author: SMITH, Judge.

text:
    Steve McGRATH, Appellant, v. STATE of Florida, Appellee.
    No. AW-412.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant, a youthful offender, appeals his sentence imposed subsequent to the revocation of community control. He raises as error the trial court’s refusal to sentence him in accordance with the new sentencing guidelines. Rule 3.701, F.R. Crim.P. We affirm.

On December 7, 1983, appellant pled guilty to violating community control and the court revoked his community control. He sought to be sentenced pursuant to the guidelines, which became effective October 1,1983, but the trial court declined. At the time of sentencing, the committee note to Rule 3.701(d)(ll) provided that sentences under the provisions of the Youthful Offender Act need not conform to the guidelines. We stated that the committee notes would be regarded as persuasive in Dug-gar v. State, 446 So.2d 222 (Fla. 1st DCA 1984). The Florida Supreme Court has now made it clear that committee notes are adopted as a part of the rule. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984).

However, during the pendency of this appeal, Rule 3.701 and the committee notes were amended. See The Florida Bar: Amendment to Rules of Criminal Procedure, supra. The effective date of these amendments is July 1, 1984. Ch. 84-328, Laws of Florida (1984). In the amended version of the committee note to Rule 3.701(d)(ll) the language to the effect that sentences under the provisions of the Youthful Offender Act need not conform to the guidelines was deleted. A new provision to subsection (d) of Rule 3.701 was added, which states:

Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.

See Rule 3.701(d)(14), F.R.Crim.P.

We held in Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), that a probationer who was sentenced for violation of his probation subsequent to October 1, 1983, was entitled to be sentenced pursuant to the guidelines, but that the amended Rule 3.701(d)(14) would not apply should the probationer be sentenced subsequent to July 1, 1984, the effective date of the amendments. Applying the same rule — i.e., that the particular amendment under consideration here has no retroactive effect — we hold that appellant was and is not entitled to be sentenced under the guidelines.

AFFIRMED.

JOANOS and ZEHMER, JJ., concur.


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    ROBERT W. GOTTFRIED, INC., Appellant, v. Joseph E. COLE and Marcia Cole, his wife, Appellees.
    No. 82-1247.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 18, 1984.
    Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for appellant.
    Ronald Sales of Sales & Weissman, P.A., West Palm Beach, for appellees.
   LETTS, Judge.

This case involves a builder who sued a homeowner for the balance of an unpaid “open account,” predicated on failure by that owner to pay for completed work ordered by him on his property. The work consisted of additions and alterations to his house and for construction of a pool cabana. ■ During the nonjury trial, the judge granted a motion for involuntary dismissal at the close of the plaintiff builder’s case on the basis that the suit could not travel solely on an open account theory, but should have properly sounded in breach of a specific construction contract. We disagree and reverse.

The builder’s initial complaints, later consolidated, sought to foreclose mechanics liens and as later amended, equitable liens. These were properly dismissed as defective with further leave to amend. The builder contends it was not proper to dismiss them but while we disagree, we do not need to articulate our disagreement because the builder abandoned the lien counts altogether and refiled a second amended complaint grounded solely on the basis of an open account.

The builder failed to plead over on the lien theories, did not include a breach of contract count and/or did not proceed upon the theory of quantum meruit. Since these theories are not before us, we cannot consider them. Our only task is to determine if the builder presented a case upon the theory of an open account sufficient to withstand a motion for involuntary dismissal and we think he did.

An “open account” is difficult to define. As noted in 1 Am.Jur.2d 373, other synonymous phrases include “open current account” “running account” and “mutual open, current account.” There is a paucity of Florida case law on this subject, but borrowing from the case cited by the trial judge, it is there defined as an unsettled debt arising from- items of work and labor, goods sold and delivered, with the expectation of further transactions subject to future settlement and adjustment. See Delta Tank Manufacturing Co. v. Dearborn Machinery Movers Company, Inc., 144 So.2d 698, 700 (La.App.1962) citing 1 C.J.S. Account § 1.

In the case at bar, counsel for the homeowners deftly argued to the trial judge that the transactions here could not constitute an open account because the house on which the improvements were made by the builder had been already built and occupied, as had the pool house. In consequence, so the argument went, no further dealings between the parties were contemplated and the work performed constituted a single underlying construction contract, certain and performed — ergo, not an open account.

The homeowner has not argued that an open account can never be evidenced by a writing and we not only believe it can be, but we think it was in this case, by reason of the following letter:

January 24, 1978
Mr. and Mrs. Joseph E. Cole
c/o Louis Leibovit, Attorney
350 Royal Palm Way
Palm Beach, Florida 33480
Re: Sale of residence — 1190 North
Ocean Boulevard,
Palm Beach, Florida
Dear Marcie and Joe:
On today’s date both of you entered into a Contract of Purchase and Sale with Martha A. Gottfried for the purchase of the residence located at 1190 North Ocean Boulevard, Palm Beach, Florida and the Cabana Beach House located directly to the East of the residence owned by Anatole B. Hollis.
In view of the fact that the residence was erected and constructed by the undersigned, you may accept this letter as the undersigned’s firm commitment and guarantee as follows:
1. That the above-described residence and all appurtenances in conjunction therewith shall be fully and completely guaranteed and warranted as to materials, workmanship and construction for a period of one (1) calendar year from and after the actual 'closing date of this transaction.
2. That the undersigned, upon your request, will erect and construct on the above-described property a pool house and cabana and any and all other improvements which you might desire at the actual cost of the undersigned. This agreement on the part of the undersigned shall continue for a period of three (3) calendar years from and after the actual closing date of this transaction.
Trusting that this letter fully sets forth our understanding on the subject, and with all good wishes and kind regards, I am,
Very sincerely yours,
ROBERT W. GOTTFRIED, INC. ■

To us, this letter, coupled with the proof adduced during the presentation of the plaintiffs case, supported a cause of action upon an open account for the following reasons:

1. The letter does contemplate future transactions, because it offers at cost “any and all other improvements which you might desire at the actual cost of the undersigned ... for a period of three (3) calendar years.” In fact, there-is competent and substantial evidence in the record that the homeowner did not merely call for warranty work on the main house and pool house, but, from time to time, unrelated improvements and alterations.

2. The arrangement set forth in the letter clearly called for a continuing relationship over three years and was more, much more, than a one-shot construction contract for a pool house.

3. As to the pool house, no plans are detailed in the letter, no price is quoted for its construction and there is testimony that the owner changed his mind twelve times and repeatedly called for alterations thereto.

4. There is no question that the arrangement resulted in an unsettled debt arising from items of work and labor and goods sold and delivered. The terms of the letter are not fixed and certain. Some warranty work was done, supposedly for free, and some work was for improvements ordered at different times during that part of the three year period prior to the dispute. The debt to be incurred would vary over the three year period depending on how much work was requested by the owner.

In view of the above numbered paragraphs, the writing here involved is not such as can support the theory of a fixed and certain construction contract. No price is quoted so that the eventual debt is unsettled, the extent of the work to be done, is unlimited and the totals of goods and labor to be furnished are not ascertainable. The offer to perform any and all desired improvements is to continue for three years and only then can there be a final settlement and adjustment. Indeed, even the owner, in a letter to the builder, said: “I didn’t realize that costs would be much more than retail when the price was left open rather than fixed.” (emphasis supplied)

As a result, we conclude there was sufficient competent and substantial evidence of an open account to withstand a motion for involuntary dismissal at the close of the plaintiff builder’s ease.

Upon remand the builder cannot begin anew with multiple counts. The law is clear that he is restricted to the open account theory, Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981), subject to the owner’s right to present all of his claims on which the latter took a voluntary dismissal.

DOWNEY and DELL, JJ., concur.

      . The complaint might be construed as one for an "account stated,” but while this was considered at the trial level, it is clear the open account theory was the only one tenable.

      . The owner cites to Troendle v. Boudreaux, 246 So.2d 732 (La.App.1971) but there the facts reveal a contractual relationship for the repair and renovation of a single floor "... the terms ... were fixed and certain and pertained to one job only.” Likewise the citation to Nicholson v. Thixton, 448 P.2d 454 (Okla.1968) is inapt on the facts which latter case called for alternative methods of calculating architectural fees incurred under a contract to provide architectural fees to build a single family residence.


author: GLICKSTEIN, Judge.

text:
    ORKIN EXTERMINATING COMPANY, INC., Appellant/Cross Appellee, v. PALM BEACH HOTEL CONDOMINIUM ASSOCIATION, INC., Appellee/ Cross Appellant.
    No. 83-1219.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 7, 1984.

      John Neil Buso of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant/cross appellee.
    Roberta J. Karp of Bernstein, Narkier, Monchick & Karp, West Palm Beach, for appellee/cross appellant.
   GLICKSTEIN, Judge.

This is an appeal by Orkin, a nationally known exterminator, from a judgment against it. The facts reflect that a sales manager located at an Orkin office on the west coast of Florida tendered a bid for extermination of termites from a hotel complex located in Palm Beach. The bid was tendered in January, 1983 to the party then owning the property, but was accepted by the party which was purchasing the property. Orkin acknowledged the acceptance after the extermination contract had been executed. Subsequently, however, Orkin realized its employee had tendered a woefully cheap contract price of $8,607 and refused to perform. The buyer was required to get another party to do the same work for $38,000, and sued Orkin for the difference. Orkin appeals the judgment entered against it for the cost of having the work done. We affirm.

