author: DANAHY, Judge.

text:
    Israel C. GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-914.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.
    Joel Kaplan, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendant appeals his conviction for conspiracy to traffic in cocaine, contending that the evidence was insufficient to support his conviction. We agree and reverse.

The state’s principal witness was a man named Haberman, and the facts here related are all that can be gleaned from his testimony regarding the defendant’s participation in the drug offense giving rise to this prosecution. A detective named Selzer of the Sarasota Police Department negotiated with Haberman for the purchase of a kilo of cocaine. Haberman revealed to Sel-zer that his “man” or supplier was Umber-to Urquiza, the defendant’s alleged co-conspirator. Haberman contacted Urquiza and told him that he had a buyer. Urquiza then arrived in Sarasota, where Haberman met him and led him to a lounge called “Marina Jacks.” The defendant was with Urquiza at this time but Haberman did not expect him and did not know who he was.

After arriving at Marina Jacks, Haber-man, Urquiza and the defendant went inside, sat down at a table, and ordered drinks. Haberman and Urquiza discussed the proposed cocaine transaction with Sel-zer. Haberman testified that he and Ur-quiza conversed in low voices and he could not say whether the defendant heard any of their conversation. Haberman’s conversation with the defendant consisted only of small talk.

Subsequently, Haberman, Urquiza and the defendant went to the Rodeway Inn where Haberman rented a room using the name “Green.” When the three arrived at the room assigned to “Green,” Haberman asked Urquiza for a sample of cocaine which Haberman subsequently delivered to Selzer. Haberman testified that the defendant was present when Urquiza opened a bag and retrieved the sample, but that the word “cocaine” was not mentioned at that point.

Thereafter, Haberman left the room at the Rodeway Inn, met Selzer, delivered the sample, and looked at Selzer’s money. Ha-berman called Urquiza to tell him that the money was all right. Haberman then returned to the motel room. On the way he ran into the defendant and they walked to the room together. Once inside the room, Haberman and Urquiza removed a kilo of cocaine from a paper bag and wrapped it in a towel. When questioned as to whether they did this in view of the defendant, Haberman testified that he and Urquiza were facing the sink with their backs to the room and he could not tell if anyone could see. At that time, he said, the defendant was sitting on a bed watching television. Haberman testified that he talked only to Urquiza. He also testified that he had no idea why the defendant was there.

After Urquiza gave Haberman the cocaine, Haberman delivered it to Selzer and was arrested. After his arrest, police officers went to the Rodeway Inn to see if they could locate any individuals connected with Haberman. They demanded entry into the room occupied by Haberman, Urquiza and the defendant. The defendant opened the door and was arrested. A search of Urqui-za’s rented automobile revealed a lease agreement with his name on it. A check for fingerprints was made on the cigarette package used to deliver the sample of cocaine and the package containing the kilo. None of the defendant’s fingerprints was found.

Both Urquiza and the defendant were charged in two count informations with trafficking in cocaine and conspiracy to traffic in cocaine. The proceedings against them were consolidated and they were tried together. At the close of the state’s case, the defendant moved for a judgment of acquittal, which was denied. The jury returned a verdict of innocent as to the trafficking charge against the defendant, but guilty of the charge of conspiring to traffic in cocaine. The defendant was adjudicated guilty and sentenced to fifteen years. This appeal followed.

We start our analysis by repeating the elements of the crime of conspiracy. A conspiracy is an express or implied agreement or understanding between two or more persons to accomplish a criminal offense. § 777.04(3), Pla. Stat. (1983). Both an agreement and an intention to commit the offense are necessary elements, and both may be proved by circumstantial evidence. We have searched the record in this case and have studied Haberman’s testimony in particular, and we can find no sufficient circumstantial evidence to support the defendant’s conviction of conspiracy.

A line of cases holds that mere presence at the scene of an offense is insufficient to establish a conspiracy. Honchell v. State, 257 So.2d 889 (Fla.1971); Beke v. State, 423 So.2d 417 (Fla. 2d DCA 1982); State v. Sanchez, 398 So.2d 847 (Fla. 2d DCA 1981); Ashenoff v. State, 391 So.2d 289 (Fla. 3d DCA 1980); Tomlin v. State, 333 So.2d 500 (Fla. 2d DCA 1976). The evidence in this case established no more than the defendant’s presence while acts were taken in furtherance of the cocaine transaction — actually, no more than his apparent association with Urquiza. There is nothing in the record revealing the significance of that association, and no evidence from which a guilty association may be inferred.

For the foregoing reasons, we reverse the defendant’s conviction and remand with directions that he be discharged.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arthur Lee UNDERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 83-960.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.
    Jerry Hill, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Arthur Underwood appeals two final orders of judgment and sentence imposed against him for circuit court case numbers 79-377 and 80-5806 following entry of an order revoking his probation orders for those two cases. We affirm and remand.

On April 5, 1979, the trial court placed Underwood on concurrent five-year terms of probation for case number 79-377. The next year the court placed him on a five-year term of probation for case number 80-5806, the term to run consecutive to the concurrent terms for case number 79-377.

In 1982, the trial court conducted a hearing regarding alleged violations of conditions (1), (2) and (5) of the two probation orders. The state produced evidence sufficient to establish only that, by robbing one James Johnson, Underwood violated condition (5) requiring that he remain at liberty without violating the law. It did not present any evidence with respect to either the purported violations of conditions (1) and (2) or other alleged violations of condition (5). Furthermore, Underwood did not admit committing any of the alleged violations. Nevertheless, in revoking both probation orders, the court found that he had committed all of the alleged violations of conditions (1), (2) and (5).

Although the trial court lacked any basis upon which to find that Underwood had committed any violations of probation other than the violation of condition (5) by robbing Mr. Johnson, this single violation was substantial enough, by itself, to warrant revocation. Cf. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979); Franklin v. State, 226 So.2d 461 (Fla. 2d DCA 1969).

Hence, we affirm the probation revocation order revoking Underwood’s probation for case numbers 79-377 and 80--5806, and the corresponding final orders of judgment and sentence. However, we remand to the trial court with directions that it strike from the probation revocation order the parts which read that he committed the alleged violations which were neither proven by the state nor admitted by Underwood. See, e.g., Paul v. State, 421 So.2d 696 (Fla. 2d DCA 1982); Davis v. State, 411 So.2d 886 (Fla. 2d DCA 1982); Robinson v. State, 366 So.2d 1239 (Fla. 2d DCA 1979). We also instruct the court on remand to strike the parts which erroneously indicate that Underwood pled guilty to those alleged violations.

AFFIRMED and REMANDED.

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

      . With respect to case No. 80-5806, even though the misconduct for which the trial court revoked Underwood’s probation transpired prior to April 4, 1984, i.e., before the date his consecutive term of probation for that case commenced, the trial court did not err in revoking his probation for that case. The Supreme Court of Florida decided during pendency of the instant appeal that a defendant may have his probation revoked for misconduct which occurs before the term of probation has started. Stafford v. State, 455 So.2d 385 (Fla.1984).


author: LEHAN, Judge.

text:
    Phyllis D. McKINNON, Individually and as Personal Representative of the Estate of Laquisha Latreal Tennell, Deceased, Appellant/Cross-Appellee, v. David PENGREE, Secretary, Department of Health and Rehabilitative Services, Appellee/Cross-Appellant.
    No. 83-1189.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.

      Morris W. Milton of Williams & Milton, P.A., St. Petersburg, for appellant/ cross-appellee.
    James C. Hadaway of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Clearwater, for appellee/cross-appellant.
   LEHAN, Judge.

Plaintiff mother appeals a directed verdict for defendant HRS on a claim against HRS for the wrongful disposal of plaintiff’s daughter’s body. Defendant cross-appeals the trial court’s denial of defendant’s motion for a directed verdict on plaintiff’s wrongful death claim. We affirm on plaintiff’s appeal and reverse on the cross-appeal.

Plaintiff’s baby daughter had a food intolerance that caused vomiting and diarrhea. Within the first several months of her life, the baby was hospitalized twice with dehydration resulting from this condition. After the second hospitalization, HRS was given custody of the baby and placed her with a foster mother. About four months later, after that foster mother became unable to care for the baby, the baby was placed with a different foster mother.

About one week before the placement with the second foster mother, the baby’s doctor recommended that the baby’s diet be changed by taking the child off of a carbohydrate-free formula, putting her back on a soybean formula which had been previously used, and gradually introducing her to solid foods. The second foster mother noticed that when she received custody of the child, the child had slight diarrhea and vomiting. For two days the symptoms gradually increased. When the symptoms substantially worsened on the third day, the foster mother called the HRS social coun-sellor assigned to the baby’s case, who instructed the foster mother to return the baby to the carbohydrate-free formula consistent with prior instructions of the doctor. The foster mother thought that the symptoms improved somewhat during the day. However, when the foster mother checked on the baby in the middle of the night, the baby seemed lifeless. An ambulance was called. The child was dead on arrival at the hospital.

