards custody of the parties’ young daughter to appellee wife. We affirm.

In his final judgment, the trial judge elaborated on the many factors that influenced his decision. The final judgment and the record in this case show that, although both appellant and appellee have a good relationship with their child, they are somewhat immature and both are, to a' great extent, dominated by their respective parents. The evidence shows that appellant’s parents have played a major role in caring for their granddaughter. The evidence also shows that appellee spends much of her time in the home of her parents. Thus, the influence of both sets of grandparents was a factor for consideration before the trial judge.

The major controversy in the case revolves around allegations in the record against the maternal grandfather concerning certain allegations based upon hearsay that he has attempted to sexually molest some of his own daughters and granddaughters, not including the parties’ child. The trial judge expressed his concern regarding those allegations and, as a result thereof, ordered “that at no time shall the child be with her maternal grandparents unless Marlene [appellee] is personally present with her.” In an order on clarification, he placed the following restriction on appellee:

It was the court's intention that the wife will not take up permanent or temporary residence with her parents. She will be allowed to visit her parents, but such visitation should not involve overnight stays, when the wife is accompanied by the parties’ minor child.

We are concerned, as was the trial judge, with the allegations made against the maternal grandfather. However, in view of the fact that the trial judge was in a better position to assess the situation, we defer to his judgment as to the best interests of the child. In the absence of a clear showing of abuse of discretion, the decision of the trial judge in a child custody case will not be reversed. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


text:
    Edward HAYES, Appellant, v. STATE of Florida, Appellee.
    No. AO-57.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    Baya Harrison, Tallahassee, for appellant.
    No appearance for appellee.
   WIGGINTON, Judge.

Hayes appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850. In his motion, Hayes alleges that he was denied effective assistance of counsel in that his attorney at the trial level failed to conduct proper discovery in order to determine whether the cannabis seized was in excess of 100 pounds, resulting in Hayes’ “unjustly” serving a mandatory minimum three-year sentence pursuant to Section 893.135(l)(a)l. We disagree. A review of the sentencing transcript shows that Hayes’ attorney raised the issue before the court. In response, it was established that 105 pounds and 4 ounces of cannabis had been seized in Hayes’ home. Therefore, Hayes’ argument is without merit. See Knight v. State, 394 So.2d 997 (Fla.1981). The decision of the trial court is AFFIRMED.

SHAW and JOANOS, JJ., concur.


text:
    James SAWYER, Petitioner, v. Louie L. WAINWRIGHT and G. Strickland, Respondents.
    No. AO-128.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.
    James Sawyer, pro se.
    No appearance for respondents.
   PER CURIAM.

This court dismissed the petition for writ of habeas corpus because Sawyer, an inmate in the Florida prison system, had not alleged facts showing that he is entitled to immediate release from close management custody. He has now filed, in reference to this dismissed case, a motion asking this court to order respondent to allow him to use the writ room (annex to law library) for purposes of doing legal research in order to properly prepare a petition.

This court cannot rule on motions which seek relief unrelated to that requested in the original petition. Rule 9.330(a), Florida Rules of Appellate Procedure, permits this court to entertain a motion for rehearing or clarification, if it is filed within 15 days of our order. We decline to treat the motion inappropriately filed in this case, as a motion for rehearing or for clarification, because it does not address our dismissal of the petition.

When an inmate, as petitioner in this “motion”, desires to have a Department of Corrections officer’s action set aside, he should first exhaust his administrative remedies, showing which rules and/or statutes are being violated. See Fla.Admin.Code Rule 33-3.07. If he does not receive the relief sought at the administrative level, he should timely seek judicial review of the final agency action by appeal to this court. See Morris v. Wainwright, 409 So.2d 1161 (Fla. 1st DCA 1982); Fla.R.App.P. 9.110(c). When an inmate, as petitioner in his original petition, seeks immediate release from custody, he should seek a writ of habeas corpus from the circuit court in the county where his institution is located. If he does not receive the relief sought in the circuit court, he should timely appeal the final order of the circuit court to the appropriate district court of appeal. See Fla.R.App.P. 9.110(b).

We therefore decline to rule on petitioner’s motion filed in a dismissed case. We further decline to treat the motion as a petition for writ of mandamus because petitioner has not shown that permitting him to use the writ room is a ministerial duty of the Department of Corrections officer and because petitioner has not exhausted his administrative remedies. Finally, we cannot treat this motion as a notice of appeal because there is no final agency action to review.

MILLS, ERVIN and WIGGINTON, JJ, concur.


text:
    Jerry L. STURDIVANT, Petitioner, v. Honorable M.C. BLANCHARD, Circuit Judge, First Judicial Circuit, Respondent.
    No. AO-163.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.

      Jerry L. Sturdivant, pro se.
    No appearance for respondent.
   PER CURIAM.

Sturdivant, an inmate in the Florida prison system, asks this court to mandate a judge in the Circuit Court for Escambia County to rule on the merits of a petition for writ of habeas corpus against the Florida Parole and Probation Commission. The petition was denied because petitioner has an adequate remedy under the Administrative Procedure Act.