The non-jury trial was very short. The only witness testifying for the hotel was the buyer’s president, who executed the contract on behalf of the hotel. He testified that he saw the written bid and contract which Orkin had tendered to the seller, and telephoned Orkin’s sales manager on the west coast, describing the number of buildings as well as the number of rooms in the hotel. When he telephoned, he had no idea whether Orkin’s bid was still valid, so he confirmed that it was, then signed and returned the contract along with a check and confirming letter. The letter reiterated what had been discussed by telephone; namely, that the hotel complex included a four story building with approximately 300 rooms, a three story annex and a single family dwelling. On receipt of the letter and contract, the west coast sales manager wrote the buyer, acknowledging receipt, discussing the scheduled fumigation, and thanking it for the business. The buyer’s president further testified that had the bid not been valid, the hotel complex sales transaction would have been different because the numbers, which could have been adjusted, included an allowance for the fumigation cost as given by Orkin. On rebuttal, he was asked and answered the following question with respect to the west coast sales manager, Mr. Keyes:

Q Was it your understanding that Mr. Keyes was fully and completely aware of the size and nature of this building? I am talking about the three buildings; the Hotel and the annex and the single-family home, and was he aware that they took up a city block when he confirmed the price for you?
A There is no doubt in my mind that I described the area to him. I described— or rather, I told him that it was almost a full city block and that it included a four-story building with three hundred hotel rooms. Then I put it in writing. I also wanted to verify with him that he was a Sales Manager and not just some clerk. I wanted to make sure that he was a bona fide representative. He said that he was a Sales Manager.

Orkin introduced a letter from its office in Palm Beach, dated six weeks after the bid from the west coast office, in which the exterminator stated it would do the work for $69,950. The letter was not addressed to the buyer’s president but to some other agent of the buyer. Orkin’s two live witnesses were the east coast sales inspector who did the work-up for the higher bid and the West Palm Beach branch manager who testified that he met with the buyer’s president one month after the buyer had executed the contract tendered by the west coast sales manager. The only comment of the buyer’s president at that meeting about which the branch manager testified was that because he had the lower bid he would be “out of his mind” to accept Orkin’s subsequent, higher bid.

The west coast sales manager’s deposition was tendered into evidence. Although he testified that this contract required acceptance by Orkin’s West Palm Beach branch manager, the issue of his authority was not raised in the pleadings nor pre-trial stipulation, nor was it argued in the briefs here. He testified that he based his bid on conversations with a representative of the seller, not the buyer; that he never saw the buildings; that he did speak by telephone with the buyer’s president; and that he received the letter written by the buyer’s president, which caused him no problem.

In Maryland Casualty Company v. Krasnek, 174 So.2d 541 (Fla.1965), the court reinstated a summary judgment in favor of a liability insurer which had made a unilateral mistake and had pled rescission as an affirmative defense. In doing so the court pointed out that rescission would not be appropriate if (a) the mistake was the inexcusable lack of due care or (b) the other party had so changed its position in reliance on the contract that rescission would be unconscionable.

The subject is treated in sections 153 and 154 of the Restatement of Contracts (Second) (1979) which provide:

§ 153. When Mistake of One Party Makes a Contract Voidable.
Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in § 154, and
(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or
(b) the other party had reason to know of the mistake or his fault caused the mistake.
§ 154. When a Party Bears the Risk of a Mistake.
A party bears the risk of a mistake when
(a) the risk is allocated to him by agreement of the parties, or
(b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or
(c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.

We quote these tests or criteria recognized by the members of the American Law Institute to demonstrate that they are disjunctive, not conjunctive.

Further, in the Maryland Casualty Company case, the court said that if there is substantial evidence to support the trial judge’s findings, they should not be disturbed on appeal. In the present case, there is substantial evidence to support a conclusion by the trier of fact that Orkin should bear the risk of its mistake.

HURLEY and WALDEN, JJ„ concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Ronald B. CULLIGAN, Appellee.
    No. 84-86.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.
    Rehearing Denied Sept. 19, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State has perfected this appeal from an order dismissing an information charging appellee with grand theft.

The State of Florida issued a warrant for appellee’s arrest and lodged a detainer against appellee with the Commonwealth of Virginia Department of Corrections. Appellee filed a “Motion To Dismiss Charge, or in the Alternative, Motion for Speedy Trial.” The Office of State Attorney filed a “Response to Request for Final Disposition and Request for Temporary Custody.” In due course, the matter was heard by the trial court and the motion to dismiss was granted. We reverse.

Under the interstate compact known as the Agreement on Detainers, Sections 941.-45-50, Florida Statutes (1983), a person incarcerated in another state and also charged by information with a Florida crime for which a detainer has been lodged with his custodian, may deliver to the appropriate prosecuting attorney and court a written notice of his imprisonment and a request for final disposition of his case in Florida. The request must be accompanied by a certificate of the official having custody of the person with certain specified information. Upon compliance with the interstate compact, the person’s time for speedy trial commences. Appellee purports to have initiated the running of the speedy trial time by virtue of his above described motion and the State’s response, relying upon State v. Roberts, 427 So.2d 787 (Fla. 2d DCA 1983), which holds that substantial compliance with the requirements contained in Section 941.45(3) is sufficient to trigger the speedy trial aspect of the compact. While we agree with the principle of substantial compliance contained in Roberts, we hold that appellee failed to meet even the substantial compliance test; his motion was inadequate to provide the information required by Section 941.45(3)(a and b). Thus, this case is controlled by Coit v. State, 440 So.2d 409 (Fla. 1st DCA 1983).

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

REVERSED AND REMANDED.

DOWNEY and GLICKSTEIN, JJ., and GUNTHER, BOBBY W., Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    SEWER VIEWER, INC., Appellant, v. SHAWNEE SUNSET DEVELOPERS, INC., a Florida corporation as general partner, d/b/a Sunridge Venture Ltd., Appellee.
    No. 83-1285.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1984.
    Richard W. Wood of Adams, DeVilbiss, Vorbeck & Wood, Bradenton, for appellant.
    David K. Deitrich of Dye, Cleary, Scott & Deitrich, Bradenton, for appellee.
   BOARDMAN, Judge.

Appellant, Sewer Viewer, Inc., contests the trial court’s judgment limiting the corporation’s recovery in a mechanic’s lien foreclosure action to the amount remaining due to the general contractor. We agree that this limitation was improper and, therefore, reverse.

Pursuant to a written agreement with the general contractor, appellant undertook to video tape, clean, and repair a sewer drainage system in a subdivision owned and developed by appellee, Shawnee Sunset Developers, Inc. No privity of contract existed between appellant and the owner. After completing its work, appellant submitted bills totaling $6,280.90 to the contractor for payment, which was not forthcoming.

Appellant timely recorded its claim of lien against appellee’s property under section 713.04, Florida Statutes (1981), and brought the instant foreclosure action as a subcontractor providing labor and materials for subdivision improvements. Appel-lee answered and alleged that it had made no improper payments to the general contractor and that appellant had rejected its tender of the $3,880 balance remaining due the general contractor.

After a nonjury trial, the court below entered a final judgment which limited appellant’s recovery to $3,880 and denied appellant’s claim for attorney’s fees and court costs.

Appellant argues that we should construe section 713.04, Florida Statutes (1981), to determine its relationship with the remainder of chapter 713, part I. Specifically, we are asked to decide whether the provisions of section 713.06(1), Florida Statutes (1981), which generally limit the total amount of all liens held by persons not in privity with the owner to the price fixed in the direct contract, apply to lienors making subdivision improvements. We conclude that they do.

In so concluding, we consider that the purpose of section 713.04 is simply to provide less restrictive notice requirements for persons who, regardless of privity, are entitled to a lien for subdivision improvements, and to make provision for the attachment of such liens on abutting properties where the improvements are to lands dedicated to the public. We do not consider that the legislature intended to create a separate category of lien for subdivisions in regard to the manner, amount, and extent of a lien perfected under section 713.04.

Our supreme court in American Fire & Casualty Co. v. Davis Waste & Water Industries, Inc., 377 So.2d 164 (Fla.1979), a decision which construed a prior version of section 713.04 as exempting lienors making subdivision improvements from the requirement of serving a notice to owner, adopted the reasoning of the Fourth District in American Fire & Casualty Co. v. Davis Waste & Water Industries, Inc., 358 So.2d 225 (Fla. 4th DCA 1978), that section 713.04 “establishes a class of liens separate from the others provided for in chapter 713, part 1.” 377 So.2d at 165. Accord Mershon v. Buckles-Thompson, Inc., 383 So.2d 280 (Fla. 5th DCA 1980) (section 713.04 creates “subdivision exception” to notice to owner requirement); Baumgartner Construction Co. v. Harrell, 364 So.2d 802 (Fla. 1st DCA 1978) (reading section 713.04 in pari mate-ria with section 713.06 mandates the conclusion that untimeliness of notice to owner served by lienor furnishing labor and materials for subdivision improvements did not bar recovery under section 713.04). The Fourth District also recently held in Pembroke Villas of Broward, Inc. v. Raymundo, 447 So.2d 324 (Fla. 4th DCA 1984), that the general contractor’s failure to furnish the owner a contractor’s affidavit pursuant to section 713.06(3)(d)(l), Florida Statutes (1981), did not bar the contractor’s recovery on a lien arising under section 713.04. All of the above-cited eases, however, deal with the less restrictive procedural requirements of section 713.04, and not the “quality” or “quantity” of lien acquired. See Pembroke Villas at 325-327 (Walden, J., concurring specially) (legislature did not intend to create new class of lienors through enactment of section 713.04; statute merely attempts to ameliorate particular problems inherent in subdivision development).

