text:
    Albin Richard BLOOMBURG, Jr., a/k/a Dick Vance, Appellant, v. STATE of Florida, Appellee.
    No. 84-1293.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    Rehearing Denied March 7, 1985.
    John O’Donnell, Fort Lauderdale, and John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court’s extensive written statement contains sufficient, valid, clear and convincing reasons to support his departure from the sentencing guidelines and we affirm the sentence on the authority of Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984).

We find no merit in appellant’s second point on appeal. The record contains no support for the allegations made in appellant’s untimely motion to withdraw his plea of guilty. See Fla.R.Crim.P. 3.170(f).

AFFIRMED.

HERSEY, DELL and WALDEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE ex rel., Robert A. GUTERMA, individually and as Personal Representative of the Estate of Alexander L. Gu-terma, and as Personal Representative of the Estate of Anita Guterma, and Boca Leasing Corp., Petitioners, v. The Honorable Paul T. DOUGLAS, Circuit Court Judge of the Fifteenth Judicial Circuit, In and For PALM BEACH COUNTY, Florida, Respondent.
    Case No. 84-2702.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    Rehearing Denied March 13, 1985.
    Richard E. Bosse of Law Offices of Richard E. Bosse, Boca Raton, for petitioners.
    Steven I. Greenwald of Law Offices of Steven I. Greenwald, P.A., Boca Raton, for respondent.
   PER CURIAM.

Prohibition does not lie. English v. McCrary, 348 So.2d 293 (Fla.1977). We consider the petition as one for certiorari relief, 9.040(c) Fla.R.App.P. and deny the petition for failure to demonstrate the lack of an adequate remedy by appeal. United States Fidelity & Guaranty Co. v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981), petition for review denied, 419 So.2d 1195, 1201 (Fla.1982). Nor is an order appointing a receiver appealable pursuant to Rule 9.130(a)(3).

PETITION DENIED.

HERSEY, DELL and WALDEN, JJ., concur.


author: CAMPBELL, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Roy G. JACKSON, Appellee.
    No. 84-429.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1985.

      Jonathan L. Alpert of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for appellant.
    William D. Roth, Winter Haven, for ap-pellee.
   CAMPBELL, Judge.

Appellant, Allstate Insurance Company, seeks review of the final judgment finding that appellant is obligated to provide personal injury protection benefits under its policy to appellee. We affirm.

The issue on appeal is whether personal injury protection (PIP) benefits under a policy insuring a motor vehicle owner, cover the person insured who is injured while standing outside of a nonowned motor vehicle and attempting to repair a part of that vehicle which is not essential to the motor vehicle’s use as a motor vehicle.

On July 16, 1982, Roy Jackson, appellee, who was insured by appellant, was injured when he attempted to repair a refrigerator in a Southwind motor home owned by Oakley. Oakley’s family and appellee’s family were planning to use the motor home the next day to go camping. While standing beside the motor home, appellee took a wrench and turned a valve on the refrigerator to see if the valve was open or closed. When the valve turned, liquid Freon spewed from the valve into appellee’s right eye causing injuries, the extent of which are not disputed.

It is not disputed that the motor home fits within the definition of “motor vehicle” contained in appellant’s policy.

The trial court found that the incident arose out of the ownership, maintenance, or use of a vehicle as provided under section 627.736, Florida Statutes (1982), and appellant was obligated to provide PIP benefits to its insured. This appeal followed.

Section 627.736(1) requires that insur-anee policies provide PIP benefits for injuries to the insured “arising out of the ownership, maintenance, or use of a motor ve-hide.”

Appellant states that the purpose of the PIP statute is to provide swift and sure recovery for victims of automobile accidents. Appellant urges that the instrumentality causing the injury must be the motor vehicle during its use as a motor vehicle. Appellant argues that the injury which occurred while appellee stood outside the motor vehicle repairing the refrigerator, did not arise from the use or maintenance of the motor vehicle as a motor vehicle and, therefore, the statute does not mandate coverage. We do not agree.

The Florida Supreme Court construed the clause “arising out of the ownership, maintenance, or use of a motor vehicle” in Government Employees Insurance Company v. Novak, 453 So.2d 1116 (Fla.1984). In Novak, the insured was in her car when she was shot in the face following her refusal to give the attacker a ride. The court stated that “arising out of” does not mean “proximately caused by” the use of the motor vehicle, but merely requires a nexus between the motor vehicle and the injury. The court, citing Novak v. Government Employees Insurance Company, 424 So.2d 178 (Fla. 4th DCA 1983), stated that the inquiry “should be whether the attack upon the decedent arose out of, or flowed from, the use of the vehicle.” Id. at 180. The court found there was a sufficient causal connection between the use of the motor vehicle and the insured’s injuries to hold the insurer liable for PIP benefits.

This court recently addressed the same issue in Allstate Insurance Company v. Robert Gillespie, et al., 455 So.2d 617 (Fla. 2d DCA 1984). In that case, the insured’s vehicle was at a traffic light when an individual approached on foot; a brawl began resulting in the pedestrian being shot. The pedestrian sued the insured. The court held' that the insured’s liability policy, which promised to defend the insured if he was sued, covered the incident due to the connection between the use of the car and the injury suffered.

Here, appellee was injured while he was preparing the mobile home for use by his family and himself in the manner contemplated for its use. Based on Novak and Gillespie, we hold that his injuries arose from, or flowed from, the use of the motor vehicle. Therefore, PIP benefits should be extended to appellee.

Accordingly, we affirm the decision of the trial court.

RYDER, C.J., and OTT, J., concur.


author: GRIMES, Judge.

text:
    William David LOWRY, John Lowry, Janet Lowry Copeland and Lynn Lowry Carlson, Appellants, v. Mary LOWRY, Appellee.
    No. 84-1280.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1985.
    Carolyn M. Fields of de la Parte & Gilbert, P.A., Tampa, for appellants.
    Frances Makemie Toole of Bush, Ross, Gardner, Warren & Rudy, Tampa, for ap-pellee.
   GRIMES, Judge.

This case involves a claim for relief predicated upon the theory of unjust enrichment.

Since the court ruled that the appellants failed to state a cause of action, the statement of facts shall be taken from the allegations of the complaint. Appellants are the children of William D. Lowry, Jr., and Glenna Lowry Hobson. The parents were divorced on January 25, 1966. The final decree of divorce incorporated a stipulation of the parents that included the following paragraph:

The Defendant [William D. Lowry, Jr.] agrees that he will keep in force the present insurance policies now existing on his life and will designate as the irrevocable beneficiaries in said policies all of the minor children of the parties.

At the time William D. Lowry, Jr., entered into the agreement regarding the insurance, there were four life insurance policies in existence having a total face value of $40,000. In March of 1971, William D. Lowry, Jr., removed appellants as the beneficiaries of the policies and named his second wife, appellee, as the sole beneficiary. William D. Lowry, Jr., died on March 28, 1980.

On April 29, 1980, appellee received the proceeds of the life insurance policies which William D. Lowry, Jr., had agreed to maintain for the benefit of his children. When appellee refused appellants’ demand for the proceeds of the policies, appellants brought this suit for damages. The court granted appellee’s motion to dismiss with leave to amend. Appellants conceded that they were unable to allege further facts in support of their position and, as a result, suffered the entry of a final judgment dismissing their action with prejudice.

Appellants contend that appellee has fortuitously obtained the proceeds of the life insurance policies which their father agreed that they should have. Appellee points out that she was guilty of no misconduct and suggests that any cause of action the appellants might have should be asserted against their father’s estate.

The appellants’ claim does not squarely fit within any of the traditional theories upon which relief is normally granted. Yet, there is substantial equity in their position. According to 66 Am.Jur.2d, Restitution and Implied Contracts § 3 (1973):

The phrase “unjust enrichment” is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.

The case of Sewell v. Sewell Properties, 159 Fla. 570, 30 So.2d 361 (1947), bears some analogy. There, a deceased father devised property to his brother in trust for his daughter. The brother failed to advise the daughter of the terms of the trust agreement. A few days before his death, the trustee brother conveyed to his wife the property and the proceeds thereof which he held in trust from the estate of his deceased brother. The supreme court held that the daughter had stated a cause of action against the estate of her deceased aunt. The court noted that equity would follow the property constituting the trust even if it had been converted into another species of property so long as it had not passed into the hands of a bona fide purchaser for value.

In Brown v. Hanger, 368 So.2d 63 (Fla. 3d DCA 1979), Dr. and Mrs. Brown owned a parcel of property as tenants by the entirety. After the property was sold, Dr. Brown placed the sales proceeds in an inter vivos trust which he ultimately modified in favor of Elizabeth Hanger. The court ruled that Mrs. Brown was the equitable owner of the trust. The court pointed out that it was irrelevant that Ms. Hanger did not know that the money in the trust came from property owned by Dr. Brown and his wife because she was not a bona fide purchaser for value.

