author: MILLS, Judge.

text:
    Horace Leroy MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. BA-110.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1984.
    Rehearing Denied Jan. 18, 1985.

      Horace Leroy Maddox, pro se.
    No appearance for appellee.
   MILLS, Judge.

Maddox appeals the summary denial of his motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. As grounds for the motion, he alleges: 1) the improper denial of his motion to suppress an in-and-out-of-court identification; 2) the improper denial of his motion to compel disclosure of a confidential informant; 3) an abuse of discretion by the trial court in imposing four three-year minimum mandatory sentences, as there was only one criminal episode; and 4) the trial court’s erroneous action in reclassifying his conviction of a first-degree felony (armed robbery) to a life felony, resulting in a sentence of 100 years. We affirm.

With regard to the first two grounds, they were both argued on Maddox’s direct appeal of his conviction, affirmed without opinion in Maddox v. State, 418 So.2d 1284 (Fla. 1st DCA 1982). They cannot properly be raised in a motion for postconviction relief, and summary denial is appropriate. See Alday v. State, 431 So.2d 714 (Fla. 1st DCA 1983).

The trial judge did not abuse his discretion in imposing four consecutive three-year mandatory minimum sentences, pursuant to Section 775.087(2), Florida Statutes (1983). Vann v. State, 366 So.2d 1241 (Fla. 3d DCA 1979), established that

[w]hen a defendant is convicted on separate counts, each of which fall within that category of crimes requiring a mandatory three-year sentence ..., consecutive sentences are not mandated thereunder. However, neither are such sentences prohibited. It is within the discretion of the trial judge to impose concurrent or consecutive sentences.

Id. at 1242 (citation omitted). Maddox was convicted of attempted second-degree murder, armed robbery and two counts of aggravated battery, all of which require the mandatory three-year sentence. Section 775.087(2). Therefore, the trial court was acting within its discretion in imposing consecutive three-year mandatory sentences.

We do not agree that concurrent sentences were mandated because the convictions arose from one criminal transaction. Section 775.021(4), Florida Statutes (1983), states that

[wjhoever in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively.... [OJffenses are separate if each offense requires proof of an element that the other does not. (emphasis supplied)

A comparison of the required elements of each offense of which Maddox was convicted reveals that this criteria was satisfied in this case. Therefore, Maddox’s contention that consecutive sentences were improper is without merit.

It does appear that if the trial court reclassified Maddox’s conviction of armed robbery from a first-degree to a life felony, that reclassification was erroneous. Section 775.087(l)(a), Florida Statutes (1981), states that

whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission ... carries, displays, uses, threatens, or attempts to use any weapon or firearm ... the felony for which the person is charged shall be reclassified ... in the case of a felony of the first degree, to a life felony, (emphasis supplied)

Maddox was convicted of armed robbery, a first-degree felony. Section 812.13(2)(a), Florida Statutes (1981). Obviously, “the use of a weapon or firearm is an essential element” of this offense, and reclassification of the offense to a life felony, pursuant to Section 775.087(l)(a), would be inappropriate.

However, there is no indication before us that such a reclassification occurred, except Maddox’s allegation that it did. Even if the allegation is accurate, Maddox could properly have received as severe a sentence had the reclassification not occurred. Section 775.082(3)(b), Florida Statutes (1981), provides that a person convicted of a felony of the first degree may be punished “by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.” (emphasis supplied) Section 812.13(2)(a) specifically provides that punishment for armed robbery may be “by imprisonment for a term of years not exceeding life imprisonment.” Therefore, Maddox could have received a sentence of 100 years on his armed robbery conviction without improper reclassification of the felony. A sentence of 100 years does not exceed life imprisonment. See Saname v. State, 427 So.2d 1083, 1084 (Fla. 1st DCA 1983). Therefore, error, if it indeed occurred, was harmless and we affirm on this point as well.

We note that in this motion Maddox raised grounds which facially indicated a basis for relief. Therefore, the trial court’s summary denial was inappropriate. In the interest of judicial economy and because only questions of law remain for resolution, we have addressed the motion on its merits rather than remand it to the trial court.

SHIVERS and WENTWORTH, JJ., concur.


source: Caselaw Access Project

author: ERVIN, Chief Judge. BOOTH, Judge,

license: Public Domain

text:
    W.F. YOST, Appellant/Cross-Appellee, v. RIEVE ENTERPRISES, INC., et al., Appellees/Cross-Appellants. STIRRETT ENTERPRISES, INC., d/b/a V.R. Business Brokers, Appellants, v. W.F. YOST, Appellee.
    Nos. AR-490, AS-411.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.
    Rehearing Denied Jan. 10, 1985.

      William G. Cooper of Kent, Watts, Dur-den, Kent, Nichols & Mickler, Jacksonville, for W.F. Yost.
    John F. Callender of Turner, Ford & Callender, P.A., Jacksonville, for Stirrett Enterprises, Inc., d/b/a V.R. Business Brokers.
    M.W. Goldstein of Goldstein & Goldstein, Jacksonville, for appellees.
   ERVIN, Chief Judge.

These consolidated appeals and cross-appeal arise from a final judgment of the trial court in an action involving the purchase and sale of a restaurant. We affirm in part and reverse in part.

An action was instituted by Rieve Enterprises, Inc. (Rieve), against Yost for rescission and cancellation of an agreement and related documents executed between the parties to purchase the Red Barn Barbecue Restaurant (Red Barn), and for damages, based on false and fraudulent statements by Yost representing that the restaurant premises complied with all laws necessary to conduct the business and that all equipment was in working order and would pass inspections required for the operation of the restaurant. Yost later brought an action against Rieve for damages stemming from its default on the promissory note and breach of the security agreement. Meanwhile, Stirrett Enterprises, Inc. (Stirrett), Yost’s real estate agent, also filed a complaint against Yost for the unpaid balance owing on a broker’s commission. The cases were consolidated by the trial court and a jury was assigned to determine the issues of fraud by Yost and breach of the contracts by Rieve, while the issues of rescission and cancellation, and Stirrett’s entitlement to the broker’s commission were to be decided only by the trial judge.

Interested in buying a restaurant, Richard Ramano, his wife Evelyn Glenn, and her brother Richard Jason, of Rieve Enterprises, contacted Stirrett who had the exclusive listing agreement with Yost for the sale of the Red Barn. After visiting and conducting a visual inspection of the premises, Rieve entered into an agreement on January 11, 1982 to purchase the assets and equipment of the Red Barn, as well as a five-year lease of, and option to buy, the land and building. The Rieve group agreed to assume $10,000 in purveyors’ bills, and executed a promissory note to Yost for the amount of $95,000, also granting to Yost a security interest in the restaurant’s assets, as described in the security agreement, and agreed to pay $10,000 to Stirrett on February 1,1982. Rieve paid an initial deposit of $10,000, and the additional amount of $10,-005.82 on January 13, 1982, the date of the closing, against the total purchase price of $135,005.82.

Before the sale, the Rieve group did not make inquiries to Yost or Stirrett, or check the public records concerning previous health inspections, neither did Yost or Stir-rett or Rieve’s own visual inspection reveal any defects in the restaurant premises. Although the group’s primary concern in acquiring the restaurant was directed to the volume of business rather than the physical characteristics of the premises, they nevertheless relied upon the following clause in the purchase and sale agreement provided by Stirrett: “Seller warrants that at the time physical possession is delivered to buyer, all equipment will be in working order and that the premises will pass all inspections necessary to conduct such business.” Rieve took possession immediately after the sale of January 13, continuing the business until January 27, when the Board of Health conducted a routine inspection, citing fifty-two health code violations, and thereupon closed the restaurant. The violations related to problems with electrical wiring, plumbing and sanitation, improper drainage, poor ventilation, and an improperly installed oven which consequently had to be condemned.

After shutting down the business, Rama-no requested Yost to return to him the $20,005.82 paid, but did not ask him to make any repairs, although the lease on the building and land contained a provision whereby Yost, as landlord, was responsible for maintenance of such areas of the building as the roof, downspouts, and walls. On January 28, Yost, Ramano, Cristine Duris, the mortgagee of the restaurant premises, and Duris’ attorney, met to discuss whether a plan could be devised to continue the operation of the business by the Rieve group in order to avoid foreclosure. Yost agreed to give a drainage and sewage easement across his property, and to make whatever repairs were necessary to open the restaurant. Ramano was unwilling to continue the business and, instead, abandoned the Red Barn and failed to make the $10,000 payment due on February the first, or any other payments connected with the transaction.

The jury returned a verdict, finding that fraud and deceit were practiced upon Rieve by Yost, awarding compensatory damages in favor of Rieve and against Yost in the sum of $10,000, while also finding that Rieve breached the contracts relating to the purchase of the Red Barn, although no damages were awarded to Yost. The trial court entered a final judgment in accordance with the verdict, and, by bench judgment, declared the promissory note, security agreement and lease to be null and void, and ruled that Stirrett was not entitled to recover the balance of the brokerage commission from Yost.

Yost argues that rescission of the contracts was improper since no evidence was presented to demonstrate that he made any false or fraudulent representations to the Rieve group, and, although the contract warranted that the building would pass all inspections and the equipment would be in working order at the time possession was delivered to the buyer, he could not foresee that at some time thereafter the building and equipment would not fulfill those requirements. Rieve’s counter-argument is that Yost’s failure to reveal the material defects of which he had knowledge amounted to fraud, and that the contractual representation as to the condition of the premises and equipment was false.