A close examination of other sections of chapter 713, part I, supports our conclusion. Section 713.06(1) provides:

The total amount of all liens allowed under part I for furnishing labor, services, or material covered by any certain direct contract shall not exceed the amount of the contract price fixed by the direct contract except as provided in subsection (3).

Section 713.04 is obviously contained in part I of chapter 713. Further, there is certainly no indication that the legislature intended to exclude the provisions of section 713.23 from applying to liens acquired in regard to subdivisions. Section 713.23 again makes reference to part I. The payment bond authorized under that section is required to be “in at least the amount of the original contract price.” Thus, it seems clear to us that section 713.04 was not meant to allow the cumulative total of liens thereunder to exceed the contract price where there is a contract price, except as provided in section 713.06(3).

However, even though we hold that the limitations of section 713.06(1) do apply to liens arising under section 713.04, a factual question requires our reversal of the trial court’s judgment. Nothing in the record establishes that appellee and the general contractor ever agreed upon a specific contract price. Apparently, appellee merely paid the general contractor for invoices submitted from time to time as work on the job progressed. Consequently, we find no support in the sparse record before us for the trial court’s conclusion that only $3,880 of the original contract price remains unpaid.

While section 713.06(1) limits liens to a total not to exceed the contract price, section 713.01(3) defines “contract price” where no price is agreed upon, as meaning “the value of all labor, services, or materials covered by their contract....” In simpler language, if there is no agreed total contract price between the general contractor and the owner, then there is no limit, except for actual value, to the amount of liens that are properly acquired pursuant to the general contract to improve the realty.

We therefore conclude that the trial court erred in not awarding appellant $6,280.90, the full amount of its claim of lien, and in denying appellant’s claim for attorney’s fees and court costs.

Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.

OTT and LEHAN, JJ., concur.

      . The general contractor is not a party to this appeal.

      . While acknowledging the confusion inherent in the mechanic's lien statutes, our sister court concluded that each of sections 713.03 through 713.06 governs different classes of lienors; thus, the requirements of section 713.06(2), as to notice, should not be engrafted upon the other sections.


author: BOOTH, Judge.

text:
    Wilbur Eugene BAYES, Appellant, v. STATE of Florida, Appellee.
    No. AT-483.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.

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

This cause is before us on appeal from a judgment and sentence entered upon a jury verdict, finding the appellant guilty of the crime of riot, inciting, or encouraging a riot in violation of Section 870.01, Florida Statutes (1981), and sentencing him to five years imprisonment.

We find no merit in appellant’s contention that the evidence was insufficient to support the conviction. The charge arose from a disturbance on May 11, 1983 at the Arthur G. Dozier. School for Boys due to dissatisfaction on the part of some students with their housing. The evidence shows students were very disruptive at the breakfast meal and, as a result, some nine students, including appellant, were sent to the basketball court, where they started breaking up pieces of the basketball court’s asphalt surface, and some of them, including appellant, threw pieces of the asphalt over the basketball court fence. At about 8:30 a.m., an alarm was activated, alerting the Dozier staff to come to the area of the disturbance. The appellant and Vernon Smith, who was charged with the same offenses as appellant, in a confrontation with the staff, stated that they were going to hit anyone who came into the area (the basketball court), that they wanted a housing change, and that they were going to get it regardless. There was testimony that the boys appeared to have the wherewithal to accomplish their threats. One employee testified:

[Y]es, sir, it was a frightful situation to be in because there wasn’t but [sic] three staff on the court and seven or eight boys out there throwing chunks of asphalt the size of saucers.... [I]t is pretty frightening when they’re whizzing by your head and missing you by inches.

Appellant and Smith were heard to make encouraging remarks to each other and to another boy who supplied and threw asphalt.

In State v. Beasley, 317 So.2d 750, 752 (Fla.1975), the constitutionality of Florida’s riot statute was at issue. The court determined that, in the absence of a statutory definition, the common law applied, and at common law, riot is defined as “a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner.” Beasley further holds the offense of inciting to riot requires that the words spoken by the alleged offender or his actions must be such as “to support a finding that they were said or done with intent to provoke a riot,” and in view of all the circumstances, the language used by the alleged offender must tend to incite an immediate breach of the peace. State v. Beasley, 317 So.2d 750, 753 (Fla.1975).

We find that the trial court properly denied the appellant’s motion for judgment of acquittal since the State presented sufficient evidence that the appellant, with at least three other boys, acted in a violent manner, thereby causing a tumultuous disturbance of the peace in throwing pieces of asphalt toward vehicles and staff members. As to the charged offense of inciting or encouraging a riot, there was testimony that the appellant and Smith threatened to hit staff members and encouraged the other boys to join them in throwing pieces of asphalt. This encouragement to the other boys to join in a violent activity, directed toward staff members and their vehicles, supports a finding that such encouragement was done with the intent to provoke a riot and, in view of all the circumstances, clearly tended to incite an immediate breach of the peace. Beasley, supra.

The appellant also argues that the trial court erred by failing to comply with the mandatory juvenile sentencing procedure in Section 39.111, Florida Statutes (1981). The appellant, 17 years old at the time of the proceedings below, was charged, tried, and sentenced as an adult. His attorney did not object to the trial court’s failure to proceed under Section 39.111(6). The State claims that, since the appellant’s attorney failed to contemporaneously object, the appellant may not raise the issue on appeal. The Florida Supreme Court, in its recent opinion in State v. Rhoden, 448 So.2d 1013 (Fla.1984), held contrarily to the State’s position. In Rhoden, the juvenile defendant was tried and sentenced as an adult. At sentencing, the trial judge did not follow the mandatory procedures set forth in Section 39.111(6). After the defendant’s sentence was imposed, his counsel did not object to the trial judge’s failure to comply with Section 39.111(6). The Supreme Court rejected the State’s argument that, since no objection has been made, the issue could not be raised for the first time on appeal, and held (Rhoden, supra at page 1016):

Further, with regard to the respondent’s failure to contemporaneously object to the trial judge’s failure to follow the statute in sentencing respondent, we agree with the reasoning of Judge Sharp in her dissent in Glenn v. State [411 So.2d 1367 (Fla. 5th DCA 1982) ]. Judge Sharp pointed out that it is difficult, if not impossible, for counsel to contemporaneously object to the absence of a written order at the sentencing hearing “since counsel at that stage does not know for sure what the written sentence may be, and a written order pursuant to section 39.111 may indeed be subsequently filed.” 411 So.2d at 1368. The contemporaneous objection rule, which the state seeks to apply here to prevent respondent from seeking review of his sentence, was fashioned primarily for use in trial proceedings. The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors. See Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). The rule prohibits trial counsel from deliberately allowing known errors to go uncorrected as a defense tactic and as a hedge to provide a defendant with a second trial if the first trial decision is adverse to the defendant. The primary purpose of the contemporaneous objection rule is to ensure that objections are made when the recollections of witnesses are freshest and not years later in a subsequent trial or a post-conviction relief proceeding. The purpose for the contemporaneous objection rule is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge. If the state’s argument is followed to its logical end, a defendant could be sentenced to a term of years greater than the legislature mandated and, if no objection was made at the time of sentencing, the defendant could not appeal the illegal sentence.

The Supreme Court in Rhoden held that “the provisions of section 39.111(6) must be followed by a trial judge in sentencing a juvenile as an adult, and the failure to do so requires a remand for resentencing.” Rhoden, supra at page 1017.

Accordingly, we affirm the judgment, and, although we recognize that the trial judge did not have the benefit of Rhoden, supra, we must reverse the sentence and remand the case for resentencing pursuant to Section 39.111(6) under the mandate of Rhoden.

Affirmed in part, reversed in part, and remanded.

SHIVERS and JOANOS, JJ., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    T.L.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. AV-345.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Louis 0. Frost, Jr., Public Defender, and Larry A. Nathans, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

The record supports the trial court’s determination that appellant violated the community control order, and the trial court’s order of commitment is therefore affirmed.

ERVIN, C.J., and BOOTH, J., concur.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that the record supports the trial court’s determination that appellant violated the community control order. The record shows that appellant was placed on community control for sixty days commencing July 17, 1983. This sixty-day period was to run consecutive to a sixty-day period which was imposed for a separate offense. The order required that appellant comply with the following special conditions which are pertinent to this appeal:

(j) Contribute 40 hours to Youth Services Work Program (20 hours each case) and complete 20 hours first 60 days.
(k) Obey all lawful and reasonable rules of mother and counselor.

On August 5, 1983, appellant’s youth services counselor filed a petition alleging violation of the above two conditions in that:

[l] Said child did not show up to the Youth Services work site as she was instructed on July 23, and 30, 1983.
[2] Said child was sent to the Youth Services Work Program by her mother on July 30, 1983, and failed to show up.