After the child’s death, the HRS social counsellor tried, but was unable, to locate plaintiff regarding funeral arrangements. Plaintiff admitted that while she knew her baby had died in the custody of HRS, she did not contact HRS as to funeral arrangements. Plaintiff had changed residences frequently and had not given HRS plaintiff’s current address. The baby’s father and grandmother (plaintiff’s mother) asked that HRS handle the matter. No one at HRS informed plaintiff or her family that, if HRS handled the funeral, the child would be cremated. Plaintiff testified that she and her family did not believe in cremation, but there was no testimony that this was ever communicated to HRS.

We affirm the trial court’s directed verdict for HRS on the wrongful disposal claim. The record does not show wrongful or malicious indifference through HRS’s failure to tell plaintiff about the cremation. See Brooks v. South Broward Hospital District, 325 So.2d 479 (Fla. 4th DCA 1975); compare Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950).

As to the issue raised on cross-appeal, we conclude that a verdict should have been directed for HRS on the wrongful death claim because plaintiff failed to offer any evidence that the alleged negligence of HRS was the legal cause of the baby’s death.

Plaintiff claimed that HRS was negligent in failing to fully inform the second foster mother about the baby’s prior medical history. The HRS counsellor testified that she told the foster mother how sick the child had been and that she had a food intolerance, had been in the hospital, and was doing much better. She told the foster mother the type of formula and food to give the baby and “what to watch out for.”

Whether or not HRS gave the foster mother full information, to recover under plaintiff’s theory, plaintiff, in order to meet a threshold issue, would have had to show that a person with full knowledge of the baby’s history would have sought and received medical help for the child at a point earlier in time than the foster mother did. See Greene v. Flewelling, 366 So.2d 777 (Fla.2d DCA 1978). If plaintiff had made that showing, there would then be another issue as to whether plaintiff must also show that medical help would, or could, have prevented the baby’s death or whether, in contrast, a showing that the lack of medical help lessened the baby’s chances of recovery would be sufficient. We need not address that other issue. We conclude that plaintiff failed to make the necessary showing under the foregoing threshold issue because there was no evidence that the symptoms of dehydration, about which it is argued the foster mother would have known if she had been given more information, appeared sufficiently in advance to provide the foster mother with an opportunity to receive medical help for the baby prior to the baby’s death.

Plaintiff’s evidence showed that the baby had typical symptoms of dehydration at her death, but there was no evidence as to how long those symptoms had existed. One of plaintiff’s witnesses, a doctor, testified that “the course of dehydration in a child can be very rapid, a matter of a few hours can be sufficient from seemingly well to death.” The baby’s death occurred in the middle of the night, and the foster mother testified that, prior to going to bed that night, there was nothing that indicated to her that the baby was in serious condition or needed a doctor. There was no evidence to the contrary.

Our reasoning that proximate cause was not established, despite the cogent arguments on behalf of plaintiff, may be summarized as follows. We need not decide whether there was a jury issue as to whether the foster mother looked at the baby often enough prior to the baby’s unfortunate , death or whether the foster mother had been given by HRS enough information so that she would have better known what symptoms to look for. There was no evidence that if the foster mother had looked at the baby prior to the death more often than she did and if she had better known what symptoms to look for, such as symptoms plaintiff’s doctor witness testified existed at the time of death, she would have seen those symptoms in sufficient time. The reason is that there was no evidence, even opinion testimony, that those symptoms existed sufficiently in advance of death to be perceivable in time for the foster mother to have acquired the services of a doctor before the death. The testimony of plaintiff’s doctor witness that the course of fatal dehydration can be very rapid and that “it can be a matter of a few hours from seemingly well to death” did not create a jury issue as to whether the symptoms existed sufficiently in advance of death to be perceivable in time to acquire the services of a doctor. The testimony only created a possibility of that. “[A] possibility of causation is not sufficient to allow a claimant to recover.” Greene v. Flewelling, supra, at 781.

We need not address the argument as to whether HRS was entitled to tort immunity for simple negligence under the in loco parentis doctrine and, if so, whether there was in this case evidence of more than simple negligence. Also, we need not address the arguments as to whether expert medical testimony is required to sustain plaintiff’s burden of proof in a case like this.

The judgment of the trial court for defendant HRS on the wrongful disposal of remains claim is affirmed. The order for a new trial on the wrongful death claim is reversed with directions to enter judgment for defendant.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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


text:
    Carol OSTYN, Appellant, v. Lucille OLYMPIC, Appellee.
    No. 83-2082.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.
    David Carter and Harvey V. Delzer of Delzer, Edwards, Coulter, Parker & Carter, Port Richey, for appellant.
    Richard B. Denbo, Holiday, for appellee.
   DANAHY, Judge.

In an action to quiet title to real property, the plaintiff appeals a final summary judgment in favor of the defendant. We reverse.

The facts appear not to be in dispute. In 1971 Steve Olympic, a single man at that time, executed a deed conveying the property in question to himself and three other persons as joint tenants with right of sur-vivorship. Two of these other persons were Steve Olympic’s sister and brother-in-law. The third person was his sister’s daughter, Steve Olympic’s niece, and the plaintiff in this suit.

Steve Olympic’s sister and brother-in-law died, and then Steve Olympic died on August 22, 1982. The defendant had married Steve Olympic on September 12, 1975, and they resided on the property as their marital home. The defendant is currently in possession of the premises.

The plaintiff brought this suit to establish her ownership of the property as sole surviving joint tenant. On the plaintiff’s motion for summary judgment, the trial judge entered an order adjudging that the defendant’s “homestead right” as Steve Olympic’s surviving spouse attached to the marital home acquired by her husband pri- or to their marriage and that right intervened with the rights of the plaintiff as surviving joint owner of the property. The court then declared that the plaintiff's rights as surviving joint tenant vested upon the death of Steve Olympic but subject to a life estate in the defendant as Steve Olympic’s surviving spouse.

We can discern no basis for the trial judge’s ruling in this case. While it is not necessary that the entire estate in property be vested in one occupying land as a homestead before it may be impressed as homestead in character, the homestead exemption applies only to the beneficial interest owned by the head of a family. Tullis v. Tullis, 342 So.2d 88 (Fla. 1st DCA 1977), approved, 360 So.2d 375 (1978). Our supreme court early held that where a marital residence is owned by spouses as tenants by the entireties, it becomes upon the death of one spouse the sole property of the remaining spouse to the exclusion of the heirs of the decedent, even though occupied during the lifetime of both parties as a homestead. The court said: “The homestead provisions of the Constitution adopted for the benefit of heirs of the head of a family to take effect upon his demise do not apply to such property and it may be disposed of by tenants by the entireties as may any other property not exclusively owned by the head of a family and occupied by him as a homestead.” Denham v. Sexton, 48 So.2d 416 (Fla.1950). The same reasoning applies, in our view, to a marital home jointly owned by the head of a family and a person other than his or her spouse.

There is no dispute that the marital home of the defendant and Steve Olympic was in fact owned by him and the plaintiff as joint tenants with right of survivorship, an estate which can be created in Florida. § 689.15, Fla. Stat. (1983). Accordingly, on Steve Olympic's death, there was no property interest then owned by him to which a homestead interest could attach for the benefit of the defendant.

For the foregoing reasons, we reverse and remand with directions to enter final judgment for the plaintiff.

REVERSED AND REMANDED.

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

      . The holding of the supreme court in Denham v. Sexton, supra, is now part of Florida statutory law. § 732.401(2), Fla. Stat. (1983). That section of the statutes was enacted in 1975. Ch. 75-220, § 17, Laws of Fla.


author: RYDER, Chief Judge.

text:
    Leolus L. WALL, as Personal Representative of the Estate of Iris M. Wall, Appellant, v. DEPARTMENT OF TRANSPORTATION OF the STATE OF FLORIDA, the County of Sarasota, Deborah Ann Curtis and Sears-Roebuck Company, a corporation, Appellees.
    No. 83-2436.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.

      James E. Aker of Icard, Merrill, Cullis, Timm & Furen, P.A., Sarasota, for appellant.
    Robert C. Widman of Nelson, Hesse, Cyril, Smith, Widman & .Herb, Sarasota, for appellees County of Sarasota.
   RYDER, Chief Judge.

Leolus L. Wall, the plaintiff below, appeals from an order assessing attorney’s fees against him pursuant to section 57.-105, Florida Statutes (1981). We reverse.

Appellant filed a complaint against, among others, the Department of Transportation (DOT) and Sarasota County, alleging that he was injured and his wife killed in an automobile accident. The complaint stated, inter alia, that Sarasota County negligently caused or allowed a traffic control signal to operate in a defective manner so as to deceive appellant as to the proper method of executing a left-hand turn, and that Sarasota County knew or should have known of the defective and misleading condition of the signal and negligently failed to correct it.