The essential elements of a fraudulent representation upon which relief can be granted are (1) a false statement of fact by the defendant, (2) knowledge by the defendant that the statement was false at the time it was made, (3) intent that the statement induce another to act in reliance thereon, and (4) actual reliance on the statement resulting in damage to the plaintiff. See Held v. Trafford Realty Company, 414 So.2d 631 (Fla. 5th DCA 1982). Misrepresentation of material facts, even though innocently made, acted upon by the other party to his detriment, will constitute a sufficient ground for rescission and cancellation in equity. The proper inquiry is not whether the party making the representation knew it to be false, but whether the other party believed it to be true and was misled by it in entering into the contract, so that whether the misrepresentation was innocently or knowingly made, the legal effect is the same. Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769 (1927). Held at 632-33; Lynch v. Fanning, 440 So.2d 79, 80 (Fla. 1st DCA 1983). Additionally, the party guilty of the fraudulent misrepresentation may not be shielded by the doctrine of caveat emptor. Thus, the purchaser of business property is entitled to rely on the truth of the seller’s representations even though the falsity could have been ascertained had the buyer made an investigation — unless the latter knew the representations to be false, or the falsity was obvious to him — if the seller, as owner of the property, had superior knowledge of its size, condition and income. Besett v. Basnett, 389 So.2d 995, 998 (Fla.1980).

Based on the foregoing authorities, we find that the evidence below amply supports the trial court’s rescission of the contracts on grounds of misrepresentations by Yost, in that the premises of the Barn did not pass the inspections necessary for conducting the business and some of the equipment was not in good working order, as warranted in the contract for purchase, and because the Rieve group relied on such contractual assurances — the falsity of which they neither knew nor was obvious to them — as inducement to purchase the restaurant causing them financial injury, regardless of whether the misrepresentations were knowingly or innocently made. There was abundant evidence from which the trial court could deduce that Rieve relied to its detriment upon the false representations of Yost, regardless of whether Yost made the representations innocently or with knowledge. Yost, the seller, either knew, or had reason to have known through previous violations that the premises could not comply with all laws necessary to conduct the restaurant. Less than two months before the execution of the purchase agreement, Yost was aware that the premises had been cited for a seeping sewage filter bed. Although a later rein-speetion reported that the defect had been corrected, Yost should have been aware, through the knowledge of his agent Albert, that the attempt made to remedy the problem was only a temporary, “band-aid” measure. Albert had simply filled in the seeping area with sand, despite having received an estimate that the cost to repair it properly would be about $8,000 to $10,000. (Albert later testified that he had held the Red Barn together with “spit, nails and chewing gum.”) After Rieve had abandoned the premises, the mortgagee’s actual cost to repair the septic tank and adjoining area was $5,835 out of a total of $40,000 expended. Testimony was further adduced that it would have cost Rieve $18,000 in repairs to bring the premises in compliance with existing regulations.

Yost’s second argument on appeal concerns the failure of the trial court to award damages caused by Rieve’s default on the promissory note in that the jury’s verdict found Rieve to have breached the purchase and sale contract, despite its failure to award damages to Yost as a result of the breach. On cross-appeal, Rieve asserts that the award of $10,000 damages was inadequate, since Rieve, as the defrauded party, should have been restored as nearly as possible to its original position by an award of the full $20,005.82 paid by it to Yost.

As to Yost’s argument, we respond that a seller should not be allowed to profit from a transaction induced by fraud and misrepresentation, and it is within the discretion of the trial court to formulate equitable remedies, including rescission of the transaction and restoration of the parties to their original positions. See Florando Investment Corporation v. Fried, 412 So.2d 14 (Fla. 2d DCA 1982). Moreover, a party may defend against liability on a claim or obligation by demonstrating that he was fraudulently induced to enter into a contract or transaction upon which such liability is asserted. See Poneleit v. Reksmad, Inc., 346 So.2d 615 (Fla. 2d DCA 1977). The equitable remedy of rescission, as we have previously observed, was properly imposed. Accordingly, we find no abuse of the trial court’s discretion in denying Yost damages caused by the breach of a contract, later rescinded on the ground of fraud.

As to the argument advanced in Rieve’s cross-appeal, we agree. If rescission of the entire transaction is the proper remedy, the trial court should devise a formula placing the parties, as nearly as possible, in their original positions. Florando Investment Corporation v. Fried. The record discloses that Rieve paid the sum of $20,005.82 toward the total purchase price, yet was awarded only $10,000.00. Thus, the damages awarded were insufficient to return Rieve to its original position. We therefore reverse, in order that the remaining $10,005.82 paid to Yost in connection with the purchase of the Red Barn be refunded to Rieve.

Finally, Stirrett contends that an award of the balance of the commission was erroneously denied by the trial court in that the prerequisite to entitlement to the commission was satisfied because the sale of the Red Barn was “consummated.” We do not need to reach the issue whether the sale was consummated, because the evidence discloses that Stirrett itself had unclean hands by participating in the misrepresentation to the Rieve group, inducing them to purchase the restaurant. Although the broker claimed he had no knowledge of the defects in the premises and equipment, Evelyn Glenn, one of the members of the Rieve group, testified at trial that before signing the purchase and sale agreement she had asked the broker whether he would, pursuant to the clause in the contract warranting the condition of the premises and equipment, make sure that the restaurant would be operational and pass all health inspections. According to her testimony, his response was that it was his job and he would take care of it. This statement was denied by Stirrett at trial. His denial does not appear to have been made an issue on appeal; instead his argument is that even assuming the accuracy of the statement, there was no obligation owed Rieve by Stirrett, and, at any event, Stirrett had no knowledge of wrongdoing by Yost. It is our obligation as an appellate body to affirm if there is any theory upon which the trial court might have denied Stirrett’s action for the balance remaining unpaid on the brokerage agreement. See Stuart v. State, 360 So.2d 406, 408 (Fla.1978); Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962). Cohen states the above rule in the following language:

It should be kept in mind that the judgment of the trial court reached the district court clothed with a presumption in favor of its validity. 1 Fla. Law and Practice, Appeals, § 152, 2 Fla.Jur., Appeals, § 314, and authorities cited therein. Accordingly, if upon the pleadings and evidence before the trial court, there was any theory or principle of law which would support the trial court’s judgment in favor of the plaintiffs, the district court was obliged to affirm that judgment.
In the opinion of this court, there are contained in the record facts which, if believed by the trial judge, are sufficient to support a judgment for the petitioners under the rule of law announced in McGehee Lumber Co. v. Tomlinson, supra. This being the case, the district court erred in failing to indulge the presumption in favor of the validity of the lower court’s judgment.

137 So.2d at 225.

It is a fundamental principle of equity that no one shall be permitted to profit from his own fraud or wrongdoing, and that one who seeks the aid of equity must do so with clean hands. Hauer v. Thum, 67 So.2d 643 (Fla.1953). There is no bar to applying the doctrine of unclean hands to a case in which both the plaintiff and the defendant are parties to a fraudulent transaction perpetrated on a third party. See Faber v. Landman, 123 So.2d 405 (Fla. 2d DCA 1960); Hauer v. Thum. In that there was evidence from which the trial court could have found that Stirrett himself was a party to the fraud, it is therefore immaterial whether Stirrett himself had knowledge of the fact that the premises could not pass all health inspections. See Lynch v. Fanning. The denial of recovery of the balance of the broker’s commission is affirmed.

The judgment of the trial court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

ZEHMER, J., concurs.

BOOTH, J., concurring in part and dissenting in part.

BOOTH, Judge,

concurring in part and dissenting in part:

The testimony concerning Stirrett’s participation in the misrepresentation was conflicting, was not addressed below, and should be resolved by the trial court on remand. Therefore, I would concur in the majority’s opinion except as it requires this Court’s undertaking, ab initio, to determine whether Stirrett himself was guilty of fraud or other conduct which would support the trial court’s denial of the brokerage commission balance.

      . The exclusive listing agreement between Yost and Stirrett, referring to the sale of the Red Barn, provided "that sellers will pay broker a commission of $14,465 if consummated' and that $10,000 of that amount was to be paid by balloon note on February 1, 1982, the date that Yost was to receive payment from Rieve. Although $4,465 of the commission was paid to Stirrett, the 110,000 payment due on February the first was never made, (e.s.)

      . The violations of January 27 were not the first to occur at the Red Barn premises. A health inspection report of the Red Barn dated May 13, 1981, stated that the plumbing and septic tank needed correction without delay, and a health department report dated November 12, 1981, stated that the sewage filter bed was seeping and directed that repairs be made within 48 hours. Based on reinspections conducted after each of the reports, the Department advised that the defects had been remedied.
      The manager hired by Yost to operate the Red Barn testified that he had notified Yost after the November inspection report of the defects cited, and upon telling Yost that the estimated cost to repair the sewage problem, which caused a significant ponding of sewage behind the restaurant, was from $8,000 to $10,000, Yost had replied that a similar job had been done within the past year and directed him to examine the warranty. The manager, however, never did so, but instead undertook the temporary measure of filling in the pond area; later a reinspection report of November 25, 1981 stated that the problem had been cured.

      . The element of knowledge is on its face misleading, and requires amplification, as indicated in the cases cited infra.