The appellants were clearly third party beneficiaries of the stipulation for insurance entered into between their father and mother. It is likely they would have prevailed if the insurance company had joined them in an interpleader action. See Roxy v. Roxy, 454 So.2d 84 (Fla. 2d DCA 1984); Dixon v. Dixon, 184 So.2d 478 (Fla. 2d DCA 1966), cert. denied, 194 So.2d 897 (Fla.1967). Standing alone, the fact that the insurance proceeds have been paid to appellee should not alter the justice of appellants’ claim because the appellee was not a bona fide purchaser for value.

We hold that the complaint stated a cause of action. Accordingly, this cause is reversed and remanded for further proceedings.

RYDER, C.J., and SCHEB, J., concur.


text:
    Elbert Roy SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-1501.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 1985.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Appellant was charged with, tried for and convicted of two counts of sexual battery, one count of armed robbery, one count of burglary of a dwelling while armed and one count of shooting into an occupied building. He contends that because the trial court refused to excuse several prospective jurors for cause, he was compelled to exercise all his peremptory challenges to excuse those proposed jurors, that he was then compelled to accept a juror he would not have retained because his peremptory challenges were exhausted, and that he was thus denied a fair trial. We reverse for a new trial.

During the voir dire examination of prospective jurors, it became apparent that several of them had read an article in the local daily newspaper about the impending trial and the fact that it was a re-trial following the reversal of an earlier conviction. We find no error in the' trial court’s determination that prospective jurors Motley and Kelly were qualified, after hearing them state that although they had read the article, they could not remember the details of the article and had not been influenced by it. Prospective juror Gullett felt that he did not have an open mind towards the crime of sexual battery, and although the court denied the defendant’s request to excuse this venireman for cause, the State excused him on a peremptory challenge, so the defendant demonstrates no prejudice, even if the trial court was wrong.

We do find, however, that defendant’s challenge for cause to prospective juror Thomas should have been granted. Thomas was eventually excused by defendant on a peremptory challenge, and the trial court denied defendant’s motion that he be granted additional peremptory challenges when his peremptories were exhausted. Ms. Thomas, a reporter for the Palatka Daily News, was aware of the newspaper article, and she revealed this fact when the panel was asked whether any of them had read or heard anything about the case. She indicated at that time that she had expressed an opinion about the case after reading the article, and she wasn’t sure that she could listen to the evidence and the instructions of the court free from the influence of what she had read. Upon further questioning by the court she said she would try to be fair and impartial. At the request of counsel, Ms. Thomas and venireman Kelly and Gullet were questioned individually, outside of the presence of each other and the other panel members.

In Singer v. State, 109 So.2d 7 (Fla.1959) the Supreme Court of Florida stated that a juror’s statement that he can and will return a verdict according to the evidence submitted and the law announced at the trial is not determinative of his competence, if it appears from other statements made by him or from other evidence that he is not possessed of a state of mind which will enable him to do so. The court stated the rule to be as follows:

Further we do not feel that the true test of the fixedness of an opinion in the mind of the juror is to be determined by whether the opinion will readily give way to the evidence. As pointed out by Justice Buford in Powell v. State, 131 Fla. 254, 175 So. 213, supra, at page 216:
“ * * * The accused, guilty or innocent, is entitled to the presumption of innocence in the mind of every juror until every element of the offense charged against him has been proved by competent evidence adduced upon the trial beyond a reasonable doubt. This is not accomplished when a juror is taken upon a trial whose mind is in such condition that the accused must produce evidence of his innocence to avoid a conviction at the hands of that juror. * * *”
It is not enough that an opinion will readily yield to the evidence, for evidence of innocence is not required to be presented by the accused.
We think the true test to be applied should be not whether the juror will yield his opinion, bias or prejudice to the evidence, but should be that whether he is free of such opinion, prejudice or bias or, whether he is infected by opinion, bias or prejudice, he will, nevertheless, be able to put such completely out of his mind and base his verdict only upon evidence given at the trial. Lamb v. State, [90 Fla. 844], 107 So. 530, supra, at page 535, citing Hopt v. People, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708.

Id. at 24.

Here, the prospective juror conscientiously did as much as she could to be fair, but she just as conscientiously tried to tell everyone that she might not be able to put aside the opinion she had formed based on what she knew about the case. When the court asked her if, notwithstanding this knowledge she could afford the defendant the presumption of innocence the law entitles him to, she replied: “Not knowing what I think I know at this time, because I would question, you know, what happened.” As the court said in Singer:

It is difficult for any person to admit that he is incapable of being able to judge fairly and impartially. We think Mr. Shaw on voir dire examination did as much as he could to honestly express that he was of such a state of mind, consciously or subconsciously, that he was not sure he could render a verdict without being influenced by the opinion he had formed from what he had read and heard about the case and because of knowing decedent’s family.

Id. at 24. Here, Ms. Thomas candidly admitted that what she knew because of the articles might affect her view of the evidence, and might make her unable to afford the defendant the presumption of innocence to which he is entitled by law. The distinct implication which arises from the dialogue between Ms. Thomas and the trial judge is that defendant’s evidence might persuade Ms. Thomas to change her opinion, but of course, defendant is not obligated to present any evidence.

Although this juror did not sit because the defendant excused her on a peremptory challenge, it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause, since it has the effect of abridging the right to exercise peremptory challenges. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). See also, Leon v. State, 396 So.2d 203 (Fla. 3d DCA 1981). Where there is any reasonable doubt as to a juror’s possessing the requisite state of mind so as to render an impartial verdict, the juror should be excused. Singer v. State, supra. The dialogue with Ms. Thomas clearly shows such reasonable doubt, and she should have been excused for cause.

Because a new trial is required, we will dispose of the other points raised by appellant. He contends that the trial court should have directed a verdict in his favor on the charge of shooting within an occupied dwelling, because the evidence showed that he shot at the victim’s dog, not at the dwelling itself. He relies on Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960) as support for his position. Because the statute has been amended since the Golden decision so that it now proscribes shooting at, within or into a building, we have chosen not to follow that case. See Skinner v. State, 450 So.2d 595 (Fla. 5th DCA 1984). A defendant may be convicted under this statute when he intentionally shoots at someone or something within the building as well as when he shoots at or into the building itself. Thus the trial court did not err in refusing to direct a verdict for defendant on this charge.

Appellant also contends that the trial court erred in imposing consecutive mandatory minimum sentences for each of the crimes for which defendant was convicted because the multiple offenses arose out of a single episode. He relies on Palmer v. State, 438 So.2d 1 (Fla.1983) as support for that position. While Palmer did reverse the imposition of consecutive mandatory minimum sentences in that case because the separate robbery victims were all robbed at the same time and place, the court specifically observed that it was not prohibiting consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places. 438 So.2d at 4. Here, each crime was separate, occurring after a distinct time interval. Each sexual battery occurred at a different place. The intent to commit the robbery does not appear to have been formed until long after the sexual batteries took place. The shooting of the dog, however, does appear to be the direct continuation of the burglary, committed as soon as defendant entered the premises, so under Palmer, it would be error to impose mandatory minimum sentences for both of these crimes. Otherwise, we find no error in the imposition of the sentences.

The judgments of conviction are reversed, and the cause is remanded for a new trial.

REVERSED and REMANDED.

COBB, C.J., and DAUKSCH and OR-FINGER, JJ., concur.

      . See Smith v. State, 434 So.2d 18 (Fla. 5th DCA 1983).

      . Fla.R.Crim.P. 3.350(e) grants the trial court discretion to grant additional peremptory challenges when the information contains two or more counts or where, as here, two or more informations are consolidated for trial. See also, Johnson v. State, 222 So.2d 191 (Fla.1969).

      . At the risk of overburdening the opinion, here follows the entire individual voir dire of Ms. Thomas.
      THE COURT: [M]r. Zolezzi [defense counsel], you may inquire of—
      Well, let me ask first, do you recall what you read in the article?
      MS. THOMAS: Do you want me to go ahead and state the portion that—
      THE COURT: Yeah. Tell me what you remember about it.
      MS. THOMAS: Three-year sentencing portion, and three hundred and sixty-five years, or something like that, stood out with me from that article—
      THE COURT: All right.
      MS. THOMAS: —and the fact that he was being brought back.
      THE COURT: All right. Now, what did that mean to you?
      MS. THOMAS: It meant that you have a person that’s already been sentenced before—
      THE COURT: Yeah?
      MS. THOMAS: —and that, apparently that you have some previous doubt as to whether or not he’s committed—
      THE COURT: And that means he’s got to start over again from scratch, right?
      MS. THOMAS: I don't know. When he gets three hundred and sixty-five years, that’s, that’s—
      THE COURT: No, wait a minute now. That hasn’t got anything to do with the sentence, hasn’t got anything to do with—