Appellee, Sarasota County, contends that through discovery it became evident that appellant’s claim against the county was baseless. Both the DOT and county answered appellant’s interrogatories, stating that DOT owned the traffic signal, DOT had ultimate responsibility for determining its signalization, and the county was responsible for maintaining the sequence of signalization. The trial court granted summary judgment in favor of the county and awarded the county attorney’s fees based on section 57.105 from the date of answers to the interrogatories. The court ruled that after the interrogatories were answered the record was clear and uncontroverted that the county had no legal responsibility for determining the sequence of the traffic light, thereby defeating appellant’s claim against the county.

We cannot agree that the county’s and DOT’s answers to interrogatories so clearly showed the county’s nonliability as to subject appellant to the penalties of section 57.105 for continuing litigation against the county. The answers stated that the county was responsible for maintaining the sequence of signalization, which was not inconsistent with appellant’s original claim against the county.

An award of attorney’s fees under section 57.105 is proper only where the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. Ferm v. Saba, 444 So.2d 976 (Fla. 2d DCA 1983); Appenfeldt v. Quinn, 399 So.2d 1026 (Fla. 2d DCA 1981). The claim must be devoid of even arguable substance. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). We hold that appellant’s claim against the county was neither completely untenable nor devoid of arguable substance, even after the interrogatories in this matter were answered, so as to make this a proper case in which to apply section 57.105. Therefore, the trial court’s order was error.

Accordingly, we reverse and set aside the award of attorney’s fees to the county.

REVERSED.

GRIMES and OTT, JJ., concur.

      . However, it is conceivable that after a party initially states a justiciable claim or defense and it later becomes so evident that the other party should be discharged, failure to discharge could very well subject the losing party to the penalties of section 57.105. We acknowledge that this dicta may conflict with the Fourth District’s recent holding in Klein v. Layne, Inc. of Florida, 453 So.2d 203 (Fla. 4th DCA July 25, 1984). In that case, our sister court reversed an award of attorney's fees under section 57.105 where although the complaint was not frivolous, the defendant’s answer, filed seven months later, rendered it baseless. The court held that an award of attorney’s fees from the time of the answer until the case was voluntarily dismissed three months later was improper, to which we agree. But, as we read the opinion, the Fourth District went further and held that no party could be subject to the penalties of section 57.-105 so long as the complaint initially was not frivolous, regardless of later occurrences. Therein lies our disagreement. Our holding in Keen v. Bernardo, 452 So.2d 1133 (Fla. 2d DCA 1984), is consistent with our reasoning expressed herein.


author: CAMPBELL, Judge.

text:
    Caroline Ann LEINBERGER, Appellant, v. Herbert LEINBERGER, Appellee.
    No. 83-2502.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.

      Raymond T. Elligett, Jr. and Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, P.A., and Karen A. Berkowitz of Newman & Berkowitz, P.A., Tampa, for appellant.
    Kay J. McGucken, Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, Caroline Ann Leinberger, seeks review of the order denying her motion to vacate pursuant to Florida Rule of Civil Procedure 1.540 (1983).

Appellant raises three points on appeal. First, she claims the trial court erred in failing to set aside the judgment for excusable neglect based on her manic depressive psychosis. Second, she argues she was entitled to notice before the entry of the judgment which determined her property rights and her parental rights. Third, she claims she was entitled to a guardian ad litem under Florida Rule of Civil Procedure 1.210(b) (1983).

Appellee, Herbert Leinberger, filed a petition for dissolution of marriage and properly served appellant with the petition in June of 1981. Appellant did not answer and a default judgment was entered.

In April of 1983, appellee filed an affidavit regarding child custody and attended a hearing before a master. During the time between June of 1981 and April of 1983, appellant was suffering from manic depressive psychosis. She was in a mental hospital on six occasions during that time.

Following the master’s report, the trial court entered a final judgment of dissolution of marriage on May 26,1983, awarding appellee custody of the children, exclusive and sole occupancy of the marital home until the youngest child reached the age of eighteen and making no provisions for alimony.

Appellant was given no notice of the hearing before the master, nor of the final judgment hearing.

After appellant was served with the final judgment, an attorney was contacted. A motion to set aside the judgment of dissolution of marriage pursuant to Florida Rule of Civil Procedure 1.540 was filed. The motion was denied.

A motion for rehearing was filed and an affidavit and a letter memorandum were attached to support the motion. The affidavit stated that appellant lived with appel-lee as husband and wife after the petition was filed and during the times when appellant was not an inpatient at the mental hospital. Appellant also argued that she was entitled to notice before the final hearing. The motion for rehearing was denied, and this appeal followed.

Generally, the granting of relief from a default judgment lies within the discretion of the trial judge. Diners Club, Inc. v. Brachvogel, 395 So.2d 1156 (Fla.1980). Appellee argues that there must be a gross abuse of discretion to reverse the trial court’s decision in this case. We do not agree because this is a denial of a motion to vacate. “[TJhere is a lesser showing required to reverse a denial of a motion to vacate a default than there is to reverse the granting of such a motion.” Ellis v. Ellis, 404 So.2d 774, 776 (Fla. 2d DCA 1981). See also Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977); Duckworth v. Duckworth, 414 So.2d 562 (Fla. 3d DCA 1982). This rule encourages the resolution of controversies on their merits rather than by default judgment, and is in keeping with the policy of liberality towards vacating defaults. Ellis at 776.

Here, there was testimony before the master that appellant was unable to care for herself due to her psychosis. The illness makes it questionable whether it was proper to grant the default, even though appellant never claimed that she was incompetent, nor was she adjudicated incompetent.

We are not prepared to hold that appellant was required to be served with notice of the final hearing once she had defaulted after being served with the petition for dissolution of marriage which included a prayer for child custody. While Duckworth and Doane v. Doane, 279 So.2d 46 (Fla. 4th DCA 1973) seem to disapprove allowing child custody to be determined by default in the face of motions to vacate filed by a parent, we conclude that there must be something more than a mere showing of lack of notice after default. Here, there was also a year-and-a-half delay between the filing of the petition and the entry of the final judgment. The length of this delay, appellant’s illnesses and hospitalizations, her alleged cohabitation with appellee all taken together, indicate that notice probably should have been given pri- or to the entry of a final judgment in the event appellant had concluded that the proceedings were not going to be pursued to a conclusion.

Appellant also argued that she was entitled to a guardian ad litem under rule 1.210(b), Florida Rules of Civil Procedure (1983). We do not agree. The court is required to appoint a guardian ad litem only for “an infant or incompetent person.” Here, appellant has never been determined incompetent. Therefore, the rule does not apply to her, unless she is adjudicated incompetent.

For the foregoing reasons, we reverse and remand for further proceedings in regard to the issues of child custody, child support, alimony and property rights. The final judgment, insofar as it dissolves the marriage of the parties, is undisturbed.

OTT, A.C.J., concurs.

SCHOONOVER, J., concurs in result only.


author: GRIMES, Acting Chief Judge.

text:
    Darryl WILTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-215.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The significant point on this appeal is whether the throwing of a grapefruit at a passing tanker truck, thereby shattering its windshield and superficially cutting the driver, constitutes the crime of throwing a deadly missile into an occupied vehicle.

The statute under which appellant was charged reads as follows:

790.19 Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles. —Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway ear, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

In J.W.B. v. State, 419 So.2d 407 (Fla. 2d DCA 1982), this court held that the mere throwing of an orange at a school bus without proof of either striking the bus or any person was insufficient to constitute a crime. Yet, we pointed out that under the proper circumstances, an orange could be a missile under section 790.19. Here, a jury could properly conclude that throwing a grapefruit with sufficient force to break the windshield of a moving truck was an act which “would produce death or great bodily harm.” Therefore, the court properly denied appellant’s motion to dismiss.

Appellant is correct, however, that the court erred in assessing attorney’s fees and costs against him without notice and hearing. Drumm v. State, 432 So.2d 765 (Fla. 2d DCA 1983).

We affirm the conviction but strike the assessment of attorney’s fees and costs without prejudice to the state in seeking a new award pursuant to section 27.56(7), Florida Statutes (1983).

OTT and LEHAN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    J.S.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 84-335.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1984.

      Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

J.S.H., a child, appeals a final order placing him in a community control program for the charge of second degree grand theft and requiring him to pay the victim restitution for damages which the juvenile caused while committing the theft. We affirm.

The state filed a petition for delinquency accusing the juvenile of second degree grand theft. The trial court later withheld an adjudication of delinquency and placed him in a community control program.

Subsequently, the trial court held a hearing on the issue of restitution. The victim testified at the hearing that on a summer day in 1983 he was cruising along the Hills-borough River in Tampa in his 21-foot motorboat. Because a storm was approaching and the boat was running low on gas, he anchored the boat to a bridge. When he left the boat it was in perfect condition. Upon returning the next day, he observed a person inside the boat cutting wires and loosening screws. He then notified the police.

The victim testified further that, upon inspecting the boat, he saw that it had been damaged by the breaking of a large hole in the fiberglass bottom and by the cutting or loosening of wires to the motor. He said that a mechanic from the marina where he had later taken the boat for repairs had estimated that it would cost approximately $1,500 to restore the boat to its previous condition. During his inspection of the boat, the victim also noticed that several items of property, including a cooler, a fire extinguisher, a compass, a toolbox, an anchor, and parts of the carburetor, had been stolen. However, with the exception of an ammeter worth $50 to $70, all of the stolen property was eventually recovered.