      . The purchase and sale agreement form which included the clause containing the warranty was prepared and provided by the broker.


author: ZEHMER, Judge.

text:
    CORDES HEALTH CARE MANAGEMENT CORP., d/b/a Gainesville Nursing Center; Cordes Health Care Management Corp., d/b/a Lakeview Manor; Cordes Health Care Management Corp., d/b/a Jefferson Nursing Center; and Lakeview Manor Nursing Home, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AZ-50.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.

      Karen L. Goldsmith and Michael J. Bitt-man, of Dempsey & Slaughter, P.A., Orlando, for appellants.
    Jay Adams, Deputy Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   ZEHMER, Judge.

Appellants Gainesville Nursing Center, Jefferson Nursing Center, Lakeview Manor Nursing Home, and Cordes Health Care Management Corp., as operator of the homes, appeal a final order of the Department of Health and Rehabilitative Services which disallowed, for Medicaid reimbursement purposes, certain items in appellants’ cost reports for each of the three facilities. Appellants raise four issues on appeal:

(1) Whether HRS erred in rejecting the hearing officer’s findings of fact and conclusions of law without identifying with particularity which findings were rejected and without stating specific reasons for rejecting such findings;

(2) Whether HRS erred in concluding that interest paid on a certain loan obtained for the purpose of refinancing an existing mortgage on certain of the nursing home properties was not an allowable expense for reimbursement;

(3) Whether HRS erred in rejecting the hearing officer’s findings relating to the proper cost to be used for calculating reimbursement due for depreciation and interest expense; and

(4) Whether HRS erred in rejecting the hearing officer’s finding that salary paid more than seventy-five days after the end of the reporting entity’s cost period was a reimbursable cost. We affirm on the last issue, but reverse on the remaining three issues.

Appellants’ first issue is governed by section 120.57(l)(b)9, Florida Statutes (1983), which provides in part:

The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. (Emphasis supplied)

The final order sustained certain HRS exceptions to the hearing officer’s findings of fact relating to reimbursement for interest on a loan and allowable depreciation and interest expense, without stating that the agency had reviewed the complete record, without stating with particularity the specific findings of fact being rejected as not based upon competent, substantial evidence, and without stating that the proceedings on which' the findings were based did not comply with essential requirements of law. This statutory provision has been construed as requiring the agency to state with particularity which specific findings are rejected and why. Bekiempis v. Dept. of Professional Regulation, 421 So.2d 693, 694 (Fla. 2d DCA 1982); Kibler v. Dept. of Professional Regulation, 418 So.2d 1081, 1082 (Fla. 4th DCA 1982); Lewis v. Dept. of Professional Regulation, 410 So.2d 593, 594 (Fla. 2d DCA 1982). The HRS order merely substituted its own factual findings and conclusions for those of the hearing officer with respect to these issues. The appealed order does, however, comply with the statutory requirements in rejecting the hearing officer’s conclusion of law construing the “75-day rule” contained in section 906.4 of the Medicare Provider Reimbursement Manual as permitting reimbursement of the claimed salary expense.

Ordinarily, we would reverse and remand this case for further proceedings with directions to comply with the procedural requirements of section 120.57(l)(b)9. Our review of the record, however, convinces us that no further proceedings are necessary to resolve the substantive issues presented.

Addressing the merits of the second issue, the record contains competent, substantial evidence to support the hearing officer’s findings regarding the loan from the Toronto Dominion Bank. The record shows that this loan, bearing thirteen percent interest, was obtained from the Canadian bank by Mr. Moyse as a representative of the nursing home corporations and that the proceeds were delivered to the bank holding the mortgage on the nursing homes and used to retire a note and mortgage which bore interest at twenty-one percent per annum. The record also reflects that each nursing home carried the Canadian bank loan on its accounting books as an obligation of the corporation and paid interest, when due, directly to the Toronto Dominion Bank. The record does not contain competent, substantial evidence to support the substituted finding by HRS that the interest payments should be treated as if made to Mr. Moyse, a principal shareholder of the corporations, and thus violate applicable regulations. Accordingly, that portion of the appealed order which disallows the interest payments on such loan as a reimbursable expense is reversed.

Addressing the third issue, we find that the record contains competent, substantial evidence to support the hearing officer’s findings as to the correct depreciated reproduction costs to be used in calculating allowable reimbursement for depreciation and interest expense on the nursing homes. Such costs are amply supported by the testimony of appellants’ expert accounting witness, Mr. Connors, and the real estate appraisals received in evidence. We agree with the hearing officer’s conclusion that the record is completely devoid of competent evidence to support the depreciated costs used by HRS in its audit work papers as the basis for disallowing a substantial portion of the expense claimed by appellants. Accordingly, that portion, of the appealed order which rejects the hearing officer’s findings and conclusions on this item is reversed.

Regarding the last issue, we find that HRS was entitled to construe the 75-day rule, in a manner consistent with its practices and policy, as requiring that any unpaid salary accruing during the cost-reporting period of the nursing home and claimed as an allowable expense must be paid within seventy-five days of the close of the nursing home’s cost-reporting period. We find nothing in the regulations which would permit the substitution of the home office accounting period, which ended some six months later, to extend this limitation beyond seventy-five days after close of the reporting entity’s cost-reporting period. That portion of the appealed order sustaining exceptions to the hearing officer’s allowance of the salary expense is affirmed.

Accordingly, this cause is remanded with directions that HRS enter a corrected final order- consistent with this opinion. AFFIRMED in part, REVERSED in part, and REMANDED.

SMITH and BARFIELD, JJ., concur.

      . Oral argument was noticed and held November 14, 1984, at which time the court heard argument by appellants' attorney. Appellee made no appearance.

      . The final order also rejected the hearing officer’s conclusion that principal payments should be allowed as a reimbursable expense. Appellants do not question this ruling, and our decision does not disturb it.


author: PER CURIAM.

text:
    Mario PRESMAN and Fanita Presman, Appellants, v. JET POOL CORPORATION, Appellee.
    No. 84-808.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Rehearing Denied Jan. 22, 1985.
    Thomas J. McLaughlin, Miami, for appellants.
    Harvey D. Rogers, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264, 269 (Fla. 4th DCA 1971); Page v. Staley, 226 So.2d 129 (Fla. 4th DCA 1969).


author: DELL, Judge.

text:
    S.N.W. CORP., P.N.W. Corp. and K.N.W. Corp., Appellants, v. Norman HAUSER and Judith B. Hauser, his wife, Appellees.
    No. 83-1950.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Rehearing Denied Jan. 18, 1985.
    Myron H. Burnstein of Burnstein & Knee, Hollywood, for appellants.
    Ira Pozen of Ira Pozen, P.A., Miami, for appellees.
   DELL, Judge.

Appellants, the sellers of two condominium units, appeal from a final judgment which awarded appellees damages for breach of contract.

The parties stipulated to the following facts:

On or about August 7, 1979 Plaintiffs and Defendants entered into contracts to purchase two (2) condominium units in building number three (3) of the Towers of Oceanview; unit number A 621 was to be purchased for the sum of $137,900.00 and unit B 718 was to be purchased for the sum of $89,400.00. Plaintiffs made timely payments of $13,790.00 on unit A 621 and $8,940.00 on unit B 718. Plaintiffs failed to make advanced deposits that were due not later than January 22, 1980 on both units. On or about February 15, 1980 Defendants notified Plaintiffs by mail of their failure to pay the contractual deposits. On or about February 20, 1980 Plaintiffs tendered the contractual advanced deposits to Defendants, said tendered checks were received by Defendants sometime thereafter, and on or about February 29, 1980 Defendants refused tender and returned said checks to Plaintiffs. On or about March 7, 1980 Plaintiffs and Defendants entered into new agreements for the same units at increased prices; the purchase price for unit A 621 was $157,000.00 and the purchase price for unit B 718 was $109,000.00. On March 13, 1981 the closings on the units were held pursuant to the new agreements of March 7, 1980; the closings were held under protest by Plaintiffs — Plaintiffs having filed a [sic] instant cause of action asking for Declaratory Relief prior to the closing and had advised Defendants of the action.

The trial court found: time was not of the essence; appellants’ notices of default mailed on or about February 15, 1980 did not act as notice of cancellation in accordance with the purchase agreements; the purchase agreements were in full force and effect when appellees tendered their deposits; appellants wrongfully terminated the original condominium purchase agreements; and that appellees were within their legal right in demanding that the closing be conducted in accordance with the original condominium purchase agreements. Based on these findings of fact, the trial court awarded appellees the sum of $38,700 which represented the difference in the purchase price between the original condominium purchase agreements and the subsequent agreements under which the parties closed.

Appellants contend that the trial court erred in awarding appellees damages because it should have construed the purchase and sale agreements under which the transaction closed as a novation of the original contracts. We agree.

Appellants raised the question of novation in the trial court but the trial judge did not address the issue, nor have the appellees addressed it in their answer brief.

A novation takes place only by agreement, but where the terms of a written agreement are not in doubt, the question of whether it effects a novation is one of law for the court. Morecraft v. Allen, 78 N.J.L. 729, 75 A. 920, L.R.A.1915B, 1. Existence of a novation must be implied as a matter of law in those instances where the parties enter into an entirely new and unambiguous agreement of equal or greater dignity to the agreement first made with respect to the same subject.