For the following reasons, we deny this petition for writ of mandamus. First, a writ of mandamus will not issue unless no ordinary remedy would be adequate. Shevin ex rel. State v. Public Service Commission, 333 So.2d 9, 12 (Fla.1976); Holman v. Florida Parole and Probation Commission, 407 So.2d 638 (Fla. 1st DCA 1982); and State ex rel. Department of General Services v. Willis, 344 So.2d 580, 592-93 (Fla. 1st DCA 1977). Sturdivant could have appealed the circuit court order. Fla.R.App.P. 9.110(b). Second, a writ of mandamus lies to compel a public officer to perform a ministerial duty. Fasenmyer v. Wainwright, 230 So.2d 129, 130 (Fla.1969); State ex rel. Glynn v. McNayr, 133 So.2d 312, 315-16 (Fla.1961); DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957); State ex rel. Department of Health & Rehabilitative Services v. Hartsfield, 399 So.2d 1019, 1020 (Fla. 1st DCA 1981); and Graham v. Vann, 394 So.2d 180, 182 (Fla. 1st DCA 1981). Sturdivant does not allege that respondent failed to perform his ministerial duty. In fact, respondent ruled on the petition for writ of habeas corpus, denying it for clearly legal reasons, since petitioner should have appealed the Commission’s final action to this court. Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981).

The petition for writ of mandamus is DENIED.

MILLS, ERVIN and WIGGINTON, JJ., concur.


text:
    Warren T. CURRY, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. AO-301.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1982.

      Warren T. Curry, pro se, petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for respondent.
   PER CURIAM.

The fifth district indicated that this petition, transferred back to this court with opinion, Curry v. Wainwright, 419 So.2d 744 (Fla. 5th DCA 1982), is “seeking to require the Florida Parole and Probation Commission to give credit for time served in computing petitioner’s presumptive parole release date.” However, our reading of the petition indicates that Curry is seeking two separate forms of relief, neither of which directly addresses his presumptive parole release date. First, he asks that his gain time be calculated pursuant to the statutes in effect at the time he committed the crime for which he is now incarcerated. See § 944.27(1), Fla.Stat. (1975). Second, he asks that his present period of incarceration, pursuant to a Florida conviction, be credited with the time he spent incarcerated in Maryland, during which period Florida had a detainer lodged against him.

Awarding of statutory gain time is a function of the Department of Corrections and has no bearing on an inmate’s presumptive parole release date. Awarding credit for time spent incarcerated in another jail is a function of the sentencing court. The Florida Parole and Probation Commission does not have authority to enter orders under § 921.161, Fla.Stat. (1981); it must rely on Department of Corrections commitment papers when it calculates time served for purposes of computing the presumptive parole release date.

We now consider petitioner’s claims. First, as regards his claim that he is entitled to have his statutory gain time calculated under the 1975 statutes, we find that Curry has neither shown that his gain time is not being calculated under the 1975 statutes, nor alleged and shown exhaustion of his administrative remedies under Fla. Admin.Code Rule 33-3.07. See Morris v. Wainwright, 409 So.2d 1161 (Fla. 1st DCA 1982). We therefore deny the petition as to this claim. Second, as regards his claim that he is not receiving credit on his sentence for time spent incarcerated in Maryland, during which time Florida had a de-tainer lodged against him, we find that Curry should have appealed the sentencing court’s denial of his Fla.R.Crim.P. 3.850 motion to the Fifth District Court of Appeal. We have no jurisdiction and therefore dismiss the petition as to this claim.

McCORD, MILLS and SHIVERS, JJ., concur.

      . Attached to Curry’s petition is an order from the Circuit Court for Orange County, rendered on April 16, 1982, denying Curry’s motion for post-conviction relief. The order does not advise Curry of his right to appeal, as required by Fla.R.Crim.P. 3.850. We therefore transferred this petition to the fifth district for that court to determine whether the petition should be treated as one seeking a belated appeal, it appearing that the right to appeal had been denied by state action. See Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Hoiiingshead v. Wainwright, 194 So.2d 577 (Fla.1967); and Flores v. Wainwright, 240 So.2d 816 (Fla. 2nd DCA 1970).


author: JORGENSON, Judge.

text:
    Ellen KALT, Appellant, v. DOLLAR RENT-A-CAR, Appellee.
    No. 80-2429.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Tew, Critchlow, Sonberg, Traum & Fried-bauer, P.A., and Steven Sonberg, Miami, for appellant.
    Henderson & Willing, Miami, for appel-lee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   JORGENSON, Judge.

Ellen Kalt, plaintiff below, appeals from a summary final judgment rendered in favor of Dollar Rent-A-Car, defendant below. We affirm in part and reverse in part.

Ellen Kalt procured a rental vehicle from Dollar Rent-A-Car by virtue of a trade exchange agreement between Miss Kalt’s company and Dollar Rent-A-Car. The rental car in question was mistakenly reported by employees of Dollar Rent-A-Car as “missing off the lot” or “stolen.” Subsequently, officers of the Public Safety Department found the vehicle and made inquiry of Miss Kalt regarding her possession. She produced a standard rental car agreement reflecting her possession. The police officers then telephoned Dollar Rent-A-Car and spoke to a management employee named Madrigal, who advised that the car was stolen. The officers asked Miss Kalt to remain with them until a representative of Dollar Rent-A-Car could arrive. During this interval Miss Kalt, who claimed pressing business engagements, attempted to leave the scene and was forcibly subdued by the officers. Shortly thereafter Dollar’s representative arrived and was shown the rental contract previously produced by Miss Kalt. He nevertheless indicated to the officers his belief that the car was stolen. Thereafter, all the parties repaired to a Public Safety Department substation where Dollar’s representative, after further checking, indicated that a mistake had been made and that Dollar Rent-A-Car declined to press any charges against Miss Kalt. Subsequently, she was charged with obstructing an investigation and battery upon a police officer. Those charges were ultimately dismissed. Ellen Kalt filed a four-count complaint against Dollar Rent-A-Car and Metropolitan Dade County. Dollar Rent-A-Car moved for summary judgment on all counts, which judgment was granted.