At the hearing on the petition alleging violation, the state presented the testimony of appellant’s mother and her youth services’ counselor. Her mother’s testimony does not support either of the allegations. Appellant’s counselor testified that appellant did not show up for work on July 23 or 30. The counselor further testified that appellant was supposed to go to work every Saturday, but there was no evidence that appellant was ever so instructed by either the counselor or her mother, and that requirement is clearly not contained in the community control order. On the contrary, the order requires only that 20 hours of service be performed within the sixty-day period. It does not specify that those 20 hours be served on a particular day of the week, and at the time of the revocation proceeding appellant had approximately six more weeks (much of it during summer vacation) in which to fulfill the work service requirement.

In short, there was no evidence to support a finding of violation on the basis of the second allegation; that is, there was no evidence that appellant failed to obey her mother’s order, and there was no evidence that appellant was instructed to show up at the work site on July 23 and 30. There was evidence that appellant did not in fact show up at the work site on those days. However, absent a showing that she was on notice that such attendance was required, basic notions of due process and fundamental fairness preclude revocation based solely on that ground. I would therefore reverse.


text:
    Kenneth Eric CARWISE, Appellant, v. STATE of Florida, Appellee.
    No. AW-31.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 6, 1984.

      Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant appeals judgments of conviction for aggravated battery, battery upon a law enforcement officer, and resisting arrest with violence. He raises two grounds for relief from this court. Finding both grounds to be unavailing, we affirm.

During jury selection at appellant’s trial, the initial jury venire became depleted. As a result, the trial court ordered the summoning of additional jurors for creation of a supplemental venire from the master jury list, by telephone. At a post-trial hearing on this issue requested by appellant, a deputy clerk testified that in summoning the supplemental venire by telephone the clerk’s office attempted to make contact with the potential jurors by telephoning them at their residences, unless the clerk’s office personnel had personal knowledge of where these prospective jurors were employed. In that case, the jurors were called at work. According to the further testimony of an employee of the clerk’s office, a number of the prospective jurors had no telephones. Therefore, Sheriff Leonard of the Suwannee County Sheriff’s Department, as well as some of his deputies, received a list of potential jurors lacking home telephones from the clerk’s office and attempted to contact these jurors at home. Sheriff Leonard testified that he individually visited five residences, and further that his deputies visited an undisclosed number of additional residences. The attempts by Sheriff Leonard and his deputies to contact these prospective jurors at home apparently met with mixed success.

Appellant timely objected to the aforementioned methods of summoning prospective jurors to be impaneled for voir dire at his trial. He asserted that the procedures utilized were discriminatory on both economic and racial grounds in that persons suffering from socioeconomic deprivations were more likely to lack telephones at their residences than other persons not similarly situated. He contends, therefore, that the methods utilized below in summoning prospective jurors was not sufficiently random to assure him an opportunity to have a fair cross-section of the community sit in judgment of his guilt. Specifically, appellant asserts that as a result of the method of summoning jurors actually utilized, two discrete classes of potential jurors were systematically excluded from the jury ve-nire; people too poor to afford telephones, and people who were at work when contact was attempted to be made with them.

On this issue, appellant relies chiefly on this court’s decision in Bass v. State, 368 So.2d 447 (Fla. 1st DCA 1979). In Bass, the trial judge, resorting to Section 40.42, Florida Statutes (1977) (since repealed), ordered the sheriff of Escambia County to summon additional qualified jurors from the body of the county for completion of the jury panel. In response to the trial judge’s order in Bass, Sergeant Morris of the Escambia County Sheriff’s Department asked for volunteers for jury duty at an evening prayer meeting of his all Caucasian church. He received five volunteers, two of whom eventually served on Bass’ jury. This court found that Sergeant Morris’ actions precluded the possibility that black members of the Escambia County community would be among the special ve-nire from which the jury was to be drawn and that this resulted in a systematic, unintended exclusion of blacks from Bass’ jury venire in violation of his right to a jury representing a fair cross-section of the community in which he lived. In the case at bar, however, although appellant correctly states the law, he is entitled to no relief.

It is, of course, true that the right to a jury trial contemplates that the jury be drawn from a representative cross-section of the community without the systematic exclusion of large, distinct and identifiable segments of the community. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). However, every jury need not actually contain representatives of all the economic, social, religious, racial, political, and geographical groups within the community. Thiel v. Southern Pacific Company, 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). Rather, the constitutional requirement that a jury be comprised of a fair cross-section of the community is met when the selection process for summoning jurors for impaneling occurs randomly. State v. Silva, 259 So.2d 153, 163 (Fla.1972). This randomness in selection or summoning is thought to assure a “fair possibility for obtaining a representative cross-section of the community.” Jordan v. State, 293 So.2d 131, 134 (Fla. 2d DCA 1974) (citation omitted). This principle was recognized in Bass v. State, supra, where the court noted that Sergeant Morris’ summoning of jurors from an all-Caucasian church “precluded the possibility that black members of the community would be among the special venire from which [defendant Bass’] jury was to be drawn.” Bass v. State, supra at 449.

Here, appellant fails to show a lack of randomness in the juror summoning process, either in terms of the source of the jurors from whom the selections were to be made, or in the selection process itself. The source of potential supplemental jurors for appellant’s trial was the master jury list. Appellant has not shown that this list of jurors was an improper source. Compare U.S. v. Goff, 509 F.2d 825 (5th Cir. 1975), cert. den., 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83 (1975) (exclusive reliance on voter registration lists as a source of potential jurors upheld).

Appellant nevertheless maintains that the summoning methods used here defeat the otherwise random selection process. The significance of this possibility lies in the fact that a non-random process of actual selection of jurors might result in the systematic exclusion of distinct and constitutionally identifiable segments of the population even though there were no such exclusions from the initial pool or venire. Although appellant here asserts that such a distinctive and identifiable segment of the population was excluded, that is, blacks and working people, appellant offers no factual basis underlying his claim. Rojas v. State, 288 So.2d 234 (Fla.1973), cert. den., 419 U.S. 851, 95 S.Ct. 93, 42 L.Ed.2d 82 (1974). In other words, appellant offered no evidence below showing a link between ownership of a telephone at one’s residence and membership in the classes appellant asserts were excluded.

Furthermore, even if we assume that appellant has sufficiently identified a distinctive and identifiable segment of the community excluded from his trial by the selection process, that is, persons without telephones at their personal residences, and persons with telephones who were working, appellant’s claim is still unavailing. Not every factually distinguishable group has been given constitutionally “identifiable” status in terms of achieving a representative cross-section of the community in the jury venire, and selection procedures effecting such non-recognized groups have been upheld even where the procedure utilized in fact excludes these groups. U.S. v. Ross, 468 F.2d 1213 (9th Cir.1972), U.S. ex rel. Chestnut v. Criminal Court, 442 F.2d 611 (2d Cir.1971). Here, the asserted “identifiable” group — persons who either do not possess residential telephones, or if they do, are working people — has not been designated a constitutionally protected segment of the community. Cf. Hitchcock v. State, 413 So.2d 741, 745 (Fla.1982), cert. den., 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982) (mothers with young children do not comprise a constitutionally significant class (footnote omitted)).

As we noted earlier, the actual summoning of jurors did not focus exclusively on jurors with telephones, working or not working, since the sheriff and his deputies also made not insubstantial efforts to summon jurors without telephones by personally seeking to contact them at their homes. Therefore, appellant has established neither a prima facie case of racial or economic discrimination, nor has he established that persons lacking in residential telephones and those with telephones who are working people are a constitutionally “identifiable” segment of the population whose representation on a jury venire is constitutionally mandated.

Appellant’s second point, in which he challenges the sufficiency of the evidence to support his conviction for resisting arrest with violence, on the grounds that the arresting officer was not engaged “in the lawful execution of any legal duty” (Section 843.01, Florida Statutes (1983)) at the time of the alleged offense, is wholly without merit. There was ample testimony from which the jury could find that acts of battery committed upon Officer Darnell by appellant furnished independent grounds for appellant’s arrest prior to any action or announcement by Officer Darnell indicating an intention to arrest appellant. Subsequently, after being informed that he was under arrest, appellant while in the process of fleeing the scene threw a brick or some other hard object which struck the officer in the back, and did succeed in eluding capture until later. This evidence was sufficient to substantiate the charge of resisting arrest with violence. The conviction is also affirmable for another reason, which is simply that appellant’s claim that Officer Darnell was not engaged in the performance of any legal duty at the time of appellant’s forcible resistance (which he predicated on the officer’s lack of authority to arrest a third party, Granville) is not a defense to the charge. State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1983); State v. Johnson, 382 So.2d 866 (Fla. 2d DCA 1980); Meeks v. State, 369 So.2d 109 (Fla. 1st DCA 1979); Lowrey v. State, 356 So.2d 1325 (Fla. 4th DCA 1978). Accordingly, the judgments appealed from below are

AFFIRMED.

WENTWORTH and WIGGINTON, JJ., concur.