Evans v. Borkowski, 139 So.2d 472, 474 (Fla. 1st DCA 1962), cert. denied, 146 So.2d 378 (Fla.1962). Appellants argue that they satisfied the four requisite elements for a novation: (1) the existence of a previously valid contract; (2) the agreement to make a new contract; (3) the intent to extinguish the original contractual obligation; and (4) the validity of the new contract. Sans Souci v. Division of Florida Land Sales & Condominiums, 421 So.2d 623, 630 (Fla. 1st DCA 1982), rev’d on other grounds, 448 So.2d 1116 (Fla. 1st DCA 1984); 11 Fla.Jur.2d Contracts § 183. The record in this case establishes the requisite elements. First, no dispute exists that the original contracts for the purchase of the condominium units constituted valid contracts. Ap-pellees rely on the validity of those contracts as the basis for their claim for damages. Second, the parties stipulated that on March 7, 1980 they entered into new agreements for the same units at increased prices. Appellees tendered additional deposit checks totalling $11,365.00, which together with the deposits initially held in escrow, constituted the total down payment for the apartments at the higher prices. Third, appellee Norman Hauser admitted under cross examination that he intended to purchase the apartments under whatever terms he had to agree to in order to obtain the apartments. Fourth, the new contracts entered into between the parties were of equal dignity,to the first contracts, and concerned the same subject matter.

The record adequately demonstrates that the actions of the parties extinguished the original contractual obligations regardless of whether appellants had properly terminated them. We also note that the trial court’s finding that appellants failed to properly terminate the original contracts supports the conclusion that the original contracts constituted valid existing obligations at the time that the parties agreed to the new contracts. Appellees had the option of entering into the new contracts or exercising such legal and equitable remedies which they may have had available under the terms of the original contracts. Appellees chose the former and that choice resulted in a novation.

Therefore we hold that the trial court erred in failing to consider the issue and in failing to find that a novation occurred upon the execution of the contracts under which the transaction closed. Accordingly we reverse the trial court’s judgment awarding appellees damages in the amount of $38,700 plus interest.

REVERSED.

HURLEY and WALDEN, JJ., concur.


text:
    Joan L. ELLIS, Appellant, v. Harry L. ELLIS, Appellee.
    No. 84-229.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Rehearing Denied Jan. 18, 1985.
    Ronald Sales of Law Offices of Ronald Sales, P.A., West Palm Beach, for appellant.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellee.
   DELL, Judge.

Joan L. Ellis appeals from a final judgment of dissolution of marriage.

This is a marriage of twenty-six years. The parties have three children, two adult children and one minor child. The minor child resides with appellee and the parties have shared parental responsibility. Neither party brought any assets to the marriage, however during the course of the marriage they accumulated substantial property.

Appellee has personal income of approximately $33,000 to $36,000 per year and his corporation has income of approximately $50,000. Appellant has worked as a nurse and earned approximately $10,000 to $12,-000 a year, but has not worked in that occupation for several years. She also worked as a clerk in appellee’s business for which she received payment. At the time of the final hearing she was unemployed. Appellant has had a serious drinking problem for a number of years. However, she testified that she intended to obtain employment when she finished her treatment for alcoholism. A social worker testified that appellant needed approximately two more years of alcoholic rehabilitation treatment.

The principal assets of the marriage included the marital home, capital stock in ARA, Inc., two office condominiums, the Longboat condominium, and a vacation home. The trial judge treated each of these assets separately, taking into consideration the form of each of the parties’ respective interest in the asset at the time of the final hearing. The judgment reflected that he based appellant’s share of the marital assets on her proprietary interest and economic contributions, independent of consideration of her misconduct.

The trial judge valued ARA, Inc. at $350,000 and awarded appellant 35% of the corporation’s value. He stated that 35% equaled $105,000 and awarded that amount as lump sum alimony. In exchange, appel-lee received appellant’s stock in the corporation. Thereafter, the trial judge awarded appellant appellee’s interest in certain jointly owned property as part payment of the $105,000. After giving credit to appellee for his interest in the properties awarded to appellant, the trial judge determined that appellee owed appellant a balance of $50,-500. The trial judge stated that he considered the rate of interest, tax consequences, as well as the total circumstances in this case, and directed that appellee pay the balance owed to appellant in the form of rehabilitative alimony at the rate of $1,000 per month for five years.

Appellant contends the trial judge erred first, in the computation of her interest in ARA, Inc.; second, when he directed the remaining sum due for her interest in the marital assets be paid as rehabilitative alimony over five years; third, when he failed to award permanent periodic alimony; and, finally, when he failed to direct appellee to pay for psychiatric treatment which the court ordered in a previous temporary relief order.

First, appellant contends that in addition to her 25% interest in the corporation, the trial judge intended to award her 20% of appellee’s total interest (20% of 75%), rather than 20% of his solely owned interest (20% of 50%). According to appellant’s calculations, she should have received a total of 40% rather than 35%. Although facially an ambiguity exists as to the base percentage of appellant’s interest, the judgment adequately demonstrates a clear intent to award her 35% of the value of the corporation. However, a mathematical error exists on the face of the judgment. Thirty-five percent of $350,000 equals $122,500, not $105,000. The trial judge’s summary of the distribution of the marital property included this error. The correct amount owed to appellant equals $68,000 rather than $50,500 as stated in the final judgment.

Appellant correctly points out that the trial judge erred when he ordered ap-pellee to pay the balance due on the distribution of the assets as rehabilitative alimony rather than lump sum alimony. Appellant received her award based on her proprietary interest and economic contributions to the marital assets, and in exchange for the lump sum award to appellant, ap-pellee received appellant’s stock in the corporation. When the trial judge labeled the balance due appellant as rehabilitative alimony he exposed the lump sum award to possible future modification and subjected appellant to adverse income tax consequences which effectively reduced the value of the marital assets which she received. We hold that the trial judge should have ordered appellee to pay the $68,000 balance in a lump sum.

Next, the record compels us to hold that the trial judge should have awarded appellant periodic alimony separate and apart from her share of the marital assets. As discussed above, the lump sum award represented appellant’s share of the marital assets. The judgment reveals the trial court’s recognition of the need for periodic alimony in an amount of $1,000 per month, and we agree. Appellant has the expectation of returning to work, and she indicated a desire to do so, after she completes therapy. However, she has not used her skills for several years and the trial court’s recognition of a need for rehabilitative alimony for five years is appropriate! Rehabilitative alimony “establish[es] the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.” Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).

Based on the long term marriage and other factors of this ease we would have awarded permanent periodic alimony. However, “the standard of review is whether the trial judge abused his discretion and the test is whether any reasonable person would take the view adopted by the trial judge.” Vandergriff v. Vandergriff, 456 So.2d 464, 466 (Fla.1984). Since we cannot say that no reasonable person would have denied appellant permanent periodic alimony, we must affirm the trial judge’s denial of permanent alimony.

Lastly, the trial judge should have enforced the temporary relief order which ordered appellee to pay appellant’s psychiatric expenses.

Accordingly, we affirm the final judgment in all respects with the exception that we reverse and remand this case to the trial court with directions to correct the judgment to reflect that the remaining balance owed to appellant for her interest in the marital assets equals $68,000 and to order appellee to pay that sum to appellant in a lump sum; to award appellant $1,000 per month for five years as rehabilitative alimony; and to provide that appellee shall be responsible to pay the $2,790 balance due for psychiatric expenses incurred by appellant.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

HURLEY and WALDEN, JJ., concur.

      . Appellant owned 25% of the stock. Appellee owned 75% of the stock.


text:
    John Patrick KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 84-925.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Rehearing Denied Jan. 23, 1985.

      Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender West Palm Beach, for appellant, and appellant, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

We grant the Public Defender’s motion to withdraw, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and affirm appellant’s convictions. We note that the trial court departed from the presumptive sentence when it imposed a two year sentence based on the violation of probation and failed to provide written reasons for the departure. Although Florida Rule of Criminal Procedure 3.701 was amended to provide that no reason need be given for increasing the presumptive sentence under the guidelines to the next higher cell by reason of revocation of probation, the amendment was not adopted until after appellant’s sentencing. See Carter v. State, 452 So.2d 953, 954 n.3 (Fla. 5th DCA 1984). Because this issue was not adequately preserved for appellate review, we affirm appellant’s convictions and sentences. However, we do so without prejudice to appellant to challenge the sentence imposed by the trial court based on the revocation of probation pursuant to a mo-ti°n in compliance with Florida Rule of Criminal Procedure 3.850.

HURLEY and BARKETT, JJ., concur.


author: ZEHMER, Judge. MILLS, Judge,

text:
    Faye F. SEPMEIER, Charles William Sepmeier, and Fantasy Dancers, Inc., Appellants, v. TALLAHASSEE DEMOCRAT, INC.; J. Carrol Dadisman, Publisher; Walker Lundy, Executive Editor; Bill Fuller, Managing Editor; Bill Mansfield, Editorial Page Editor; and Mary Ann Lindley, Columnist, Appellees.
    No. AX-390.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.
    Rehearing Denied Jan. 8, 1985.

      C. Bette Wimbish, Tallahassee, for appellants.
    C. Gary Williams and Michael J. Glazer of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellees.
   ZEHMER, Judge.

This is an appeal from a final order dismissing with prejudice a complaint alleging libel and service mark infringement. The trial court found the allegedly libelous statements privileged expressions of pure opinion. It also found no basis for a service mark infringement action. We affirm in part and reverse in part.