Count one of the complaint alleges that Dollar Rent-A-Car maliciously prosecuted an action against the appellant. The law in Florida is well-settled that a malicious prosecution action requires the concurrence of the following six elements: (1) a criminal or civil judicial proceeding has been commenced against the plaintiff in the malicious prosecution action; (2) the proceeding was instigated by the defendant in the malicious prosecution action; (3) the proceeding has ended in favor of the plaintiff in the malicious prosecution action; (4) the proceeding was instigated with malice; (5) without probable cause and (6) resulted in damage to the plaintiff in the malicious prosecution action. The absence of any one of these elements will defeat a malicious prosecution action. Adams v. Whitfield, 290 So.2d 49 (Fla.1974); Buchanan v. Miami Herald Publishing Co., 230 So.2d 9 (Fla. 1969); Warriner v. Burdines, Inc., 93 So.2d 108 (Fla.1957); Glass v. Parrish, 51 So.2d 717 (Fla.1951); Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1943); S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 (1938); Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931); Fisher v. Payne, 93 Fla. 1085, 113 So. 378 (1927); Tatum Brothers Real Estate & Investment Co. v. Watson, 92 Fla. 278,109 So. 623 (1926); Hower v. Lewton, 18 Fla. 328 (1881); and numerous cases from this court and our sister courts. This record is clear that no judicial proceeding was commenced by Dollar Rent-A-Car against Miss Kalt. Indeed, it affirmatively appears from the record that Dollar Rent-A-Car specifically declined to initiate a criminal prosecution. Since the requisite six elements are not present, we hold the trial court correctly granted summary judgment as to count one.

Count four of the complaint alleges false arrest/false imprisonment. It is clear from this record that Dollar Rent-A-Car neither arrested nor imprisoned Miss Kalt. The basis for her arrest was her failure to cooperate during the course of the officer’s investigation and her subsequent assault upon him (by kicking him in the groin). The trial court correctly granted summary judgment as to count four.

Count three • does not involve appellee Dollar Rent-A-Car.

We reverse the summary judgment with respect to count two, which alleges that Dollar Rent-A-Car was negligent in reporting to the police that the rental car in question was stolen. It is apparent from the record that there remain issues of material fact yet to be resolved which could create liability on the part of Dollar Rent-A-Car. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Affirmed in part, reversed in part, and remanded for further proceedings.

      . Metropolitan Dade County is not a party to this appeal.

      . Phelan v. City of Coral Gables, 415 So.2d 1292 (Fla.3d DCA 1982); Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla.3d DCA 1981); Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla.3d DCA 1980); Shidlowsky v. Nat’l Car Rental Syss., Inc., 344 So.2d 903 (Fla.3d DCA 1977), cert. denied, 355 So.2d 516 (Fla.1978); Appelstein v. Preston, 335 So.2d 604 (Fla.3d DCA 1976), cert. denied, 341 So.2d 1084 (Fla.1976); Am. Salvage & Jobbing Co., Inc. v. Salomon, 295 So.2d 710 (Fla.3d DCA 1974); Silvia v. Zayre Corp., 233 So.2d 856 (Fla.3d DCA), cert. denied, 238 So.2d 112 (Fla.1970); Community Nat’l Bank of Bal Harbour v. Burt, 183 So.2d 731 (Fla.3d DCA), cert. denied 188 So.2d 820 (Fla.1966); Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla.4th DCA 1981); Coleman v. Collins, 384 So.2d 229 (Fla.5th DCA 1980); Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412 (Fla.4th DCA), cert. denied, 388 So.2d 1119 (Fla.1980); Burchell v. Bechert, 356 So.2d 377 (Fla.4th DCA 1978), cert. denied, 367 So.2d 1122 (Fla.1978); Kelly v. Millers of Orlando, Inc., 294 So.2d 704 (Fla.4th DCA 1974); Delacruz v. Peninsula State Bank, 221 So.2d 772 (Fla.2d DCA 1969); Kest v. Nathanson, 216 So.2d 233 (Fla.4th DCA 1968); Liabos v. Harman, 215 So.2d 487 (Fla.2d DCA 1968); Iowa Mut. Ins. Co. v. Gulf Heating & Refrigeration Co., 184 So.2d 705 (Fla.2d DCA 1966), quashed on other grounds, 193 So.2d 4 (Fla.1966); Hopke v. O’Byrne, 148 So.2d 755 (Fla. 1st DCA 1963); Calbeck v. Town of South Pasadena, 128 So.2d 138 (Fla.2d DCA 1961); Wilson v. O’Neal, 118 So.2d 101 (Fla.1st DCA 1960), cert. dismissed, 122 So.2d 403 (Fla.1960), appeal dis

        missed, 123 So.2d 677 (Fla.1960), cert. denied, 365 U.S. 850, 81 S.Ct. 813, 5 L.Ed.2d 814 (1961); Napper v. Krentzman, 102 So.2d 633 (Fla.2d DCA 1958).

      . See §§ 784.07 and 843.06, Fla.Stat. (1979).


text:
    Edward BATES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2320.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Edward Bates appeals a judgment of conviction and sentence of fifteen years imprisonment entered after a jury trial on the charge of sexual battery with the use of force not likely to cause serious injury under Section 794.011(5), Florida Statutes (1981).

