text:
    William A. HUMBER and Dorothy Humber, his wife, Appellants, v. Thomas ROSS, M.D., etc., et al., Appellees.
    No. 83-839.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Karen Dean of William de Forest Thompson, P.A., Fort Lauderdale, and Edna L. Caruso, P.A., West Palm Beach, for appellants.

      Marjorie Gadarian Graham, Jones & Foster, P.A., West Palm Beach, for appellee, Fla. Patient’s Compensation Fund.
    Stanley Marcus, U.S. Atty., and Maria P. Sperando, Asst. U.S. Atty., Miami, for in-tervenor, Veterans Admin.
   DAUKSCH, JAMES C., Jr., Associate Judge.

This matter is before us for review of an order dismissing a medical malpractice case. The complaint alleged a physician and a hospital injured a patient by failing to properly care for him. After the suit was instituted the plaintiff amended the complaint to include the Florida Patient’s Compensation Fund in order to obtain from the Fund a portion of the damages sought for the injuries.

In its motion to dismiss, the Fund told the court the action was barred by the applicable statute of limitations. The court agreed and entered the order. This was error because the complaint does not show on the face of it that the statute had run and it is to the complaint only that the court can look when considering a motion to dismiss the complaint. Estate of James v. Martin Memorial Hospital, 422 So.2d 1043 (Fla. 4th DCA 1982); and Government Employees Insurance Co. v. Wheelus, 319 So.2d 181 (Fla. 4th DCA 1975).

The order is reversed and this cause remanded for further proceedings.

REVERSED AND REMANDED.

DOWNEY, J., and PURDY, H. MARK, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM. GLICKSTEIN, Judge,

license: Public Domain

text:
    Linda Gail LINDSEY, Petitioner, v. H.M. RAULERSON, Junior, Memorial Hospital and Trinidad Garcia, M.D., individually, jointly and severally, Respondents.
    Nos. 83-1508, 83-2407.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Law Firm of Fine, Farkash & Parlapiano, Gainesville, and Stephen T. Brown of Pred-dy, Kutner & Hardy, Miami, for petitioner.
    Nancy P. Phillips, West Palm Beach, for respondent hospital.

      Carolyn J. Bingham, Miami, and Robert D. McAliley, West Palm Beach, for respondent Garcia.
   PER CURIAM.

This is a petition for writ of certiorari which addresses the trial court’s denial of petitioner’s motion to amend her complaint to substitute Dr. Manuel Garcia for Dr. Trinidad Garcia as the proper defendant after the statute of limitations had run as to Dr. Manuel Garcia.

The facts reflect that petitioner received a gunshot wound to her stomach, and went to Raulerson Hospital for treatment. Surgery was performed at the hospital by Dr. Manuel Garcia, with his wife, Dr. Trinidad Garcia, assisting. The two doctors practiced as Garcia & Garcia, M.D.’s, P.A. Upon her release from the hospital, petitioner developed complications which required further hospitalization and surgery and caused permanent injuries.

Maintaining that the complications were caused by medical negligence, petitioner retained her former counsel, who sent a letter to Dr. Manuel Garcia, advising him of the possible claim against him. Dr. Manuel Garcia referred the letter to legal counsel for his malpractice insurance carrier. When suit was instituted, however, petitioner’s prior counsel named Dr. Trinidad Garcia as the defendant and process was served on that doctor, who answered and prepared to defend the action. At petitioner’s deposition, she learned that she was suing the assisting surgeon, a female, instead of the male lead surgeon. Thereupon, petitioner unsuccessfully sought the above amendment to the pleadings.

The parties’ briefs present the issue whether petitioner should have been allowed to amend her complaint, deleting the named physician and substituting her husband as a defendant despite the running of the statutory limitation period. We find, however, a more troublesome initial question involved here: the propriety of permitting Dr. Trinidad Garcia to defeat the petitioner’s motion by raising a defense that went not to the claim against herself, but against Dr. Manuel Garcia. One might expect a party to support a motion that would result in her dismissal as a defendant in a lawsuit, rather than to actively oppose it. However, here the two defendants are husband and wife as well as shareholders in their P.A.; and we can perceive the wife’s possible strategy of waiting until the statute had run in order to protect her husband/co-shareholder (and perhaps herself indirectly). The trial court, nevertheless, improperly permitted Trinidad Garcia to raise Manuel Garcia’s defense. The appropriate course would have been to allow the amendment and permit Dr. Manuel Garcia to raise the statute of limitations once he had been served, if he desired. For this reason, we vacate the trial court’s order denying petitioner’s motion to amend and remand for entry of the desired amendment, subject to the husband’s right to raise the defense.

BERANEK and WALDEN, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

I agree with the reversal based solely upon Dr. Trinidad Garcia’s lack of standing. However, in order to avoid further imposition upon an already overburdened trial judge, I make some additional, nonbinding observations on the underlying issue. The question presented here is whether the attempted amendment should relate back to the filing of original, timely complaint as correction of a misnomer, or whether the new complaint would amount to institution of a new cause of action after the statute has run.

A holding either way would have merit. In choosing between them, it is important to consider the purpose of the statute of limitations. The Third District Court of Appeal, in Thermo Air Contractors, Inc. v. Travelers Indemnity Company, 277 So.2d 47, 48 (Fla. 3d DCA 1973), an appeal by a surety belatedly joined as a party defendant, observed that the point of a statute of limitations is “to set a time limit within which a suit should be brought so that the parties involved will be on notice within the statutory time.” The court went on to note that the surety knew of the suit and of its possible liability and joinder, holding that the lower court was required to allow amendment of the complaint to add the surety company. This court, in Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA), cert. denied, 238 So.2d 109 (Fla.1970), reversed an order of the trial court refusing to allow amendment of a complaint naming a husband and wife as individuals in place of the corporate shell initially named. This court reasoned that the husband knew of the suit from the beginning and was aware of the plaintiff's mistake; and that the proper party was therefore before the court although he had been misnamed. Regarding the wife, the court did not impute notice of the pending suit from the mere fact of the marital relationship, but said that she could also be joined if the lower court found she had actual knowledge of it. Id. at 411. Other cases in this area have re-emphasized that the critical factor is whether the party knew of the impending suit within the statutory period, see, e.g., Hohl v. Croom Motorcross, Inc., 358 So.2d 241 (Fla. 2d DCA 1978); Rubenstein v. Burleigh House, Inc., 305 So.2d 311 (Fla. 3d DCA 1974).

As in Galuppi, I would not impute to the husband notice of suit merely because it was served upon his wife. Such imputation is unnecessary, for the record contains evidence of Dr. Garcia’s awareness of the lawsuit: the notice of claim letter and his acknowledgement referring the matter to his malpractice insuror. Under such circumstances, the following thought of Justice Holmes in New York Central & Hudson River RR v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 123, 67 L.Ed. 294, 296 (1922), quoted in Argenbright v. J.M. Fields Company, 196 So.2d 190, 194 (Fla. 3d DCA), cert. denied, 201 So.2d 895 (Fla.1967), is very appropriate:

[W]hen a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of the opinion that a liberal rule should be applied.

Because we cannot determine a party’s rights before he is ever brought into the case, these principles are intended for instructional purposes only. I venture to advance them because the full treatment rendered by the parties’ briefs supplies a sufficient basis for analysis. Obviously, Dr. Manuel Garcia can bring new matters to the trial court’s attention after he is brought into the case, should he choose to do so.


author: DELL, Judge.

text:
    CITY OF PORT ST. LUCIE, a municipal corporation, Appellant, v. Orville PARKS and Louise Parks, his wife, Appellees.
    No. 83-1591.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.

      Roger G. Orr of Gilbert & Orr, P.A., Port Pierce, for appellant.
    Douglas E. Gonano and Michael Jeffries of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellees.
   DELL, Judge.

The City of Port St. Lucie appeals an order finding a taking by inverse condemnation.

In September of 1979, appellees purchased a lot in the City of Port St. Lucie and built a model home. Appellees had direct access to Port St. Lucie Boulevard by traveling over Cane Slough Road. In 1981, appellant realigned the roads and terminated appellees’ access to Port St. Lucie Boulevard from Cane Slough Road. Cane Slough Road became a dead end street with a hammerhead turnaround in front of ap-pellees’ property. Appellees filed suit and alleged that appellant’s actions constituted a taking which entitled them to compensation. The court found that appellant’s actions “resulted in an unreasonable interference with access to the property and did result in a substantial inverse condemnation.”

Appellant challenges the sufficiency of the evidence supporting the finding of a taking. Appellant recognizes that “[e]ase and facility of access constitute valuable property rights for which an owner is entitled to be adequately compensated.” State Department of Transportation v. Stubbs, 285 So.2d 1, 3 (Fla.1973). However, appellant argues that “[t]he fact that a person loses his most convenient method of access is not such damage which is different in kind from damages sustained by the community at large where his property has suitable access from another street even though the alternate route is longer.” Pinellas County v. Austin, 323 So.2d 6, 8-9 (Fla. 2d DCA 1975). Thus appellant contends the evidence is insufficient to support a finding of a taking because appellees merely lost their most convenient method of access.

Appellees maintain there has been an unreasonable interference with the quality of the access to their property which entitles them to compensation. They rely on Austin for the proposition that they do not have to establish a total deprivation of access, but rather that they only need to show a diminishment in the quality of access.

In Austin, the county vacated a street and affected access to the Austins’ property. The court stated:

[I]t must be conceded that the Austins were not totally deprived of access to their property. Nevertheless, the quality of their access was diminished. The old wooden bridge was not adequate to support heavy vehicular traffic, such as garbage trucks or fire trucks. Regardless of whether the platted street touches the Austin property at the northeast corner, there is no road there, and, even if you could get in, it would then be necessary to cut down trees and drive through some nursery stock in order to have effective access to the bulk of the tract. On balance, we believe the record is sufficient to support the conclusion that the Austins suffered a sufficient impairment of their right of access as to be different in kind from the public at large. The existence of the other possible means of access may reduce the amount of the recovery, but because of the limitations upon the other access, the Austins are entitled to be compensated for the loss suffered by the vacation of the streets in question.