On May 20,1983, The Tallahassee Democrat newspaper (Democrat) published a column by Mary Ann Lindley, one of its regular columnists. The column was headlined “Leathergrams: agony without the ecstasy” and dealt, in part, with the novelty message delivery service, Leathergram.

The next day, the Democrat published a letter to the editor which it captioned “Customers offended.” The letter expressed the author’s “unfortunate pleasure” in watching a Leathergram performance and urged businesses not to allow such entertainment during business hours.

Fantasy Dancers, Inc., the corporation offering the Leathergram service, and its officers, Faye and Charles Sepmeier, filed suit on July 12, 1983, against the Democrat, its publisher, three of its editors, and Lindley. The complaint alleged the defendants libeled the plaintiffs by publication of the May 20, 1983, column and the May 21, 1983, letter to the editor. The complaint also alleged the use of the word Leather-gram in the column unlawfully infringed upon Fantasy Dancers, Inc.’s registered service mark.

The Democrat filed a motion to dismiss the complaint. Following a hearing, the trial court issued a final order dismissing the complaint with prejudice.

Whether statements are privileged expressions of pure opinion or unprivileged mixed expressions of opinion is a question of law properly resolved by the trial court. Smith v. Taylor Publishing Co., Inc., 443 So.2d 1042 (Fla. 1st DCA 1983); From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981). A privileged expression of pure'opinion “occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known cr available to the reader or listener as a member of the public.” From v. Tallahassee Democrat, Inc., supra, at 57.

The plaintiffs contend that the article published by defendants is defamatory because it implies that the plaintiff Faye Sep-meier, the only messenger for Leather-gram, performs a striptease act, nude or nearly nude, incident to delivering Leather-gram messages. This fact is false, they say, because the messenger is fully clothed at all times. They take exception to the trial court’s legal conclusion that the article, taken as a whole, is an expression of pure opinion and, thus, privileged.

In Smith v. Taylor County Publishing Co., Inc., supra, the court held the newspaper column there involved was not merely an expression of pure opinion. In reaching that conclusion, the court reaffirmed the following rule:

Although pure expression of opinion is constitutionally protected, mixed expression of opinion is not. Pure expression of opinion exists when an article expressing an opinion is published and sets forth, in the article, the facts on which the opinion is based or when the parties to the communication are aware of the facts or assume their existence and the opinion is clearly based on those facts. Mixed expression of opinion exists when a published statement containing an opinion is made and is not based on facts set forth in the article, or assumed facts and, therefore, implies the existence of some other undisclosed facts on which the opinion is based.

Id. at 1047. The court reiterated the following test for determining whether an allegedly defamatory statement is actionable:

“In sum, the test to be applied in determining whether an allegedly defamatory statement constitutes an actionable statement of fact requires that the court examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.”

Id. at 1047. See also, Madsen v. Buie, 454 So.2d 727 (Fla. 1st DCA 1984).

Applying the quoted rule and test, we are unable to conclude that the statements in the published article constitute pure expression of opinion, rather than mixed expression of opinion and fact, any more than the statements involved in Madsen v. Buie, supra. A statement that a person is clothed or is nude obviously constitutes a statement of fact, not opinion. A statement that a person removes his or her clothing to reveal the naked body in whole or in part is a statement of fact, not opinion. The article does not state that the Leathergram messenger is fully clothed; rather, it implies the contrary. The reference to a “lithe woman in Spandex, a dog collar, and black boots” is not the equivalent of a statement that the messenger is at all times fully clothed. Spandex is a fabric, not a garment, and it may be used in making garments to cover the entire body or virtually none of the body, depending on design and intent. Hence, the meaning of the quoted description must be determined in context with the immediately following paragraphs of the article describing the “Machogram version of the Leath-ergram” as a male messenger who, while gyrating to music, “shed everything but some very red bikini briefs.” We can only conclude that the article equates Macho-gram and Leathergram as being essentially the same type presentation:

Removing his outfit piece by piece, the Machogram man in question revealed an underfed frame that did American manhood no great honor. And while I cannot speak for the male reaction to the Leath-ergram lady, the one I saw was no Nas-tassia Kinski.

The article concludes with a reference to the appearance at the office of “a woman wearing whips and black boots,” a statement also implying that the Leathergram messenger is, at best, scantily clothed. Moreover, the reference at the beginning of the article to “streaking,” described as “a bunch of naked college men,” with the comparison that “today’s exhibitionist equivalent is the Leathergram,” further- reinforces an obvious implication of fact that the Leathergram messenger is nude or nearly so. Read in totality, the article strongly implies, as a predicate to the opinions expressed, the material fact that the Leathergram messenger wears little, if any, clothing in the performance of her act.

Appellees have argued that all material facts upon which the columnist’s opinion is based “are explicitly stated” in two sentences concerning the Leathergram episode with Governor Graham:

Even Gov. Bob Graham was (almost) rendered speechless a while back when a lithe woman in Spandex, a dog collar and black boots roared on stage at Capital Press Club skits at the civic center. I was sitting close to one of Graham’s body guards, who lurched forward when she lashed her whip.

We respectfully disagree with this limited conception of the facts material to the opinion expressed because it fails to conform to the test from Smith that “the court must consider all the words used, not merely a particular phrase or sentence” (443 So.2d at 1047).

We have no quarrel with the right of this columnist to compare the Leather-gram with “streaking” and Machogram for the purpose of expressing a personal opinion that the messenger presentations described are not worth the cost of fifty dollars and are as socially unacceptable, if not downright reprehensible, as “streaking.” If the essential facts forming the predicate for this comparison and opinion had been fully, fairly, and truthfully stated, the comparison would constitute a privileged expression of pure opinion. But such was not the case here. This columnist compared “streaking” (described as “pure nakedness”), Machogram (a striptease down to near nakedness — “red bikini”), and Leathergram (unstated state of nakedness —“a lithe woman in Spandex, dog collar and black boots”) and thereby made the Leathergram messenger’s state of dress a material fact underlying the comparison being drawn as a basis for the pure opinion being expressed. Having done so, the article did not explain that there was any material difference between the dress of the Leathergram messenger and Machogram messengers or “streakers,” but necessarily left the Leathergram messenger’s state of dress to implication from the descriptions being compared. It necessarily follows that the article constituted mixed expression of opinion under the rule in Smith that “mixed expression of opinion exists when a published statement containing an opinion is made and is not based on facts set forth in the article,” but “implies the existence of some other undisclosed facts on which the opinion is based” (443 So.2d at 1047). We venture no opinion on whether plaintiffs should ultimately prevail in this action before a jury; we conclude only that plaintiffs should have a chance to convince them.

It is difficult to understand the plaintiffs’ argument concerning the May 21, 1983, letter to the editor. The plaintiffs do not contend on appeal that the letter or its caption is defamatory. They argue instead that publication of the letter the day after publication of the column was somehow defamatory. We disagree and reject this argument for the obvious reason that publication of nondefamatory statements does not provide the basis for a defamation cause of action.

Finally, we uphold the dismissal of the plaintiffs’ service mark infringement action. The plaintiffs contend the use of the word Leathergram in the column constituted infringement pursuant to section 495.131, Florida Statutes (1983). Section 495.131(1) infringement requires that thq use of the service mark be “likely to cause confusion or mistake or to deceive as to the source or origin of [the alleged infringer’s] goods or services.” Section 495.131(2) infringement requires application of the service mark to “labels, signs, prints, packages, wrappers, receptacles or advertisements.” Even if use of the word Leather-gram in the column was a use of a registered service mark — and we are not convinced it was — the use met neither of the above-mentioned statutory requirements for infringement.

That portion of the judgment dismissing the cause of action for defamation based on the publication of the letter to the editor and the cause of action for service mark infringement is affirmed. The dismissal of the defamation action based on libelous statements in the published column is reversed, and the case is remanded for further proceedings thereon.

AFFIRMED in part and REVERSED in part.

ERVIN, C.J., concurs.

MILLS, J., concurs in part and dissents in part.

MILLS, Judge,

concurring in part and dissenting in part.

I agree with the majority that the trial court’s dismissal of plaintiffs’ action for defamation based on the publication of the letter to the editor and their action for service mark infringement should be affirmed. I do not agree with the majority that the trial court’s dismissal of plaintiff’s action based on libelous statements in the published column should be reversed. I would affirm.

The column fairly read as a whole neither states nor implies the existence of undisclosed facts that the Leathergram messenger performs in the nude or performs a striptease.

The opinions expressed in the column, although critical of the Leathergram service, are based on facts set forth in the column. The facts are explicitly stated as follows:

Even Gov. Bob Graham was (almost) rendered speechless a while back when a lithe woman in Spandex, a dog collar and black boots roared on stage at Capital Press Club skits at the civic center. I was sitting close to one of Graham’s body guards, who lurched forward when she lashed her whip.

The trial court correctly ruled the column privileged expression of pure opinion. See Smith v. Taylor County Publishing Company, Inc., 443 So.2d 1042 (Fla. 1st DCA 1983); From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. 1st DCA 1981); and Information Control v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir.1980).