It is appellant’s contention on appeal that the trial court erred in denying his motion for mistrial because a police officer testified to an alleged statement of the appellant related to him by the victim of the sexual battery in this case. The officer testified that the victim told him that appellant had stated to her that he had been in prison before. Counsel for appellant objected to such testimony and moved for a mistrial on the grounds that it constituted an impermissible and prejudicial attack upon the character of appellant (who did not testify at trial), and denied him a fair and impartial trial as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. The court denied the motion, informing counsel that it would give a curative instruction. Counsel for appellant objected that any such instruction would not be sufficient to cure the prejudice resulting from the hearsay statement that appellant had been in prison. The court proceeded to instruct the jury that the testimony of the officer was hearsay and to “[pjlease disregard what the officer has been saying or has said up to this point regarding what [the victim] told him as being hearsay and rely as to what [the victim] said from the testimony of [the victim].... ”

We find merit in the appellant’s contention on appeal and agree that the instruction given was insufficient. Odom v. United States, 377 F.2d 853, 859-60 (5th Cir.1967).

It is fundamental that the prosecution may not impugn the character of an accused unless the accused first puts character into issue at trial. Wilt v. State, 410 So.2d 924 (Fla. 3d DCA 1982); Hodges v. State, 403 So.2d 1375 (Fla. 5th DCA 1981), petition for review denied, 413 So.2d 877 (Fla.1982); Albright v. State, 378 So.2d 1234 (Fla. 2d DCA 1979).

We have carefully reviewed the record on appeal with its sharp differences in the testimony presented, and the briefs and argument of counsel, and have concluded that the refusal of the trial court to grant a mistrial was reversible error. 'Therefore the judgment and sentence are reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: BARKDULL, Judge.

text:
    Rickey Duayre POWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2514.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.

      Rickey Duayre Powell, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   BARKDULL, Judge.

This is an appeal from an order of the trial court revoking the defendant’s probation and sentencing him to 4 years imprisonment for violation of his probation.

In 1976 the defendant pleaded guilty to the crime of robbery. On the 23rd of November, 1976, he was given a sentence of 5 years, 1 year to be served in the county jail, the remaining 4 years to be stayed and he was placed on probation for a period of 4 years. On February 15, 1977, the trial court pursuant to the defendant’s motion to mitigate, suspended one and one-half months of the jail term. On the 2nd of December 1980, an affidavit of violation of probation was filed against the defendant alleging he had committed armed robbery with a knife on October 25, 1980. At hearing on affidavit of violation of probation, the trial judge, without objection, called the defendant to the stand and established by his testimony that he was the person placed on probation in 1977 and that he was the individual named in Case No. 76-6650. The trial judge also denied the defendant’s request to introduce the deposition of one Officer Griffin into evidence in lieu of live testimony. At the conclusion of the hearing the trial judge found the defendant had violated his probation and ordered a pre-sentence investigation. Subsequent thereto, the defendant moved for a new probation hearing and to vacate probation on the ground that the original sentence and probation constituted an invalid sentence under the holding in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) which is to be given retroactive effect. The trial court denied the motion and entered the sentence appealed herein.

The Public Defender has moved to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating therein the following as possible grounds for reversal. (1) The trial court erred in calling the defendant for the purpose of determining if he was the person placed on probation without objection. (2) The trial court erred or abused its discretion in not permitting the defendant to introduce the deposition of the police officer. (3) The trial court erred in not dismissing the revocation proceedings because the split sentence of 1 year incarceration to be followed by 4 probation, violated Villery v. Florida Parole and Probation Commission, supra.

As to the first point, clearly by failing to object to the trial court’s action in questioning the defendant, the defendant has waived any error and cannot now raise it on appeal. As to the second point, the record clearly shows that the defendant failed to establish the predicate necessary to permit introduction of a deposition in lieu of oral testimony, thus there was no abuse of discretion on the part of the trial court in denying the motion. State v. Heath, 343 So.2d 13 (Fla.1977); Carter v. State, 410 So.2d 552 (Fla. 3d DCA 1982); Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975).

The allegation of a violation of Villery v. Florida Parole and Probation Commission, supra, is without merit. While the original sentence may have violated the holding in Villery the record shows the defendant pre- Villery moved to mitigate the sentence and that that motion was granted. The trial court mitigated the sentence by suspending one and one-half months of the sentence thereby correcting any Villery violation long before Villery came into being. Thus it was not error to refuse to dismiss the revocation proceedings on the basis of a Villery violation.

Therefore the order revoking probation and the sentence appealed herein are affirmed and the Public Defender is permitted to withdraw as counsel for the appellant.

Affirmed.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. SOUTHEAST (U.S.) RECYCLING CORPORATION, Appellee.
    No. 81-2685.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Dec. 16, 1982.
    See also 418 So.2d 1231.
    Robert Ginsburg, Dade County Atty., and R.A. Cuevas, Jr., Asst. County Atty., for appellant.
    Brigham, Moore, Muir, Gaylord, Schuster & Sachs and Toby Prince Brigham, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The final judgment under review entered pursuant to a jury verdict awarding appel-lee $4,026,000 in this eminent domain action is affirmed. The trial court properly excluded evidence of appellee’s own appraisals and evaluations in connection with its purchase, financing and insuring of the subject property which occurred some six months prior to the actual date of the taking and was made under distress-sale circumstances with knowledge that the County was seeking to condemn the property for the Metro-rail project. Dade County v. Still, 377 So.2d 689 (Fla.1979); State Road Department v. Chicone, 158 So.2d 753 (Fla.1963); Yoder v. Sarasota County, 81 So.2d 219 (Fla.1955); Culbertson v. State Road Department, 165 So.2d 255 (Fla. 1st DCA 1964).

Upon appellee’s, motion, we remand to the trial court with directions to tax reasonable costs, including attorney’s fees incident to this appeal. See Dade County v. Davidson, 418 So.2d 1231 (Fla. 3d DCA 1982).

Affirmed.