        What I’m asking you is what your state of mind is, you know, really, with regard to it.
      MS. THOMAS: Okay.
      THE COURT: Now, would what you read in the article influence you to the point that you couldn’t put it aside and listen to the evidence that comes here and give the Defendant and the State a fair trial in this proceeding?
      Now whether the Defendant had ever been in Court before, whether there was ever any doubt, whether he got one day or a thousand years, hasn't got anything to do with it.
      Can you afford him that presumption of innocence the law entitles him to?
      MS. THOMAS: Not knowing what I think I know at this time, because I would question, you know, what happened.
      THE COURT: Well, what do you think you know?
      You see, what you’ve got to do in any trial is listen to the evidence that comes here in the Courtroom—
      MS. THOMAS: Right.
      THE COURT: —and the law as the Judge instructs it. Now—
      MS. THOMAS: What I’m saying, I could, you know, based on the evidence that we take here, sure, I could take that and go in and form an opinion from what’s presented here; but I do have something previous, that I think—
      THE COURT: I understand.
      MS. THOMAS: —that I think I know previously that could affect—
      THE COURT: But if it came down to the fact that the State in its proof did not prove the case beyond a reasonable doubt, could you find the Defendant not guilty in this case, if the State didn't prove it?
      MS. THOMAS: If it was the evidence, I guess I wouldn’t have any choice.
      THE COURT: All right. If the State proved it beyond a reasonable doubt, would you find him guilty?
      MS. THOMAS: Yes, sir?
      THE COURT: Okay. If you can do that, then you couldn’t be any more fair as far as the system is concerned.
      Mr. Zolezzi, you may inquire.
      MR. ZOLEZZI: Do you recall the date of the article that you read?
      MS. THOMAS: I read something this week, because I remember skimming the newspaper, looked at my news articles—
      MR. ZOLEZZI: Uh-huh.
      MS. THOMAS: —and I remember one that was written by a co-worker of mine, and I looked at it and it was something about — I don’t know if it was in the headline — about him being brought back, the case.
      MR. ZOLEZZI: By "brought back”, what do you understand that to mean?
      MS. THOMAS: To court. Probably the fact that he, his defense has appealed, you know, something, some technicality of the law or something, and get him back into court, that something went wrong in the first case.
      MR. ZOLEZZI: Is that the recollection that you have?
      MS. THOMAS: That’s not specifically from the article.
      The thing that stuck out with me the most is the part, the portion of sentencing.
      MR. ZOLEZZI: Do you recall anything else in the article about Mr. Smith himself other than what he was charged with or the prior sentencing, as to what he, his status himself may have been at the time?
      MS. THOMAS: No, just the sentencing itself because it received a lot of attention.
      MR. ZOLEZZI: Can you set that aside and not discuss it whatsoever with the other jurors and not consider it in rendering your verdict in this case?
      MS. THOMAS: Now given the instructions that we had not discuss it, you know, sure; you know, I don’t want to violate anything.
      THE COURT: I think what he's saying, if you had to go back in the jury room and decide the case, in the course of that could you eliminate from discussion with the other jurors the fact that you read something and what you read and not talk to them about it?
      MS. THOMAS: If the State had proved that, you know, in my mind that he was guilty of something, I might refer back to what had happened previously. I’m not going to say that I wouldn't.
      MR. ZOLEZZI: If you were instructed not to?
      MS. THOMAS: Well, If I was instructed not to, of course not.
      MR. ZOLEZZI: I have no further questions, Your Honor.
      THE COURT: Do you have anything you want to ask her?
      MR. ZOLEZZI: Your Honor, may I ask one more?
      THE COURT: Yeah.
      MR. ZOLEZZI: With the information that you know of and the sentence that you've told us about, you still indicate that you could decide this case in a fair and impartial manner?
      MS. THOMAS: I would try based on the information that’s given here, you know, in this Courtroom.
      MR. ZOLEZZI: Thank you.
      THE COURT: We can ask no more of any juror.


text:
    Lawson L. LAMAR, Sheriff of Orange County, Florida, Appellant, v. David LINKOVICH, Appellee.
    No. 83-1615.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 1985.
    Peggy M. Morris, Asst. Staff Atty., Orlando, for appellant.
    Walter H. Tedford, Jr., DeLand, for ap-pellee.
   PER CURIAM.

AFFIRMED. See In Re: Forfeiture of One 1976 Chevrolet Corvette, VIN 1ZS7L6541240, 442 So.2d 307 (Fla. 5th DCA 1983), review denied, 451 So.2d 849 (Fla. 1984).

COBB, C.J., and DAUKSCH and CO-WART, JJ., concur.


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

text:
    James D. McCARTER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1714.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 1985.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

McCarter appeals from his conviction, entered pursuant to a plea of nolo contendere, for carrying a concealed firearm. McCar-ter specifically reserved the right to appeal an order denying his motion to suppress the seized firearm.

At the suppression hearing, Detective Anderson of the Daytona Beach Police Department was the primary witness. Anderson testified that he arrested McCarter at the Daytona Beach airport on August 12, 1982, following an investigation which had been prompted by information received from a private detective, Mansour. Anderson’s testimony and an affidavit from Mansour, which was introduced by the State without objection, provide the factual background for the arrest.

John Cochran was a student at a North Carolina college. In 1979, he visited St. Augustine, Florida, on spring break and was hired by a couple to paint their house. Cochran and the wife became involved and she later gave birth to his child. The husband was upset with this turn of events and began harassing Cochran and making telephone calls threatening his life.

In 1982, after some bizarre developments occurred, Cochran and his father consulted an attorney who advised them in the interest of the son’s safety to hire Mansour to investigate. Mansour’s investigation, as outlined in his affidavit, reflected the following. In March of 1982, John was approached in North Carolina by a woman, Jay Jordan, using the name Jane Thompson. It was later discovered she was paid by McCarter. She claimed to be researching the Cochran family name and told John that her husband could help him get a job in South America. John suggested she talk to his father, but she failed to contact Cochran, Sr., and the Cochrans became suspicious. Around July 3, 1982, the Cochrans received a call from a Frank Alexander, who was later discovered to be McCarter. McCarter stated that Jay Jordan had told him about John and his company was interested in him. McCarter represented that the job in South America would net John a lot of money. A meeting was set up in the bar at the Holiday Inn in Raleigh, North Carolina. The Cochrans were suspicious and Cochran, Sr. accompanied his son. McCarter represented that John would make up to $60,000 a year, but was evasive about the name of his company, saying only that he was a recruiter for a big company.

On July 8, McCarter contacted John by telephone and said there would be a conference and interview in Daytona Beach, Florida, at the Howard Johnsons hotel. McCar-ter told John he would send a ticket and information about the company and a telephone number where he could be reached. John never received any such material.

Mansour visited Daytona Beach to see if there was in fact a meeting. Alexander (McCarter) was not registered nor was there a conference scheduled at the designated hotel. The detective checked other hotels and could not find Alexander or any similar conference.

Several weeks passed before Alexander (McCarter) again contacted John, reporting he had a ticket for him to Daytona and had booked him into the Howard Johnsons where an employment seminar was being held. Convinced that the mysterious Alexander intended to harm John, Mansour took this information to the Daytona Beach police.

Upon Cochran’s arrival in Daytona Beach, the police were waiting. They observed McCarter approach Cochran and the two men walked to a vehicle parked in the airport lot. When McCarter opened the front passenger door for Cochran, the police appeared, placed him under arrest for attempted murder, and conducted a search of the vehicle. They discovered a partially opened briefcase in the front seat which contained a .32 caliber revolver, an ice pick, mace and several other items including surgical gloves. These items were located approximately two feet from where McCarter was standing when he opened the door for Cochran.

On appeal, McCarter argues that the police lacked probable cause for the arrest and therefore the search was invalid. This claim must fail for two reasons.

First, McCarter did not argue below that the police lacked probable cause for an arrest, only that they lacked justification to search the car and briefcase. Indeed, at one point in the proceedings, the state attorney, in trying to formulate the issue raised by McCarter declared “I think the issue is that the police had no probable cause to arrest this man ... that’s not the issue?”, to which defense counsel responded “No, sir.” Given the fact that this issue was not raised below, McCarter is in no position to argue it now on appeal. See State v. Varnedoe, 443 So.2d 201 (Fla. 3d DCA 1983); W.J.S. v. State, 409 So.2d 1209 (Fla. 1st DCA 1982).

Even if he were, the facts presented amply establish probable cause for McCarter’s arrest on a charge of attempted kidnapping. Probable cause to arrest exists when facts and circumstances within an officer’s knowledge and of which he had reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has or is being committed. McKee v. State, 430 So.2d 983 (Fla. 3d DCA 1983); Wright v. State, 418 So.2d 1087 (Fla. 1st DCA 1982). The facts recounted above supply a reasonable basis to conclude that McCarter, who was deceitfully luring Cochran from North Carolina back to east-central Florida, the area from which the death threats had come, was acting in league with the husband who was making those threats. At the time that McCarter met Cochran at the airport and opened the car door for him, there was probable cause to believe that McCarter was attempting to secretly abduct Cochran against his will and without lawful authority, with the intent to physically harm him. Since probable cause for the arrest existed, the police were permitted to search the area where McCarter might have had access to a weapon, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. King, 405 So.2d 770 (Fla. 5th DCA 1981), and the briefcase was included in this area.

For the above stated reasons, the order denying McCarter’s motion to suppress is

AFFIRMED.

COBB, C.J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

This is a case where the evidence does not constitute probable cause justifying an arrest and an incidental search and seizure.