      . The column is reprinted below in its entirety:
      Leathergrams: agony without the ecstasy
      Streaking turned out to be, as one headline writer of the era predicted, "just another passing fanny."
      Some say streaking started on the Florida State University Campus, a post-sexual-revolution springtime rite. Others say it originated at the University of Maryland but never caught on because it gets too cold there.
      Wherever it started, streaking was hot for a while during March 1974. Spectators would gather almost nightly on Landis Green to witness the sensation that was putting FSU on the map — before the football team did. With the anticipation of those who look for leprechauns in the grass, they hoped to glimpse these Pan-like figures whisk across the Green.
      What they got instead was- a bunch of naked college men — with more courage than assets— climbing flagpoles, drinking beer and just hanging around. Then-Sheriff Raymond Hamlin was about the only one to take streaking very seriously, and except for the one fellow with an Indian headdress and maracas, the whole business lost its charm when it lost its spontaneity.
      But at least streaking was free.
      Today"s exhibitionistic equivalent is the Leath-ergram, and it will run you about $50 a shot.
      I would like to reveal that I, for one, don’t find these shows very sexy. No, let me go further. I find them excruciating.
      Even Gov. Bob Graham was (almost) rendered speechless a while back when a lithe woman in Spandex, a dog collar and black boots roared on stage at Capital Press Club skits at the civic center. I was sitting close to one of Graham’s bodyguards, who lurched forward when she lashed her whip. Alas, it never got any better than that.
      Recently an editor was working her last day at the Democrat when the Machogram version of the Leathergram zoomed into the newsroom to bid her farewell. This pale, thin male in a cowboy outfit put his ghetto blaster on the floor by her desk, turned up the music and began to gyrate. While the bored hordes looked on, he shed everything but some very red bikini briefs.
      Admittedly, it is worth a lot to hear a woman alternately shriek "Oh, no. Oh, no” and “I don’t believe this." And, yes, it is worth something to be able to say for months on end: “You should’ve seen the look on her face.”
      But it is not worth $50.

        For one thing, the show itself is interminable. Long after your grin muscles are aching with lactic-acid buildup, long after the wisecracks have waned and the puns begun to pale, these O-gram people dance on.
      Removing his outfit piece by piece, the Ma-chogram man in question revealed an underfed frame that did American manhood no great honor. And while I cannot speak for the male reaction to the Leathergram lady, the one I saw was no Nastassia Kinski.
      But maybe that’s what keeps the Leathergram business in business: The sanctity of sex is never in jeopardy. A business executive could go home at night and say to his wife, "Hi, dear. Guess what? A woman wearing whips and black boots came to the office today.” And her response would be, “That’s nice. Did you pick up the laundry on your way home?”

      . The letter is reprinted below in its entirety: Customers offended
      Last week I took my teen-age son for a hair cut at a local styling salon. We had the unfortunate pleasure of having to sit though a "leather-gram.”
      This letter is not being written to hurt the business or to degrade a young person who thinks she needs to make a living in this manner.
      I am writing to local business owners and managers. As a paying customer, my request is simple. Please do not allow this type of entertainment during business hours. Or at least tell your clients about the upcoming event.
      While the “act" was going on, I took a good look at the people around me. A 65-year-old woman became teary-eyed and her mouth began to quiver. It was as if she could hardly believe what she saw. Also a little boy, about 3 years old, told his mother he did not like the lady dancing and didn’t want to watch. For them and for people like them, I write my letter.
      To be invited to a private home or to a business before or after hours for such entertainment, at least gives an individual a choice. Business owners and managers, think about your customers. They are the ones who keep you in business.
      ELLEN DAVIS

      . The purpose of this reference is not entirely clear. Nastassia Kinski is a movie star of some reknown and has starred in at least one "R" rated movie described in a recent cable television guide as involving nude scenes.


text:
    DEPARTMENT OF PROFESSIONAL REGULATION and the Board of Psychological Examiners, Appellants, v. The FLORIDA PSYCHOLOGICAL PRACTITIONERS ASSOCIATION, Appellee.
    No. BA-490.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.

      Salvatore A. Carpino, Deputy Gen. Counsel, Tallahassee, for appellants.
    Tyrie A. Boyer of Boyer, Tanzler & Boyer, Jacksonville, for appellee.
   MILLS, Judge.

The Department of Professional Regulation and the Board of Psychological Examiners appeal an interlocutory order enjoining them from enforcing the provisions of Chapter 490, Florida Statutes.

The Florida Psychological Practitioners Association (FPPA) filed a complaint seeking to have Chapter 490, Florida Statutes, declared unconstitutional and to have the Department of Professional Regulation (DPR) and the Board of Psychological Examiners (BPE) enjoined from enforcing the provisions of the statute during the pend-ency of the action.

A motion for preliminary injunction was filed and a hearing held. Following the hearing the judge issued a restraining order.

The FPPA represents and certifies psychologists, psychotherapists, and mental health counselors. Prior to the passage by the legislature of Chapter 81-235, Laws of Florida, 1981, which became Chapter 490, members of the FPPA were actively and legally engaged in the practice of their respective professions.

Following passage of Chapter 490, any person not licensed under the chapter is prohibited from using any title or description incorporating the words: psychologist, psychology, psychological, school psychologist, psychotherapy, clinical social worker, licensed social worker, psychiatric social worker, mental counseling, marriage therapist, marriage counselor, marriage consultant, family therapist, family counselor, sex therapist, or sex counselor.

DPR and BPE argue that the essential requirements necessary for the issuance of a temporary injunction are not met by FPPA’s motion. We disagree. We believe that the trial judge did not err in finding the motion and supporting documents adequate for issuance of the injunction.

DPR and BPE further argue that the failure of the judge to require bond was reversible error. Yet when the judge, after hearing oral testimony and argument, decided to issue the injunction, he requested that counsel for all parties cooperate in the drafting of an order. It is inappropriate that attorneys for DPR and BPE now challenge the form and verbiage of the order since they participated in its drafting and approved it prior to signing by the judge. If additional recitations, including the requirement of bond, were thought to be appropriate, the attorneys certainly had opportunity to have so provided.

In support of their argument that without bond an injunction cannot stand, appellants cite McGovern v. Amira, 328 So.2d 862 (Fla. 4th DCA 1976). But in McGovern the court simply remanded the case for posting of a bond. Here the FPPA has voluntarily posted bond. The defect is cured; the issue is moot.

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.


text:
    Richard ENGLISH, M.D., Petitioner/Appellant, v. FLORIDA BOARD OF MEDICAL EXAMINERS, Respondent/Appellee.
    No. BC-290.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1984.
    Leonard A. Carson and Richard T. Done-lan, Jr. of Carson & Linn, Tallahassee, for petitioner/appellant.
    Jim Smith, Atty. Gen., and Susan Tully, Asst. Atty. Gen., for respondent/appellee.
   PER CURIAM.

On September 25, 1984, Richard English, M.D., petitioned this court for a writ of mandamus ordering the Board of Medical Examiners (Board) to perform its ministerial duty of referring to the Division of Administrative Hearings his request for hearing on his application for reinstatement of his medical license. This court entered an order directing the Board to show cause why the writ should not issue. The Board responded in part by asserting that a final, written order had been entered by it denying the petition for reinstatement and that petitioner, therefore, has adequate administrative remedies available so that mandamus was not appropriate. The copy of the written order filed in this court upon which the Board relies reflects that although it was signed before the petition for writ of mandamus was filed, the order was not filed until afterwards. Furthermore, no certificate of service was attached to the order indicating that it was properly served. In any event, the relief sought and the argument in support thereof are unaltered by the written order. Therefore, assuming that the order constitutes appropriate final agency action, we may treat the mandamus petition as a notice of appeal and initial brief. Fla.R.App.P. 9.040(c). In spite of the uncertainty regarding the proper procedural posture of this case, we find that the interests of justice and judicial economy will best be served by a prompt decision on the merits. We, therefore, treat this proceeding as an appeal from the Board’s order summarily denying the petition for reinstatement and request for a § 120.57 hearing. Having made this initial determination, we find the Board’s actions in this case to be improper and reverse.

The record reflects that appellant filed a formal petition for reinstatement of his medical license containing various allegations purporting to show that he had complied with the terms of his revocation and that he is currently capable of safely engaging in the practice of medicine. In response, the Board’s executive director advised appellant that pursuant to a policy of the Board:

The Petition will be placed on the agenda for the next meeting of the Board scheduled for August 3, 4 & 5, 1984, in Tampa, Florida. At that time the Board will rule on whether it wishes to accept the Petition for consideration. No testimony or argument pertaining to the Petition will be received by the Board at the August meeting. Neither will your presence or that of Dr. English be required. If it is the decision of the Board to consider the Petition, it will be placed on the agenda for the next subsequent meeting of the Board in October 1984 for final disposition. .. .

On August 4, 1984, the Board met and the following discussion occurred with regard to appellant’s petition for reinstatement:

Chairman Feinstein: Let’s go to Tab 14. These are requests or petitions for reinstatement. The first one is Richard English, Tab 14.
We have a letter from Counsel saying that we may not have the right to bifurcate this into two meetings.
Any comments by the Board?
sfc $ * # * ⅝:
Mr. Valdes-Fauli: I don’t think you want to hear my tirade again on drug selling and drug prescribing....
Chairman Feinstein: Okay. Is there a second to that?
Dr. Shea: Was that a motion to deny?
Mr. Valdes-Fauli: Yes.
Dr. Eschevarria: I second it.
Chairman Feinstein: Any discussion about this? All those in favor of denying this request or petition for reinstatement?
It is unanimous.