      . In Dade County v. Davidson, supra, an earlier appearance of the instant case, this court held that an appeal from the compensation award in an eminent domain action stays the trial proceedings but does not preclude the trial court from entering a nonfinal order retaining jurisdiction to tax costs.


author: DANIEL S. PEARSON, Judge.

text:
    Harry A. GAINES, Appellant, v. NORTRUST REALTY MANAGEMENT, INC., an Illinois corporation, Appellee.
    No. 82-458.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellant.

      Mershon, Sawyer, Johnston, Dunwody & Cole and Robert T. Wright, Jr., and Manuel Kushner, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The appellant, Gaines, leased a suite in the Security Trust Building, a downtown office building, from the appellee, Nortrust Realty Management, Inc. By the terms of the lease, Gaines was granted “the right and option” to extend the term for an additional five years beginning June 1, 1980. Paragraph 25 of the lease provided that:

“In the event that the Lessee exercises the aforesaid option term . . . the amount of the base rental rate shall be determined by the average rental rate currently charged for new or renewal tenants for similar space in the Security Trust Building ... at the time the option to renew is exercised.”

On February 1,1980, Gaines timely notified Nortrust of his intention to exercise his option. Nortrust thereafter advised Gaines that the new base rental would be $13.50 per square foot per year, which, according to Nortrust, was the “going rate” being charged new tenants and tenants seeking to renew their leases as of February 1, 1980. Gaines disagreed with Nortrust’s calculation of the new base rental rate. He claimed that Paragraph 25 of the lease required that the base rental rate be the average rent paid by all tenants in the building as of February 1, 1980, which he calculated to be approximately $10.30 per square foot per year.

In August 1980, Nortrust brought a complaint for a declaratory judgment which, after setting forth the above dispute, requested that the court resolve the dispute by determining the proper amount of base rental due under the lease from June 1, 1980.

Sometime later, the trial began. The transcript — all of seven pages — reflects that during' the testimony of Nortrust’s first witness, the court stated, “Let’s go off the record for a minute,” a discussion was held off the record, and the hearing was concluded. What occurred off the record generated all further proceedings and this appeal.

It is undisputed that in the open-court, off-the-record discussion the parties stipulated and agreed to the entry of a final judgment which would resolve the lawsuit by “splitting the difference” between the base rental amount each calculated was due and agreed that this same “splitting the difference” formula would be used to determine the base rental amount in the event that Gaines later exercised his right of first refusal for an additional five-year period. Moreover, no one disputes that the parties agreed to exchange “releases.”

When it came time, however, to prepare and file the documents necessary to effectuate this agreement, Nortrust insisted that general releases be exchanged. Gaines refused to sign a general release, stating that he would release Nortrust only in respect to the dispute which was the subject matter of the declaratory judgment action, reserving any right he might have to sue Nortrust for any other cause of action arising under the lease or otherwise. Nortrust moved to enforce the “settlement,” including that part of the settlement concerning the nature of the releases to be exchanged.

The trial court recalled nothing of the off-the-record settlement discussion. Counsel for Nortrust represented that the parties agreed to exchange “releases,” and had not specified any restrictions. From that the trial court found that:

“at a minimum, the parties agreed to release whatever existing claims they may have had against each other involving the Lease. This finding is bolstered by the Court’s belief that Nortrust would not likely have intended to ‘settle’ its way into a second lawsuit with Mr. Gaines involving the same Lease.”

Thereafter, the court declared:

“Nortrust has asked this Court to use its contempt powers to enforce the settlement agreement by ordering Defendant Gaines to execute the agreed release. Such a procedure is unnecessary as the Court finds and concludes that Rule 1.170, Florida Rules of Civil Procedure, bars any unasserted pre-existing claims the parties may have had against each other arising out of the Lease. The Court has therefore determined to enforce the settlement agreement by the entry of this Judgment.”

The judgment entered established the base rental through 1985 and the compromise procedure for determining the base rental in the event the lease were thereafter extended for an additional five years. Gaines appeals. He asserts that since there was no agreement to release Nortrust from other claims arising out of the lease, the trial court erred in finding such an agreement to exist and enforcing it through its judgment.

In addressing Gaines’ contention, we are guided by the following principles. A fundamental principle of the law of contracts is that there must be mutuality of agreement, and there can be no such mutuality when there is no common intention. Kuharske v. Lake County Citrus Sales, 44 So.2d 641 (Fla.1949). See also Hewitt v. Price, 222 So.2d 247 (Fla. 3d DCA 1969). Settlement agreements are to be interpreted by and are governed by the same principles of law interpreting and governing contracts. See Dorson v. Dorson, 393 So.2d 632 (Fla. 4th DCA 1981); Dungan v. Colt Industries, Inc., 532 F.Supp. 832 (E.D.Ill.1982). Thus, “[t]o be judicially enforceable ... a settlement agreement ... must be sufficiently specific as to be capable of implementation .... [Cjourts will not attempt to enforce a settlement agreement that is too vague or ambiguous in its meaning or effect.” United Mine Workers v. Consolidation Coal Co., 666 F.2d 806, 809-10 (3d Cir.1981) (citations omitted); United Mine Workers v. Barnes & Tucker Co., 561 F.2d 1093 (3d Cir.1977). Parties to a settlement agreement must reach mutual agreement on every essential element of the proposed settlement. Montagna v. Holiday Inns, Inc., 221 Va. 336, 269 S.E.2d 838, 845-46 (1980). “For [a settlement] to be binding on the parties it should be clear that it is full and complete, covers all issues, and is understood by all litigants concerned.” Cross v. Cook, 147 Ga.App. 695, 250 S.E.2d 28, 29 (1978). See also Rock-Weld Corporation of Puerto Rico v. Rock-Weld Equipment Corp. of Florida, 184 So.2d 186 (Fla. 3d DCA 1966) (in order to constitute a settlement agreement, the language of the agreement must be clear).