A private detective stated facts to police officers in Florida that could cause a suspicious person to suspect that the defendant may have been acting at the instance of one C.R.S., who had reason to bear malice toward one John C., and, if so, that the defendant may have acted with a bad motive when he made an attractive job offer to John C. and induced John C. to fly from North Carolina to Florida. The police officers set up a meeting between John C. and the defendant at the airport and saw the two persons meet and go toward a parked car. When the defendant opened the passenger car door for John C., the police officers arrested the defendant for attempted murder and then conducted a war-rantless search of the parked car and seized a handgun from a briefcase on the front seat.

At a probable cause hearing the State presented their case arguing that the police had probable cause to arrest the defendant for attempted murder. The trial court expressly found that there was no probable cause to arrest the defendant for attempted murder. That finding and ruling was not appealed and is the law of the case. Defendant was then charged with carrying a concealed firearm in violation of section 790.01(2), Florida Statutes. The trial court denied a motion to suppress the seized handgun made on the ground that the arrest and incidental search and seizure were illegal because there was no probable cause for the arrest. The defendant pled nolo contendere reserving the right to take this appeal from the denial of the motion to suppress.

The State does not contest the validity of the first order finding lack of probable cause to arrest for attempted murder but contends, weakly, that the evidence was sufficient to constitute probable cause to believe the defendant was engaged in some other “criminal activity” (such as a conspiracy to commit murder) justifying his arrest, or, at least, that the evidence created a “reasonable suspicion” the defendant was engaged in “criminal activity” justifying a police stop for questioning. This will not do it. Probable cause authorizing an arrest without a warrant requires good reason to believe that a felony has been or is being committed and that the person arrested has committed or is committing it (§ 901.15(3), Fla.Stat.). A reasonable suspicion of criminal activity justifying a temporary detention to ascertain identification and circumstances under section 901.151(2), Florida Statutes, does not authorize an arrest and the search of a nearby vehicle. John C., who met the defendant at the airport as part of a police set-up, was under direct police protection and no risk except such as he and the police chose. However, belief in the existence of a risk of harm is no substitute for the absence of implicative facts constituting probable cause to believe a felony crime has been committed. Neither earlier nor later nor at the time of arrest did the police have any facts, direct or circumstantial, linking the defendant with the irate husband, C.R.S., and without a pure assumption as to that connection there was no factual basis to support a reasonable belief that the defendant intended to commit a crime against the person of John C. Accordingly, of course, there was and is no evidence as to what crime the defendant intended to commit against John C.

The defendant’s motion to suppress squarely raised the issue of the legality of the search of defendant’s car. The only possible basis for the lawful search of defendant’s car was that the search was incidental to a lawful arrest. It is rather self-evident that the legal issue on such a motion to suppress involves the validity of the arrest.

Implying some type of waiver from defense counsel’s statement at oral argument the majority recites the proposition that if an issue (such as the illegality of the arrest, as distinguished from the illegality of the resulting search) is not “raised” (argued?) below it cannot be argued on appeal. The majority opinion then holds that there was probable cause for defendant’s arrest for attempted kidnapping notwithstanding that the legal issue as to probable cause to arrest for an attempted kidnapping was never raised in the trial court, was never considered or ruled on by the trial judge, and was never once argued or suggested by the state before the trial court or this appellate court, in its brief or otherwise. That idea is first presented in the majority opinion. There has been no allegation or claim asserted, no evidence presented and no hearing or judicial finding or ruling made in the trial court that before his arrest defendant’s overt acts indicated a specific intent forcibly, secretly, or by threat, to confine, abduct or imprison John C. against his will and without authority and with intent to inflict bodily harm upon him.

No facts relevant to probable cause to believe defendant had committed a crime occurred at the airport. All the relevant facts that constituted the police suspicion resulting in defendant’s arrest were known to the police before defendant met John C. at the airport. If adequate facts existed showing probable cause that defendant had committed, or was intending to commit a crime against the person of John C., then defendant could have, and should have, been arrested before the airport police setup occurred. If the prior facts plus the events at the airport constituted prima fa-cie evidence that defendant had committed a crime before he was arrested, then he could have, and should have, been charged on those facts with that crime instead of the concealed firearms charge as to which all evidence was obtained from the illegal search that followed the illegal arrest. The order finding no probable cause for arrest for attempted murder was correct and con-elusive of the issue as to the legality of the arrest. Making a job offer, meeting the offeree at an airport and opening a car door for him is not a crime nor do those acts constitute the “overt act” (an act going beyond mere preparation but falling short of accomplishment of the intended offense) required by the statute defining the offense of attempt (§ 777.04(1), Fla. Stat.), of an attempted murder or an attempted kidnapping. The arrest was illegal and the search of the vehicle was based on the illegal arrest. Accordingly, the search was illegal and the motion to suppress should have been granted.

The point on appeal, being dispositive of the case, the judgment of conviction and sentence should be reversed and the defendant discharged.

      . Section 787.01, Florida Statutes (1981), provides in part:
      (l)(a) "Kidnapping" means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to: ******
      3. Inflict bodily harm upon or to terrorize the victim or another person.

        The fact that McCarter was arrested for attempted first degree murder rather than attempted kidnapping does not invalidate the search incident to the arrest since the label placed upon an arrest by the arresting officer is not determinative of the question of whether the arrest was legal. See State v. Cromartie, 419 So.2d 757 (Fla. 1st DCA 1982); Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981); Chaney v. State, 237 So.2d 281 (Fla. 4th DCA 1970).

      . The term “secretly” as used in the kidnapping statute means that the abduction or confinement is intended by the defendant to isolate or insulate the intended victim from meaningful contact or communication with the public. Robinson v. State, 462 So.2d 471 (Fla. 1st DCA 1984); Miller v. State, 233 So.2d 448 (Fla. 1st DCA 1970).

      . The background facts, while interesting, are irrelevant except to show the factual basis for belief that C.R.S. had reason to have animosity and ill will against John C. John C. had previously cuckolded C.R.S.

      . Another controlling point of law, inherent in the facts, is that a person outside of a vehicle (where the defendant was when he was arrested) is not carrying "on or about his person” a firearm which is located in a briefcase on the front seat of the vehicle, so as to constitute a violation of section 790.01(2), Florida Statutes.


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

text:
    STATE of Florida, Petitioner, v. Hoyt Lee EDWARDS, Respondent.
    No. 84-1355.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 1985.

      Jim Smith, Atty. Gen., Tallahassee, Mark C. Menser and Ellen D. Phillips, Asst. At-tys. Gen., Daytona Beach, for petitioner.
    Frank C. Amatea, Ocala, for respondent.
   FRANK D. UPCHURCH, Jr., Judge.

The State of Florida petitions for a writ of certiorari to review an order entered by the circuit court acting in its appellate capacity. The order reversed the conviction of Hoyt Lee Edwards for driving under the influence of alcohol and dismissed the cause. We issue the writ of certiorari and quash the order of the circuit court.

Edwards was involved in an accident and was later charged with DUI. At his trial in county court, Officer Randall of the Ocala Police Department testified as to Edwards’ physical condition and appearance at the scene of the accident. Edwards objected to this testimony claiming it was privileged and therefore inadmissible pursuant to section 316.066, Florida Statutes (Supp.1982). This section provides in relevant part as follows:

316.066 Written reports of accidents.—
* * # * * *
(4) Each accident report made by a person involved in an accident shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes, except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident, and except that the department shall disclose the final judicial disposition of the case, indicating which, if any, of the parties were found guilty. No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or upon demand of any court a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirements that such a report be made to the department. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 shall not fall within the confidential privilege afforded by this subsection but shall be admissible into evidence in accordance with the provisions of s. 316.1934(2). (emphasis added)

The purpose of this statute making accident reports privileged and thus inadmissible is to protect the constitutional right against self-incrimination while at the same time requiring persons involved in accidents to make a true report of the accident. State v. Hepburn, 460 So.2d 422 (Fla. 5th DCA 1984); State v. Edge, 397 So.2d 939 (Fla. 5th DCA 1981). Initially, this provision was applied to exclude statements required by law to be made by persons involved in accidents when such statements comprised a part of the accident report. See Adams v. State, 448 So.2d 1201 (Fla. 3d DCA 1984). However, in Cooper v. State, 183 So.2d 269 (Fla. 1st DCA 1966), the First District interpreted the provision to require suppression of a blood test when it was taken as part of an investigation for the declared purpose of completing the accident report.

The Florida Supreme Court initially agreed with this expansion of the confidentiality privilege beyond mere statements. In State v. Coffey, 212 So.2d 632 (Fla.1968), the court approved the Cooper decision but held on dissimilar facts that a blood test was admissible where the accused was made aware that the accident report phase of the investigation had ended and the test was being given in connection with the possible criminal charges. In State v. Mitchell, 245 So.2d 618 (Fla.1971), the court reiterated that the test for the statutory exclusion is whether the information sought to be excluded was taken by the investigating officer for the purpose of making his accident report and formed a basis for that report. Finally, in Duval Motor Co. v. Woodward, 419 So.2d 303 (Fla.1982), the court held that the results of a field sobriety test by the investigating officer during the accident report phase of the investigation were protected by section 316.066(4). Referring to Coffey and Mitchell, the court stated that it perceived no material difference between the results of a blood alcohol test and the results of a field sobriety test performed in response to a request by the officer, where both are obtained during the accident investigation for use in the report.