At the conclusion of the hearing, the trial court determined the victim’s total damages to be $1,500 for repairing the boat and $50 for replacing the stolen ammeter. Over the juvenile’s counsel’s objection that restitution was proper only for the stolen ammeter, but not for damages to the boat itself inasmuch as the juvenile had been charged only with the crime of grand theft, and not with the offense of criminal mischief, the court, acting pursuant to section 39.11(l)(g), Florida Statutes (1983), ordered the juvenile to pay restitution in the amount of one-half of the total damages of $1,550.

The juvenile argues on appeal that he cannot be ordered to pay restitution for damages to the victim’s boat because, in his view, such damages were not “caused by his offense” of grand theft, as he says section 39.11(l)(g) requires. Section 39.-ll(l)(g), which governs the disposition powers of a trial court in a juvenile proceeding, authorizes the court, as part of the community control program, to “order the child or parent to make restitution for the damage or loss caused by his offense in a reasonable amount or manner to be determined by the court.” (Emphasis added.)

The juvenile points out that an analogous statute governing restitution as a condition of probation in adult proceedings, section 948.03(l)(g), Florida Statutes (1975), was construed by the Florida Supreme Court in Fresneda v. State, 347 So.2d 1021 (Fla.1977). Section 948.03(l)(g), which is similar in wording to its statutory counterpart for juveniles, section 39.11(l)(g), authorizes conditioning probation on the defendant’s making “reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court.” (Emphasis added.) In Fresneda, a Volkswagen skidded into a car, which had stopped abruptly, and the defendant’s car then struck the Volkswagen from behind. The occupants of the Volkswagen were injured at some point(s) during the chain reaction accident. Instead of stopping to offer assistance, the defendant backed up his car and continued on his way. He was subsequently charged with the offense of leaving the scene of an accident resulting in injury to another person. The trial court, without giving the defendant prior notice of the proposed restitution condition or allowing him the opportunity to be heard as to the amount of damages “caused by his offense,” placed him on probation for the charge with the condition that he pay restitution of $1,600 for the benefit of the injured occupants of the Volkswagen. The supreme court reversed the trial court’s order, holding 1) that, before ordering a defendant to pay restitution to the victim of a crime as a condition of probation, the trial court must provide the defendant with notice of the proposed restitution order and afford him the opportunity to be heard as to the amount of damages “caused by his offense,” and 2) that the trial court cannot require the defendant to pay the victim an amount “in excess of the amount of damage the criminal conduct caused the victim.” Id. at 1022. Inasmuch as the state conceded that the restitution condition of probation was not authorized by section 948.03(l)(g) since the injuries sustained by the occupants of the Volkswagen were not caused by the defendant’s crime of leaving the scene of the accident, the supreme court saw no reason to order the trial court to conduct a hearing on the issue of damages on remand. See also DiOrio v. State, 359 So.2d 45 (Fla. 2d DCA 1978).

The juvenile reads Fresneda as standing for the proposition that the statutory language “damage or loss caused by his offense” means only damages flowing “directly” from the offense itself.

The juvenile states that Fresneda has been held applicable to juvenile cases as well. In one such case which he cites, G.H. v. State, 414 So.2d 1135 (Fla. 1st DCA 1982), the juvenile drove his grandfather’s truck into a support pole of the victim’s carport, thereby causing $800 in damages to that structure. The juvenile later pled guilty to the charge of leaving the scene of an accident resulting in damage to property of another. In return, the state dropped a criminal mischief charge. The trial court nonetheless ordered the juvenile to pay the victim restitution for the damaged carport. The first district court of appeal, citing Fresneda, reversed, holding that because no damages flowed from the juvenile’s offense of leaving the scene of the accident, no restitution could be ordered for the damages caused by his act of hitting the carport.

In another juvenile case cited by the juvenile here, W.N. v. State, 426 So.2d 1206 (Fla. 4th DCA 1983), several juveniles were charged with trespass for having entered onto school property without authorization and with criminal mischief for having broken several thousand dollars worth of windows while on the school property. The criminal mischief charges were later nol-prossed by the state. The trial court nevertheless ordered the juveniles to pay the school board restitution for the broken windows. On appeal, the juveniles cited Fresneda. The state countered that Fresneda was distinguishable because the criminal act in Fresneda happened after the injuries occurred, whereas the windows were broken by the juveniles during the criminal act itself. Finding that the juveniles’ reliance on Fresneda was “well-founded,” the fourth district court of appeal ordered the restitution stricken, thereby rejecting the state’s contention that Fresneda was distinguishable. Taking note of the language “caused by his offense” in section 39.11(l)(g), our sister court held that the offense charged must bear “a direct relationship” to the damage. Id. at 1207. Because the state had nol-prossed the criminal mischief charges, our sister court decided that the trial court lacked a legal foundation for imposing restitution.

We disagree with our sister court’s holding in W.N. In our view, the words “caused by his offense” in section 39.-ll(l)(g) do not mean that the offense charged must bear “a direct relationship” to the damages caused. We believe that such a construction of that language in section 39.11(l)(g) leads to too narrow an application of that statute.

The supreme court in Fresneda certainly never construed the language “caused by his offense” in section 948.-03(l)(g) as including only damages flowing directly from the crime charged. Indeed, the supreme court in Fresneda, as well as the first district court of appeal in G.H., did not even need to reach such a question of statutory interpretation because those eases involved facts distinguishable from those in the case at bar. In both Fresneda and G.H., the crime with which the defendant was charged happened after the damages occurred. Here, by contrast, the juvenile’s acts of destruction occurred during his commission of the crime with which he was charged. The juvenile’s offense of grand theft thus bore a significant enough relationship to the damages to the boat. Hence, the trial court did not err in ordering that he pay the victim restitution for damages to the boat, as well as for the stolen ammeter.

As we cannot reconcile the decision of our sister court in W.N. with our holding here, we certify this case as being in direct conflict with that case.

The juvenile’s remaining argument on appeal is without merit. Accordingly, we affirm the final order.

AFFIRMED.

CAMPBELL and SCHOONOVER, JJ., concur.

      . The criminal mischief statute, section 806.13, Florida Statutes (1983), provides in pertinent part:
      (l)(a) A person commits the offense of criminal mischief if he willfully and maliciously injures or damages by any means any real or personal property belonging to another.

      . While we disagree with the fourth district court of appeal’s holding in W.N. v. State, 426 So.2d 1206 (Fla. 4th DCA 1983), we fully agree with its holding in Jones v. State, 427 So.2d 398 (Fla. 4th DCA 1983), a case it decided shortly after its ruling in W.N.

      In Jones, the defendant stole a motorcycle. The police observed him violating traffic laws while he was riding the motorcycle. A high-speed chase ensued, and the motorcycle was destroyed when the defendant lost control of it. The defendant later pled guilty to the charge of theft. The trial court placed him on probation and ordered- that, as a condition of probation, he pay the theft victim restitution in the sum of $3,800. Our sister court affirmed the restitution condition, notwithstanding the defendant’s reliance on Fresneda. It held that when property is destroyed while in the possession of a person who is in the act of stealing such property, there is a sufficient connection to require restitution under the theft charge in compliance with section 948.03(l)(g), Florida Statutes (1983).


author: SHIVERS, Judge. WIGGINTON, Judge, MILLS, Judge,

text:
    In the Interest of H.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. AW-207.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.

      Edward S. Stafman, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., for appellee.
    Joseph S. Conlin, Tallahassee, for Child.
   SHIVERS, Judge.

Appellant, the mother of H.B., appeals the trial court’s denial of her motion to dismiss a dependency petition. We reverse.

On July 18, 1983, the Department of Health and Rehabilitative Services filed a petition for dependency which petition alleged that H.B. had been sexually abused by her stepfather. Appellant/mother filed a motion to dismiss the dependency petition on October 19, 1983, alleging that no adjudicatory hearing had been held on the dependency petition within 90 days as mandated by Fla.R.Juv.P. 8.180, i.e., the time for speedy trial expired on October 16, 1983. Hearing was held on this matter on October 21, 1983, and after hearing argument of counsel, the trial judge denied appellant/mother’s motion, finding that the speedy trial rule was not appropriate in juvenile cases. The trial judge did not reduce his ruling to writing.

Fla.RJuv.P. 8.180(a) and (b) provide: Rule 1.180. Speedy Trial
(a) Time. Every case in which a petition has been filed alleging a child to be delinquent or dependent shall be brought to an adjudicatory hearing without demand within ninety (90) days of the earliest of the following dates:
(1) The date the child was taken into custody.
(2) The date the petition was filed.
(b) Dismissal. If the adjudicatory hearing is not begun within ninety (90) days or an extension thereof as hereinafter provided the petition shall be dismissed with prejudice.