      . Appellant cites federal cases as supportive of his claim that the summoning process here was biased and resulted in a systematic exclusion of an identifiable segment of appellant’s community. Henson v. Wyrick, 634 F.2d 1080 (8th Cir. 1980), Anderson v. Frey, 715 F.2d 1304 (8th Cir. 1983). These cases do not aid appellant. In both cases, jurors were selected for impaneling on a jury venire by a state sheriff or his deputies or his associates, all of whom had personally conducted the investigation or investigations resulting in the defendants in those cases being arrested and prosecuted, respectively. Here, the summoning or selection process of jurors to fully impanel the jury venire for appellant’s case was undertaken by people without "institutional and professional interests in successful prosecution [of the defendant's cause].” Anderson v. Frey, supra at 1309. Appellant makes no showing here that any of the employees of the Su-wannee County Clerk of Court’s Office, Sheriff • Leonard, or his deputies involved in summoning jurors for appellant’s cause were involved in the prosecution of his cause.


author: ERVIN, Chief Judge. WENTWORTH, Judge,

text:
    Christine S. HALL, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
    No. AW-51.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    James F. McKenzie, Pensacola, for appellant.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   ERVIN, Chief Judge.

Appellant, Christine Hall, appeals from a final judgment confirming an arbitration award denying her disability benefits under the terms of a group life insurance policy issued by Metropolitan Life Insurance Company (Metropolitan). We affirm in part, reverse in part and remand with directions.

Hall, an employee of Monsanto Company, was insured under a Metropolitan group life insurance contract providing disability benefits if the insured becomes “totally and permanently disabled as a result of bodily injury or disease so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit.” Section B(l) of the contract provides that in the event of a dispute, the employer and employee will jointly select a physician to examine the insured employee, who will then issue an opinion binding on all parties. While the policy was in effect, Hall filed a claim for permanent total disability benefits due to a back injury suffered on the job and was instructed by Metropolitan to follow the arbitration procedure set out in section B(l). She chose instead to file an action at law. Metropolitan, by way of answer, alleged that the insurance contract provided for arbitration of disputes and moved to compel arbitration. The trial court ordered arbitration and the parties selected Dr. Snowden as arbiter. The doctor examined Hall, reviewed her medical records, the depositions of her attending physicians, and issued a report of his findings in letter form, stating in pertinent part:

[I]t is my opinion that the patient does have degenerative disc disease which is most likely post traumatic in origin. After consulting the manual for orthopedic surgeons in evaluating permanent physical impairment, published by the American Academy of Orthopedic Surgeon’s [sic], it is my opinion that the patient does have approximately 15% permanent partial loss of physical function to the whole body on the basis of persistent lumbar muscle spasm and pain substantiated by demonstrable degenerative changes in the lumbar region, by x-ray. Whether this situation could be improved by surgical intervention is, I believe, highly questionable. Although her impairment of function is not complete, it certainly would, in my opinion, preclude her returning to any type of work requiring heavy or repetitive lifting, bending, squatting, stooping or climbing. Furthermore, I do not believe that she will be able consistently to sit for more than an hour at a time without having the opportunity to get up and move about to relieve her low back. Given her age and skills, these restrictions obviously severely limit her employability.

In response to a request for a more definitive statement, Dr. Snowden wrote:

I did not intentionally “hedge” when I did not state categorically whether or not I felt she was totally and permanently disabled. As I indicated in my report, I do feel that her back problem does significantly interfere with her ability to work, in the ways that I described. Considering in addition to that, her age and skills, I would seriously question whether she is employable. However, I do not feel that her back problem alone constitutes cause for total and permanent disability as defined in her insurance policy. In my opinion, there are enough activities that she physically could perform, that some type of work for compensation should be possible. This would probably require some additional training. Whether such work is available in our community, I do not know.
Perhaps an evaluation by a trained vocational rehabilitation specialist might help in determining whether she is in fact totally and permanently disabled from any kind of work.

(e.s.) Pursuant to motion by Metropolitan, the trial court entered final judgment finding that the contents of Dr. Snowden’s letters constitute a holding in favor of Metropolitan.

Hall raises three points on appeal: (1) the contract’s arbitration clause violates the Florida Insurance Code’s provisions granting an insured’s right of access to courts; (2) the' arbitration procedure prescribed in the contract is invalid in that it does not include a provision for an evidentiary hearing, and (3) the arbiter’s reports do not represent a definitive finding as to disability supporting the trial court’s final judgment.

We find no merit in appellant’s contentions as to the first two points, and, therefore, AFFIRM as to them. Regarding the first point, appellant specifically argues that she was denied access to court in that Section 627.616, Florida Statutes, provides that legal actions to enforce individual disability policies may be filed 60 days after proof of loss with the carrier, and section 627.659(4) in turn prohibits any group policy from restricting the time in which suit may be brought to a time less favorable than comparable statutory provisions governing individual policies. Accordingly, appellant continues, the arbitration clause in the Metropolitan policy must be held invalid in that it provides less favorable terms for access to courts than is required by section 627.616. We agree with appellee’s response that section 627.-659(4) is inapplicable to the policy before us—a group life insurance policy. Section 627.601(3) explicitly states: “Nothing in part VI of this chapter shall apply to or affect: ... (3) Life insurance ... contracts, or contracts supplemental thereto which contain only such provisions relating to disability insurance as: .... (b) [ojperate ... to give a ... special benefit or an annuity in the event that the insured or annuitant becomes totally and permanently disabled as defined by the contract or supplemental contract.” (e.s.) Thus it is apparent that the provisions of Hall’s life insurance contract and claim filed pursuant thereto is not governed by part VI of the Florida Insurance Code.

We reject also appellant’s second point, urging that the arbitration procedure followed was erroneous in that the policy contained no provision for an evidentiary hearing. Appellant relies upon Cassara v. Wofford, 55 So.2d 102, 106 (Fla.1951), for her position. Cassara, however, recognizes that one’s right to a hearing may be waived, “either in the agreement of submission or by conduct amounting to a waiver _” Id. at 106. Moreover, Section 682.06, Florida Statutes, prescribing the arbitration procedure, which includes provisions for a hearing, recognizes that a hearing may be waived if such condition “is otherwise provided by the agreement or provision for arbitration....”

As to appellant’s third point, we agree that Dr. Snowden’s reports do not contain, as required by the contract of insurance, a definite opinion expressing whether or not the claimant’s anatomical impairment was such as to prevent her “from engaging in any occupation or performing any work for compensation or profit.” Although the physician offers a medical opinion as to impairment, his reports fail to satisfy the need for an opinion determining whether claimant’s condition is such as to preclude her from engaging in employment as defined in the policy. In the absence of the arbiter’s opinion unequivocally addressing the issue submitted for arbitration, the trial court’s confirmation of the arbiter’s “decision” lacks an adequate foundation.

We, therefore, REVERSE and REMAND this cause with directions that the trial court require an unequivocal statement by a proper person as to whether Hall “has become totally and permanently disabled as a result of bodily injury or disease so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit.” If such statement can be better achieved following an evaluation by a trained vocational rehabilitation specialist, or some similar person, the lower court may, in its discretion, consider the feasibility of such action.

Reversed and remanded for further consistent proceedings.

BOOTH, J., concurs.

WENTWORTH, J., concurring with opinion.

WENTWORTH, Judge,

concurring,

I agree entirely with the opinion and disposition in this case but would also conclude with respect to proceedings on remand that the determination to be made by the arbiter, i.e., permanent disability for compensable work, is clearly intended to be a determination of existing fact. That fact should accordingly be determined without regard to rehabilitation which may or may not occur, unless the arbiter finds that such a potentiality is neither speculative nor conjectural and therefore precludes a reasonable determination of permanency in appellant’s condition. Cf., State v. Massillon, 419 So.2d 371 (Fla. 1st DCA 1982).


text:
    Onelia GARCIA and Matthew Lee Wilson, Appellants, v. STATE of Florida, Appellee.
    Nos. AW-135, AW-313.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 6, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender and Carol Bickerstaff, Legal Intern, Tallahassee, for appellants.
    Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellants appeal from their sentences imposed by the trial court below. Both were convicted upon tendered pleas of guilty to two separate charges: burglary of an occupied dwelling while armed with a firearm, with the making of an assault; and robbery without the use of a firearm or other deadly weapon. Appellants contend here that the trial court erred in departing from the recommended sentencing guidelines, Florida Rule of Criminal Procedure 3.701, In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), in sentencing the appellants to concurrent ten year prison terms, as well as in failing to justify the reasons for its departure from the sentencing guidelines with specificity sufficient to inform all parties of the factual basis for its departure. Finding both points to be without merit, we affirm.

Appellants were charged by a four-count information filed June 10, 1983, with burglary of a dwelling with a firearm, robbery with a firearm, and separate counts of attempted first degree murder. Appellants, along with a codefendant not involved in the instant appeal, robbed the victim at gunpoint in the victim’s residence around 2:00 A.M. on May 24, 1983. All three made their escape in the victim’s .automobile. Subsequently, at approximately 3:20 A.M. on the same evening, appellants were sighted driving the victim’s automobile by an observant Gainesville police officer responding to a BOLO. As a result, a chase ensued during which both appellants fired shots at the pursuing officer. One of these shots entered the open driver’s door window of the officer’s police car and blew out the window on the other side of the car. Later, the pursuing officer ran into a tree during the course of the pursuit. Appellants made their escape in a wooded area near the location of the officer’s accident, but were captured a few hours later in the apartment of a friend.