In the present case, no meeting of the minds as to an essential element of the agreement existed: Gaines and his counsel believed the undertaking to exchange releases involved releasing Nortrust from any past and further claim under the lease that the base rental was to be computed by averaging the rent paid by all tenants and being relieved of Nortrust’s claim that only the average rents of new and renewal tenants were to be used in the computation; Nortrust and its counsel believed that the release was to be a general release, that is, a release of any and all claims of any type and description that either party might have against the other; and the trial judge conjectured that at least the parties must have agreed to release each other from claims relating to the lease. Which of these possible releases was to be exchanged was neither clearly expressed nor mutually understood during the discussions. While the trial judge may have logically concluded that Nortrust would not have agreed to accept anything less than a release of all claims arising under the lease, his logic is not a substitute for the missing ingredient, that is, a mutual understanding between the parties.

We conclude, therefore, that there was no settlement agreement, and the trial court’s judgment purporting to enforce a settlement agreement must be reversed.

Reversed and remanded for further proceedings.

      . At the hearing on the motion to enforce the settlement, the following exchange took place:
      “[NORTRUST’S COUNSEL]: That there is no doubt that with respect to that settlement agreement in June here the parties split the dollars. We are not arguing about the split of the dollar fee. There is no doubt that the parties agreed to exchanging releases.
      “THE COURT: Did you have a court reporter present?
      “[NORTRUST’S COUNSEL]: We did. And I reviewed the transcript and that was off the record. There was nothing in the transcript with respect to the form of the release. “THE COURT: What does the transcript say, they will exchange releases?
      “You better get the- transcript to me at the same time.

        “[NORTRUST’S COUNSEL]: Here is the key. The parties agreed to a release. Your Honor can find what the parties meant when they agreed to a release.
      “THE COURT: Did they agree to it? Let me look at the transcript.”
      Of course, the transcript to which the court referred contained no settlement discussion at all.

      . The trial court’s finding and conclusion “that Rule 1.170, Florida Rules of Civil Procedure [the compulsory counterclaim rule], bars any unasserted pre-existing claims the parties may have had against each other arising out of the Lease,” is, in our view, a gratuitous statement of law which has no legal effect on the future rights of the parties. See Glatstein v. City of Miami, 399 So.2d 1005 (Fla. 3d DCA 1981) (irrelevant finding in bond validation proceeding that city had power to enter into management contract for theme park does not preclude assertion in subsequent litigation that city without power to enter into contract); Sherbiil v. Miller Manufacturing Co., 89 So.2d 28 (Fla.1956) (trial court’s declaration that certain property was homestead, an issue not before it, not res judicata in subsequent litigation). See also State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973); State ex rel. Helseth v. DuBose, 99 Fla. 812, 128 So. 4 (1930); Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975); Diplomat Electric, Inc. v. Westinghouse Electric Sup. Co., 430 F.2d 38 (5th Cir.1970). Absent an agreement by the parties to bring an end to all unasserted claims under the lease, the only matter appropriate for adjudication by the court below was to decide the issue of the proper method of computing the base rental under the lease or, if the parties truly settled the case, to enter judgment pursuant to the settlement. The issue of whether an adjudication, through settlement or litigation, of the disputed base rental issue would act as a bar to other existing unasserted claims under the lease is one to be decided at such time when a court is presented with such claims and the responsive assertion that such claims properly should have been brought as compulsory counterclaims in prior litigation. In sum, the trial court’s view of the future effect of its own judgment is without legal efficacy.

      . The case is thus distinguishable from Sheffield Poly-Giaz, Inc. v. Humboldt Glass Co., 356 N.E.2d 837, 42 Ill.App.3d 865, 1 Ill.Dec. 555 (1976), upon which Nortrust relies. There, the parties, through their counsel, reached a meeting of the minds. Thereafter, one of the principals stated that he misunderstood the terms of the agreement. The Illinois court held that the client was bound by his attorney’s acceptance of the agreement, the terms of which were clearly understood by counsel.

      . Nortrust’s reliance on Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co., supra, is misplaced in this respect as well. The trial judge in Sheffield had a distinct recollection of the settlement discussion which occurred. Of course, in the present case, even if the trial judge were to have recalled that the parties agreed to exchange “releases,” his recollection would not enhance Nortrust’s position, since the parties disagree as to what “releases” meant.


author: FERGUSON, Judge.

text:
    Sol M. ROSS, as Trustee of David Scott Ross and Jo Anne Ross Trust, Appellant, v. Steve M. BARNETT and Lois M. Ross, as Trustees of the Barnett Family Trust, Appellees.
    No. 82-854.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.

      Susan G. Chopin, West Palm Beach, for appellant.
    Paul R. Lipton, North Miami Beach, for appellees.
    Before HENDRY, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

Section 687.03(5)(a), Florida Statutes (1979) which raised the legal interest rate ceiling from 10% to 18% has retroactive application to loans made prior to July 1, 1979, where by terms of the contract the lender has the legal right to adjust the interest rate. U.P.C., Inc. v. Intercontinental Bank, 410 So.2d 554 (Fla. 3d DCA 1982). The $75,000 promissory note in this case, executed in 1975 provides for a fluctuating rate of interest (between 6% and 10%) pegged to a prime interest rate and is, therefore, an adjustable interest rate note which is excepted from the usury statute, notwithstanding the fact that the interest rate cannot exceed 10%. If, as contended, the appellees have exacted interest in excess of 10%, but less than 18%, the appellants have an action for breach of contract, but the interest charged in excess of 10% is not usurious.