First, it is unquestionably clear that the trial judge erred in finding that the speedy trial rule is not appropriate in juvenile cases, since if the trial court’s ruling is correct Fla.R.Juv.P. 8.180 would be a nullity. Second, the trial court’s extension of the speedy trial period in this case was error in that an extension order must be entered, reciting the reasons for the extension, prior to the time speedy trial period expires for there to be a valid extension of the speedy trial period. See T.L. v. Byrd, 451 So.2d 535 (Fla. 5th DCA 1984); Fla.R. Juv.P. 8.180. Here, the ruling by the trial judge was entered subsequent to the speedy trial period, was not reduced to writing, and was insufficient as a matter of law as regards the reason given for the extension. Accordingly, we find and hold that the trial judge erred in not dismissing the dependency petition. See generally, T.L. v. Byrd, supra; J.J.S. v. State, 440 So.2d 465 (Fla. 1st DCA 1983); M.M. v. State, 407 So.2d 262 (Fla. 3d DCA 1981); M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980); R.L.P. v. Korda, 380 So.2d 1329 (Fla. 4th DCA 1980); compare St. Dept. of Health & Rehab. Serv. v. Lancione, 430 So.2d 970 (Fla. 2d DCA 1983).

Notwithstanding the above, appellee argues that appellant waived the right to a speedy trial by agreeing to several continuances. However, the record does not contain any written motion for, or the granting of, a continuance. We must assume the record before us is complete. See M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980).

The order of the trial court finding H.B. dependent therefore is REVERSED, and the petition for dependency is DISMISSED with prejudice.

WIGGINTON, J., concurs specially with written opinion.

MILLS, J., dissents with written opinion.

WIGGINTON, Judge,

concurring specialty-

I am in accord with Judge Shivers’ opinion reversing the trial court’s finding of dependency as this holding properly expresses the state of the law presently in effect and applicable to the facts presented in the juvenile dependency ease before us. I join him in following the pertinent Rules of Juvenile Procedure and case law despite my intuition that neither the legislature nor the rule makers forethought the not-so-subtle distinctions between “delinquent” proceedings and “dependent” proceedings such as to apply synonymously the effects of rule 1.180, speedy trial.

Despite our lack of affinity for the speedy trial rule as applied to the facts of this case, we do not find from the record that H.B. has been or will be thrust back into a home environment of “horribles.” The passage of time in normally processing this appeal (no motion to expedite having been filed) has permitted almost a year to elapse since the stepfather was barred from the home by an interim order of the circuit judge entered September 2, 1983. That order, along with the November 14, 1983 order adjudicating H.B. to be dependent, established the law of the case and has been in effect until now, albeit that we are now about to reverse that final order.

During this period of eleven months we must assume that HRS and the parties abided by those orders with HRS supervising the home and family through its protective services and the mother and child attending counseling sessions at Apalachee Community Mental Health Services.

To our knowledge, H.B. has not been victimized or subject to a reoccurrence of further offensive or repulsive sexual acts since being returned to the home. The trial court, who at the time of entering the order of dependency surely knew the whereabouts, circumstances and status of the stepfather, found no reason to provide additional safety measures than were already established and which have continued now for almost a year.

We are concerned with misapplication of the rule to dependency proceedings. The evident dichotomy and distinction to be recognized is that while a juvenile delinquency proceeding is obviously criminal and adversarial in nature, a juvenile dependency proceeding is civil, usually informal and oftentimes finding the dependent to be the victim of parental abuse or other offenses not his fault. The goal of the delinquency action, prosecuted by the state, is to determine guilt or innocence, while the parties’ focus in a dependency proceeding is that of devising a plan to meet the ends of justice and best suit the interest and long-range needs of primarily the child and secondarily the family.

The framers of the 1977 Revisions to the Juvenile Rules merely proposed and had adopted the adult speedy trial rule with a more restrictive time limitation. See Committee Notes to Fla.R.Juv.P. 8.180. The application of criminal or delinquent speedy trial case law to juvenile dependent cases more than often precludes attaining the goal, despite ongoing efforts of all concerned, to fashion a plan that is in the best interest of the child. For instance, there is no discretion on the part of the juvenile judge to consider a motion for an extension of time filed after expiration of the ninety days. Additionally, the rule makes no provision for the dependent child being able to waive voluntarily his right to a speedy trial, a right expressly reserved to the delinquent by Fla.R.Juv.P. 8.180(c). And, more fundamentally, the issue necessarily arises as to whether there is a need and place at all for the speedy trial doctrine in juvenile dependency disputes.

There is a dearth of cases involving the speedy trial rule application to dependency proceedings. I find none on point in this case or even close to the target, as seems to be the situation with the participating parties. Nevertheless, in my view, the overlay and application of criminal rules and case law to civil type proceedings such as this stifles the parties’ and judges’ abilities to fashion plans and remedies to serve best the ends of justice. Chapter 39, Florida Statutes, Proceedings Relating to Juveniles, and the Rules of Juvenile Procedure, should be critically reviewed in light of the obvious dichotomy that should be made between delinquent and dependent juveniles.

Judge Boyer stated in his special concurrence in State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977):

I do not agree with the rule. (Fla.R. Crim.P. 3.191) [Speedy Trial] I think it to be bad law.... However, it is not the prerogative of this Court (as it is the Supreme Court) to question the wisdom of the rule. We have but one choice, to follow. I therefore most reluctantly, with full knowledge that justice is not achieved but is thwarted, concur in the opinion authored by my brother Judge Rawls.

At 839.

Just as Judge Boyer recognized this Court's duty to apply the clear mandate of the law, so also do I recognize that obligation which, under our system, precludes us from reaching the result which we may individually prefer in lieu of that which is clearly required by the applicable law.

MILLS, Judge,

dissenting:

I dissent. I would affirm this intriguing case of confusion and errors because to do otherwise would totally ignore the justice it demands.

H.R.S. filed a petition alleging that a five-year-old female child was a dependent child because she had been exposed on numerous occasions to sexual fondling and to oral sexual acts by her stepfather. After the adjudicatory hearing, the trial court found the child to be a dependent child for the reasons alleged in H.R.S.'s petition and because the child’s natural mother was told of the incidents but did not provide help for her child. The trial court ordered that the child remain in the custody of her natural mother but under the supervision of H.R.S.

The child’s natural mother, who defended this action, did not appeal the trial court’s order on the merits but did appeal the trial court’s refusal to grant her motion to dismiss the petition because the adjudicatory hearing was not held on the petition within 90 days of its filing as required by Fla.R. Juv.P. 8.180.

The petition was filed on 18 July 1983. The case went to hearing on 21 October 1983. This was five days after the expiration of the 90th day.

H.R.S. contends the mother sought numerous continuances. This she denies. The mother contends H.R.S. sought numerous continuances. This it denies. None of the motions was reduced to writing. None of the motions was approved by court order.

The trial court ruled that the speedy trial rule does not apply in juvenile cases. It denied the mother’s motion to dismiss but granted H.R.S.’s oral motion for extension of time for the adjudicatory hearing subsequent to the 90-day period. A written order was never rendered. The trial court ignored Fla.R.Juv.P. 8.180.

I have no quarrel with the law cited by the majority. Nevertheless, my sense of morality, my sense of justice, my paternal feeling for this little girl upon whom the stepfather has inflicted numerous atrocious sexual abuses with the knowledge and consent of the natural mother is more than I can or will tolerate.

The mother’s statement in her reply brief that “[ojnce an abuse case is dismissed, another such case may still be pursued on acts of abuse occurring after the dismissal” is nauseating to me. How much must this little girl endure before someone helps her?

In a case such as this, are we compelled to blindly adhere to the law? Are we to totally disregard the consequences? Are we to totally ignore this child and her life? Are we to abandon this child to this barbaric treatment?

I say no! This is a case where common sense needs to be placed on the scales of justice, and when this is done there is no doubt but that the scales balance heavily in favor of an affirmance of this case.

It is necessary that I challenge the statements made in the second, third and fourth paragraphs of the specially concurring opinion.

None of these statements is supported by the record on appeal filed by the mother in this appeal. The record on appeal consists of a petition for dependency, motion to dismiss petition and an order adjudicating the child a dependent. The petition alleged that the child was a dependent child because she had been exposed on numerous occasions to sexual fondling and to oral sexual acts by her stepfather. The motion to dismiss alleged that the petition should be dismissed because the adjudicatory hearing was not held within 90 days of the filing of the petition. The order adjudicating the child a dependent found that the child had been exposed on numerous occasions to sexual fondling and oral. sexual acts by her stepfather and that the child’s mother was told by the child on at least two occasions but she did not provide help for the child.

This Court is not permitted to indulge in factual assumptions nor is it permitted to state facts based on its knowledge and belief. Our factual statements must be based on the record made in the trial court and filed in the appeal.

Also, it is important that I point out that the reversal of this case by the majority will result in the return of this child to the home environment in which she was so repulsively sexually abused. Even HRS supervision would be terminated.