Appellants entered a negotiated plea in which appellants plead guilty to burglary of an occupied dwelling with a firearm and robbery without the use of a firearm or other deadly weapon. In exchange, the State agreed to nolle pros the pending attempted murder charges. Score sheets prepared for the purposes of determining a proper recommended sentence pursuant to the sentencing guidelines indicated a recommended sentence range for Garcia of between three and one-half to four and one-half years; for appellant Wilson, the recommended sentence range was three years.

At sentencing, the court chose to deviate from the sentencing guidelines, and sentenced each appellant to concurrent prison terms of ten years, with credit for time served. The trial judge indicated that the guidelines’ recommended sentence was inappropriate in each of appellants’ cases because of the threat to the personal safety of both citizens and law enforcement officers created by appellants’ unjustifiable conduct. The trial judge further stated his reasons for departing the sentencing guidelines in the written order of sentence: “Extreme risk to the physical safety of both citizens and law enforcement officers caused by the [appellants] during the perpetration and apprehension for this offense.” This appeal followed.

Appellants contend the trial court erred in considering the facts surrounding their apprehension as the basis for departure from the guidelines. They note that although they were originally charged with two counts of attempted first degree murder based on the fact that shots were fired at the pursuing police officer, the charges were later dropped as a result of plea negotiations. Therefore, they assert, no convictions were obtained for this offense, and Florida Rule of Criminal Procedure 3.701(d)(ll) prohibits the use of the underlying facts relating to the attempted murder charges which were dismissed. Rule 3.701(d)(ll) provided, in part, at the time of appellants’ sentencing (November 1983):

Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

Appellants contend that the “extreme risk” factor relied upon by the trial court was a factor relating either to the instant offenses for which appellants plead guilty below, or to their conduct culminating in the attempted murder charges which were nolle prossed. Appellants assert that since their conduct in firing shots at the pursuing police officer did not subsequently result in convictions, the trial court was prohibited by the rule from considering such behavior as a reason for departing from the guidelines. Appellants further argue that the “extreme risk” factor relating to the offenses for which they were convicted is equally inapplicable as a reason for departure. They urge that that risk factor noted by the trial court has already been taken into account by the sentencing commission in the formulation of the sentencing guidelines. Thus, since the offenses below were committed in a manner that the appellants characterize as “very ordinary,” the trial court’s allusion to the extreme risk of harm to the victim of the burglary and robbery cannot constitute “clear and convincing reasons” for departing from the guidelines’ recommended sentence.

Finally, appellants suggest that the trial court below violated the spirit if not the letter of Rule 3.701(d)(ll), which requires “any sentence outside of the guidelines [to be] accompanied by a written statement delineating the reasons for the departure.” Appellants maintain that the trial court below failed to adequately delineate its reasons for departing the sentencing guidelines. Rather, appellants assert that the trial court’s “terse [and] conclusory assertion” fails to “with sufficient specificity [inform] all parties, as well as the public, of the reasons for departure.” Florida Rule of Criminal Procedure 3.701(d)(ll), committee note. Appellants suggest that their right to appellate review has been curtailed by the trial court’s alleged lack of written specificity as to the reasons for its departure from the guidelines. We find these points raised by appellants to be without merit.

This case presents the issue specifically reserved by this court in its recent decision in Darryl Manning and James W. Phillips v. State of Florida, 452 So.2d 136 (Fla. 1st DCA 1984), that is, whether Rule 3.701(d)(ll) precludes the trial court’s consideration of charges which have been dismissed pursuant to a plea bargaining agreement as a factor justifying departure from the sentencing guidelines. As previously noted, Rule 3.701(d)(ll) contains a two-pronged prohibition: Factors relating to either the “instant offense,” or “prior arrests” for which convictions have not been obtained. Under appellants’ literal interpretation of this rule, the trial court’s departure from the guidelines was improper under either prong of the prohibition just noted. One of the factors relating to appellants’ apprehension and arrest undoubtedly was their firing of shots at the pursuing officer; but no convictions for the resulting attempted murder charges were secured. Although the appellants' actions in firing shots at the pursuing officer cannot literally be considered an element of the offenses appellants pled to, Section 810.02(3) and Section 812.13(c), nevertheless these actions taken shortly after the burglary and robbery, presumably while making their escape from the scene, may arguably be viewed as “relating to” these offenses. Under the broad view of the term “factors relating to the instant offenses” urged by appellants, nothing that occurred during the entire criminal episode, including events immediately following the actual commission of the offense, could be considered by the trial judge as justifying a departure from the guidelines unless conviction for a specific offense resulted. Further, as previously noted, appellants view the “extreme risk” factor relating to the offenses at the victim’s dwelling as already taken into account by the guidelines’ presumptive sentence range.

We reject the interpretation urged by appellants. In our view, the traditional discretion of a sentencing court to consider all facts and circumstances surrounding the criminal conduct of the accused has not been abrogated by adoption of the sentencing guidelines. Our interpretation is supported by language found within the guidelines themselves, as well as their underlying rationale. For example, the guidelines’ statement of purpose found at Rule 3.701(b)(6) provides: “The sentencing guidelines are designed to aid the [sentencing] judge in the sentencing decision and are not intended to usurp judicial discretion. ...” The function and purpose of the guidelines is further illuminated in the authoritative contemporary analysis by Sund-burg, Plante, and Braziel, Florida’s Initial Experience with Sentencing Guidelines, 11 Fla.St.U.L.Rev. 125, 150 (1983). The authors of this work report that during the multi-jurisdictional sentencing guidelines project instituted in 1981 and ending April 14, 1982:

... The trial judges were cautioned that at no time should sentencing guidelines be viewed as the final word in the sentencing process ... because a factor was not expressly delineated on the score sheet did not mean that it could not be used in the sentence decision making process. The specific circumstances of the offense could be used to either aggravate or mitigate the sentence within the guideline range or, if the offense or offender characteristics were sufficiently compelling, used as a basis for imposing a sentence outside of the guidelines. The only requirement was that the judge indicate the additional factors considered, (emphasis supplied)

Id. at 142. There is no evidence that the Sentencing Guidelines Commission did not postulate use of the guidelines by sentencing judges consistent with the intent expressed in the above emphasized language once the guidelines became operative statewide. Indeed, the intended function of the guidelines is reflected in Florida Rules of Criminal Procedure 3.701(b)(3): “The penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense.” (emphasis supplied)

Decisions from our sister courts show that we are in accord in our views that the trial courts ■ continue to have the same broad sentencing discretion conferred upon them under the general law, subject only to certain limitations or conditions imposed by the guidelines, which are to be narrowly construed so as to encroach as little as possible on the sentencing judge’s discretion, but whose specific directives we are required to recognize and enforce in a manner consistent with the guidelines’ stated goals and purposes. Thus, in Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984), opinion filed June 29,1984 [9 FLW 1385], in rejecting the contention that the trial court erred in relying upon the defendant’s record of prior juvenile dispositions more than three years old as grounds for a sentence beyond the guidelines range, the district court (opinion by Grimes, J.) stated: “There is nothing in Rule 3.701 to suggest that matters excluded for purposes of guideline computation cannot be considered as reasons for departure from the guidelines.” Id. at 1029. We note also the decision of the same court in Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984), regarding the proper standards for reviewing a trial court’s decision to sentence the defendant outside of the guidelines’ recommended sentence range. There the court found that the rule’s use of the term “clear and convincing reasons” for departing from the guideline’s recommended sentence , did not mandate that a reviewing court “reevaluate” the trial court’s exercise of sentencing discretion.

Rather, our role is to assure that there is no abuse of that discretion. Here the trial judge stated his basis for departing from the guidelines in writing and imposed a sentence within the statutory parameters. Given this factual situation, no abuse of discretion is shown.

Id. at 956.

The Fifth District, in Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), although finding that a defendant on probation was not under “legal restraint” under Rule 3.988(d)IV, so as to justify adding points to his score sheet, held a violation of probation may serve as a legitimate reason to exceed the presumptive sentence established by the guidelines. See also, Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984). Accord, Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984).

Finally, in our initial decision construing the “clear and convincing reasons” language of Rule 3.701(d)(ll), Manning v. State, supra, we held that the rule did not preclude departure from the guidelines where the defendants were convicted of multiple contemporaneous offenses and were characterized by the trial judge, in stating his reasons for departure, as being on a “crime binge” and a “two-man crime wave.” Thus, the Manning court clearly approved deviation from the guidelines based upon circumstances surrounding the offenses (occurring over a two-day period) as “factors attending the offenses for which appellants were convicted” (Id. at 137, fn. 1), even though certain of the charges constituting the “crime binge” were dismissed by the state. Similarly, we think the trial judge here was justified in departing from the guidelines because of “factors attending the offenses” for which convictions were obtained.

In the final analysis, we reject the notion, implicit in this and the mounting deluge of guidelines appeals, that there reposes in the language of the guidelines, either in the “clear and convincing reasons” terminology or elsewhere, a set of sentencing departure absolutes only awaiting the proper occasion for the appellate courts to reveal them on a ease-by-case basis. Rather, the guidelines are for the guidance of the trial court, as on the face thereof they are represented to be, and the appellate courts’ function is simply to enforce their proper application and to review departures by the trial courts to determine if there has been an abuse of discretion warranting reversal. See, Addison v. State, supra.