Id. at 9.

Diminishment in the quality of access therefore means an actual impairment which results in some deprivation to the property, but does not include mere inconvenience.

In the case sub judice, appellee Parks testified that the termination of access to and from Port St. Lucie Boulevard causes inconvenience to the truck drivers because it is difficult to turn the larger trucks around on Cane Slough Road. However, he also admitted that the property has not been deprived of any services as a result of the termination. Although appel-lees have lost the most convenient access to the property, mere inconvenience without actual impairment is not compensable. Therefore, we hold that appellee presented insufficient evidence to establish a compen-sable loss and we reverse the order of the trial court which found that a. taking occurred.

REVERSED.

HERSEY and GLICKSTEIN, JJ., concur.


author: ANSTEAD, Chief Judge.

text:
    Laura RATHMANN, Appellant, v. PACESETTER INDUSTRIES, INC., and Unemployment Appeals Commission, Appellees.
    No. 83-1602.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Stephen J. King of Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    Larry D. Scott, Tallahassee, for appellee, Unemployment Appeals Com’n.
   ANSTEAD, Chief Judge.

We reverse and remand this cause to the Unemployment Appeals Commission with directions that the matter be remanded for reconsideration by the same hearing officer who originally heard appellant’s claim or, alternatively, assuming that the same hearing officer is unavailable, that the matter be remanded for a new hearing before a hearing officer who will have an opportunity to consider the live testimony of the witnesses.

This cause was originally reversed and remanded by the Commission for specific findings of fact relating to the issue of appellant’s termination of employment. In particular the hearing examiner was instructed to consider certain evidence presented by the appellant which conflicted with the employer’s evidence, and to set forth in writing the rationale by which the hearing officer resolved the conflict. In particular the order provided:

According to the claimant, the employer engaged in questionable accounting practices and also engaged in offensive physical contact with her. The “appeals referee in an administrative proceeding is the trier of fact, and he or she is privileged to weigh and reject conflicting evidence.” David Clark & Associates, Inc., v. Kennedy, 390 So.2d 149, 151 (Fla. 1st DCA 1980). The Referee, however, must include in the decision the means by which conflicting evidence presented by the parties was resolved.
The decision under review does not refer to or address the allegations of offensive physical contact or questionable accounting practices even though copious testimony on this subject was presented at the hearing. Such evidence is relevant to the question of whether good cause for quitting existed; consequently, it was error for the Referee not to consider it.

Unfortunately, upon remand a different hearing officer was assigned to the case and he decided the case on the basis of the existing printed record. We believe that to be error. Section 120.57(l)(b)(4), Florida Statutes (1981), provides that all parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence. We do not believe the provisions of that section are satisfied under the circumstances of this case. Clearly the Commission contemplated the hearing examiner acting in his traditional role as the trier of fact to weigh the evidence, resolve conflicts in the evidence, and evaluate the credibility of the witnesses. Section 120.57(l)(b)(4) contemplates that this be done in a live trial setting. If the original hearing officer had reconsidered the record, having already participated in the live hearing, and rendered a decision resolving the conflicts, that would have concluded the matter. But we do not believe a successor examiner can perform that same function, considering simply the printed record, anymore than we could or should perform that function when considering the case on review.

GLICKSTEIN, J., concurs.

WALDEN, J., dissents without opinion.


author: HERSEY, Judge.

text:
    FRANK MAIO GENERAL CONTRACTOR, INC., a Florida corporation, and St. Paul Fire and Marine Insurance Company, a foreign corporation, Appellants, v. CONSOLIDATED ELECTRIC SUPPLY, INC., a Florida corporation, Appellee.
    No. 83-2335.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.

      Howard Todd Jaffe of Kaplan, Jaffe & Gates, P.A., Hollywood, for appellants.
    Donald F. Wright of Wright, Fulford & Winslow, Orlando, for appellee.
   HERSEY, Judge.

Appellant, general contractor, appeals from a judgment rendered in favor of appellee, material supplier, entered despite execution by appellee of partial waivers and an ultimate Final Release that clearly and unambiguously acknowledged prior payment in full. This was error. The unambiguous terms of a release may not be avoided on the basis of unilateral mistake (such as where the lienor intends it to apply only to indebtedness accrued between certain dates). Hurt v. Leatherby Insurance Co., 354 So.2d 918 (Fla. 4th DCA 1978). Further, a court may not indulge in “construction” of a release that is clear and unambiguous on its face. Hurt v. Leatherby Insurance Co., 380 So.2d 432 (Fla.1980). Appellant was entitled to final judgment in its favor (and that of its surety).

REVERSED AND REMANDED.

LETTS and BERANEK, JJ., concur.


author: LEHAN, Judge.

text:
    Charles R. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2432.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant was convicted of battery on a law enforcement officer. On appeal defendant contends that the trial court erred in denying the motion for judgment of acquittal because the defendant was intoxicated and battery on a law enforcement officer is a specific intent crime to which intoxication is a defense. We affirm. Regardless of whether battery on a law enforcement officer is a specific intent crime, the question of whether defendant’s intoxication negated his intent was for the jury. Harris v. State, 415 So.2d 135 (Fla. 5th DCA 1982). The jury was instructed on the defense of intoxication and could have concluded that defendant was not intoxicated at the time he committed the offense. The fact that defendant was taken into custody under the aegis of the Myers Act, section 396.072(1), Florida Statutes (1983), did not necessarily foreclose a jury determination that he was not intoxicated.

As to whether battery on a law enforcement officer is a specific intent crime, we conclude that it is. Russell v. State, 373 So.2d 97 (Fla. 2d DCA 1979). Linehan v. State, 442 So.2d 244 (Fla. 2d DCA 1983), discusses the often nebulous distinction between specific intent crimes and general intent crimes and explains why the mere inclusion of words like “intentionally” and “willfully” in a statutory definition of a crime does not ipso facto make the crime a specific intent crime. In Linehan we receded from Russell only “[t]o the extent that Russell ... may appear to be inconsistent with our present holding.” Linehan at 251. Russell was inconsistent with Linehan to the extent that “Russell found that the inclusion of the word ‘intentionally’ in section 784.03, Florida Statutes (1977), made battery a specific intent crime to which voluntary intoxication was a defense.” Linehan at 251. Battery on a law enforcement officer is a specific intent crime, as Russell holds, because the crime prohibited is “an act ... accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act.” Linehan at 247. It is “a crime encompassing a requirement of a subjective intent to accomplish a statutorily prohibited result,” Linehan at 248, to wit, not simply battery but battery on a law enforcement officer. The battery on a law enforcement officer statute, section 784.07, Florida Statutes (1983), requires that the perpetrator knowingly commit the offense on a law enforcement officer. On the other hand, “[a] person’s subjective intent to cause the particular result is irrelevant to general intent crimes_” Linehan at 248.

AFFIRMED.

BOARDMAN, A.C.J., and DANAHY, J., concur.


text:
    STATE of Florida, Appellant, v. Larry Wayne CAMPBELL, Appellee.
    No. 83-2459.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellee.
   LEHAN, Judge.

This case involves the novel question of whether the placing of a case on an “absentee docket” and the failure to thereafter refile an information against defendant before trial deprived the trial court of jurisdiction at defendant’s trial. The able trial court, after giving obviously careful consideration to the matter, dismissed the case for lack of jurisdiction. However, we conclude that we must reverse.

Defendant contends that the practice in Hillsborough County of putting a case on an absentee docket constitutes ipso facto a nolle prosequi by the state. We disagree. A nolle prosequi may be generally defined as the state’s unwillingness to prosecute. Wilson v. Renfroe, 91 So.2d 857 (Fla.1956); Allied Fidelity Insurance Co. v. State, 408 So.2d 756 (Fla. 3d DCA 1982); Gatto v. Publix Supermarkets, Inc., 387 So.2d 377 (Fla. 3d DCA 1980). In this case, prior to placing the case on the absentee docket, there was a comment by the prosecutor relative to the state’s inability to go forward. But we conclude from that statement and from the placing of the case on the absentee docket, rather than the filing of a nolle prosequi, that there was no expressed unwillingness to prosecute, only an unwillingness to have the case set for trial and to go to trial during a particular time period. We find no prohibition against the practice of taking a case off of the list of “active” cases ready to be set for trial, which was the effect of the state’s action here. No speedy trial considerations were involved.

We do not find under the facts of this case that the lack of a more formal adoption by the circuit court of a rule permitting absentee dockets caused the practice of delaying the setting of trial, which was all that was done here, to be an act discharging the defendant. While formal court rules are required for various procedures, it is, of course, unrealistic to con-elude that they are required for each and every administrative or clerical act of a court.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

BOARDMAN, A.C.J., and DANAHY, J., concur.


author: RYDER, Chief Judge.

text:
    Larry D. BELTZ, Appellant, v. HAZLETT ENTERPRISES, a/k/a Hazlett Enterprises, Inc., d/b/a Dean L. Hazlett and Humpe Roney, Inc., Appellees.
    No. 83-2528.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.
    Steven C. Ruth of L.D. Beltz & Associates, St. Petersburg, for appellant.
    Clifford Scott Brainard and Leonard S. Englander of Englander, Schachter, Brai-nard, DiSano & Leeds, P.A., Largo, for appellee Hazlett Enterprises.
   RYDER, Chief Judge.

Larry D. Beltz, plaintiff below, appeals from a summary judgment entered in favor of appellee Hazlett Enterprises (Hazlett). In April 1982, Beltz entered into a real estate contract to purchase certain property from Hazlett. Paragraph 12 of the contract provided, inter alia, “Seller agrees to furnish Purchaser a written statement of a licensed and bonded termite company, stating whether there is any infestation on said property.” When Beltz received the report, however, it stated only that there was no “visible” termite damage observed. Beltz refused to close on the contract because the termite report was not from a bonded company and it failed to state whether there was any termite infestation.