However, more recently in Brackin v. Boles, 452 So.2d 540 (Fla.1984), the Florida Supreme Court expressly receded from Coffey and Mitchell. Brackin involved the admissibility of a blood alcohol test in a civil trial. There the court observed that there is no federal or state constitutional prohibition against the admissibility of this type of blood alcohol test in either civil or criminal proceedings.

The court also recognized that it had previously determined that blood alcohol tests are inadmissible if part of the accident report phase of the accident investigation, but were admissible if part of the criminal investigation phase. The court then disapproved of this analysis, stating as follows:

We now see no need for a distinction between the accident report investigation and the criminal investigation except as it pertains to a defendant’s individual communications to a police officer or in a report submitted by a defendant in accordance with the statute. Such communications are required by subparagraphs (1) and (2), under which a driver involved in an accident must file a written report and supplements thereto.
A blood test is not a communication from ‘a person involved in an accident.’ The tangible evidence of the accident, i.e., location of accident, vehicles’ locations, skidmarks, damage to vehicles, all observed by the investigating officer, are not confidential and may be admitted into evidence by the investigating police officer. All this information ordinarily appears on the accident report prepared by the investigating police officer and it is clearly admissible at trial. Further, other tangible evidence obtained or observed by the investigating officer is not derived from an ‘accident report made by persons involved in an accident.’ Neither is a blood test, (emphasis in original)
There is no justification or logical reason for holding as privileged the results of a blood alcohol test directed by an investigating officer who prepared an accident report. The statute only prohibits the use of communications ‘made by persons involved in accidents’ in order to avoid a fifth amendment violation. The distinction this Court has previously made between investigations for accident report purposes and investigations for purpose of making criminal charges is artificial, is not a proper interpretation of the statute, and must be eliminated. We clearly and emphatically hold that the purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2). (emphasis added)

452 So.2d at 544.

In the present case, the circuit court appears to have relied on pre-Brackin cases in holding that Officer Randall’s testimony was inadmissible. However, as Brackin indicates, the distinction between investigations for accident report purposes and investigations for purposes of filing criminal charges is no longer viable. Rather the only question is whether the disputed testimony involves “statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2).”

According to the order of the circuit court, Officer Randall’s testimony was as follows:

1. Edwards was leaning against the driver’s side of a Lincoln Continental when Officer Randall arrived on the scene of the accident.
2. Edwards fumbled through his wallet while looking for his driver’s license and overlooked it several times. Officer Randall finally removed it from the wallet.
3. Officer Randall smelled the odor of an alcoholic beverage on Edwards’ breath.
4. Edwards’ speech was slurred and very difficult to understand.
5. Edwards’ balance was very shaky and he was weaving back and forth.
6. Edwards’ hair was mussed and his clothes disarranged.
7. Edwards’ eyes were bloodshot.
8. Edwards performed poorly on the field sobriety coordination tests which Officer Randall asked him to perform.

The first seven items of testimony consist of Officer Randall’s observations and do not involve statements or communications made by Edwards. Regarding the last item, in Duval, the Florida Supreme Court held that insofar as the statutory exception is concerned, there is no material difference between the results of a field sobriety test and the results of a blood alcohol test. A blood test is not testimonial evidence or a communication protected by the fourth or fifth amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Brackin v. Boles. Likewise, the field sobriety test is not a communication protected by the statute. Since the disputed testimony does not involve “statements” or “communications” that Edwards was compelled to make in order to comply with his statutory duty, its use was not prohibited by section 316.066(4). Accordingly the circuit court departed from the essential requirements of law in reversing Edwards’ conviction on this ground.

The circuit court also departed from the essential requirements of law in holding that the state had failed to establish .the corpus delicti of the crime charged. The corpus delicti was clearly established by substantial evidence. See State v. Air len, 335 So.2d 823 (Fla.1976); County of Dade v. Pedigo, 181 So.2d 720 (Fla. 3d DCA 1966).

Petition for writ of certiorari GRANTED and the order of the circuit court is QUASHED.

DAUKSCH and COWART, JJ., concur.

      . Brackin construed section 316.066 in effect in 1981. The statute in effect in the present case was amended to specifically provide that the results of breath, urine and blood tests administered as provided in chapter 316 do not fall within the confidentiality privilege. § 316.-066(4), Fla.Stat. (Supp.1982). The statute in 1981 did not contain this provision.


author: GRIMES, Acting Chief Judge.

text:
    Charles FLINT, Appellant, v. STATE of Florida, Appellee.
    No. 84-930.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1985.

      James Marion Moorman, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was charged with two counts of robbery while carrying a “firearm or other deadly weapon” under section 812.-13(2)(a), Florida Statutes (1983). After a jury trial, he was convicted on both charges of robbery with a firearm. On appeal, he complains of the court’s refusal to instruct the jury on certain necessarily lesser included offenses.

The issues before us are best illustrated by considering a portion of the colloquy which occurred at the charge conference:

MR. LYONS [defense counsel]: Your Honor, in reference to lesser included offenses, I filed with the Clerk my proposed lesser included offenses and penalty instructions, and I would request instructions on all the offenses that are listed in the proposed lesser included offenses and penalties instruction.
THE COURT: The Court finds no evidence of any attempted robbery in this case, and since attempted robbery is a category three and there is no evidence I will not charge that as a lesser included. There is no evidence whatsoever that there is any weapon involved in this case other than a firearm, so I will not give robbery with a weapon as a lesser included offense.
I find again no attempted robbery with a weapon, so I won’t give that.
I find no evidence of any aggravated assault. That is also a third category, and the assault is included in the robbery with a firearm, the same with assault. There’s no evidence of grand theft whatsoever in this ease, and consequently, it could never be grand theft because there’s no evidence. So it’s got to be petty theft.
State have any comment?
MR. MARTIN: No, sir.
THE COURT: State’s position the same as the Court’s position that it’s robbery with a firearm or robbery without a firearm and the petty theft?
MR. MARTIN: Yes, sir.
THE COURT: All right. Your objections are noted, Mr. Lyons.

At the outset, the state suggests that appellant did not properly preserve for appeal his complaint concerning the refusal of the court to give the requested instructions. The state correctly points out that no mention of the appellant’s requested instruction was made after the court had instructed the jury and before the jury retired to consider its verdict. However, in State v. Heathcoat, 442 So.2d 955 (Fla. 1983), the supreme court held that where the record of the charge conference reflected that a timely request for an instruction had been made and that the judge understood the request and denied it, it was unnecessary to make any further objection before the jury retired. We believe that a fair reading of the foregoing colloquy indicates that the appellant preserved his objection to the failure to give his requested instructions.

Substantively, we find that the court erred in refusing to give the requested instruction on robbery while carrying a weapon under section 812.13(2)(b), Florida Statutes (1983). Our sister court in Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), petition for review denied, 444 So.2d 418 (Fla.1984), reversed a conviction for robbery with a deadly weapon on the same ground. The court pointed out that even though there was no evidence of the lesser offense contemplated by section 812.13(2)(b), the court was obligated to instruct on that crime because it was a necessarily lesser included offense. The court further noted that a reference to enhancement crimes under category 1 offenses to robbery in the schedule of lesser included offenses alerts the reader to treat enhancement crimes as any other crimes which have necessarily lesser included offenses. Accord Cannon v. State, 456 So.2d 513 (Fla. 5th DCA 1985).

Florida Rule of Criminal Procedure 3.510(b) provides:

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
(b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

Admittedly, this rule is not as clear as it might be. The words “and is supported by the evidence” could be read to modify the entire phrase “a necessarily included offense or a lesser included offense of the offense charged in the indictment or information.” However, considering the historical distinction between necessarily included offenses (category 1) and lesser included offenses which are charged in the information and supported by the evidence (category 2), we are convinced that the words “and is supported by the evidence” modify only the phrase “a lesser included offense of the offense charged in the indictment or information.”

Our position is also supported by In re Florida Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). In the course of adopting the new schedule of lesser included offenses, the supreme court on page 597 of that opinion indicated that the revised rule 3.510 would “eliminate the need to give a requested lesser offense, not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense.”

Since the information charged appellant with robbery while carrying a deadly weapon, the court should have instructed the jury on robbery while carrying a weapon, and the failure to do so mandates reversal. Reddick v. State, 394 So.2d 417 (Fla. 1981). The court also should have instructed on aggravated assault and assault because both of these were category 2 lesser included offenses which were alleged in the information and supported by the evidence. However, the failure to charge on these latter crimes was harmless because the court did instruct on simple robbery under section 812.13(2)(c), Florida Statutes (1988), which was one step removed from the crime of which appellant was convicted. State v. Abreau, 863 So.2d 1063 (Fla.1978).

We reverse the convictions and remand for a new trial.

DANAHY, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


author: LEHAN, Judge.

text:
    TAMPA PORT AUTHORITY, Appellant, v. TAMPA BARGE SERVICES, INC., Appellee.
    No. 84-1032.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1985.
    David A. Townsend and Paul Parrish, Tampa, for appellant.
    Brooks P. Hoyt and Ellen J. Neil, Holland & Knight, Tampa, for appellee.
   LEHAN, Judge.