At the prompting of the Board’s own counsel, a discussion followed which pertained to appellant’s request for a Section 120.57 hearing. The following excerpts are pertinent to demonstrate the Board’s disposition of that request:

Dr. Bass: This is a revoked license. He doesn’t have any jurisdiction at all before the Board now does he? It was revoked. Chairman Feinstein: It was revoked.
Dr. Katims: It seems to me that — I want to identify myself as not being an attorney — but it seems to me that the remedy for this is for the individual to make application for licensure.
Dr. Bass: He’s revoked now.
Dr. Katims: De novo and not, you know, there is no other way.
Dr. Shea: If somebody has a revoked license, they are not one of our clients are they?
Dr. Katims: I’ve been telling you that for years, and I don’t want to hear any more about these people.
Dr. Bass: He is revoked. He can’t have a hearing.
Dr. Brunner: I have the same feeling. If he’s revoked, he's got to go through the same process.

Thus, it is apparent that the Board has adopted a policy of summarily denying petitions for reinstatement of revoked medical licenses. Further discussion contained in the transcript as well as this court’s opinion in Griffith v. Board of Medical Examiners, 454 So.2d 683 (Fla. 1st DCA 1984), reveals that the policy of rejecting applications for reinstatement was instituted by the Board at a June 1983 meeting.

Appellant’s argument in opposition to the Board’s policy may be summarized as falling under two headings: (1) that the Board’s policy of summarily denying his application for reinstatement constitutes unauthorized, free-form agency action which deprives appellant of the procedural safeguards incorporated in the Florida Administrative Procedure Act; and (2) appellant contends that application of the policy to him is a denial of due process because he is among the class of licensees referred to in Griffith who are entitled to submit petitions for reinstatement and have them considered on their merits. Because we agree with appellant on the second ground, we do not reach the first.

In Griffith, we noted that the Board admitted that prior to June 5, 1983, it routinely followed the practice of considering petitions for reinstatement. There, the Board also acknowledged that because Griffith’s license was revoked prior to June 5, 1983, he was entitled to that consideration. It is not clear to us why the Board no longer acknowledges that entitlement when appellant too had his license revoked prior to June 5, 1983. However, we find that the Board was correct in its earlier acknowl-edgement and errs in its implicit failure to so acknowledge here.

The order of the Board of Medical Examiners is reversed, and this case is remanded with directions that the merits of the petition for reinstatement be considered and that appellant be afforded a Section 120.57 hearing if disputed issues of material fact are found to exist.

Reversed and remanded.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.

      . If the order was legally rendered on the date it was signed, September 17, 1984, the September 25, 1984, filing of the petition was within the 30-day time limit for filing a notice of appeal. If the order was rendered after the petition was filed, we may still treat the petition as a notice of appeal since the premature filing of a notice of appeal does not divest this court of jurisdiction. Lauda v. H.F. Mason Equip. Corp., 407 So.2d 392 (Fla. 3rd DCA 1981).

      . We have before us the complete transcript of the brief proceeding below as well as all of the relevant documents necessary for adequate review by this court.

      . § 458.331(3), F.S., provides:
      “(3) The board shall not reinstate the license of a physician, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that he has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of medicine.”

      . Counsel for appellant responded to this letter by objecting, in writing, to the procedure.


text:
    Jeffrey Scott GAGE, Appellant, v. STATE of Florida, Appellee.
    No. AY-50.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.

      Michael E. Allen, Public Defender, Terry Carley, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Greg Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Gage appeals from prison sentences imposed on him following revocation of his probation. He contends the sentences should be vacated because the record does not show that in selecting sentencing pursuant to the sentencing guidelines he knowingly and intelligently waived his right to parole eligibility. Next, he contends the trial court erred in failing to order the State to prepare a sentencing scoresheet.

Gage’s first contention is the same one rejected by this Court in Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), where we held an affirmative selection is all that is required. We reject this contention on authority of Moore, but certify the following question to the Supreme Court as one of great public importance:

When a defendant who committed a crime before 1 October 1983 affirmatively selects sentencing pursuant to the sentencing guidelines, must the record show the defendant knowingly and intelligently waived the right to parole eligibility?

The record of the sentencing hearing shows that the trial court did not have a scoresheet before it when it imposed the sentences challenged by this appeal. Gage’s counsel informed the court that she had prepared one but felt it was incorrect. The court then gave leave to file a correct one within five days of the hearing. There is no indication that the allegedly incorrect scoresheet was seen by the court. It does not refer to it nor does it appear in the record. Nor could it have had before it the scoresheet that does appear in the record, indicating a score of 14 points. Not only is there no date on this scoresheet to indicate when it was filed, but the court had just given Gage’s counsel five days past the hearing to file it. It therefore appears that there was no scoresheet before the court when it imposed the sentences, despite the admonition of Rule 3.701(d)(1), Florida Rules of Criminal Procedure, that “[t]he sentencing judge shall approve all score-sheets” and of the note to the rule: “Ultimate responsibility for assuring that score-sheets are accurately prepared rests with the sentencing court.”

The erroneous nature of this sentencing procedure is further pointed out by this court in Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984). This court recognized that “a trial judge may go outside the recommended range if he explains in writing the reasons for his departure” but that he “must make an initial determination of the recommended range for a defendant’s crime, and only then may he make a determination that circumstances justified departure, giving his reasons in writing.” Here, the trial judge could not have made this initial determination because he had no scoresheet before him when he passed sentence. We are compelled to reverse on this issue.

It is unnecessary for us to reach Gage’s third contention because of our reversal on his second contention. Nevertheless, we wish to point out that the method used by the trial court in stating his reason for departing from the sentencing guidelines is erroneous. See Jackson v. State, supra. Also, violation of a substantive condition of probation can be a clear and convincing reason for departing from the guidelines. See Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984); Carter v. State, 454 So.2d 739 (Fla. 5th DCA 1984); and Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984).

Affirmed in part, reversed in part, and remanded to the trial court for the purpose of complying with the provisions of Rule 3.701(d)(1), Florida Rules of Criminal Procedure, and after compliance for sentencing under the guidelines.

ERVIN, C.J., and ZEHMER, J., concur.


author: THOMPSON, Judge.

text:
    VALENCIA COMMUNITY COLLEGE and Underwriters Adjusting Company, Appellants, v. Mary D. ELDER, Appellee.
    No. AZ-225.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.

      Ronald S. Webster of Whittaker, Stump & Webster, Orlando, for appellants.
    Beth A. Ferguson of Myers & Mooney, Orlando, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal an order of the deputy commissioner (deputy) awarding claimant temporary total disability (TTD) benefits from the date of injury to the date of maximum medical improvement (MMI) for all periods when claimant was not employed, and awarding permanent total disability (PTD) benefits thereafter. The deputy also awarded costs and an attorney’s fee of $19,000.00. We reverse.

The E/C contend that the deputy erred in awarding TTD benefits, PTD benefits, attorney’s fees and costs, and argue that the deputy further erred in finding the claimant to be PTD since she failed to undergo rehabilitation and has not proven that it would be unsuccessful. Because we agree with the E/C’s first three contentions on appeal, the rehabilitation issue need not be addressed.

The claimant, Mrs. Elder, injured her back in three compensable accidents which occurred in 1976 and 1977. In 1978 she underwent a laminectomy and discectomy at levels L4 and L5. Following the surgery she continued to experience pain and became increasingly depressed. She attempted to return to work for the employer as a receptionist, but was fired after she missed many days of work. Claimant continued to receive treatment for her depression.

Jacqueline Smith, a vocational rehabilitation counselor, helped claimant secure a job through CETA in the food stamp office doing clerical work. Mrs. Elder worked there for six months until the funding for the position was terminated. Claimant then found two temporary jobs on her own. She worked at J.C. Penney during the 1981 Christmas season and then at H & R Block during the early 1982 tax season. Mrs. Elder then worked at a bookstore for one month, but quit because she had trouble working with her superior. During part of the spring and summer of 1982 she undertook some live-in babysitting jobs before moving to Tennessee in November 1982 for financial reasons. Since leaving Florida, Mrs. Elder has been unable to find a job.

Two of the psychiatrists who treated claimant determined that she reached MMI at differing dates. Dr. Kolin, who initially treated claimant, felt that she “reached a plateau of improvement” in December 1980. Dr. Dow, who treated claimant in 1982 and 1983, stated she reached MMI in August 1983. The deputy accepted the later date, and awarded Mrs. Elder TTD benefits “for all periods of time that she has not worked from the date of her accident to her date of maximum medical improvement.”

The E/C argue that an award of TTD benefits for this period is improper since claimant demonstrated an ability to work uninterruptedly, and there was no evidence that claimant was unable to work. Although the record contains a paucity of evidence as to the actual dates when Mrs. Elder was employed, it is clear that she was indeed employed in several jobs during the time for which TTD benefits were awarded. Mrs. Elder demonstrated a partial ability to work, making the award of TTD benefits improper, even though the deputy specified that no benefits were due for those periods when she was actually employed. Dade County School Board v. Walker, 379 So.2d 1026 (Fla. 1st DCA 1980).

The medical reports, however, do indicate that claimant was TTD for a portion of the time following her injury. A March 1981 letter from Dr. Kolin stated that she was “able to return to a work situation,” but a later letter from Dr. Dow dated October 1982 states that claimant was “severely depressed” and “incapable of being gainfully employed.” The award of TTD benefits, therefore, is reversed and remanded so that the conflicting medical testimony can be resolved, the times of claimant’s incapacity and employment determined, and the TTD award modified so that it does not encompass the times when claimant was able to work.