In response to an interpleader action filed by the real estate broker who held Beltz’s deposit on the property, both parties cross-claimed against each other claiming entitlement to the deposit monies. Subsequently, both parties filed motions for summary judgment. The trial court granted Hazlett’s motion and denied Beltz’s motion. We reverse.

There is no dispute that the termite company that furnished the report was not a bonded company. Furthermore, the contract plainly required a termite report which stated whether there was any termite infestation on the property, not limited to visible infestation. The contract which was prepared by Hazlett’s agent must be construed against Hazlett. The trial judge abused his discretion when he entered summary judgment for Hazlett, thereby implicitly varying the terms of the contract to require a lesser termite report than that to which the parties agreed. We hold that the contract was clear and unambiguous, therefore, the trial court could not give it a different meaning. Hamilton Construction Co. v. Board of Public Instruction, 65 So.2d 729 (Fla.1953); Bay Management, Inc. v. Beau Monde, Inc., 366 So.2d 788 (Fla. 2d DCA 1978). Moreover, Beltz is entitled to summary judgment in his favor as there are not genuine issues of material fact to be decided and, as a matter of law, Hazlett breached the contract by supplying a termite report not complying with its terms.

REVERSED and REMANDED with instructions to set aside the summary judgment previously entered in favor of Hazlett and to enter a final summary judgment in favor of Beltz.

GRIMES and LEHAN, JJ., concur.


author: DANAHY, Judge.

text:
    Henry Lee WYNN, Appellant, v. STATE of Florida, Appellee.
    No. 84-416.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.
    Henry Lee Wynn, pro se.
   DANAHY, Judge.

The appellant appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. He set forth three grounds for relief in his motion. The allegations with respect to ground 1, that the appellant’s guilty plea was entered involuntarily because the appellant was not advised fully of the consequences of that plea, might entitle the appellant to relief. The trial court, however, failed to conduct an eviden-tiary hearing or attach portions of the record which refute the appellant’s allegations.

The trial court was correct in summarily denying the appellant’s motion as to the other grounds asserted therein.

Accordingly, we reverse in part the trial court’s denial of the appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegations regarding ground 1 and attach to its order those portions of the record which conclusively show that the appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegations set forth in the motion as ground 1. Fla.R. Crim.P. 3.850; Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

BOARDMAN, A.C.J., and LEHAN, J., concur.


author: PER CURIAM.

text:
    John Terry MASON, Appellant, v. STATE of Florida, Appellee.
    No. 83-386.
    District Court of Appeal of Florida, Fifth District.
    July 12, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

See State v. Baker, 452 So.2d 927 (Fla.1984).

AFFIRMED.

DAUKSCH, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: PER CURIAM. COWART, Judge,

text:
    Linda Gayle ROYAL and William Ellison, Appellants, v. STATE of Florida, Appellee.
    Nos. 82-1050, 82-1055.
    District Court of Appeal of Florida, Fifth District.
    July 19, 1984.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant Linda Gayle Royal.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant William Ellison.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This criminal ease concerns the definition of a “taking” as that term is used in the robbery statutes. Appellants Royal and Ellison were observed in a department store placing clothing in a plastic garbage bag. As appellants proceeded past the cash register and toward the front door a store detective, Ricciardone, attempted to deter them and was pushed aside by Ellison. Appellants left the store and were getting into an automobile outside when the store detective and two other store employees, Morris and Cox, attempted to recover the clothing and to detain appellants. As Morris attempted to grab the ignition key Ellison hit Morris. As Cox was pulling at Ellison in the automobile, Royal produced a pistol and pointed it at Cox’s forehead. The three store employees retreated. The ignition key having become bent and useless appellants fled on foot and were apprehended. The pistol was found in the automobile but there was no evidence that it had been carried into the store. Appellants were found guilty of robbery while carrying a deadly weapon and appeal.

Section 812.13(1), Florida Statutes (1981), provides:

“Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault or putting in fear.

Appellants urge that the trial court erred in denying a motion for judgment of acquittal because the taking (caption) occurred and the theft of the store merchandise was completed, either (a) when appellants, with intent to steal, first obtained or took the clothing into their actual physical possession, or (b) when appellants, with intent to steal, took the clothing past the cash register or out of the store, and any subsequent force used did not elevate the completed theft into a robbery. Appellants also claim the motion for judgment of acquittal should have been granted because there was no evidence that the appellants, either of them, carried a firearm while in the store or that Ellison ever carried or used a firearm. Therefore, the question presented here is whether the taking was completed without the utilization of any force, assault or fear.

In State v. Douglas, 337 So.2d 407 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977), the manager of the food market saw the defendant grab some pieces of meat and drop them into his co-defendant’s shoulder bag. The manager intercepted the two as they attempted to leave the store by the front door and while the three were walking to the rear of the store the defendant struck the manager, and his co-defendant began stabbing the manager. The defendants then ran out the front door. On appeal, the court stated the question was “whether a person who finds it necessary to resort to violence in order to escape with the property of another is chargeable with robbery.” The court held that where the owner of property takes action to prevent a thief from taking his goods from his premises and the thief uses force in order to get away with the goods, the thief’s use of force is concurrent with the taking and constitutes robbery. The court distinguished that situation from one in which force is used to prevent pursuit after the taking is complete.

In Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983), the majority stated that whether the offense is a robbery rather than a larceny cannot turn on the fortuitous circumstance that, owing in part to the victim’s quick reaction, the taker is required to use force in order to make good his escape with the property before getting outside the building where the property is located. The court in Stufflebean held that pursuant to the robbery statute, “force or threat of force is considered to be contemporaneous with the taking if that force or threat of force is used to overcome a victim’s resistance to an attempted asportation.” Id. at 245. The court further held that “where an offender gains possession of property of another without force and with intent to deprive the true owner of its use, but the victim gives instant and uninterrupted protest or pursuit in an effort to thwart a taking, and the offender then assaults the victim in order to complete a taking of the property and make good an escape, the offense is robbery.” Id. at 246.

Accordingly, we hold that the pushing aside of the store detective by Ellison was, as in Douglas force involved in the taking of the property and that use of the pistol in the automobile occurred concurrent with the taking because possession of the property was still in continuing dispute, as in Stufflebean.

Appellants’ convictions are

AFFIRMED.

COBB, C.J., and DAUKSCH, ORFINGER, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The majority en banc opinion is in accord with the cases cited but those cases deviate from the true meaning of statutory robbery, section 812.13(1), Florida Statutes (1983), and from common law robbery and cases establishing a clear and meaningful distinction between common law larceny and robbery.

At common law, robbery was defined as “the felonious taking of money or goods of value from the person of another, or in his presence, against his will, by violence, or putting him in fear.” Williams v. Mayo, 126 Fla. 871, 172 So. 86, 87 (1937). In construing the robbery statute, it will not be presumed, in the absence of language to the contrary, that the legislature intended to change the nature of the crime as understood at common law. Id. 172 So. at 87. In Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922), the supreme court explained the difference between robbery and larceny:

The criterion which distinguishes these offenses is the violence which precedes the taking. There can be no robbery without violence, and there can be no larceny with it. It is violence that makes robbery an offense of greater atrocity than larceny. Robbery may thus be said to be a compound larceny composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking. 29 R.C.L. 1140; 34 Cyc. 1796.
An intent to steal is essential, so is violence or putting in fear. See 34 Cyc. 1799. The violence or intimidation must precede or be contemporaneous with the taking of the property. See Colbey v. State, 46 Fla. 112, 35 South. 189, 110 Am.St.Rep. 87.
The degree of force used is immaterial. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance.

93 So. at 159. See also McCloud v. State, 335 So.2d 257 (Fla.1976).

The taking or caption, which is an essential element of common law larceny, meant only that the accused must acquire dominion over the property, a complete and independent possession superseding the possession of the owner, but actual possession for a momentary time was sufficient. At common law, while the property must not only have been taken but must also have been carried away, this element of carrying away or asportation was for the purpose of showing the complete termination of the owner’s possession and the actual possession of the property by the wrongdoer and was satisfied by the slightest removal, it being stated that even “a hair’s breadth will do.” To complete a larceny it was not necessary that the property be removed from the presence of the owner or from his premises. In Johnson v. State, 432 So.2d 758 (Fla. 1st DCA 1983), the court observed that the taking involved in robbery is basically equivalent to the aspor-tation element of common law larceny and that the asportation required for the crime of larceny may be completed by the slightest removal of the article from its original position or place where the owner placed it or wanted it to be. The court observed that its holding was consistent with the general law on the subject:

In order to constitute robbery there must be a taking or asportation. In other words, it must appear that the property was taken from the possession of the victim into that of the robber. However, the crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it. Further, the distance the property is taken may be very small, the slightest change of location whereby dominion of the property is transferred to the offender being sufficient to establish asportation.

432 So.2d at 759, quoting from 77 C.J.S. Robbery § 3.

Contrarily, the majority opinion holds that the taking in the instant case was ongoing even after the appellants had left the store and were in the parking lot, reasoning that the possession of the property was in “continuing dispute.” Compare the statutory definition of “retail theft” in section 812.015(l)(d), Florida Statutes (1981), which certainly does not require that merchandise, the possession of which has been acquired (taken) with the wrongful intent to deprive, be removed from the store. See also, Haslem v. State, 391 So.2d 389 (Fla. 2d DCA 1980), which recognizes that when coupled with the essential intent to steal (animus furandi) a movement (asportation) of goods within a self-service store can constitute a theft. It cannot be logically held that in a “shoplifting” situation, the wrongful “taking” of the property with intent to steal, even within a store premises, is a completed act of larceny or retail theft and yet the same act is not a completed act for the purpose of permitting subsequent violence or fear to elevate the taking offense to robbery level.