In this declaratory judgment suit we agree with the trial judge that the definition in the lease involved in this suit of the tenant’s “gross business,” which established the basis upon which to calculate rent, was ambiguous. The record supports the trial court’s resolution of that ambiguity by determining that there was no intent of the parties to the lease to calculate rent on the basis argued for by appellant landlord which would have included in “gross business” certain revenues not received by the tenant from work done by others on the leased premises. Therefore, summary judgment to that effect was properly entered.

Mere contractual ambiguity does not necessarily preclude summary judgment. In this case the trial court correctly concluded that no competent evidence before the court contravened the evidence presented by appellee in support of its motion for summary judgment which established the foregoing lack of intent.

Once the movant for summary judgment has met his initial burden of tendering competent evidence demonstrating the nonexistence of any genuine issue of material fact, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue.

Roberts v. Stokley, 388 So.2d 1267 (Fla. 2d DCA 1980), quoting from Perry v. Langstaff, 383 So.2d 1104, 1105 (Fla. 5th DCA 1980). See also Southern Rambler Sales, Inc. v. American Motors Corp., 375 F.2d 932, 937 (5th Cir.1967). Griffin Builders Supply, Inc. v. Jones, 384 So.2d 265 (Fla. 2d DCA 1980), contains language which appellant argues would mandate no summary judgment in a case involving the interpretation of an ambiguous contract. However, there was a significantly different situation in Griffin where, in contrast to the case at hand, the record showed that the parties to the contract interpreted it differently. Here the competent evidence showed only one interpretation.

Affirmed.

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


author: FRANK, Judge.

text:
    BRANDENBURG INVESTMENT CORPORATION, Appellant, v. FARRELL REALTY, INC., Appellee.
    No. 84-1187.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1985.

      Michael M. Ingram of Crabtree, Sanchez, Parker & Ingram, P.A., Sarasota, for appellant.
    Steven J. Chase and Terri Jayne Salt of Drymon, Bennett & Chase, P.A., Sarasota, for appellee.
   FRANK, Judge.

The ultimate question in this matter is whether the evidence supports the final judgment. We begin with an examination of the record.

The appellant, Brandenburg, an Indiana corporation, communicated with the appel-lee, Farrell, for the purpose of purchasing a home in the Sarasota area. Prior to that communication, Farrell had procured an exclusive listing from the Cookseys for the sale of their home. After viewing the Co-okseys’ property, Brandenburg requested one of Farrell’s agents to prepare and tender a purchase offer. The Brandenburg offer consisted of the payment of some cash, the assumption of Cookseys’ mortgage and the exchange of property owned by Brandenburg. The Brandenburg proposal placed the equity value in Brandenburg’s property at $10,000.00. At some point following Brandenburg’s instructions to Farrell, the latter unilaterally altered the offer to increase the representation of Brandenburg’s equity to $20,000.00. All other aspects of the Brandenburg offer remained unchanged. When Brandenburg learned that the proposal it wanted tendered to the Cookseys was at variance with its instructions, Brandenburg told Farrell it was deceptive to increase the equity in the Brandenburg property to $20,000.00.

Although the original Brandenburg offer was not submitted in writing to the Cook-seys, the record does disclose that one of Farrell’s agents, Bivens, orally informed the Cookseys of the content of the Brandenburg offer. The Cookseys informed Bivens that they had no interest in an offer involving an exchange of property.

It is apparent from the record that an element in the conflict which developed between Brandenburg and Farrell originated in Farrell’s insistence that Brandenburg pay a commission geared to the value of the property Brandenburg would transfer to the Cookseys if the exchange of property were a part of the ultimate transaction. Brandenburg balked at that condition. Farrell did state to Brandenburg, however, that he would submit any offer to the Cookseys which Brandenburg desired. At this juncture, it appears that Brandenburg ceased using Farrell’s intermediary role as a broker.

Approximately one month after the last communication between Brandenburg and Farrell, the Cookseys and Brandenburg agreed upon a contract for purchase, without the exchange of property. Upon learning of the sale, Farrell demanded a commission from the Cookseys. The Cookseys’ attorney responded by asserting that a commission would not be paid because Farrell had failed to inform the Cookseys of Brandenburg’s initial, unaltered offer. It is significant that although Farrell spoke with Brandenburg at a time subsequent to Brandenburg’s direct dealings with the Co-okseys, Brandenburg did not reveal that activity to Farrell.

At first blush it appears that Farrell’s cause of action would lie only against the Cookseys for breach of the exclusive listing agreement if it can be said that Farrell was the “procuring cause” of the sale to Brandenburg. Ehringer v. Brookfield And Associates, Inc., 415 So.2d 774, 775-76 (Fla. 5th DCA 1982). A broker becomes the procuring cause “by doing some affirmative act to bring buyer and seller together such as ... showing the property to prospective purchasers.” Id. Based upon the record before us, there can be no meritorious claim that Farrell was not the “procuring cause” in bringing Brandenburg and the Cookseys together.

At the outset of the litigation Farrell sued the Cookseys for breach of the listing agreement. Service was effected only upon Mrs. Cooksey and a default judgment was entered against her in the amount of $16,501.75. Thereafter, the complaint was amended to add Brandenburg and to allege that Brandenburg induced the Cookseys to breach the listing agreement, that such conduct was intentional and maliciously interfered with Farrell’s right to a commission deriving from the contract with the Cookseys.

We now reach the central question of law resolved by the trial court against Brandenburg. In Mead Corporation v. Mason, 191 So.2d 592 (Fla. 3d DCA 1966), the Third District traced the development in this State of the doctrine permitting a broker to pursue a purchaser whose conduct results in the broker’s loss of commission. That history discloses that at an earlier time our Supreme Court confined the broker’s rights to “all that he could have — a claim for compensation against the party with whom he contracted — to wit: the vending owner.” Nicol v. Bressler, 159 Fla. 668, 32 So.2d 457 (1947). An attitude of retreat from circumscribing the broker’s cause of action to the seller was expressed some seven years later in Schneider v. Binder, 72 So.2d 909 (Fla, 1954). Thus, today, if the broker is able factually to establish that the “purchaser intentionally and without justification interfered with ...” the relationship between the seller and the broker “and, if the seller acted in concert with the purchaser they are jointly and severally liable.” Mead, 191 So.2d at 595; see, e.g., Fearick v. Smugglers Cove, 379 So.2d 400, 403 (Fla. 2d DCA 1980); Sutton v. Stewart, 358 So.2d 119 (Fla. 1st DCA 1978); Oro Verde Groves, Inc. v. Fuchs, 136 So.2d 12 (Fla. 3d DCA 1962); Pokress v. Southern Hotel Corp., 42 So.2d 166 (Fla.1949).

The trial court’s determinations, both factual and legal, come to us endowed with a presumption of correctness, and “it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.” Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). And when, upon review, the trial court’s findings of fact are supported by the record, they remain undisturbed and conclusive. Spencer v. American Advisory Corp., 338 So.2d 62 (Fla. 3d DCA 1976). Indeed, “when there is competent evidence to support the findings and judgments of the trial court it is the duty of this court to affirm.” Continental Development Corporation of Florida v. Duval Title and Abstract Company, 356 So.2d 925, 927 (Fla. 2d DCA 1978). We fulfill that duty and affirm.

The contention that Farrell’s modification of Brandenburg’s proposal justified direct dealing between the Cookseys and Brandenburg rings as hollow here as it must have before the trial court. Brandenburg’s reliance upon the alteration of its initial offer emerges from this record as a pretext designed as a means, either at trial to escape liability or, at an earlier time, during the Brandenburg-Cooksey negotiations, to reach a bilaterally favorable arrangement for purchase of the property free from Farrell’s commission. The trial court was wholly warranted in rejecting the alteration of Brandenburg’s offer as a valid basis for the direct dealing with the Cookseys. That the Cookseys would not accept an exchange of property buttresses the conclusion that the altered offer could not have been the motivating factor underlying Brandenburg’s circumvention of Farrell. The elimination of Farrell’s commission resulted in a compromise purchase price of $153,000, an amount below Cook-sey’s asking figure of $180,000 but above Brandenburg’s initial offer, which included the exchange of property, of $150,000.00. Thus, by ignoring Farrell, Brandenburg achieved the purchase for only $3,000.00 more than its net initial offer, it retained the equity in the exchange property, and the Cookseys enhanced their yield by some $10,000.00.

Finally, in spite of Farrell’s willingness to transmit any offer from Brandenburg to the Cookseys, Brandenburg never sought to follow that course. That fact, coupled with Brandenburg’s non-disclosure of the direct negotiations with Cooksey during a conversation with Farrell, which occurred after Brandenburg and the Cookseys had entered upon their private dealings, more than suggests that Brandenburg and the Cookseys “joined in a plan to deprive....” Farrell of his benefit under the listing agreement. Mead, 191 So.2d at 595. We conclude that sufficient evidence under-girds the trial court’s judgment that Brandenburg, without justification, intentionally interfered with Farrell’s entitlement to a commission for which Brandenburg is answerable.