The deputy’s award of PTD benefits was also improper. Although a claimant does not have to be utterly incapacitated for an award of PTD benefits to be proper, the purpose of such benefits is to compensate for a loss of earning capacity, not for a mere loss of earnings. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960). In Mrs. Elder’s case it is clear that her physical and emotional impairments do not preclude her from all gainful employment. Harris Intertype v. Anderson, IRC Order 2-3068 (Nov. 18, 1976). She has been able to secure and satisfactorily perform at least three jobs and the fact that she has been unable to secure a job in the locale where she now resides does not demonstrate a loss of earning capacity. There is no medical testimony that Mrs. Elder is unable to work. On the contrary, Dr. Dow, the psychiatrist who treated Mrs. Elder most recently, stated that it would be “beneficial” for her to work. There is no evidence to support the deputy’s finding that “claimant is unable to perform even sedentary work on a regular, uninterrupted basis and is permanently and totally disabled.” See Hillsborough Community College v. Miller, 440 So.2d 26 (Fla. 1st DCA 1983). Accordingly, the award of PTD benefits is reversed.

In their final point on appeal, the appellants urge that the $19,000.00 attorney’s fee awarded is excessive. The parties stipulated that such an amount was reasonable “based upon the award of permanent total disability” but they also stipulated that if the order was modified or reversed on appeal, the stipulation would not prejudice the E/C’s right to argue that the fee was excessive. Because the award of PTD benefits is reversed, the award of attorney’s fees is also reversed and remanded for reconsideration in light of the modification of the award of benefits.

REVERSED and REMANDED.

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


author: SHIVERS, Judge.

text:
    Wisdom ELLERBEE, Appellant, v. CONCORDE ROOFING CO., and Fidelity Casualty Company of New York c/o Underwriters Adjusting Company, Appellees.
    No. AZ-361.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.

      David L. Kahn of David L. Kahn, P.A., Fort Lauderdale, for appellant.
    David R. Mankin of Law Offices of Millard C. Glancy, Hollywood, for appellees.
   SHIVERS, Judge.

The claimant in this workers’ compensation case appeals the deputy commissioner’s order which denied his claims for interest, penalties, and further medical treatment. The order on review, after setting forth that the deputy has jurisdiction of the parties and the subject matter, that claimant was injured on October 6, 1983, and that claimant duly received medical attention and temporary total disability benefits, concludes simply with, “I have carefully considered all of the testimony and all of the evidence before me, and on the basis of same consider the claims made by the employee at the hearing to be without merit.” Both the claimant and the employer/carrier urge that the deputy’s failure to set forth in his order proper findings of ultimate facts precludes intelligent judicial review. We agree. Accordingly, the deputy’s order is reversed and this cause remanded to the deputy to make findings of facts and conclusions of law in accord with section 440.-25(3)(c), Florida Statutes (1983). The deputy may conduct further hearings if, in his discretion, he deems that necessary.

REVERSED and REMANDED.

MILLS and WENTWORTH, JJ., concur.


author: WENTWORTH, Judge.

text:
    Gordon David WIRT, Appellant, v. STATE of Florida, Appellee.
    No. BA-113.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Gordon David Wirt, pro se.
    Jim Smith, Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of the denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. In denying appellant’s motion the court declined to rule on the merits thereof, indicating merely that it was “without jurisdiction.” However, no jurisdictional defect is'apparent on the face of appellant’s motion. The court should therefore attach supporting documentation indicating a lack of jurisdiction; if such documentation is not provided the court should consider the merits of appellant’s motion.

Accordingly, the order appealed is reversed and the cause remanded with directions that the court either attach supporting documentation or consider the merits of appellant’s motion.

MILLS and SHIVERS, JJ., concur.


text:
    UNIVERSAL DEVELOPMENT CORPORATION and USF & G, Appellants, v. Johnny LAVINE, Appellee.
    No. BA-256.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Larry Hill of Moore, Hill & Westmore-land, Pensacola, for appellants.
    John Myrick of Kinsey, Myrick, Troxel & Johnson, Pensacola, for appellee.
   PER CURIAM.

AFFIRMED.

See Ralston Purina Co. v. Byers, 457 So.2d 1138 (Fla. 1st DCA 1984); Hardware Mutual Casualty Co. v. Carlton, 9 So.2d 359 (Fla.1942).

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


text:
    FIRST NATIONAL BANK IN FORT MYERS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Margaret Renz, Appellees.
    No. BC-324.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Thomas A. Mickes and Robert L. Proost, of Peper, Martin, Jensen, Maichel & Het-lage, St. Louis, Mo., for appellant.
    Geri Atkinson-Hazelton, Tallahassee, for Unemployment Appeals Comn.
    Margaret E. Renz pro se.
   ON MOTION TO DISMISS

PER CURIAM.

This cause comes before us on appeal from a final order of appellee, Florida Unemployment Appeals Commission (Commission). The Commission moves to dismiss this appeal on grounds the notice of appeal was not timely filed.

The final order in this matter was rendered September 5, 1984. Pursuant to Rule 9.110(b) and (c), Fla.R.App.P., appellant is required to file two notices of appeal. One notice is to be filed with the clerk of the lower tribunal, here, the clerk of the Commission. Where review of administrative action is sought, appellant is required to pay the fee and file a second notice of appeal with the reviewing court. Failure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect. See Committee Notes to Florida Rule of Appellate Procedure 9.110. Under Rule 9.040(h), Fla.R.App.P., failure to timely pay the filing fee or failure to timely file the second (additional) notice of appeal does not affect the jurisdiction of the reviewing court.

In the instant case, appellant filed a notice of appeal with the clerk of the Commission, which notice is stamped as being received October 8, 1984. An additional notice of appeal was filed with this court, it also was stamped as being received October 8, 1984. The Commission asserts the notices were not timely filed pursuant to Rule 9.110(b), Fla.R.App.P., which requires that a notice of appeal be filed within 30 days.

Appellant responds to the motion to dismiss and states the appeal was timely filed under Rule 9.110, Fla.R.App.P., because both notices of appeal were mailed October 3, 1984. Appellant points out that failure to timely file the second notice does not constitute a jurisdictional defect and cites to Rule 9.040(h), Fla.R.App.P. With this proposition, we have no quarrel. However, appellant further argues that its notice of appeal filed with the Commission was timely because it was mailed October 3, 1984, within the requisite 30-day period. In support of this position, appellant cites to Rule 38E-2.03(3), Fla.Admin.Code, which provides:

Applications filed by mail shall be considered to have been filed when deposited in a receptacle of the United States Postal Service. The postmark of the postal service shall be considered evidence of the date of posting.

Rule 38E-2.01, Fla.Admin.Code, entitled “Applicability” provides:

The rules set forth in this chapter shall govern the procedures to be used for bringing an appeal before the Unemployment Appeals Commission, (emphasis supplied)

Appellant has apparently overlooked Chapter 38E-3, Fla.Admin.Code, which deals with procedures for obtaining judicial review. Rule 38E-3.08, of that chapter, entitled “Filing Notice of Appeal” provides:

The notice of appeal of a commission order shall be filed with the clerk of the commission in accordance with the Florida Rules of Appellate Procedure, (emphasis supplied)

It is well settled that Rule 9.110(b), Fla. R.App.P., requires the notice of appeal to be filed, not mailed, within 30 days of rendition of the order to be reviewed. See Franchi v. Florida Department of Commerce, etc., 375 So.2d 1154 (Fla. 4th DCA 1979). As neither the notice filed with the clerk of the Commission, nor the notice filed with this court was filed within the requisite 30-day period, this court is without jurisdiction in this matter and the, appeal is dismissed.

MILLS, SHIVERS and WENTWORTH, JJ., concur.


text:
    John DE FELICE, Appellant, v. MOSS MANUFACTURING, INC., Appellee.
    Nos. 84-558, 84-586.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Rehearing Denied Jan. 22, 1985.

      Stephen Cahen, Miami, for appellant.
    Simon, Schindler & Hurst and Thomas M. Pflaum, Miami, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The summary judgment entered in favor of Moss Manufacturing, Inc. on its counterclaim is affirmed. The summary judgment entered in favor of Moss on De-Felice’s complaint is affirmed insofar as it adjudges that the employment contract between the parties does not specifically obligate them for a definite term of employment, is therefore terminable at will, and does not support DeFelice’s claim for salary. See Maguire v. American Family Life Assurance Co., 442 So.2d 321 (Fla. 3d DCA 1983), rev. denied, 451 So.2d 849 (Fla.1984); Roy Jorgensen Associates, Inc. v. Deschenes, 409 So.2d 1188 (Fla. 4th DCA 1982). See also Wright & Seaton, Inc. v. Prescott, 420 So.2d 623 (Fla. 4th DCA 1982). However, we reverse the summary judgment insofar as it precludes DeFelice from recovering the “guaranteed bonus” of $2,000, which, according to the contract, was “to be paid during December 1981,” since the contract does not clearly and unequivocally provide that DeFelice would be entitled to the bonus only if he was employed through December 1981, and Moss has not otherwise conclusively shown that such was the intent of the parties. Accordingly, DeFelice’s claim for the bonus amount is remanded to the trial court for further proceedings.

Affirmed in part; reversed in part.