From the very nature of robbery, the violence or putting in fear, because they are the means whereby the owner’s resistance to the taking of his property is either overcome or prevented, must precede or be concurrent with the taking. Fear, however, although the threats may have been previously made, must exist at the time the owner parts with his property. If there is neither force, violence, assault nor fear when the property is taken, there is no robbery and the subsequent violence or putting in fear by threats on the part of the thief, in an effort to escape or to prevent recapture the property, does not make it so, since such violence or fear is not contemporaneous with the taking and did not accomplish it. This point of law is the subject of an annotation in 93 A.L.R.3d 643 entitled “Use of force or intimidation in retaining property or in attempting to escape, rather than in taking property, as element of robbery.”

The required nexus between the taking and the force or fear is best illustrated by purse snatching and pickpocket cases. These may constitute either robbery or larceny depending on whether the force involved was applied solely to the property to accomplish its “taking”, which results in a larceny, or whether the force is applied to the person in order to accomplish the taking or to overcome resistance to the taking, which results in a robbery. See Annot., Purse Snatching as Robbery or Theft, 42 A.L.R.3d 1381, 1385-1388.

In Colby v. State, 46 Fla. 112, 35 So. 189 (1903), the defendant was convicted of attempted robbery. The evidence showed that the victim, Bousman, while on a crowded street, felt the defendant’s hand in his pocket, grabbed his arm and held it until the police arrived. The court reversed the conviction for attempted robbery stating as follows:

The court is of opinion that this testimony does not sustain the conviction had in this case. Had the defendant succeeded in securing the money in Bousman’s pocket, the facts would not sustain a conviction for robbery. Our statute (section 2308, Rev.St.1892) provides that “whoever by force, violence or assault, or putting in fear, feloniously robs, steals and takes from the person of another money or other property which may be the subject of larceny (such robber not being armed with a dangerous weapon) shall be punished,” etc. The evidence does not disclose such force, violence, assault, or putting in fear as is contemplated by the statute, but merely an attempt to furtively abstract from the pocket of Bousman money or other valuables supposed to be contained therein. This might constitute an attempt to commit larceny, but not robbery. Where one stealthily filches loose property from the pocket of another, and no more force is used than such as may be necessary to remove the property from the pocket, it is not .robbery under the statute, but larceny, (emphasis added; citations omitted)
35 So. at 190.

The court went on to state:

From the evidence it appears that after Bousman became aware that defendant’s hand was in his pocket, he caught the defendant by the arm, calling upon Davidson and a policeman for assistance, and that a struggle ensued, in which the parties clinched. If the defendant struggled or clinched with Bousman in an effort to overpower him for the purpose of enabling him to secure the money in the pocket, there would be such force as the statute contemplates, but the force used merely in an effort to escape from the grasp of Bousman or to avoid arrest would not be such force as is contemplated by the statute. We think the testimony shows clearly that the tussling or clinching spoken of by the witnesses occurred in an effort to escape from Bousman and to avoid arrest, and not in an effort to secure the property. The testimony does not, therefore, support the conviction for an attempt to rob, and the court below erred in denying the motion for a new trial, (emphasis added)

Id.

In the robbery statute, section 812.13(1), Florida Statutes, the adjectival prepositional phrase “by force, violence, assault or putting in fear” relates to, modifies and limits the word “taking” which is the object of the sentence. The word “by” in this phrase is a synonym for “through” and is a function word indicating the means by which the taking must be accomplished to constitute robbery. This meaning of the statute is exactly in accord with the case law defining common law robbery.

In Andre v. State, 431 So.2d 1042 (Fla. 5th DCA 1983), the defendant snatched money from the hand of a victim while in the process of discussing a drug deal and when the victim pursued the defendant to regain the money, the defendant and his allies beat and knocked down the victim. This court, in holding the facts sufficient to support a conviction for robbery, referred to section 812.13(3) and explained that

the statutory definition of robbery includes not only the act of forcibly taking, but it also includes the use of force ‘in flight after ... the commission.’

Id. at 1043.

Andre erroneously interprets the redundant language in section 812.13(2)(c), Florida Statutes “in the course of committing the robbery” as combining with section 812.13(3) (which defines that phrase to include flight after the commission of a “robbery”) to effectively amend and modify the common law definition of robbery in section 812.13(1) so as to (a) eliminate the requirement for a taking by force or fear in the definition of robbery itself and to (b) permit the substitution of “force or fear” that may occur after a non-violent taking and during a flight after commission of a theft as a result of efforts to regain possession of the stolen property or to apprehend the thief. Section 812.13(3) does not add an element to the offense of robbery as defined in 812.13(1). Section 812.13(1) is a complete definition for unarmed robbery and an information charging unarmed robbery under section 812.13(1) does not have to allege additional language from 812.-13(2)(c) to the effect that in the course of committing the robbery the offender carried no firearm, deadly weapon or other weapon. This very contention was disposed of fifty years ago in Martin v. State, 100 Fla. 16, 129 So. 112 (1930). Therefore the language “in the course of committing the robbery” contained in section 812.-13(2)(c) and its definition in 812.13(3) has nothing to do with alleging or proving a charge of unarmed robbery under 812.-13(1). Section 812.13(2)(c) merely prescribes the penalty for unarmed robbery as it is defined in section 812.13(1), Florida Statutes.

In short, I agree with Judge Natalie Bas-kin in the dissent in Stufflebean v. State, 436 So.2d 244 (Fla. 3d DCA 1983), that the force or fear required for robbery must be the means by which the taking of property is accomplished and that element of robbery is not established by “force or fear” occurring after a non-violent taking. Robbery was intended only to protect an owner from being intimidated by force or fear in having his property wrongfully taken from him or from his immediate presence and from the use or threat of violence to accomplish such a taking and was not intended for the purpose of enhancing the punishment for a non-violent taking (a completed larceny) when violence occurs only as the result of a courageous owner endeavoring to recover his property or apprehend the thief. The usual penalty for unlawful assaults and batteries occurring in these instances is sufficient without introducing the notion that a taking of property is not complete as long as its possession is in “continuing dispute” and distorting the established law relating to the distinctions between the offenses of theft and robbery.

I would certify the following to be questions of great public importance:

(1) Are the words “obtaining” in the omnibus theft statute (§ 812.014(1), Fla. Stat.) and “the taking possession of” in the retail theft statute (§ 812.015(l)(d), Fla.Stat.) and “the taking” in the robbery statute (§ 812.13(1), Fla.Stat.) substantive equivalents having essentially the same meaning?
(2) Is the act of taking or obtaining described in these statutes complete when the wrongdoer has, with the necessary wrongful intent, acquired actual possession and dominion over the property to the exclusion of its actual or constructive possession by the owner or custodian?
(3) Does the use of force or fear in retaining property peacefully taken or obtained, or in an attempt by the wrongful taker to escape, rather than in the physical taking of the property, supply the element of force or fear essential to a robbery under section 812.13(1), Florida Statutes?

      . The curious legal scholar will wonder why this case was considered en banc. When the original appellate panel considered this case, two judges agreed Andre v. State, 431 So.2d 1042 (Fla. 5th DCA 1983), was in error and should be receded from and that this case should be reversed. The conflict with Andre is what caused en banc proceedings, during which a majority of the original panel apparently came to agree that Andre was either correct or not relevant. When this occurred the need for en banc proceedings to maintain uniformity in the court’s decisions (Rule 9.331(a)) ended and this case should not have been decided en banc and without reliance on Andre but should have been returned to the original panel for disposition as was done in State v. Mayle, 406 So.2d 108 (Fla. 5th DCA 1981), cert. denied, 419 So.2d 1200 (Fla.1982), and Mason v. State, 452 So.2d 1098 (Fla. 5th DCA 1984). See also In Interest of K.A.F., 442 So.2d 365 (Fla. 5th DCA 1983). In view of Sec. 4(a), Art. V, Fla.Const. (1972), there is a serious constitutional question as to the validity of en banc decisions in the district courts of appeal. Cases such as this and In Interest of K.A.F. illustrate the need for that question to be seriously addressed.

      . United States v. Cohen, 274 F. 596 (3d Cir.1921); People v. Lardner, 300 Ill. 264, 133 N.E. 375 (1921); State v. Bell, 109 Kan. 767, 201 P. 1110 (1921); Com. v. Luckis, 99 Mass. 431 (1868); Gettinger v. State, 13 Neb. 308, 14 N.W. 403 (1882); State v. Chambers, 22 W.Va. 779 (1883); Rex v. Lapier, 2 East P.C. 557. 2 Burdick, The Law of Crime § 499 at 264 n. 24 (1946).

      . Edmonds v. State, 70 Ala. 8 (1881); Driggers v. State, 96 Fla. 232, 118 So. 20 (1928); Barnhart v. State, 154 Ind. 177, 56 N.E. 212 (1900); People v. Milk, 178 N.Y. 274, 70 N.E. 786 (1904); Harrison v. People, 50 N.Y. 518 (1872); People v. Ashworth, 220 App.Div. 498, 222 N.Y.S. 24 (1927); State v. Alexander, 74 N.C. 232 (1876). 2 Burdick, The Law of Crime § 500 at 265 n. 37 (1946).

      . Driggers v. State, 96 Fla. 232, 118 So. 20 (1928). 2 Burdick, The Law of Crime § 500 at 266 n. 40 (1946).

      . Edmonds v. State, 70 Ala. 8 (1881); Lundy v. State, 60 Ga. 143 (1878); Delk v. State, 64 Miss. 77, 1 So. 9 (1886); State v. Williams, 199 Mo. 137, 97 S.W. 562 (1906); Harrison v. People, 50 N.Y. 518 (1872); State v. Carr, 13 Vt. 571 (1841). 2 Burdick, The Law of Crime § 500 at 265 n. 38 (1946).

      . Baron Alderson in Reg. v. Simpson, 1 Dears. 421. 2 Burdick, The Law of Crime § 500 at 266 n. 39 (1946).