Perhaps I will be condemned for ignoring the law, but if I am, so be it. I had rather be condemned and know that I tried to save one little girl’s life, one I do not know, but for whom I have great compassion.

      . In his dissent, Judge Mills points out that after the adjudicatory hearing on H.B.’s dependency, the trial court entered an order which found H.B. to be a dependent child for the reasons alleged in the HRS petition and because the child’s natural mother was told of the child abuse incidents, but did not provide help for the child. In this order, after making these findings, the trial judge ordered that H.B. remain in the custody of her natural mother, appellant herein, albeit with supervision by HRS. Nonetheless, this order and the findings contained therein are invalid since the trial judge was without jurisdiction to conduct a hearing on the matter of H.B.’s dependency after the speedy trial time period had elapsed. We were not furnished a transcript of the dependency hearing since the substantive portions of the order entered as a result of the dependency hearing are not before this court for judicial review.

      . If H.R.S. had appealed from this part of the trial court’s order, I would have reversed because, under the facts of this case, the mother was unfit to have custody of her child.


text:
    FIBREBOARD CORPORATION, Appellant, v. Charles E. WARD and Frances Ward, his wife, Appellees.
    No. BA-299.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.
    Chester L. Skipper of Lyle & Skipper, St. Petersburg, for appellant.
    Wayne Hogan of Brown, Terrell, Hogan & Ellis, Jacksonville, for appellees.
   ON MOTION TO DISMISS

PER CURIAM.

Appellant, a defendant below, appeals from an order of the trial court denying its motion for summary judgment. The summary judgment motion was based upon appellant’s assertion that the trial court lacked jurisdiction over its person. Appel-lees have moved to dismiss this appeal. We find the dismissal motion to be well taken.

Even assuming, without deciding, that the denial of a summary judgment motion raising lack of jurisdiction over the person is an interlocutorily appealable order “determining” jurisdiction of the person within the meaning of Fla.App.R. 9.130(a)(3)(C)(i), the fact is that this appellant had earlier in the litigation raised this same defense by motion to dismiss pursuant to Fla.R.Civ.P. 1.140(b). That motion, along with an accompanying supporting affidavit, was heard and considered by the trial court which subsequently entered an order denying the motion. That nonfinal order was clearly appealable pursuant to Rule 9.130(a)(3)(C)(i). In order to invoke such right of appellate review on an interlocutory basis, the party seeking review must file a notice of appeal within thirty days from the date of the rendition of the order to be reviewed. This defendant failed to do so but, instead, sought later to again raise the same defense by motion for summary judgment. Failure to timely pursue the interlocutory review afforded by the above Rule does not mean that such defendant waives all right of appellate review of such jurisdictional issue but it does mean that such review must await the normal avenue of appeal after final disposition of the case in the trial court, assuming such defendant is the losing party on the merits. See Ward v. Gibson, 340 So.2d 481 (Fla. 3rd DCA 1976); State ex rel. Eli Lilly v. Shields, 83 So.2d 271 (Fla.1955).

Accordingly, the appellees’ motion to dismiss is granted and this appeal is Dismissed.

WIGGINTON, NIMMONS and BAR-FIELD, JJ., concur.


author: DAUKSCH, Judge.

text:
    Donald E. LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 83-954.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Kenneth McLaughlin and Belle B. Turner, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   DAUKSCH, Judge.

This is an appeal from a conviction of escape.

Only one of the two points on appeal warrants a mention. Appellant says the trial judge erred in refusing to advise the jury á la Tascano v. State, 393 So.2d 540 (Fla.1980) that any sentence of incarceration or probation which might be imposed would be consecutive. Appellant is correct that the sentence must be consecutive. § 944.40, Fla. Stat. (1981). He is incorrect when he says there is some requirement that the jury must be told about it. The standard jury instruction only requires the judge to tell the jury the maximum and minimum, if any, penalties. See Tascano. We decline to extend Tascano in any way at all.

AFFIRMED.

COBB, C.J., and COWART, J., concur.


text:
    Thomas W. MATEY, Appellant, v. JAMES H. PRUITT REAL ESTATE, INC., a Florida corporation, Appellee.
    No. 83-1592.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Harold J. Sullivan of O’Neill & Bogner, Orlando, for appellant.
    Kerry I. Evander of Reinman, Harrell, Silberhorn, Moule & Graham, P.A., Melbourne, for appellee.
   PER CURIAM.

AFFIRMED. See Sentry Indemnity Company v. Angel & Son, Inc., 332 So.2d 83 (Fla. 4th DCA 1976).

COBB, C.J., and SHARP and COWART, JJ., concur.


author: COWART, Judge.

text:
    Carey Daniel MAGED, Appellant, v. STATE of Florida, Appellee.
    No. 83-1705.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant originally pled guilty to three counts of violation of the statutory offense of fraudulent deposit of item (§ 832.05(3), Fla.Stat.) and was placed on probation. Appellant violated his probation and it was revoked and sentences were imposed on the original offenses. In sentencing appellant the trial judge departed from the presumptive sentence established by the Sentencing Guidelines set forth in Florida Rule of Criminal Procedure 3.701 and Form 3.988(f), and, as required by Rule 3.701 b. 6. and d. 11., articulated in writing his reason for deviating as being the fact that as to these crimes appellant had been placed on probation and had violated the terms of that probation by absconding.

We have recently held that, in the exercise of judicial sentencing discretion and when articulated in writing, a violation of probation may serve as a clear and convincing reason for departure from a guideline sentence. See Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

AFFIRMED.

FRANK D. UPCHURCH, Jr., J„ concurs.

DAUKSCH, J., concurs in conclusion only.


text:
    Leon CRAWLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-175.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed. See McCarthy v. State, 446 So.2d 252 (Fla. 5th DCA 1984); Powell v. State, 443 So.2d 433 (Fla. 5th DCA 1984); Fayson v. State, 442 So.2d 1030 (Fla. 5th DCA 1983); Dewitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983). Cf. Woodring v. State, 448 So.2d 529 (Fla. 5th DCA 1984).

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


text:
    Debbie Ann TODD, Appellant, v. STATE of Florida, Appellee.
    No. 84-193.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.

      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.

Affirmed on the authority of State v. Bright, 451 So.2d 880 (Fla. 5th DCA 1984). Contra, State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984).

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


text:
    HILLTOP DEVELOPERS, INC., Appellant, v. MASTERPIECE HOMES, INC., Appellee.
    No. 84-431.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Alan B. Robinson of Stanley, Harmening, Lovett and Livingston, Orlando, for appellant.
    Robert W. Kieffer, Orlando, for appellee.
   ON MOTION FOR EXTENSION OF TIME

PER CURIAM.

This case was dismissed pursuant to stipulation of the parties. A matter involving conduct of counsel will be considered here. On May 31,1984, appellant, by its attorney, Alan B. Robinson, moved for an extension of time pursuant to Florida Rule of Appel-. late Procedure 9.300. As provided in the rule, Robinson stated: “Counsel has consulted with Robert Kieffer, Esquire, [appel-lee’s counsel] who has indicated he has no objection to a one-time thirty (30) day extension,” Relying on such representation, this court, on June 1, 1984, granted the extension without affording opposing counsel an opportunity to reply. On June 4, 1984, following issuance of the order, ap-pellee’s co-counsel responded to the motion stating that Kieffer had not consented to the extension.

It is essential to the expeditious handling of motions under rule 9.300 that this court be able to rely upon the accuracy of representations of counsel. The rule states in relevant part:

A motion for extension of time shall, and other motions where appropriate may, contain a certificate by the movant’s counsel that he has consulted opposing counsel and that he is authorized to represent that opposing counsel either has no objection or will promptly file an objection. (emphasis added)

Counsel within this district have generally respected and appreciated the purpose and intent of this provision as is indicated by the fact that very few instances have been called to our attention where opposing counsel denies having authorized such a representation.

In an attempt to determine the accuracy of the representation here, an order was issued to Alan B. Robinson to file a response. In his response, Robinson stated that his file contained a note “no objection appeal continuance 30 days, R. Kieffer.” In view of this conflict, the Honorable Lon Cornelius, Circuit Judge, was appointed Commissioner and was instructed to conduct a hearing for the purpose of taking testimony from the parties and then to report his findings to this court. Judge Cornelius found that there was no intentional act by either lawyer to try to mislead each other in any way, but instead it was some type of misunderstanding. The statement by Robinson as to the note in his file was not addressed.

We have concluded that the allegation in the motion and the response of Robinson do not rise to the level of contempt. It is clear, however, that he was not authorized to state that Kieffer had agreed to the extension. It is also apparent that Robinson did not have a note in his file signed by Robert Kieffer, and while he did not so state, his claim was capable of this interpretation and reflects less than the candor this court expects of attorneys practicing before it.

Costs of the transcript at the hearing before Judge Cornelius are assessed against Alan B. Robinson, Esquire.

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


text:
    John SHAW, Appellant, v. Beth SHAW, Appellee.
    No. 84-508.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.