Affirmed.

RYDER, C.J., and LEHAN, J., concur.


text:
    STATE of Florida, Appellant, v. Clemon LEWIS, Appellee.
    No. 84-1317.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1985.

      Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    James Marion Moorman, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The appellee and codefendant Bryan Prather were charged with conspiracy to traffic in cocaine (count I) and delivery of cocaine (count II). Appellee moved to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion as to count I of the information, and the state appeals.

The appellee’s motion to dismiss alleged:

1. That Defendant Louis [sic] is charged with Delivery and Possession of Cocaine along with Conspiracy to Traffic in Cocaine.
2. That the Defendant met with the Confidential Informant and the alleged co-conspirator in the Trophy Room.
3. That the conversation in the Trophy Room between the alleged two co-conspirators is that a deal for 3 ounces of cocaine could be done.
4. On the evening of February 10, 1983 Det. Keith and Det. Alvarez entered the ABC Lounge on West Kennedy Blvd. and observed the alleged co-conspirator and the Confidential Informant seated at a table.
5. That Det. Keith and Det. Alvarez joined the alleged co-conspirator, Bryan Prather, and the Confidential Informant, Julius Isom at the table.
6. That, thereafter, the Defendant joined the four above-mentioned persons at the table.
7. That Julius Isom introduced the Defendant to Det. Keith and Det. Alvarez.
8. That the Defendant began to negotiate with Det. Keith and Det. Alvarez a proposed sale and purchase of three ounces of cocaine.
9. That the Defendant did not have any conversation with Bryan Prather concerning the sale and purchase of cocaine.
10. That the only link between the Defendant and Bryan Prather is that they have used drugs together before.
11. That there is no specific conversation between the Defendant and Bryan Prather that can be shown by the evidence.

The state traversed the motion and alleged the following additional facts:

1. That defendant did have conversations with co-conspirator Bryan Prather and the confidential informant regarding the sale and purchase of three ounces of cocaine at the Trophy Room Lounge at West Kennedy Boulevard, where co-conspirator Bryan Prather stated that he didn’t think getting the cocaine would be a problem as far as he was concerned, and Clemon Lewis interceeded [sic] and discussed the terms of the deal.
2. That co-conspirator Bryan Prather and the confidential informant met with Detective Keith at the ABC Lounge on West Kennedy Boulevard and discussed the purchase of three ounces of cocaine, Prather stating “I can get all the stuff you want. My man just got a pound and a half.” Emphasis added.
3. That defendant did have conversations with co-conspirator Bryan Prather, the confidential informant, and Detective Keith in the presence of Detective Alvarez at the ABC Lounge on West Kennedy concerning the purchase of five ounces of cocaine, Prather stating, “Sure we’ll get it and we’ll bring it back here for you to look at it. If you like it, we’ll do the deal in the parking lot.”
4. At that time the defendant Lewis was introduced to undercover detectives, and said to them, “before we do the deal we want you to buy a sample, quarter ounce, first to make sure you like it.” Then, defendant said he would take the confidential informant and pick up the cociane [sic] from a man named Eddie. Upon his return, a delivery of a small amount of cocaine was made to Detective Keith by the defendant through the confidential informant.
5. At that time both he and Bryan Prather engaged in discussions with undercover detectives as to how the trafficking deal would be consumated [sic] including the taking of Detective Keith by Clemon Lewis and of Detective Alvarez by Bryan Prather as security in case something went wrong with the deal. More specifically, as the defendant Lewis was explaining how the deal was to be completed, co-conspirator Bryan Prather kept interjecting, saying that it would be alright, “everythings [sic] cool; do the deal; its [sic] good stuff.”
6. That it was apparent through his actions that Prather wanted the deal to go down because he was going to make some money out of the deal.
7. That it is clear from the evidence that the defendant, Clemon Lewis, did agree or conspire by word and act to commit the object of trafficking in eo-ciane [sic] with Bryan Prather and other diverse persons.

At the hearing on the motion, defense counsel argued that the state had failed to show a conspiracy between appellee and co-conspirator Prather except through the impermissible hearsay testimony of Prather. Defense counsel further submitted that since the evidence relied upon by the state was entirely circumstantial, there existed a reasonable hypothesis of innocence. The assistant state attorney contended that the submissions set forth in the traverse were sufficient to prove appellee’s participation in the conspiracy. The assistant state attorney also contended that appel-lee’s participation in the conspiracy could be shown independently by appellee’s admissions against interest made to the confidential informant.

In a criminal case, a motion to dismiss should be granted only where the most favorable construction to the state would not establish a prima facie case of guilt. State v. Davis, 243 So.2d 587 (Fla. 1971). In considering a (c)(4) motion the trial judge may not try or determine factual issues nor consider the weight of conflicting evidence or the credibility of witnesses in determining whether there exists a genuine issue of material fact. State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980). If material factual allegations of a (c)(4) motion are denied or disputed in the traverse, denial of the motion to dismiss is mandatory. Fla.R.Crim.P. 3.190(d); State v. Cook, 354 So.2d 909 (Fla. 2d DCA), cert. dismissed, 359 So.2d 1212 (Fla.1978).

In the case at bar, the state’s traverse clearly placed material facts in dispute. The traverse specifically alleged that both Bryan Prather and the appellee were present at the ABC Lounge and that both were actively involved in the conversation with the undercover detectives and with each other concerning the sale and delivery of cocaine. These allegations, standing alone, were sufficient to create a jury question as to whether a conspiracy existed.

Defense counsel’s argument concerning the inadmissibility of co-conspirator Prather’s testimony was inapplicable to the factual circumstances of the case at hand. This case does not involve a situation where the introduction of a co-conspirator’s hearsay statements was necessary in order to prove the defendant’s participation in a conspiracy. See § 90.803(18)(e), Fla.Stat. (1983). Here, the evidence of appellee’s guilt was direct. The detectives and the confidential informant were capable of testifying as to the actual statements made by each co-defendant which implicated them personally in the overall conspiracy.

Since the facts alleged in the state’s traverse were sufficient to prove a prima facie case of conspiracy against the appellee, the trial court erred in granting appellee’s motion to dismiss. Accordingly, we reverse the order of dismissal and remand with directions to reinstate count I of the information.

SCHEB and SCHOONOVER, JJ., concur.

      . The motion to dismiss which set forth numerous facts was sworn to only by appellee’s attorney. The motion should have been dismissed for this reason without regard to its substantive merits. State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982). However, the state was not entirely blameless. The oath signed by the state attorney on the traverse followed the certificate of service, thereby leaving the impression that it only referred to the propriety of service upon opposing counsel. See State v. Hamlin, 306 So.2d 150 (Fla. 4th DCA 1975).


author: DANAHY, Acting Chief Judge.

text:
    James Arthur BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 84-1837.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1985.
    James Marion Moorman, Public Defender, and David Dwiggins, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Acting Chief Judge.

This defendant challenges sentences representing a departure from the recommended sentence indicated by his guidelines score sheet. The trial judge gave seven written reasons for the departure, five of which appear to us to be valid and proper, and two of which seem to us to be questionable. On balance, it would appear that the trial judge should be affirmed based on the five valid reasons rather than reversed with directions to reconsider the sentence. We have declined to reverse when only one of several reasons was found improper. Willard v. State, 462 So.2d 102 (Fla. 2d DCA 1985). In this case, however, we affirm but certify the same question that our sister court certified in Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984):

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY A DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENC-ING?

AFFIRMED.

FRANK, J., and BOARDMAN, EDWARD F. (Ret.), J., concur.


author: ERVIN, Chief Judge. BOOTH, Judge,

text:
    Herndon W. JONES, Jr., Appellant, v. Beverly A. JONES, Appellee.
    No. AS-153.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1985.

      Elliot Zisser of Zisser, Robison, Spohrer, Wilner & Harris, P.A., Jacksonville, for appellant.
    Stephen 0. Parker, Jacksonville, for ap-pellee.
   ERVIN, Chief Judge.

In this appeal from a modification of, and supplement to, a final judgment of dissolution of marriage, appellant-husband raises three issues for our consideration: (1) whether the trial court abused its discretion by refusing to permit adequate discovery of the wife’s medical and mental condition as a criterion affecting her fitness for custody of the minor children; (2) whether the trial court erred in failing to specify that upon sale of the former marital residence the husband would be entitled to a credit against the wife’s share of the proceeds for one-half of all payments made as periodic alimony of the mortgage, interest, taxes and insurance; and (3) whether the award to the wife of child support, alimony, and attorney fees in excess of husband’s ability to pay was an abuse of discretion.