      . II East P.C. 735; Thomas v. State, 91 Ala. 34, 9 So. 81 (1890); Thompson v. State, 24 Ala.App. 300, 134 So. 679 (1931); Clary v. State, 33 Ark. 561 (1878); People v. Stevens, 141 Cal. 488, 75 P. 62 (1903); State v. Miller, 53 Kan. 324, 36 P. 751 (1894); Dawson v. Com., 25 Ky.L.R. 5, 74 S.W. 701 (1903); State v. Sharpe, 326 Mo. 1063, 34 S.W.2d 75 (1930); Hanson v. State, 43 Ohio St. 376, 1 N.E. 136 (1885); Marks v. State, 69 Okl.Cr. 330, 102 P.2d 955 (1940).

        Violence may Precede. If a man is struck down and rendered unconscious, and his money taken while he is still insensible it is robbery. Clary v. State, 33 Ark. 561; Rex v. Hawkins, 3 Car. & P. 392. And see People v. Jordan, 303 Ill. 316, 135 N.E. 729 (1922).
      2 Burdick, The Law of Crime § 599c at 426 n. 64 (1946).

      . I Hale P.C. 532; II East P.C. 714, 735. 2 Burdick, The Law of Crime § 599c at 426 n. 65 (1946).

      . People v. Goldberg, 302 Ill. 559, 135 N.E. 84 (1922); Hall v. People, 171 Ill. 540, 49 N.E. 495 (1898); Monaghan v. State, 10 Okl.Cr. 89, 134 P. 77 (1913). 2 Burdick, The Law of Crime § 599c n. 66 (1946).

      . II East P.C. 707; Thomas v. State, 91 Ala. 34, 9 So. 81 (1890); Gordon v. State, 125 Ark. 111, 187 S.W. 913 (1916), Jackson v. State, 114 Ga. 826, 40 S.E. 1001 (1902); Jones v. Com., 115 Ky. 592, 74 S.W. 263 (1903); State v. O’Neil, 71 Minn. 399, 73 N.W. 1091 (1898); State v. Holmes, 317 Mo. 9, 295 S.W. 71, 58 A.L.R. 652 (1927); State v. Fallon, 2 N.D. 510, 52 N.W. 318 (1892); Harman’s Case, 2 East P.C. 736. 2 Bur-dick, The Law of Crime § 599c n. 67 (1946).

      . See Colby v. State, 46 Fla. 112, 35 So. 189 (1903).

      . See Martin v. State, 100 Fla. 16, 129 So. 112 (1930).


text:
    BREVARD COUNTY, Florida, Appellant, v. Claude W. MILLER, as Sheriff of Brevard County, Florida, Appellee/Cross-Appellant, and George W. Wilson; S.R. Dewitt; and Charley F. Ison, Appellees/Cross-Appellees.
    Nos. 83-1104 to 83-1109.
    District Court of Appeal of Florida, Fifth District.
    July 12, 1984.

      Kenneth C. Crooks of Nabors, Potter, McClelland, Griffith & Jones, P.A., Titus-ville, for appellant.
    Catherine A. Riley of Blumenthal, Schwartz & Riley, P.A., Titusville, for ap-pellee/cross-appellant, Miller.
    John M. Starling of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellees/cross-appellees, Wilson, Ison and Dewitt.
   PER CURIAM.

This is an appeal from a final judgment of the circuit court awarding appellees George Wilson, S.R. Dewitt and Charley Ison back salary, interest, and attorney’s fees based upon their wrongful discharge from the Brevard County Sheriff’s Office.

Wilson, Dewitt and Ison were deputy sheriffs who were discharged by Sheriff Zimmerman on December 1, 1976. In January, 1977, plaintiffs Dewitt and Ison filed civil actions in the Circuit Court of Brevard County, Florida, asserting that the Legislature of the State of Florida had adopted Chapter 67-1149, Special Acts, Laws of Florida (1967), providing for a civil service system for deputy sheriffs of Brevard County, Florida. Ison’s lawsuit went to final hearing before the trial court, which ruled the Civil Service Act was unconstitutional. A direct appeal of this decision was taken to the Supreme Court of Florida, resulting in a reversal. Ison v. Zimmerman, 372 So.2d 431 (Fla.1979).

The plaintiffs thereafter filed suit in the circuit court of Brevard County on May 25, 1979, based upon the Supreme Court’s ruling in Ison. Pursuant to this action, the circuit court ordered formation of a civil service board and directed that the board grant the plaintiffs hearings as to their terminations. The circuit court established certain guidelines for the functioning of the civil service board and required the civil service board to make the following findings in proceedings instituted before it: (1) whether or not the plaintiffs were members of the “classified service” at the time of the action complained of; (2) whether the plaintiffs were transferred, demoted, suspended, removed, or dismissed or discharged within the purview of Chapter 67-1149; (3) whether the requisite cause had been shown by the evidence to support the transfer, demotion, suspension, dismissal, removal or discharge; and (4) whether the plaintiffs were entitled to back pay based on the bad faith of the sheriff. The plaintiffs then filed petitions before the civil service board for determination as to whether or not Sheriff Zimmerman had just cause to dismiss them from their employment in December, 1976.

Hearings were held before the civil service board, and it entered rulings that the plaintiffs were dismissed without cause and that they would be restored to the rank they had at the time of their dismissal with all back pay to which they were entitled based upon findings that the sheriff had acted in bad faith.

Sheriff Zimmerman filed a petition for a writ of certiorari to a three-judge panel of the circuit court to review the order of the civil service board. The circuit court held that only persons who were members of the classified civil service as of the date that Chapter 67-1149 went into effect had any protection under the act and that there would be no compensation paid for promotions since September 1, 1967. The three-judge panel agreed that the plaintiffs were members of the civil service and that their dismissal was without just cause and was the result of bad faith by the sheriff. The circuit court concluded that Ison would be reinstated with the rank of sergeant, Wilson would be reinstated with the rank of lieutenant, and Dewitt would be reinstated with the rank of captain. Although the circuit court concluded that the civil service board had authority to award only thirty days’ back pay pursuant to section 17 of the Act, the court stated:

We express no opinion as to the rights of these respondents to successfully maintain separate civil actions for back pay for time lost beyond the thirty days relevant here, or the alleged duty of respondents to mitigate any such loss.

In April, 1981, the plaintiffs brought separate civil actions in the circuit court seeking full back pay, benefits, attorney’s fees and interest against Sheriff Miller, the successor sheriff to Sheriff Zimmerman. Bre-vard County was permitted to intervene in this action, and though initially denominated as a defendant, was later reclassified as an intervenor. The three cases by each of the deputy sheriffs were consolidated. The trial court ultimately entered judgment for the plaintiffs, holding they are entitled to back pay, interest, benefits and attorney’s fees. Brevard County and Miller have appealed this judgment.

The appellants contend the plaintiffs are not entitled to any compensation other than that provided by the Brevard County Sheriff’s Civil Service Act. We agree, based on our opinion in Szell v. Lamar, 414 So.2d 276 (Fla. 5th DCA 1982), wherein we said:

A sheriff is authorized to appoint deputies for whose acts he is responsible, to act in his stead. Section 30.07, Florida Statutes (1981). A deputy sheriff holds office by appointment, rather than by employment, and is thus an officer, rather than an employee. Murphy v. Mack, 358 So.2d 822 (Fla.1978). The sheriff has absolute control over the selection and retention of deputies in order that law enforcement be centralized in the county, and in order that the people be able to place responsibility upon a particular officer for failure of law enforcement. Section 30.53, Florida Statutes (1981); Tanner v. McCall, 625 F.2d 1183 (5th Cir.1980); Blackburn v. Brorein, 70 So.2d 293 (Fla.1954); Murphy, 358 So.2d at 825. Thus, a deputy sheriff has no property interest in his office and no constitutional due process protections when he is dismissed. Evans v. Hardcastle, 339 So.2d 1150 (Fla. 2d DCA 1976).

Id. at 277-78.

REVERSED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., JJ., concur.

DAUKSCH, J., dissents without opinion.

      . Section 17 of Chapter 67-1149 provides:
      The sheriff may suspend or dismiss an employee for any just cause which, in his opinion, will promote the efficiency of the service. Notice of dismissal may be in the form of a thirty (30) day suspension without pay, the dismissal to take effect at the expiration of his suspension period. During the thirty (30) day period of notice, the deputy or employee must be given an opportunity for a hearing before the Board with all the rights and privileges accorded under this act. All papers filed in the case shall be public records. The Board may reinstate the person removed only in case it appears as a result of a proper hearing that the removal was made for reasons other than just cause. For disciplinary purposes, the sheriff may summarily suspend an employee for a reasonable period not exceeding thirty (30) days. Every such suspension shall be without pay; provided, however, that the Board shall have authority to investigate every such suspension, and if it is found that the sheriff acted in bad faith, it shall have power to restore pay to the employee for such suspended time.


author: ORFINGER, Judge.

text:
    Robert LEMEN, Appellant, v. FLORIDA POWER & LIGHT CO., Appellee.
    No. 83-1463.
    District Court of Appeal of Florida, Fifth District.
    July 12, 1984.
    L. Hunter Limbaugh and Brian R. Toung, of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Daytona Beach, for appellant.
    Joseph W. Thomas, II, of Cooper, Riss-man, Weisberg & Jeffery, P.A., Orlando, for appellee.
   ORFINGER, Judge.

Appellant Robert Lemen was burned by a live wire while working at appellee Florida Power & Light’s substation near Melbourne, Florida. Lemen was an employee of Olson Underground Ecologists, an independent contractor under contract with Florida Power & Light to perform work on the substation. Lemen’s complaint sought damages against Florida Power & Light based upon allegations that it failed to either warn or protect Lemen against the dangers of working on a portion of the substation containing live wires. The trial court granted summary judgment in favor of Florida Power & Light, finding as a matter of law that appellee had discharged any duty it may have had to Lemen. We affirm.