Summary judgment granted on the usury claim is AFFIRMED.

      . § 687.03 “Unlawful rates of interest” defined; proviso.—
      (1) Except as provided herein, it shall be usury and unlawful for any person, or for any agent, ... to reserve, charge, or take for any loan, advance of money ... a rate of interest greater than the equivalent of 18 percent per annum simple interest....
      ******
      (5) As amended by Chapter 79-592, Laws of Florida, Chapter 79-274, Laws of Florida, which amended subsection (1):
      (a) Shall apply only to loans, ... made on or subsequent to July 1, 1979, and to loans ... made prior to that date if the lender has the legal right to ... adjust or modify the interest rate, by renewal, assumption, reaffirmation, contract, or otherwise.... (e.s.).


text:
    Dorothy BOWES, et vir., Appellants, v. LERNER SHOPS INTERNATIONAL, INC., # 196, etc., Appellees.
    No. 80-1286.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      Daniel Orci, Jr., of Harter, Calhoun & Williams, Washington, D.C., for appellants.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P.A., Miami, for appel-lees.
   PER CURIAM.

The appellant, Dorothy Bowes, seeks to reverse a summary judgment granted to the appellee, Lerner Shops. The facts are not in dispute. Mrs. Bowes, then age 54, was shopping in the appellee’s store on January 26,1978. She entered a dressing room in the store to try on a pantsuit. The dressing rooms all lacked chairs or other means of support to aid customers while they were trying on clothes. In trying to remove the pants while standing, Mrs. Bowes lost her balance and fell, as a result of which she broke her hip. She filed suit alleging, in essence, that Lerner Shops was negligent in failing to provide her with a safe place to change clothes, more specifically claiming that the store’s failure to provide her with a chair or some other means of support was a breach of that duty and the cause of her fall. The store asserted that it was free of negligence and that the accident was caused solely by her own negligence. The trial court agreed.

In Burmeister v. American Motorists Insurance Co., 403 So.2d 541, 542 (Fla. 4th DCA 1981), this court said: “It is well accepted that a storekeeper must exercise ordinary or reasonable care to see that those portions of the premises which persons may be expected to use are reasonably safe.” We also held in Cincinnati Insurance Co. v. Schneider, 349 So.2d 728, 729 (Fla. 4th DCA 1977): “The law does not favor summary judgments in negligence cases, particularly where defenses of contributory negligence or assumption of the risk are involved, and any doubt should be resolved in favor of a jury trial. Bess v. 17545 Collins Avenue, Inc., 98 So.2d 490 (Fla.1957).”

Both of our previous decisions are applicable to this case. Whether the appel-lee store’s failure to provide its fitting room with a chair, bench, handrail, or other means of support for its customers constituted negligence proximately causing Mrs. Bowes to fall was a question for the jury. Similarly, whether and to what extent Mrs. Bowes was negligent in attempting to change her clothes while standing, without support, is equally for the jury to decide.

REVERSED AND REMANDED.

ANSTEAD and GLICKSTEIN, JJ., concur.

BERANEK, J., concurs in conclusion only.

      . See also Post v. Lunney, 261 So.2d 146 (Fla.1972), and the decisions of our sister courts in Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980), and Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA 1980), all of which hold that in addition to the foregoing duty, the owner or occupier of land must also give timely notice of latent or concealed perils which are known or should be known to him but which are unknown to the invitee. This second duty is not relevant here.

      . The record reflects that appellants’ counsel did not attend the hearing upon appellee’s motion for summary judgment but filed a memorandum in opposition to the motion. At the hearing, appellee relied upon the affidavit of the city building official which recited that neither the building code of the City of West Palm Beach nor the Southern Standard Building Code required that a chair, bench, handrailing or other means of support be available in a fitting room. While that fact could be argued, it certainly does not absolve the storekeeper, in this case a store recognized all over the country, of the responsibility of determining whether the fitting room was reasonably safe for its customers. Legislative bodies adopting building codes cannot be expected to be expert in the development of precautions for the safety of every industry’s invitees, especially when corporate officers and directors are paid by stockholders to do just that.


author: HERSEY, Judge.

text:
    The ESTATE OF James JAMES, by his Personal Representative, Rolena JAMES, and Rolena James, Individually, Appellants, v. MARTIN MEMORIAL HOSPITAL, a Florida corporation, Radiology Associates of Stuart, a Florida corporation, David MacMillian, M.D., Jointly and Severally, Appellees.
    No. 81-1826.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      Bruce L. Randall, Fort Lauderdale, for appellants.
    G. Bruce Hill and Jeffrey C. Fulford of Adams & Hill, Orlando, for appellee-Martin Memorial Hospital.
    Basil S. Diamond and Steven A. Stinson of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellee-Radiology Associates of Stuart.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lee-David MacMillian, M.D.
   HERSEY, Judge.

In this action to recover damages for death allegedly resulting from medical malpractice the trial court granted a motion to dismiss the complaint with prejudice. Appellant James was injured in an automobile accident on May 20, 1979, for which he was treated by appellees in their respective medical capacities until his death four days later. Appellants filed a complaint on May 27, 1981, alleging various acts of malpractice. The trial court granted a motion to dismiss the complaint on the grounds that: the statute of limitations is two years; the limitation period commences to run from the date of death; the date of death appears on the face of the complaint; and, the complaint was filed two years and three days after the date of death.

We do not give credence to appellants’ argument that because the complaint was “mailed” to the court prior to May 24th it was timely filed. Rule 1.050, Florida Rules of Civil Procedure controls here and provides that an action is deemed commenced when the complaint is filed with the court. If the crucial date is May 24th then the statute of limitations bars appellants’ action. The ultimate question is: what is the crucial date.