The husband and wife, married since May 6, 1972 and having two minor sons, filed a petition and counter-petition respectively for dissolution of marriage, each seeking custody of the children. Requests by each party for psychological evaluations of the other were denied by the trial court. Attached to the husband’s request was an affidavit, alleging that the wife was a habitual user of narcotics and therefore mentally incapable of caring for the children. The wife filed a motion, seeking temporary support, a limitation on the husband’s discovery and enforcement of a prior order which had directed telephonic communication with the children. In support of her motion to limit discovery, the wife asked “for a protective order to limit the time within which counsel for the husband may depose her and to limit the number of depositions that such counsel intends to take of other persons.” The motion was phrased in that manner because, at the time it was filed, the husband’s attorney had not served upon the wife any notices of depositions or of production of documents, as required by Florida Rule of Civil Procedure 1.351. Following the service of the wife’s motion, the husband filed notices of production from non-parties, pursuant to rule 1.351. The notices were apparently filed in an attempt to support the husband’s prior affidavit, alleging the wife’s excessive use of narcotics, because the notices had attached to them the names of thirty-seven physicians, nine hospitals and four outpatient clinics that the husband intended to have subpoenaed for the purpose of producing the wife’s medical records. As a result of this sequence of pleadings, the only motion before the court at the hearing which culminated in the order of April 13, 1982, limiting discovery, was the wife’s motion.

Although the court generally restricted the scope of discovery, it did permit the husband to review the medical records in the custody of Doctors Gatling and Garcia, and to depose them. The deposition testimony of Dr. Gatling later revealed that he had treated the wife with prescription medications for a “prolapsed microvalve” (sic) of her heart, as well as for headaches and nausea associated with that condition, and for chronic migraine headaches. This treatment continued for seven and one-half years from October of 1974 until March of 1982, and at no time during that period did he have any indication that she had problems with drug use, or that she might be unfit to care for her children due to such use. Dr. Gatling, however, was aware that she had been seeing at least three other physicians for lung and abdominal conditions and headaches.

After the first part of a bifurcated final hearing, the trial court entered final judgment of dissolution of marriage, awarding to the wife temporary custody of the children, temporary child support payments, alimony, and relief from mortgage obligations, as well as the temporary, exclusive use and possession of the marital home. The court reserved ruling on the issues of permanent custody, visitation, child support, alimony, possession of the marital home, attorney’s fees and costs.

The unresolved issues were the subject of a second final hearing, at which conflicting evidence was presented by various witnesses — relatives, neighbors, employers, the children’s teachers, the parties themselves — as to the quality of care each of the parents had provided to the children. The trial court ultimately entered the appealed modification to the final judgment of dissolution, wherein it granted the wife the primary residential custody of the two children, subject to the husband’s right of reasonable visitation, and directed the husband to pay: (1) as periodic alimony, the monthly mortgage payments of $211.89 on the marital home; (2) child support of $140 biweekly for both children until each reaches age 18, marries or becomes self-supporting; (3) rehabilitative alimony of $40 biweekly for two years; and (4) $5,279.70 in attorney fees and costs, payable in $100 monthly installments. The wife was granted exclusive use and possession of the marital home until the children reach age 18, marry or become self-supporting, with the provision that “[ajfter the exclusive use and occupancy has terminated, on sale of the residence, the husband shall be entitled to receive reimbursement of one-half of all payments of principal, interest, taxes and insurance so made by him.”

We agree that it was improper, under the circumstances, for the lower court to limit discovery without first conforming with the requirements of rule 1.351. The wife’s motion to limit discovery was filed pursuant to the provisions of rule 1.280(c), generally authorizing relief from discovery in “order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, _” The record before us, however, does not reveal the wife’s prior compliance with the dictates of rule 1.351(b), stating that if a party within ten days of the service of notice upon him or her, objects to production of documents, “the documents or things shall not be produced under this rule.” (e.s.) The committee note to rule 1.351 further provides that, in the event of an objection, “recourse must be had to rule 1.310.” Rule 1.310 in turn prescribes the procedure to be followed when taking depositions upon oral examination of any person, including the procedure for raising objections during such examinations.

It should be observed that the purpose behind rule 1.351’s adoption was to provide an inexpensive means for obtaining production of documents from non-parties in order to permit the affected party the opportunity to inspect or copy them, without the party having to incur the far more substantial expense involved in proceeding by formal depositions under rule 1.310. The committee note to the rule states: “This rule is designed to eliminate the need for taking a deposition of a records custodian when the person seeking discovery wants copies of the records only.” Once, however, an objection is raised, the remedy afforded by rule 1.351 automatically terminates, without the necessity of first obtaining, as was done here, an order of the court.

The wife, however, as stated, did not simply object to discovery, but sought also to limit discovery. Her motion and the resulting order were premature in that at the time of the hearing on the wife’s motion to limit discovery, it does not appear from the record that the husband had served any notices of depositions pursuant to rule 1.310 on the wife. By its own terms, the wife’s motion shows that it was filed in anticipation of planned discovery, and was based on speculation of possible abuse — rather than on demonstrated facts —as required by rule 1.310. Moreover, the motion contains no recitation of facts that would warrant the court’s drastic limitations on the husband’s right of discovery. Accordingly, since there were no notices of depositions outstanding at the time of the hearing, the wife was then unable to demonstrate any abuse by the husband in seeking discovery.

The result of the court’s erroneous order was to shift to the husband the burden of showing good cause for seeking discovery of the wife’s medical condition, insofar as such condition related to her alleged drug abuse, thereby affecting her fitness to have custody of the children. The court’s failure to comply with rule 1.351’s procedure was highlighted by its later reliance upon a study conducted by the Department of Health and Rehabilitative Services, which reported that the wife was not guilty of drug abuse. Such reliance went to the very heart of the matters sought by the husband to be discovered: whether the mother was a fit parent to have primary custody of the children.

In reversing the lower court’s order limiting discovery, and in remanding, we emphasize that we are not now precluding the lower court from later exercising its discretion by entering an order granting the wife relief from oppressive discovery, should such facts develop. Our reversal is predicated on the sole ground that the exercise of the court’s discretion was premature, because the husband, at the time of the hearing, had not yet availed himself of the recourse provided under rule 1.310. The lower court may yet, upon demonstrated facts, as required by rule 1.310, limit or grant discovery.

The trial court’s modification order was also incomplete insofar as it pertained to the sale of the marital residence. The husband was required to make all monthly payments on the mortgage, including taxes and insurance during the period that the wife was entitled to exclusive use and occupancy of the marital residence. As the husband argues, these expenses are proratable to the cotenancy ownership of the marital residence, and the trial court cannot require the husband to build the wife’s equity in the property subject to the cotenancy. See Smith v. Smith, 390 So.2d 1223 (Fla. 1st DCA 1980); Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979). The trial court’s final judgment directed that upon sale of the marital residence, the husband would be entitled to receive reimbursement of one-half of the payment of such expenses made by him, but it did not specify how the proceeds upon sale of the residence were to be divided between the parties. We therefore remand to the lower court in order that the judgment reflect the amount of the proceeds each party shall receive when the marital home is sold.

The husband finally contends that the amount of child support, alimony and attorney’s fees awarded to the wife is in excess of his ability to pay and therefore constitutes an abuse of the trial court’s discretion. The trial judge on remand of this case as to the first issue may yet decide — if he finds it appropriate to grant the discovery requested, and such discovery convinces him that the husband is the proper parent to obtain custody of the minor children — to order custody of the children to the husband, thus mooting the issue of the excessive amount of child support awarded the mother. The last alternative point, however, relates only to the allegedly excessive amounts directed. As to this issue alone, we find no abuse of discretion.

„ In awarding alimony, child support and attorney’s fees, the trial court must consider the financial ability of the spouse to provide the funds, as well as the needs of the other spouse and the standard of living they shared, and the needs of the children. See Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983). The trial court has broad discretion in fashioning such awards. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We do not find the award to be so excessive in relation to the husband’s ability to pay as to constitute a clear abuse of the trial court’s discretion and we therefore affirm. Cf Sokol, Parham v. Parham, 385 So.2d 107 (Fla. 3d DCA 1980); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980); Nicholson v. Nicholson, 372 So.2d 178 (Fla. 2d DCA 1979).

The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

ZEHMER, J., concurs.

BOOTH, J., specially concurs.

BOOTH, Judge,

specially concurring:

I agree with the majority’s interpretation of the pertinent rules and that the trial court’s order limiting discovery was premature since the husband had not sent notices of taking depositions under Rule 1.310. The court should not have ruled on the merits of the wife’s motion to limit discovery in the absence of the husband’s proceeding under Rule 1.310, Florida Rules of Civil Procedure. Only after notices of taking of deposition is the objecting party in a position to file a motion for a protective order.

Since neither party acted properly to bring the matter before the trial court from a procedural point of view, the case must be remanded. This is true even though the record evidence here would support the trial court’s ruling on both (1) the limitation of discovery as being excessive and unduly expensive in requiring records and documents from 13 clinics or hospitals and 38 doctors for medical care unrelated to the claim of unfitness, and (2) the award of primary custody of the children to the mother. However, since discovery was prematurely limited without compliance with procedural requirements, I am persuaded remand is required.

      . The grounds stated in the wife's motion for protection stated generally that: (1) she had been told that the husband expected to take discovery, and that she had no money of her own to pay for same; (2) that she had been advised that the husband's counsel intended to depose the wife for several days, and that "the husband intends to depose at least ten medical doctors and probably many other persons”, and that “the parties’ means and the issues involved do not require such extensive discovery”; and therefore the court was requested either to limit discovery or require the husband to make an advance deposit of $5,000 to cover her attorney’s fees and costs of discovery.