      James L. Rose of Becks, Becks & Wick-ersham, Daytona Beach, for appellant.
    Jerry Weiner, Columbus, Ohio, for appel-lee.
   COWART, Judge.

This case involves due process in a hearing to modify a child custody award.

The 1980 Florida final judgment of dissolution in this case gave custody of the two children of the parties to the mother. After a proper notice and hearing, the trial judge found a substantial material change of circumstances and by order dated February 10, 1984, granted the husband’s petition for modification of custody and ordered the mother’s father and stepmother (maternal grandparents), who had actual custody of the children in Ohio, to deliver the children to the father who was thereby awarded temporary custody. On February 20, 1984, the maternal grandparents filed a “Motion to Interplead and Motion to Reconsider” the custody order of February 10, 1984, alleging that order was not in the best interest of the children and requesting that the maternal grandparents be given custody of the children. At a hearing on the same day this motion was filed, the trial judge first stated that a full-scale, full-blown hearing was necessary and that he did not have time to hear it that day. However, the trial judge then talked to the two children privately in an unreported conference after which the court summarily set aside the custody order of February 10, 1984, awarded the temporary custody of the two children to the grandparents and denied the father an opportunity to present any further evidence at that time or later. An order declaring the custody order of February 10, 1984, null and void and granting temporary custody of the children to the grandparents was entered February 29, 1984, and is the subject of this appeal by the father.

The order of February 29, 1984, was entered in violation of the father’s basic constitutional due process rights to notice and opportunity to be heard and it is hereby reversed and set aside and the order of February 10, 1984, is reinstated. Due process applies to hearings to modify custody awards such as those in this case, see Connors v. Connors, 327 So.2d 877 (Fla. 2d DCA 1976), although the two orders in this case related to temporary custody. The trial judge indicated that by temporary custody he was referring to “a year or two.” Because the order of February 10, 1984, relates to temporary custody the issue as to the proper permanent custody or primary physical residence (§ 61.-13(2)(b)2.a., Fla.Stat.) of the children in this case is subject to a future proper full evi-dentiary hearing.

REVERSED.

COBB, C.J., and SHARP, J., concur.

      . At any future consideration for a change in the children’s custody in which the grandparents are contending parties, the applicability of the following cases should be considered: Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981); Johnson v. Richardson, 434 So.2d 972 (Fla. 5th DCA 1983); Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA 1984); Jayne v. Dennison, 284 So.2d 237 (Fla. 2d DCA 1973), cert. denied, 293 So.2d 713 (Fla.1974).


text:
    F. Daun FOWLER, etc., et al., Petitioners, v. Honorable Uriel BLOUNT, Circuit Court Judge, and John A. Belanich, d/b/a Parkwood Mobile Home Community, Respondents.
    No. 84-890.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    F. Daun Fowler, Daytona Beach, for petitioners.
    No response by respondents.
   PER CURIAM.

On June 19, 1984, this court ordered respondents to show cause why the Petition for Writ of Certiorari/Mandamus should not be granted. No response has been filed. The relief sought in the petition is granted. The lower court order of May 17, 1984 is quashed. As requested in the petition, the circuit court shall decide the appeal and address petitioners’ motion for attorney’s fees.

Writ granted.

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


text:
    Willie Fred WEST, Appellant, v. STATE of Florida, Appellee.
    No. 84-1382.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1984.
    Willie Fred West, appellant, pro se.
   PER CURIAM.

This appeal is from the denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. The appellant asserts only one ground for relief; he alleges that he was entitled to fifty-one days’ credit for jail time served, but was given credit for only twenty-eight days. The trial judge entered an order denying the motion, reciting that the trial judge had carefully examined the motion and the file in this cause and found that the defendant had been given credit for all time served to which he was entitled.

The order entered by the trial judge, however, does not conform to the requirements of Rule 3.850. The rule states that in those instances when the denial of a motion under Rule 3.850 is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief, the trial judge is directed to conduct an evidentiary hearing and make appropriate findings of fact.

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

REVERSED AND REMANDED.

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


author: OTT, Acting Chief Judge.

text:
    Jesse Allen CROSSNO, Appellant, v. STATE of Florida, Appellee.
    No. 84-360.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Acting Chief Judge.

AFFIRMED without prejudice to defendant filing a more properly drafted motion for collateral relief predicated on the same or different grounds. Defendant is directed to Florida Rule of Criminal Procedure 3.987, which provides a model form to assist prisoners in preparing their rule 3.850 motions.

DANAHY and CAMPBELL, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Leroy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1471.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1984.
   SCHOONOVER, Judge.

Leroy Williams appeals the trial court’s summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant’s allegation that he was improperly convicted of third degree murder, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record that refute this allegation. We, therefore, reverse the trial court’s order and remand the case. The trial court may either again summarily deny the motion and attach to its order those portions of the record that conclusively show appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the ground alleged in the motion. See Fla.R.Crim.P. 3.850; see also, Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

REVERSED.

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


text:
    Russell PEDRAJA and Deborah Gelber, Appellants, v. OLD REPUBLIC INSURANCE COMPANY, Appellee.
    No. 83-1323.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Horton, Perse & Ginsberg and Samuel Sheradsky and Edward Perse, Miami, for appellants.
    Papy, Poole, Weissenborn & Papy and Sheridan Weissenborn, Coral Gables, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Kimbrell v. Great American Insurance Co., 420 So.2d 1086 (Fla.1982); Granite State Insurance Co. v. Lane, 448 So.2d 1174 (Fla. 3d DCA 1984); Continental Insurance Co. v. Roth, 388 So.2d 617 (Fla. 3d DCA 1980).


text:
    Beth M. THOMPSON, as Trustee of The Ruth C. Turner Trust and The Gordon B. Certain, Jr. Trust, Appellant, v. Phyllis KOVENS d/b/a 127th Street Shopping Center, Appellee.
    No. 83-1785.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.

      Payton & Rachlin and Harry Payton, Miami, for appellant.
    Wallace, Engels, Pertnoy & Solowsky and Sidney Pertnoy, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Since the appellant’s positions on appeal are directly contrary both to the one to which she stipulated and agreed in the trial court, Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Lotspeich Company v. Neogard Corporation, 416 So.2d 1163, 1165 (Fla. 3d DCA 1982), and the law of the case as established in its prior appearance here, Certain v. Kovens, 314 So.2d 184 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 18 (Fla.1976), the judgment under review is

Affirmed.


text:
    CHASE FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. May SOBER and Jack Sober, her husband, Appellees.
    No. 84-295.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellant.
    Bloom & Feola, Lawrence & Daniels and Adam Lawrence, Miami, for appellees.
    Before HUBBART, NESBITT and FERGUSON, JJ.
   PER CURIAM.

In view of this state’s policy of liberality toward setting aside defaults and allowing trials on the merits, see North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962), we find that it was a gross abuse of discretion for the trial court to deny the appellant’s motion to vacate the default in the present case. The appellant presented a meritorious defense and sufficiently demonstrated excusable neglect by showing there was an inadvertent misfiling of the summons and complaint by a clerical employee. See Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972); North Shore Hospital; Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976).

Accordingly, the order denying appellant’s motion to vacate default is reversed and the cause is remanded for further proceedings.


author: PER CURIAM..

text:
    Stephen CUIFFO, Individually and f/u/b S & K Realty, Inc., Appellants, v. COCONUTS RECORDING CO., a Florida corporation, and Shirley P. Kay, Appellees.
    No. 84-463.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Ira F. Markowitz, North Miami, for appellants.

      Robert B. Miller, North Miami Beach, for appellees.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM..

Affirmed. August v. August, 350 So.2d 794 (Fla. 3d DCA 1977); Seven-Up Bottling Co. of Miami v. George Construction Corp., 153 So.2d 11 (Fla. 3d DCA 1963); Fla.R.Civ. P. 1.540(b). Contra Pruitt v. Brock, 437 So.2d 768 (Fla. 1st DCA 1983).


text:
    Magdalena Sofia Cruz SOLERNOU, Appellant, v. Rafael Jose SOLERNOU, Appellee.
    No. 84-634.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Hershoff & Levy and Jay M. Levy, Miami, for appellant.
    Lamar & Busot and Rene E. Lamar, Miami, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The ruling of the trial court is reversed upon a finding that there is no competent, substantial evidence on the record to support its action in this case. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Schein v. Schein, 448 So.2d 16 (Fla. 3d DCA 1984).

Reversed.

DANIEL S. PEARSON, Judge, concurring.

I, too, would reverse this final judgment of dissolution of marriage. I would, however, make clear that we are remanding the case for a new final hearing. It appears that the trial court’s displeasure with the wife’s numerous pre-trial changes of counsel caused it to overlook that the wife, despite the trial court’s continued insistence that she obtain counsel, was proceeding without counsel. Of course, the wife was entitled to represent herself and participate in the proceedings, and her silence at the final hearing is hardly an acquiescence in or stipulation to the husband’s evidence.


text:
    DIXIE DRAINAGE DISTRICT, Appellant, v. BROWARD COUNTY, et al., Appellees.
    No. 83-2151.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.
    Richard C. Roarke of Titone, Roarke & Rebalko, Lauderhill, for appellant.
    Susan F. Delegal, General Counsel, and Alexander Cocalis, Chief Trial Counsel, Fort Lauderdale, for appellee-Broward County.
   PER CURIAM.