We find support for our holding that departure was justified here in State v. Norton, 328 N.W.2d 142 (Minn.1982). There, the defendant kidnapped his five year old victim from her front yard and transported her to a secluded location where he committed a sexual battery upon her. As a result of the defendant’s actions, the victim required psychological and psychiatric counseling. The trial court imposed a sentence more than twice the presumptive sentence established by the Minnesota sentencing guidelines for the crime for which he was charged. This was upheld by the Minnesota Supreme Court.

Minnesota, like Florida, utilizes a set of sentencing guidelines in the sentencing process. The Minnesota guidelines are “presumed to be appropriate for every case,” Minnesota’s Sentencing Guidelines and Commentary, Section II.D (1982 Supp.), unless the trial court finds “substantial and compelling” circumstances to aggravate or mitigate the guidelines’ presumptive sentence, based on a nonexclusive list of aggravating or mitigating factors. Id., Commentary, at Section II.D. The Minnesota guidelines’ avowed purpose is to “[impose] substantial limits upon judicial [sentencing] discretion,” 5 Hamline L.Rev. 165, 207 (1982). In upholding the trial court’s non-guidelines sentence in Norton, despite the Minnesota guidelines’ broadly stated purpose of severely restricting a sentencing judge’s discretion, the Minnesota Supreme Court relied on previous cases construing the Minnesota guidelines, stating that it was generally proper for a sentencing court to consider the conduct underlying a charge for which a criminal defendant stood convicted. Moreover, said the court, this general rule would hold true even where certain of the facts relied upon by the sentencing court to impose a nonguide-lines sentence were derived from conduct resulting in other offenses being charged but later dismissed. The court stated: “We believe that the sentencing court in sentencing on a [criminal] conviction should be permitted to consider what happened during the [crime],” citing State v. Garcia, 302 N.W.2d 643 (Minn.1981). Thus, we think the trial court in the case before us was correct in basing his durational departure from the sentencing guidelines on the stated reason.

Appellants’ second ground on appeal is frivolous. Rule 3.701(d)(ll) requires a “written statement” of the trial court’s reasons for not sentencing within the guideline range that has “sufficient specificity” to inform the parties and the public of the trial court’s reasons for said departure. Committee Note to paragraph (d)(ll). Examining the trial court’s written statement, as well as the record as a whole, see Manning v. State, supra, at 138 (Ervin, C.J., specially concurring), we find the rule to have been complied with here. Accordingly, the judgments and sentences appealed from are affirmed.

AFFIRMED.

WENTWORTH and WIGGINTON, JJ., concur.

      . The second shot was apparently fired by appellant Garcia immediately after both appellants alighted from their automobile near the scene of the pursuing officer’s accident.

      . See amendments to rule, The Florida Bar: ' Amendments to Rule of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla. 1984).

      . The Fourth District, in Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984), stated: "We hold that past criminal conduct which cannot be considered in computing the score sheet cannot be relied upon as justification for departure from the guidelines.” This statement considered in isolation would appear to run counter to the view expressed by the Second District in Weems v. State, supra. On the facts, however, the cases are distinguishable because the "criminal conduct” dealt with in Harvey consisted only of prior juvenile arrests, and convictions for minor vehicular and traffic violations.

      . By way of comparison, this court has on several occasions enforced the legislative mandate requiring trial courts to recognize the applicability of the guidelines to defendants before them for sentencing: Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984) (defendant on probation, revoked after effective date, entitled to be sentenced under the guidelines), and Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Harms v. State, 454 So.2d 689 (Fla. 1st DCA 1982) (willful failure to appear for sentencing until after effective date of guidelines not grounds for denial of applicability of guidelines to defendant), and Knight v. State, 455 So.2d 457 (Fla. 1st DCA 1984); Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984) (sentence outside guidelines reversed where trial court failed to state reasons for departure).

      . As for appellants' contention that the facts adduced below are indicative of an "ordinary” robbery for which they should receive the "ordinary” sentence posited by the sentencing guidelines’ range, we disagree. On the contrary, the reckless firing of a gun during a wild automobile chase while trying to avoid their arrest is precisely the sort of aggravating circumstance that constitutes a "clear and convincing reason” for departing the presumptive guidelines sentence. We also find nothing "ordinary” about a 2:00 A.M. burglary of a dwelling and the robbery and tying up of its occupant at gunpoint. In short, we find that the trial court was simply taking into account the "severity of the offense and the circumstances surrounding the offense,” as contemplated by Rule 3.701(b)(3), in deciding to sentence outside the guidelines.

      . The court in Norton recognized an exception to this general rule allowing consideration of the circumstances underlying the charge for which a criminal defendant is convicted. This exception applies where the defendant denies the factual basis for the aggravating factor relied on by a sentencing court. The court cited by way of example its decision in State v. Womack, 319 N.W.2d 17 (Minn.1982), where a sentencing court based its departure from the Minnesota sentencing guidelines applicable to that defendant on a dismissed assault charge for which the defendant maintained throughout an assertion of self-defense. Here, unlike Wom-ack, neither appellant denies the underlying factual basis for the nolle prossed attempted murder charges, to wit: firing shots from a hand gun during the automobile chase while attempting to elude pursuing officers. It is self-evident that firing shots during such an episode was correctly cited by the court as creating a "risk" to citizens and law enforcement officers, even in the absence of any specific intent to kill.


text:
    Doreen DISTASIO, Appellant, v. STATE of Florida, Appellee.
    No. AW-346.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.

      Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Lightbourne v. State, 438 So.2d 380 (Fla.1983).

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    SENTRY INSURANCE, a Mutual Company, Appellant, v. ESTATE of Robert F. RICHARDS, Appellee.
    No. 83-1694.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Rehearing Denied Sept. 11, 1984.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Roy D. Wasson, Miami, for appellant.
    Bedford & Whitelock and Gerald L. Bed-ford, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

We affirm the summary judgment awarding certain interest on an arbitration amount except that we modify it to the sum of $10,228.50.

Affirmed as modified.


author: ANSTEAD, Chief Judge.

text:
    George BYAM, Appellant, v. Richard KLOPCICH, Appellee.
    No. 82-376.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    I. Jeffrey Pheterson of Vassallo, Pheter-son & Sack, P.A., Lake Worth, for appellant.

      Lee B. Sayler of Girvin & Sayler, Jupiter, for appellee.
   OPINION ON REHEARING

ANSTEAD, Chief Judge.

We grant rehearing, withdraw our previous opinion, and now reverse the summary judgment entered below relying on the same reasoning applied in the recent decision of the Second District in Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2d DCA 1984).

We, of course, in reviewing the grant of a summary judgment, must construe the facts and inferences based thereon most favorably to the appellant. The alleged contract in this ease, entered into on September 15, 1980, appears to be an employment contract of indefinite duration. According to the appellant, the appellee agreed to pay the appellant the greater of $500 or 20 percent of sales per week, and the appellant agreed to work for the appel-lee. Such a contract is not within the Statute of Frauds because nothing indicates that the contract was other than a contract for an indefinite period. To construe the contract otherwise would be tantamount to permitting a person, in good faith reliance upon another’s promise to pay, to work for almost a full year without compensation for his labor.

The general rule is that an oral contract for an indefinite time is not barred by the Statute of Frauds. Restatement (Second) of Contracts § 130, comment (a) (1981); Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937). Only if a contract could not possibly be performed within one year would it fall within the statute. Yates; Gulf Solar. An example of such a contract was involved in First Realty Investment Corp. v. Gallaher, 345 So.2d 1088 (Fla.3d DCA 1977). In that case the court held that the contract was not intended to be performed within one year because the contract gave one party a share of the profits but profits were not expected for sixteen months. That is simply not the situation involved herein. The facts of this case are virtually identical to those involved in Gulf Solar wherein the Second District approved the trial court’s award of damages predicated upon the breach of an oral contract of employment similar to that involved herein:

No error was committed by the denial of the motion for summary judgment. While the parties may have expected Westfall to remain with Gulf Solar for some unknown period of time, Gulf Solar had no obligation to retain Westfall’s services and Westfall had no obligation to remain in Gulf Solar’s employment for any definite time period. Apparently, Westfall would be retained by Gulf Solar for as long as his performance merited his retention in the view of Gulf Solar.

447 So.2d at 365.

Accordingly, we grant rehearing, reverse the summary judgment entered below and remand this cause for further proceedings consistent herewith.

HURLEY, J., and SHAHOOD, GEORGE, Associate Judge, concur.


text:
    John F. PEARCE, as Co-Personal Representative of the Estate of Austin Pearce, Appellant, v. Juanita FOSTER, John Austin Collier, Juanell Peeples, Rosa Lee Pearce, and D.L. Pearce, Appellees.
    No. 83-1038.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Rehearing Denied Sept. 18, 1984.

      Ronald L. Collier and Jeffrey S. Russell of Abel, Band, Brown, Russell & Collier, Chartered, Sarasota, for appellant.
    Anthony T. Young, Okeechobee, for ap-pellees — Juanita Foster and John Austin Collier.
   ON MOTION TO DISMISS

PER CURIAM.