.It has been considered black letter law that the statute of limitations in wrongful death actions based upon medical malpractice begins to run from the date of death. Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975). See, e.g., Fletcher v. Dozier, 314 So.2d 241 (Fla. 3d DCA 1975); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976); St. Francis Hospital, Inc. v. Thompson, 159 Fla. 543, 31 So.2d 710 (1947). In Worrell v. John F. Kennedy Memorial Hospital, Inc., 384 So.2d 897 (Fla. 4th DCA 1980), we detailed the history of the statute of limitations, pointing out that the notice accrual provisions of the medical malpractice statute of limitations had not been extended to actions involving death. While that case was reversed on other grounds in Dober v. Worrell, 401 So.2d 1322, 1323 (Fla.1981), the supreme court noted: “We agree with the district court in its construction and application of the applicable statute of limitations.”

The legislature subsequently revised the statute and as presently in force and applicable to this case it provides:

An action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. ‘Action for medical malpractice’ is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. (Emphasis added.)

§ 95.11(4)(b) Fla.Stat. (1979).

Under this provision the crucial date is either the date of the “incident,” (the act of malpractice which caused injury and in this case, death), or the time the incident is or should have been discovered. This represents a substantial change in the law, particularly in regard to the former rule that the limitations period commences to run on the date of death. Under the current statute that is not necessarily the case.

We next consider which party bears the burden of pleading and proof in an action contemplated by this statute. Generally, failure of the complaint to anticipate an affirmative defense does not furnish grounds for dismissal when an affirmative defense is asserted. To this fundamental principle Rule 1.110(d), Florida Rules of Civil Procedure has engrafted an exception: where the crucial facts appear on the face of a prior pleading, in this case the complaint, that prior pleading is subject to an attack by motion under Rule 1.140(b), Florida Rules of Civil Procedure.

In the instant case there was no allegation as to the date on which the “incident” (act of medical malpractice) was discovered nor was it necessary to allege the date in order to state a cause of action for medical malpractice. To require such an allegation to be asserted in the complaint would compel the plaintiff to anticipate the affirmative defense of the statute of limitations which we have previously held he is not required to do.

We therefore agree with the first district that the plaintiff has no such burden. In Glass v. Camara, 369 So.2d 625, 628 (Fla. 1st DCA 1979), that court said: “We hold that a defendant invoking the two-year limitation period prescribed by Section 95.11(4)(b) for medical malpractice actions must demonstrate that the action was commenced beyond two years after ‘the time the cause of action [was] discovered or should have been discovered with the exercise of due diligence.’ ”

The complaint in this case did not, and we now hold it need not, contain an allegation that the alleged medical malpractice was discovered or discoverable at a particular time. Thus the complaint was not vulnerable to a motion to dismiss based upon the statute of limitations.

Because we reverse on this basis it is unnecessary to treat appeallants’ argument that the possible existence of one of the factors detailed in Nardone v. Reynolds, 333 So.2d 25 (Fla.1976) and Almengor v. Dade County, 359 So.2d 892 (Fla. 2d DCA 1978), while not alleged in the complaint, nonetheless precluded dismissal based upon the statute of limitations. However, reliance on a Nardone factor would engender more confidence if the initial pleading contained at least a bare bones assertion of active concealment. We are in accord with the reasoning of the first district that such factors apply in an action for death caused by medical malpractice. See Alford v. Summerlin, 362 So.2d 103 (Fla. 1st DCA 1978).

The order granting the motion to dismiss was erroneously entered because the essential elements to support the affirmative defense of the statute of limitations neither appear nor need to appear on the face of the complaint. We therefore reverse and remand for further proceedings.

REVERSED and REMANDED.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Marielise WAGNER, formerly Marielise Wagner Mack, Appellant/Cross-Appellee, v. Henry MACK, Appellee/Cross-Appelllant. Marielise Wagner MACK, Appellant, v. Henry MACK, Appellee.
    Nos. 81-1839, 81-2419.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Dec. 22, 1982.

      Edger Miller of Walters, Costanzo, Miller & Russell, Miami, for appellant, wife.
    Charles Wender of Smith, Smith & Wen-der, P.A., Boca Raton, for appellee, husband.
   PER CURIAM.

This is an appeal from a final judgment in a dissolution of marriage case as consolidated with an appeal relating to a motion to set aside a post-judgment settlement agreement. After entry of the final judgment, the appellant/wife filed a notice of appeal. While the appeal was pending and the final judgment was unsuperseded, the parties entered into a post judgment settlement agreement. Thereafter, the wife moved to set aside the agreement asserting duress and other grounds. An evi-dentiary hearing occurred on the motion to set aside and the trial court denied the motion and ordered the parties to comply with the agreement. In a situation such as this, evidence of over-reaching, fraud, coercion, or deceit must be clear and convincing. Veiock v. Veiock, 391 So.2d 793 (Fla. 1st DCA 1980). The decision of the trial court in granting or denying the motion to set aside a settlement rests on the sound discretion of that court. Hartley v. Hartley, 134 So.2d 281 (Fla. 2d DCA 1961). In the instant case, there was clear evidence in support of the voluntary nature of the settlement agreement between the parties and the trial court did not commit an abuse of discretion in failing to set it aside. All other arguments by appellant on this issue are without merit. We affirm the order denying the motion to set aside settlement. The parties are thus bound by their post judgment settlement and all issues as to the judgment are rendered moot.

AFFIRMED.

DOWNEY, BERANEK and WALDEN, JJ., concur.