Lemen argued below that Paul Shutes, an employee of Florida Power & Light, knew that Lemen might be working in the vicinity of live wires yet failed to either de-energize the area or warn Lemen of the potential risks. It is undisputed however, that Lemen’s supervisor, Ben Johnson, knew that this section of line was still energized and that the work schedule called for it to be de-energized the next morning. Johnson either believed that the area was safe for Lemen to work in, or failed to give Lemen a proper warning.

In Florida, one who hires an independent contractor is not ordinarily liable for injuries sustained by the contractor’s employees. See Horton v. Gulf Power Company, 401 So.2d 1384 (Fla. 1st DCA 1981). This general proposition is subject to an exception, however, where a party who is having work done on his premises has actual or constructive knowledge of latent or potential dangers on the property. In Florida Power & Light Company v. Robinson, 68 So.2d 406 (Fla.1953) the supreme court stated that if the owner of the property knows of a dangerous condition which the independent contractor’s employees will likely encounter, the owner must either give warning of or use ordinary care to furnish protection against such dangers to the employees of the contractor or subcontractor who are without actual or constructive knowledge of the hazards. This duty has generally been held to be satisfied by giving notice of the dangerous condition to the contractor’s supervisory personnel. In Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977) the appellate court held that a property owner will not be liable to employees of an independent contractor if the contractor is completely aware of a dangerous condition at the work site but nevertheless elects to have its employees proceed. See Storm v. New York Telephone Company, 270 N.Y. 103, 200 N.E. 659 (1936). The Lake Parker Mall decision restates the view expressed in Vanlandingham v. Florida Power & Light Co., 154 Fla. 628, 18 So.2d 678 (1944) in which the supreme court held that a power company is not an insurer but is only required to exercise that degree of care commensurate with the circumstances of the occasion.

Appellant attempts to extricate himself from the rule of law expounded in the cited cases by relying on the principle of law that when the work undertaken by an independent contractor is inherently dangerous so that in the ordinary course of events its performance will likely cause injury if proper precautions are not taken, an owner is liable for injuries caused by the failure of the independent contractor to exercise due care in the performance of the work. However that principle might apply to third parties who are injured in the course of the performance of the work, any application of the principle is subject to the exception that notwithstanding the dangerous character of the work, the owner is not liable for injuries to an employee of an independent contractor engaged to perform that work in the absence of a showing of actual negligence (by act or omission) of the owner which proximately causes such injury. Florida Power and Light Co. v. Price, 170 So.2d 293 (Fla.1964). “Unless and until it is shown the contracting owner by positive act of negligence or negligent omission on his part causes injury to the independent contractor or to the latter’s employee or employees, such owner will not be held liable.” Id. at 298.

Here there was no showing that Florida Power & Light was negligent in operating its substation. Moreover, Florida Power & Light discharged any duty it may have had to Lemen by warning the independent contractor’s supervisor of the potential dangers of working in the area where Lemen was burned. Accordingly, the trial court’s order granting Florida Power & Light’s motion for summary judgment and entering judgment for appellee is

AFFIRMED.

COWART, J., and STROKER, R.J., Associate Judge, concur.


text:
    Collie Roger GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2040.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Marshall G. Slaughter and Jeff Holmes, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

Since appellate counsel has withdrawn the first point on appeal, we deal only with point two — the alleged ineffective assistance of counsel claim.

We decline to address this claim at this time. The case is dismissed without prejudice for the appellant to seek an evidentia-ry hearing pursuant to Florida Rule of Criminal Procedure 3.850.

SCHEB and OTT, JJ., concur.


author: OTT, Judge.

text:
    Victoria HYDE, as Personal Representative of the Estate of Brandy Lee Hyde, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 83-2145.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.

      John D. Fernandez of John D. Fernandez, P.A., and Gary A. Hewetson of Gary A. Hewetson, P.A., Clearwater, for appellant.
    Mark E. Hungate and Nelly Khouzam of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee.
   OTT, Judge.

Victoria Hyde, as personal representative of the estate of Brandy Lee Hyde, sued the Florida Department of Transportation and others for the wrongful death of then seven-month-old Brandy Lee Hyde. This appeal involves the trial court’s grant of the Florida Department of Transportation’s motion for judgment on the pleadings. We affirm.

According to plaintiff’s amended complaint, Beacon Homes of Florida, Inc., owned real property in Pinellas County near 66th Street North (State Road A19A) and Bryan Dairy Road (County Road 135). A roadside body of water existed on this property that was not guarded by a longitudinal barrier or comparable device. In 1979, Beacon Homes began development of a project on the site to be known as Beacon Run. The site plan called for excavation of the roadside body of water to a depth of five feet below mean sea level, but did not call for erection of a device to protect vehicles traveling on 66th Street from entering the excavated area. The site plan was approved by the proper county and municipal authorities. The excavation occurred as planned, and no guardrail or protective device was erected.

On January 31,1981, a vehicle driven in a southerly direction on 66th Street by Victoria Hyde was rear-ended by a vehicle driven by Charles Martindale. Mrs. Hyde’s vehicle veered left, crossed the northbound lanes, plunged into the roadside body of water, and became completely submerged in approximately eight feet of water. Seven-month-old Brandy Lee Hyde drowned.

Plaintiff filed a multi-count civil action for damages. In Count I, plaintiff alleged that DOT owed a duty to safely maintain its highways, streets, and roadsides, and that DOT knew or should have known of the excavated, unbarrieaded roadside body of water and was careless and negligent in maintaining that portion of 66th Street North where the accident occurred by failing to erect or cause to be erected a guardrail, or other protective device; that DOT owed a further duty to warn of or correct the known dangerous condition created by the excavated, unbarrieaded roadside body of water and was careless or negligent by failing to do so, and that plaintiff suffered her damages as a direct and proximate result of such negligence. The remaining counts are against defendants not involved in this appeal.

Plaintiff first attempts to hold DOT liable for failing to add a guardrail or similar protective device to an existing roadway. The decision to upgrade an existing road is a planning level function to which absolute immunity attaches to city, county, and DOT. See Department of Transportation v. Neilson, 419 So.2d 1071, 1077-1078 (Fla.1982). Whether to build a guardrail on an existing road is, we believe, a classic example of the type of planning level policy decisions which remain in the protected sphere of sovereign immunity. Payne v. Palm Beach County, 395 So.2d 1267 (Fla. 4th DCA 1981). Thus, the claimed failure by DOT to install a guardrail or other protective device to the existing road involved a planning level decision and therefore is not actionable. See also Perez v. Department of Transportation, 435 So.2d 830 (Fla.1983).

Plaintiff next seeks to hold DOT liable for failure to warn of a known dangerous condition. When a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational level arises to warn the public of, or protect the public from, the known danger. City of St. Petersburg v. Collom, 419 So.2d 1082, 1086-1087 (Fla.1982). Here, there is no allegation that DOT created the dangerous condition. Plaintiff has presented this court with no authority that has construed the duty to warn so broadly. In our view, the decision to warn the public of, or protect the public from, conditions created by private land owners along the state’s network of roads is a decision arising at the judgmental, planning level. Accordingly, we hold that the second ground for plaintiffs claim against DOT is not actionable.

For the above stated reasons, we affirm the trial court’s grant of DOT’s motion for a judgment on the pleadings.

AFFIRMED.

GRIMES, A.C.J., and SCHOONOVER, J., concur.


author: OTT, Chief Judge.

text:
    Sherman H. FRIEDMAN and Martha G. Friedman, his wife, Appellants, v. U.S. HOME CORPORATION, Clearwater Concrete Industries, Inc., and Robert Fertig, Appellees.
    No. 83-2168.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.

      Daniel B. Schuh of Schuh & Schuh, St. Petersburg, for appellants.
    John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, P.A., Clearwater, for appellees.
   OTT, Chief Judge.

In this action for damages based on breach of a new home warranty and negligence, the Friedmans appeal from a final judgment in appellees’ favor. We affirm.

The Friedmans agreed to purchase a lot and a new home from U.S. Home Corporation. Robert Fertig was the licensed contractor on the job, and Clearwater Concrete Industries, Inc., furnished the concrete for the floor slab in the new home. The compressive strength of the concrete slab is approximately 1600 pounds per square inch. Appellees admit that the applicable building code requires 2500 pounds per square inch and that the concrete slab therefore constitutes a defective component.

U.S. Home warranted the home to the original purchasers against defects in material and workmanship for one year from the closing date. Pursuant to the homeowners warranty, U.S. Home agreed to either repair or replace at its option and at no charge to the original purchaser any defective component.

In accordance with its warranty, U.S. Home proposed to repair the defective slab by covering it with a surface hardener, by shallow trenching and filling with mortar around the perimeters of the floors, and by replacing the slab in the garage. The proposal also involved rewarranting the house against structural deficiencies caused by the weak slab. The Friedmans doubted the effectiveness of the proposed repairs, rejected the offer, and filed the instant suit for damages.

Following trial, the lower court entered a final judgment in appellees’ favor. Therein, the trial court found that the only issue was whether to repair or replace the concrete slab, that plaintiffs’ experts believed that only total replacement of the concrete slab would cure the identified problems, that defendants’ experts believed that the repair program proposed by appellees would effectively cure the problems, that all expert witnesses were equally credible, and that therefore plaintiffs had failed to prove by a preponderance of the evidence that defendants’ proposed repairs were not a reasonable exercise of their option under the homeowners warranty.

The final judgment of the trial court comes to this court clothed with a presumption of correctness. See Walker v. Narose Buildings, Inc., 206 So.2d 400 (Fla. 2d DCA), cert. denied, 212 So.2d 871 (Fla.1968). The lower court’s findings and con-elusions will not be disturbed where there is competent, substantial evidence to support such findings and conclusions. In re Estate of Rodgers, 149 So.2d 391 (Fla. 1st DCA 1963).