We reverse the trial court’s entry of judgment predicated upon the granting of the appellee’s motion for involuntary dismissal. Since the evidence was in conflict and the appellee concedes the appellant’s entitlement to a decision on the merits of appellant’s action for declaratory relief we remand with directions that the trial court enter a judgment in accord with the declaratory decree statute. See Hoffkins v. City of Miami, 339 So.2d 1145 (Fla. 3d DCA 1976).

ANSTEAD, C.J., DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    PARK AVENUE INVESTMENT & DEVELOPMENT, INC., Appellant, v. Sandra FRANZ and Manfred Franz, Appellees.
    No. 84-265.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.
    Edward F. O’Connor, Palm Beach Gardens, for appellant.
    Coleman, Leonard & Morrison, and Charles S. Dale, Jr. of Dale & Stevens, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from a final summary judgment entered against the appellant in its action for damages from appellees, for allegedly falsely representing that an apartment building sold to appellant was properly zoned for 12 units when, in fact, the maximum number of units permissible was 10. We reverse because of the existence of material issues of fact as to the representations made, the reasonableness of the reliance thereon by appellant, and the agency of the person making some of the respresentations. See Held v. Trafford Realty Co., 414 So.2d 631 (Fla. 5th DCA 1982) and Besett v. Basnett, 389 So.2d 995 (Fla.1980).

ANSTEAD, C.J., DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Leon ASINER and Sam Charendoff, Appellants, v. ORIOLE HOMES CORP., a Florida corporation, Gertrude Arbus, H. Noble and Moe Arbus, Appellees.
    No. 84-458.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.
    Daniel S. Mandel of Law Offices of Stewart, Mandel & Curry, Fort Lauderdale, for appellants.
    G. Michael Keenan of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Fort Lauderdale, for appellee, Oriole Homes Corp.
   PER CURIAM.

Affirmed. See Van Delinder v. Albion Realty & Mortgage, Inc., 287 So.2d 352 (Fla. 3d DCA 1974) and Kaplan v. Dade Federal Savings & Loan Association of Miami, 381 So.2d 1184 (Fla. 4th DCA 1980), petition for review denied, 389 So.2d 1111 (Fla.1980).

ANSTEAD, C.J., and HURLEY and DELL, JJ., concur.


text:
    INTERNATIONAL COMMUNITY CORPORATION-TAMPA and the Insurance Company of Florida, Appellants, v. DAVIS WATER AND WASTE INDUSTRIES, INC., Appellee.
    No. 83-1987.
    District Court of Appeal of Florida Second District.
    Sept. 12, 1984.

      Robert B. Worman, Orlando, for appellants.
    W. James Gooding, III, and Ted B. Edwards of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   PER CURIAM.

Appellants, International Community Corporation-Tampa (ICC-T) and The Insurance Company of Florida, seek review of a final summary judgment awarding damages against appellants for $4,736.89 in a mechanic’s lien action. We affirm.

Appellants raise several points on appeal. First, appellants argue that the trial court erred by granting a materialman’s lien based upon a pro rata formula pursuant to section 713.06(4)(b), Florida Statutes (1981), when the construction project in question involved a subdivision development governed by sections 713.04 and 713.07, Florida Statutes (1981). Second, appellants claim the trial court erred by refusing to allow the filing of supplemental affidavits and a memorandum of law. Third, they claim that a lienor (appellee) foreclosing on a lien transfer bond pursuant to chapter 713 must attach a copy of the bond sued upon to the complaint under Florida Rule of Civil Procedure 1.130(a).

ICC-T, as a developer of a subdivision in Pasco County, contracted with Duarte Construction Company, Inc. (Duarte) to construct subdivision improvements. Duarte subcontracted with appellee to supply pipeline materials to the project.

Prior to completion of the project, Duarte defaulted and was removed from the job. ICC-T hired new contractors to complete the work Duarte had contracted to perform and to correct defective work performed by Duarte.

After Duarte’s default, numerous subcontractors and materialmen, including ap-pellee, filed mechanic’s liens against the property owned by ICC-T. These liens were transferred to lien transfer bonds pursuant to section 713.24, Florida Statutes (1981), which were issued by The Insurance Company of Florida, an appellant, as surety-

On January 4, 1983, appellee filed suit against Duarte and ICC-T. Count II of the complaint dealt only with ICC-T and sought foreclosure of the mechanic’s lien against the real property owned by ICC-T in Pasco County. On January 10, 1983, appellee’s mechanic’s lien was transferred to a section 713.24 lien transfer bond which was filed with the circuit court in Pasco County.

Appellee amended its complaint to add count III, which sued ICC-T as principal and The Insurance Company of Florida as surety on the section 713.24 bond. Attached to the amended complaint was the lien transfer bond evidenced by a Pasco County circuit court clerk’s certificate and a copy of the claim of lien.

Appellants moved to dismiss count II of the amended complaint alleging that it did not state a cause of action because the lien had been transferred to the bond. This motion was denied.

The motion for summary judgment directed towards count III of the amended complaint was filed on May 6, 1983. Various affidavits regarding amounts due in attorney’s fees and costs were attached to the motion for summary judgment. The affidavits indicated that there was approximately $50,000 undistributed by ICC-T, and that there were outstanding liens of approximately $96,000. ICC-T claimed a set off for the cost to complete and correct against the balance held on the original contracts and intended to disburse the remaining balance pro rata on the basis of section 713.06(4)(b), Florida Statutes (1981).

On June 3, 1983, appellee’s attorney agreed to entry of the final summary judgment based on pro rata distribution. On June 7, 1983, appellants’ attorney sent a supplemental memorandum of law to the court, claiming that the proper statute was section 713.07, Florida Statutes (1981). They sought to file additional affidavits regarding the chronology of the filing of mechanic’s liens to determine the priority of payments to the lienors on any undis-bursed construction funds in lieu of the theory of pro rata distribution. In addition, updated financial figures on the cost to complete and correct the project were submitted. This new information showed that there was approximately $500 of undistributed funds remaining.

On June 24, 1983, the court denied appellants’ motion for leave to file supplemental affidavits and entered a final summary judgment against appellants based on pro rata distribution.

We find that the trial court did not err by ordering pro rata distribution according to section 713.06(4)(b), Florida Statutes. Appellants essentially argued that subdivision liens under sections 713.04 and 713.07 are independent of the other provisions of chapter 713, part I, so that the pro rata distribution provisions of section 713.-06(4)(b) could not apply. There is no merit to this argument. Sections 713.04 and 713.07 provide for less restrictive notice requirements for subdivision liens and a means for attaching liens where the improvements were on lands dedicated to the public. Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So.2d 701 (Fla. 2d DCA 1984). There is no alternative method of distribution described in section 713.04, nor 713.07. The rest of chapter 713, part I, except as excluded by sections 713.04 and 713.07, applies to subdivision liens. Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc. Therefore, the pro rata method of distribution described in section 713.06(4)(b) was properly applied by the trial court in this case.

Appellants’ argument that the trial court erred by refusing to allow the filing of supplemental affidavits prior to the entry of a summary judgment must fail. Parties cannot be permitted to assert conflicting affidavits. Grauer v. Occidental Life Insurance Company of California, 363 So.2d 583 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 468 (Fla.1979).

The failure to attach a copy of the actual surety bond to the complaint does not require dismissal under Rule 1.130(a), Florida Rules of Civil Procedure (1983). Appellee’s claim of lien, its validity, and the amount owed is the basis of the suit. The claim of lien was attached to the complaint, and a certificate of clerk of the court verifying the existence of the bond was also attached. The bond is only the security for the claim and not the basis out of which the claim arises. See § 713.24(1), Fla.Stat. (1981) and Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976).

Appellants also claim that count I, which intended to foreclose against the real property, should have been dismissed after the mechanic’s lien had been transferred to the lien transfer bond pursuant to section 713.24, Florida Statutes (1981). Although this issue has been rendered moot because we are affirming the judgment on the basis of the lien transfer bond in count III, we find that count II should have been dismissed.

Finally, appellants claim that the judgment was improperly entered against the property owner; that the summary judgment should have been entered against The Insurance Company of Florida, but due to clerical error, was not. The summary judgment was based on the lien transfer bond which was issued by The Insurance Company of Florida. That bond released the property owner, ICC-T, from liability. Therefore, we find that the entry of the summary judgment against ICC-T was a clerical error because the judgment is clearly based on the lien transfer bond. On remand, the summary judgment should be corrected to reflect that it is a summary judgment against The Insurance Company of Florida rather than ICC-T.

For the foregoing reasons, we affirm the decision of the trial court. However, we remand to the trial court for correction of the summary judgment. On remand, we also direct that the record reflect that count II is dismissed.

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