Appellant, in his capacity as co-personal representative of the estate of Austin Pearce, seeks to appeal an order revoking probate of a will, dated September 8, 1980. We decline to reach the merits because we discern a deficiency in appellant’s ability to prosecute this appeal.

Appellant filed the notice of appeal without obtaining the concurrence of the co-personal representative, Juanell P. Peeples. Appellee Peeples has challenged this unilateral action by filing a motion to dismiss or quash the appeal. She claims that appellant’s unilateral action contravenes section 733.615, Florida Statutes (1983), which provides that:

If two or more persons are appointed joint personal representatives, and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any joint personal representative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a joint personal representative has been delegated to act for the others.

Since none of the exceptions noted in the statute is applicable in this case, appellant may not act alone. See Messina v. Scionti, 406 So.2d 529 (Fla.2d DCA 1981). Nonetheless, at this time, we decline to dismiss the appeal. Rather, we relinquish jurisdiction to the trial court to conduct an eviden-tiary hearing to determine whether appel-lee’s refusal to join in this appeal constitutes cause for her removal pursuant to section 733.504, Florida Statutes (1983). Should the trial court find cause for removal, appellant would be authorized to proceed with this appeal. Cf. In re Estate of Goldner, 389 So.2d 334 (Fla. 4th DCA 1980). In any event, we respectfully request that the trial court furnish us with a copy of the order entered on remand.

REMANDED WITH INSTRUCTIONS.

HURLEY, DELL and WALDEN, JJ., concur.

      . Section 733.504, Florida Statutes (1983), provides:
      Causes of removal of personal representative. —A personal representative may be removed and his letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:
      (1) Adjudication of incompetency.
      (2) Physical or mental incapacity rendering him incapable of the discharge of his duties.
      (3) Failure to comply with any order of the court, unless the order has been superseded on appeal.
      (4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
      (5) The wasting or maladministration of the estate.
      (6) Failure to give bond or security for any purpose.

        (7) Conviction of a felony.
      (8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal representative.
      (9) The holding or acquiring by the personal representative of conflicting or adverse interests against the estate that will or may adversely interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code.
      (10) Revocation of the probate of the decedent’s will that authorized or designated the appointment of such personal representative.
      (11) Removal of domicile from Florida, if the personal representative is no longer qualified under part III of this chapter.


author: MILLS, Judge.

text:
    Lucynthia BIVINS, Appellant, v. STATE of Florida, Appellee.
    No. AV-130.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us on briefs filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although we find no reversible error on the merits of the appeal, we note a discrepancy between the oral pronouncement of sentence and the written imposition thereof. By oral pronouncement, the court imposed a ten-year sentence, to be suspended after six years; the written imposition of sentence indicated the suspension was to occur after seven years. Because the written sentence is merely a record of the actual sentence pronounced in open court, Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982), the court’s written order must be corrected to conform to the oral pronouncement of judgment and sentence. See Yates v. State, 429 So.2d 815 (Fla. 2d DCA 1983); Timmons v. State, 453 So.2d 143 (Fla. 1st DCA 1984). Therefore, the written sentence is reversed and the case remanded for correction of that sentence to conform to the oral pronouncement of sentence by the court. The judgment is in all other respects affirmed.

BOOTH and BARFIELD, JJ., concur.


text:
    ORANGE-CO OF FLORIDA and Liberty Mutual Insurance Company, Appellants, v. Antoinette WALDROP, Appellee.
    No. AW-500.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    David J. Williams and Manuella C. Napier of Lane, Trohn, Clarke, Bertrand & Williams, P.A., Lakeland, for appellants.
    Richard R. Roach, Jr., of Woods, Murray & Roach, P.A., Lakeland, for appellee.
   MILLS, Judge.

Orange-Co of Florida and Liberty Mutual Insurance Company (E/C) appeal from a workers’ compensation order determining, among other things, Waldrop’s average weekly wage. We find merit in the E/C’s contention that the average weekly wage was erroneously based on a contract of employment and reverse on that issue. In all other respects, we affirm.

The deputy stated in his order:

I find the claimant had an average weekly wage at the time of her accident of $146.80 per week. I base this finding on her testimony that she was earning $3.67 per hour and I base it also on the employer and carrier’s wage statement which confirms that earnings. The employee testified that she was hired to work 40 hours a week, there being absolutely no other testimony, I accept that as the contract rate. In other words, $3.67 for a 40 hour week or $146.80, giving her a compensation rate of $92.87 per week.

Clearly, the deputy applied Section 440.14(l)(d), Florida Statutes (1983), which provides for the determination of an average weekly wage based on the full-time weekly wages of the injured employee. Under this provision, full-time weekly wages must be determined prospectively by using either the contract of employment or the claimant’s actual earnings. Bruck v. Glen Johnson, Inc., 418 So.2d 1209, 1211 (Fla. 1st DCA 1982). The E/C points out, and we agree, that despite the deputy’s finding of a contract of employment for 40 hours per week, there is nothing in the record indicating a contract of employment for any period of time. Waldrop’s full-time weekly wages, therefore, should have been determined using her actual earnings as set out in the wage statement furnished by the E/C and admitted into evidence without objection. We hasten to add that this does not mean the average weekly wage must be determined by simply dividing the total number of weeks worked immediately before the injury into the wages paid during that time. The deputy’s duty is to reasonably and fairly determine average weekly wage. Florida Cast Stone v. Dehart, 418 So.2d 1271 (Fla. 1st DCA 1982).

That part of the order determining average weekly wage is reversed and the cause remanded for a determination of average weekly wage consistent with this opinion.

BOOTH and BARFIELD, JJ., concur.


text:
    Wayne T. HOUGHTON, Appellant, v. STATE of Florida, Appellee.
    No. AZ-19.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1984.
    Wayne T. Houghton, pro se.
    No appearance for appellee.
   MILLS, Judge.

Houghton appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. In his motion, Houghton alleges his attorney promised him he would be put on probation if he pleaded guilty. Houghton alleges that, in fact, he was sentenced to 30 months imprisonment following his plea of guilty.

A guilty plea induced by a promise of defense counsel that is not kept is involuntary. Ream v. State, 449 So.2d 960 (Fla. 4th DCA 1984). Because the motion is a facially sufficient challenge to the voluntar-iness of Houghton’s guilty plea, this cause is reversed and remanded with directions to the trial court to conduct an evidentiary hearing or to attach portions of the record conclusively showing Houghton is entitled to no relief.

Reversed and remanded with directions.

BOOTH and BARFIELD, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Darma L. CHILES, Appellant, v. STATE of Florida, Appellee.
    No. 83-214.
    District Court of Appeal of FlOrida, Fifth District.
    Aug. 16, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Darma Chiles appeals from an order revoking his probation. After Chiles was charged with violating his probation, he executed an affidavit of insolvency and was referred to the Public Defender. A few days later Chiles filed a pro se motion to dismiss his attorney alleging that appointed counsel was not doing enough for his case and that a conflict of interest existed. The trial court summarily denied this motion at the beginning of the revocation hearing.

The issue involved is whether the trial court erred in summarily denying Chiles’ motion. In denying the motion, the trial judge stated:

I see no matters contained in that motion that constitute a legal cause to dismiss Mr. Saunders as your Court appointed counsel in this matter.
If you are to have a Court appointed counsel provided for you, that court appointed counsel is going to be the Office of the Public Defender, and they have designated Mr. Saunders to represent you in this matter.

It is well established that the right of an indigent to appointed counsel includes the right to effective representation by such counsel. Nelson v. State, 274 So.2d 256, 257 (Fla. 4th DCA 1973). In Nelson, the Fourth District set forth the following procedures which a trial court should follow when a defendant requests the discharge of his court-appointed counsel prior to trial:

[W]here a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent’s right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

274 So.2d at 258-59. The trial court’s failure to follow this procedure requires that the order of revocation be reversed and that Chiles be afforded a new hearing. Nelson. See also Parker v. State, 423 So.2d 553 (Fla. 1st DCA 1982).

If the judge concluded that no reasonable basis existed for a finding of ineffective assistance, he should have informed Chiles that if he discharged counsel, the state would not be required to appoint a substitute. See Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983). Had this procedure been followed and Chiles been advised that substitute counsel would not be appointed, he could have insisted on dismissal of Saunders and chosen to exercise his right to represent himself provided his demand to do so was unequivocal. See Raulerson v. State, 437 So.2d 1105 (Fla. 1983) and Frazier v. State, 453 So.2d 95 (Fla. 5th DCA 1984). In this case, the procedure outlined in Nelson was not followed and in summarily denying Chiles’ motion, the trial judge indicated to Chiles that his only course was to accept Saunders as his advocate.

The order of revocation is REVERSED and the cause REMANDED for a new hearing.

COBB C.J., and ORFINGER, J., concur.

      . We are not confronted in this case with the question of whether Chiles was entitled to appointed counsel at the revocation hearing. Suffice it to say that the trial court appointed counsel in this case. The district courts of appeal are currently split over whether probationers are per se entitled to appointed counsel at revocation proceedings, with the Second and Fourth districts holding they are, see Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984) and Mullins v.

        State, 438 So.2d 908 (Fla. 2d DCA 1983) and the First holding they are not. See Sanderson v. State, 447 So.2d 374 (Fla. 1st DCA 1984) and Holmes v. State, 448 So.2d 1070 (Fla. 1st DCA 1984).