Based on our review of the record, we find competent, substantial evidence to support the final judgment rendered by the trial court.

Parenthetically, we note that appellees’ attorney affirmatively represented to this court that U.S. Home will repair and rewar-rant the defective floor slab in accordance with its warranty and pretrial offer.

AFFIRMED.

GRIMES, A.C.J., and SCHOONOVER, J., concur.


text:
    M.C. HALL, Trustee, Appellant, v. William T. HIGGS, Appellee.
    No. 83-2274.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    Thomas E. Maloney of Maloney & Crane, Chartered, Naples, for appellee.
   LEHAN, Judge.

We affirm the trial court’s judgment requiring the seller to return buyer’s deposit money paid under a contract for the sale of real estate. The buyer’s right of rescission derived from a specific contractual provision which entitled him to cancel the contract if the seller failed to provide ingress to and egress from the land. That ingress and egress was not provided. The fact that the property did not revert to the seller in its precise prior condition due to land clearing by the buyer prior to the scheduled closing date is not determinative in this case because there was competent evidence that the seller had consented to the clearing. Furthermore, there was competent evidence that the clearing did not diminish the value of the land.

We also affirm the amount of the trial court’s allowance of a set-off against the buyer’s deposit money. There was competent evidence supporting the set-off amount as being that needed to remove the scrub pines and other debris left as a result of the land clearing.

AFFIRMED.

HOBSON, A.C.J., and BOARDMAN, J., concur.


author: CAMPBELL, Judge.

text:
    Kay MOLYETT and Steven Ellis, Appellants, v. SOCIETY NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 84-188.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Albert B. Lewis of Piper, Esteva, Karvo-nen & Lewis, St. Petersburg, for appellants.
    Margaret N. Walker, St. Petersburg, for appellee.
   CAMPBELL, Judge.

Appellants, Kay Moiyett and Steven Ellis, seek review of the final judgment in favor of appellee, Society National Life Insurance Company, on a subrogation assignment claim. We reverse.

Two issues are raised by this appeal. First, did the trial court err in determining that appellee was entitled to reimbursement from Steven Ellis? Second, did the trial court err in failing to award attorney’s fees to Kay Molyett and Steven Ellis?

On June 22, 1980, Steven Ellis, then nineteen years of age, was injured when the motorcycle he was operating was struck by an automobile owned by Jeffrey Russell and insured by Auto Owners Insurance Company. At the time of the accident, Steven Ellis’s mother, Kay Molyett, was insured under a group major medical policy which provided coverage for Steven Ellis. Appellee paid $7,338.95 towards the $8,169.50 in medical bills incurred by Steven Ellis.

Appellee’s policy contained a subrogation clause. Also, after appellee had provided benefits, Kay Molyett, as mother of Steven Ellis, signed a “subrogation assignment” form transferring to appellee claims arising from the accident to the extent of monies paid by appellee.

On October 22, 1980, Steven Ellis settled his claim against Jeffrey Russell and Auto Owners Insurance Company for $10,726.96, and executed a release. On February 25, 1982, appellee filed suit against Kay Mo-lyett and Steven Ellis to recover the $7,338.95 which appellee previously paid for the benefit of Kay Molyett and Steven Ellis as a result of the accident on June 22, 1980. The trial court held that appellee was entitled to seek equitable distribution from Steven Ellis for the benefits paid by appellee. Final judgment was entered in favor of appellee for $1,500 with costs of $48. No costs nor attorney’s fees were awarded to Kay Molyett.

Appellants argue that Steven Ellis was precluded from recovering from the tort-feasor and the tort-feasor’s insurer under section 627.7372, Florida Statutes (1981). Appellants maintain that because Steven Ellis had no right to recover for those damages paid by appellee, appellee had no right of subrogation under the policy, nor any right to require Steven Ellis to assign any portion of his settlement to appellee. We agree.

Prior to 1977, insureds were entitled to recover the full amount of their damages from tort-feasors regardless of the benefits they had received from collateral sources, such as insurance payments. Insurers held subrogation rights for reimbursement of payments made to an insured where the insured subsequently recovered those damages from the tortfeasor. However, insurers’ subrogation rights were eliminated by section 627.7372, Florida Statutes (1977). See also Purdy v. Gulf Breeze Enterprises, Inc., 403 So.2d 1325 (Fla.1981) (upholding the constitutionality of sections 627.736 and 627.7372, Florida Statutes (1981)), and Evans v. Kabbes, 407 So.2d 260, 261 (Fla. 2d DCA 1981).

Section 627.7372, which came into effect in 1977, requires the trial court to admit into evidence any collateral source payment made to the plaintiff prior to trial. The jury is then instructed to deduct from the verdict the amounts paid or payable to a claimant through a collateral source. Accordingly, an insurer no longer has a right to subrogation because the plaintiff or claimant is not entitled to receive payments for losses already covered by a collateral source.

Appellee’s policy provides for subro-gation when the insured is entitled to recover from the tort-feasor. Thus, the issue becomes whether Steven Ellis had a legal right to recover from the tort-feasor and his insurer under section 627.7372. If not, appellee has no right of recovery under the subrogation clause.

Precisely the same issue was presented in Prince v. American Indemnity Company, 431 So.2d 270 (Fla. 5th DCA 1983). In Prince, American Indemnity Company paid $1,000 in medical benefits to Mrs. Prince following an automobile accident injury. Mrs. Prince then settled her claim with the tort-feasor and his liability carrier, and American Indemnity sought subrogation rights to a portion of the settlement received from the tort-feasor and his liability carrier. The court held that American Indemnity was not entitled to any portion of the settlement proceeds because American Indemnity’s right to subrogation was dependent upon the insured’s right to recover damages from the tort-feasor. The collateral source statute precluded Mrs. Prince from recovering for those same damages from the tort-feasor; therefore, the tort-feasor’s insurance would not have paid the claim and that payment had to represent something other than the benefits already paid by American Indemnity. Thus, American Indemnity was not entitled to assert its right of subrogation or reimbursement. Likewise, Steven Ellis was not entitled to recover from the tort-feasor those damages previously paid by appellee and, accordingly, appellee was not entitled to reimbursement for the monies already paid on behalf of Steven Ellis and Kay Molyett.

For purposes of attorney’s fees under section 57.105, Florida Statutes (1981), we cannot say that this lawsuit was frivolous, even though the legal issue presented had been clearly resolved by Prince and Purdy by the time this case came to trial. Section 627.7372 requires the admission of collateral source evidence at trial. Until Prince, in 1983, it was not clear that this rule also applied in a situation where the parties settled out of court. This lawsuit was filed in 1982, before Prince was decided. Therefore, appellants are not entitled to attorney's fees under section 57.105.

Appellants also contend that they are entitled to attorney’s fees pursuant to section 627.428(1), Florida Statutes (1981). That section provides that in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall award a reasonable sum as attorney’s fees for the attorney prosecuting the suit on behalf of the insured. On appeal, we are reversing the trial court and ruling in favor of the insureds, the appellants. Therefore, we find that under section 627.428(1), appellants were entitled to attorney’s fees at the trial court level. We also grant appellants’ motion for attorney’s fees on appeal. We remand to the trial court for determination of the proper amount to be assessed for the attorney’s fees incurred at the trial court level and during the prosecution of this appeal.

For the reasons stated above, we reverse the decision of the trial court and remand for assessment of attorney’s fees.

OTT, A.C.J., and SCHOONOVER, J., concur.


text:
    Connie CORNELIUS, Appellant, v. STATE of Florida, Appellee.
    No. 84-217.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Jerry Hill, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

The trial court’s order denying superse-deas bond is reversed and the cause remanded for a new hearing. If the court then denies release, it must state in writing its reasons for denial in accordance with Florida Rule of Criminal Procedure 3.691(b). Younghans v. State, 90 So.2d 308 (Fla.1956).

SCHEB and OTT, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    Denise RICHARDSON, a/k/a Denise S. Richardson, Appellant, v. Donald Graham UPCHURCH, Appellee.
    No. 84-435.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Robert G. Leeds of Englander, Schachter, Brainard, DiSano & Leeds, P.A., Largo, for appellant.
    Charles E.H. Beck, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

This is an interlocutory” appeal from an order granting a preliminary injunction brought pursuant to Rule of Appellate Procedure 9.130(a)(3)(B). We affirm in part and reverse in part.

We agree with appellant’s contention that the trial court erred in granting the preliminary injunction because the injunction was not conditioned on appellee’s posting of a bond pursuant to Florida Rule of Civil Procedure 1.610(c). Accordingly, we reverse and remand to the trial court for determination and imposition of an appropriate bond amount. See Meinstein v. Travel Etc., Inc., 442 So.2d 1085 (Fla. 3d DCA 1983). See also Conway Meats, Inc. v. Orange Avenue Partnership, 440 So.2d 674 (Fla. 1st DCA 1983). In all other respects, the order granting the preliminary injunction is affirmed.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

GRIMES and CAMPBELL, JJ., concur.


text:
    David J. LOCKWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 84-641.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
   PER CURIAM.

Appellant, David J. Lockwood, seeks review of the denial of his motion for post-conviction relief pursuant to Florida Rule of Appellate Procedure 9.140(g) (1984). We affirm.

Appellant makes numerous allegations. We discuss only the claim that his sentence under Count III is illegal because it is in excess of the amount allowed by law.

The jury found appellant guilty of conspiracy to commit burglary, possession of burglary tools, and attempted burglary. A copy of the sentencing documents indicates that he was sentenced to one year on the charge of conspiracy to commit burglary, ten years for the possession of burglary tools and ten years on the attempted burglary charge. All three sentences were to be served concurrently.

Appellant argues that the attempted burglary charge was improperly treated as a second degree felony. He claims that to find that the attempt was a second degree felony, the specific crime attempted had to be considered first degree felony burglary under section 777.04(4)(b), Florida Statutes (1981). He claims that because the attempted burglary did not involve any dangerous weapons or a dwelling, and there was not a human being in the building, the burglary, if it had been completed, would have been considered a third degree felony pursuant to section 810.02, Florida Statutes (1981). Appellant states that under section 777.04, Florida Statutes (1981), an attempt of a third degree felony is considered a first degree misdemeanor. The sentence for a first degree misdemeanor must not exceed one year under section 775.02, Florida Statutes (1981). In this situation, appellant contends, even under the enhancement statute, the sentence may not exceed three years pursuant to section 775.084(4)(b)(l), Florida Statutes (1981).

Appellant’s argument must fail because an attempt of any burglary is a felony of the third degree pursuant to section 777.04(4)(c), Florida Statutes (1981). Williams v. State, 386 So.2d 631 (Fla.2d DCA 1980). Under section 777.04(4)(c), a defendant may be sentenced under section 775.084, Florida Statutes (1981), which provides for enhanced sentences for habitual felony offenders. Under that section, a third degree felony is punishable by a sentence not exceeding ten years. § 775.-084(4)(a)(3), Fla. Stat. (1981). From the transcript of the sentencing hearing in this case, it is clear that the court found that this section applied to appellant. Therefore, appellant’s ten year sentence was properly imposed. For this reason, we affirm the trial court’s denial of appellant’s motion for post-conviction relief.

We note, however, that the judgment and sentencing documents reflect that appellant was convicted of a second degree felony. Aside from the provisions of section 777.04, this notation is inconsistent with the information because appellant was charged with third degree felony burglary. Therefore, there appears to be an error in the judgment and sentencing documents. We remand to the trial court for correction of those documents in accordance with this opinion.

HOBSON, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


author: OTT, Acting Chief Judge.

text:
    Gerald R. SUGGS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1094.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
   OTT, Acting Chief Judge.

This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised two points in the motion. The allegation in paragraph one is that his written sentence of not less than ten nor more than fifteen years does not conform to the court’s oral pronouncement of ten years. This allegation, if true, might entitle appellant to relief. The trial court denied appellant’s motion without conducting an evidentiary hearing. Attached to the trial court’s order was a prior order amending appellant’s sentence to read fifteen years. This does not refute appellant’s allegation that he was orally sentenced to ten years.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation specified and attach to its order portions of the record which conclusively show appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the ground alleged in the above portion of the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982). To attain further review, any aggrieved party must appeal the new ruling of the trial court.

The trial court was correct in denying appellant’s motion as to the other point raised.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Mary L. LAW, Appellant, v. NCNB NATIONAL BANK OF FLORIDA, f/k/a Gulfstream Bank, N.A., Appellee.
    No. 83-1311.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.

      Edward A. Marod of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellant.
    John T. Morrison of Law Offices of John T. Morrison, P.A., Boca Raton, for appellee.
   PER CURIAM.

By interlocutory order the trial court ordered the appellant-mortgagor to make the monthly principal payments into an interest bearing escrow account during this foreclosure proceeding. Appellant seeks reversal of that order by interlocutory appeal. Appellant contends the court is without authority to require appellant to make said payments under the facts of this case. We agree.

Florida Rule of Civil Procedure 1.600 authorizes the voluntary payment of money into the registry of the court under certain circumstances. However, it does not authorize the court to require payment of funds into the court registry without some legal justification. See 23 Am.Jur.2d, Deposits In Court, § 2; 13 Fla.Jur.2d, Courts And Judges, § 210. We find no legal justification in this case to require the mortgagor to make mortgage payments into the registry of the court pendente lite.

Accordingly, the order appealed from is reversed.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Marie Dean ARRINGTON, Petitioner, v. Louie L. WAINWRIGHT, Sec. of Dept. of Corrections; Marta Villacorta, Superintendent of Broward Correctional Institution, and Jim Smith, Atty. General, Respondents.
    No. 84-231.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.

      Marie Dean Arrington, pro se.
    Jim Smith, Atty. Gen., and William D. Hall, Jr., Asst. Atty. Gen., Tallahassee, for respondents.
   GLICKSTEIN, Judge.

We treat this as a petition for writ of mandamus, grant the petition and direct respondents to conduct a hearing within thirty days to determine whether petitioner should remain in close management, pursuant to rule 33-3.083(2)(a), Florida Administrative Code, and the Due Process Clause of the Fourteenth Amendment. See Parker v. Cook, 642 F.2d 865, 867 and n. 1 (5th Cir.1981), and Wright v. Enomoto, 462 F.Supp. 397, 402 (N.D.Cal.1976), affirmed, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978).

We reject petitioner’s argument that she has been denied equal protection of the law. Since we are not dealing with a suspect classification, a rational basis bearing a substantial relation to public safety for the practice of placing inmates in close confinement, is all that the State needs in order to justify it, and such an explanation is obviously available.

We also reject her claim that the classification and retention in close management status constitutes a per se cruel and inhuman punishment. Essential goals that may require limitation or retraction of a prisoner’s retained constitutional rights are maintaining and preserving internal order and discipline. Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447, 473 (1979). “Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape .... ” Id. at 547, 99 S.Ct. at 1878, 60 L.Ed.2d at 473. “Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id.

“Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.” Pell v. Procunier, 417 U.S. [817] at 827, 94 S.Ct. [2800] at 2806 [41 L.Ed.2d 495 (1974)]. We further observe that, on occasion, prison administrators may be “experts” only by Act of Congress or of a state legislature. But judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not Judicial. Procunier v. Martinez, supra, 416 U.S. [396] at 405, 94 S.Ct. [1800] at 1807 [40 L.Ed.2d 224 (1974)]; cf. Meachum v. Fano, supra, 427 U.S. [215] at 229, 96 S.Ct. [2532] at 2540 [49 L.Ed.2d 451 (1976)].

Id. at 547-48, 99 S.Ct. at 1878-79, 60 L.Ed.2d at 474.

ANSTEAD, C.J., and BERANEK, J., concur.


text:
    ALLINGTON TOWERS NORTH, INC., Philip Seidler and Helen Seidler, his wife; Alvin W. Rosenthal, Charles Jacobs and Morris Weinfeld, Appellants, v. S.A. WEISBERG and S.A. Weisberg, Inc., et al., Appellees. ALLINGTON TOWERS CONDOMINIUM NORTH, INC., Appellant, v. ALLINGTON TOWERS NORTH, INC., and Westinghouse Electric Corporation, Appellees. ALLINGTON TOWERS NORTH, INC., Philip Seidler and Helen Seidler, his wife; Alvin W. Rosenthal, Charles Jacobs and Morris Weinfeld, Appellants, v. ALLINGTON TOWERS CONDOMINIUM NORTH, INC., Appellee.
    Nos. 82-338, 82-709 and 82-769.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Alvin Capp of Capp, Reinstein, Kopelow-itz & Atlas, P.A., Fort Lauderdale, for All-ington Towers North, Inc., et al.
    Steven A. Colsky of Martin D. Kahn, P.A., North Miami, for S.A. Weisberg and S.A. Weisberg, Inc.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for Allington Towers Condominium North, Inc.
    Thomas R. Spencer, Jr., of Spencer, Bernstein & Seemann, Coral Gables, for Westinghouse Elec. Corp.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Laud-erdale, for The Ceco Corp.
    John A. Shughart, Jr., of Welbaum, Zook, Jones & Williams, Miami, for Aetna Drywall Contractors, Inc.
   UPON MOTION FOR REHEARING

PER CURIAM.

The petition for rehearing is granted.

Left unanswered from our prior pronouncements in this cause, 439 So.2d 891, is a question of some poignance. Distilled to its essence, thus avoiding protracted discussion of the facts, the question is: When the apartment owners of a newly erected condominium sue the builder for defective construction and the builder seeks indemnity from the subcontractors by way of third party practice, does the builder’s claim over against the subs survive if the trial court dismisses the complaint against both the builder and the subs and we reverse the court below when the apartment owners appeal? We answer in the affirmative.

The builder, happy to receive final relief from the defense of the main suit did not appeal the order as it pertained to the subs. Several of those subs have urged that the builder’s indemnification claim must perish absent an appeal directed to the dismissal thereof. We do not agree.

In the case at bar the trial court’s dismissal of the third party claim with prejudice was logically premised on the fact that since it had dismissed the main complaint against the builder, the third party claim for indemnification was no longer viable.

We have not just reversed a portion of the trial court’s order, we have reversed all of it. By so doing we have reactivated the main lawsuit and the defendant builder should not be barred from exercising his indemnification claim because he failed to appeal from an order which entirely vindicated him. Perhaps it would have been better practice for the builder to file what would be tantamount to a contingent cross appeal but we do not require it.

We conclude by stressing that this holding is predicated on, and limited to, all the circumstances attendant to this particular cause. It is not our general intent to furnish resourceful counsel with a means to seek appellate relief even though no appeal has been filed. Indeed we are not empowered to do so.

In all other respects our prior pronouncements, except as amended, remain undisturbed.

LETTS, BERANEK and WALDEN, JJ., concur.

      . Cross appeals are not necessarily to be filed within 30 days of the rendition of the order to confer appellate jurisdiction. See City of Hialeah v. Martinez, 402 So.2d 602 (Fla. 3d DCA 1981). See also F.A.R. 9.020(f).


text:
    PROPRIETORS INSURANCE CO., et al., Appellants, v. John and Janet VALSECCHI, et al., Appellees.
    No. 81-1201.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Daniels & Hicks, Miami, Dolan, Fertig & Curtis, Fort Lauderdale, Kimbrell, Ham-ann, Jennings, Womack, Carlson & Knis-kern and Arthur C. Miller, III and R. Owen Ricker, Jr., Miami, for appellants.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Rossman & Baumber-ger and Robert D. Peltz, Miami, Broad & Cassel and F. Vernon Bennett, Winter Park, Wells, Gattis, Hallowes, Holbrook & Conway, Orlando, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

This cause is remanded to the trial court with directions to vacate the cost judgment under review.