author: ANSTEAD, Chief Judge.

text:
    MITCHELL MAINTENANCE SYSTEMS, A DIVISION OF LIFT-A-LOFT CORPORATION, a foreign corporation doing business in the State of Florida, Appellant, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, an agency of the State of Florida, and Ilse Anne McGarvey, as Personal Representative of the Estate of William McGarvey, deceased, Appellees.
    No. 82-2126.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Rehearing Denied Dec. 27, 1983.

      Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellant.
    David A. Danielson of Brennan, McAli-ley, Hayskar, McAliley & Jefferson, P.A., West Palm Beach, for appellee Department of Transportation.
   ANSTEAD, Chief Judge.

This is an appeal from a final judgment granting the Department of Transportation indemnification from Mitchell Maintenance Systems for damages assessed against the D.O.T. arising out of the maintenance of lighting fixtures on 1-95.

Mitchell contracted with the D.O.T. to maintain lighting fixtures on 1-95 in Palm Beach County. These fixtures had concrete bases sunk into the ground. The poles themselves were designed to break away at ground level if hit by a vehicle. Soil erosion around one pole caused the concrete base to extend above ground level. Subsequently, a car hit that base, and the driver was killed. The driver’s estate sued the D.O.T. and Mitchell, alleging that their negligence caused the erosion. Mitchell settled with the plaintiff and crossclaimed against the D.O.T. for contribution. The D.O.T. in turn crossclaimed against Mitchell for indemnity, citing provisions of a contract between the parties. This provision reads:

CONTRACTOR covenants and agrees that it will indemnify and hold harmless DEPARTMENT and all of DEPARTMENT’S officers, agents, and employees from any claim, loss, damage, cost, charge or expense arising out of any act, action, neglect or omission by CONTRACTOR during the performance of the contract, whether direct or indirect, and" whether to any person or property to which DEPARTMENT or said parties may be subject, except that neither CONTRACTOR nor any of its sub-contractors will be liable under this section for damages arising out of injury or damage to persons or property directly caused or resulting from the sole negligence of DEPARTMENT or any of its officers, agents or employees.

Based upon this clause and conflicting evidence of the parties’ negligence, the lower court granted the D.O.T.’s claim for indemnification. On appeal, Mitchell claims that, regardless of the existence of evidence of its own negligence, the D.O.T. is not entitled to indemnification if it too was negligent. We cannot agree.

In Florida, contractual provisions by which indemnitees are absolved from liability for their own negligence will be enforced only if these provisions are “clear and unequivocal.” University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973); Goyings v. Jack and Ruth Eckerd Foundation, 403 So.2d 1144 (Fla. 2d DCA 1981). Such provisions have been upheld in a variety of factual settings. Joseph L. Rozier Machinery Co. v. Nilo Barge Line, Inc., 318 So.2d 557 (Fla. 2d DCA 1975); L. Luria & Son, Inc. v. Alarmtec International Corp., 384 So.2d 947 (Fla. 4th DCA 1980); Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972); John W. Eshelman & Sons, Inc. v. Seaboard Coast Line Railroad, 431 So.2d 345 (Fla. 2d DCA 1983). In Leonard L. Farber Co. v. Jaksch, Inc., 335 So.2d 847 (Fla. 4th DCA 1976), this court upheld a provision which relieved a lessor of all responsibility for losses occasioned wholly or in part by any act or omission of the lessee but which explicitly excluded the lessee from liability that was solely due to the negligence of the lessor. The lessor was granted indemnity even though the injury in question was caused in part by the lessor’s own negligence. See also Marino v. Weiner, 415 So.2d 149 (Fla. 4th DCA 1982).

In our view the contractual provision here is clear and unequivocal and similar to the provisions upheld in Farber and Marino. The clause provides that Mitchell will indemnify D.O.T. for any claim arising out of Mitchell’s performance of the contract, except where the claim is caused solely by the neglect of D.O.T. We reject Mitchell’s contention that the words “sole negligence” as used in the clause contemplate an apportionment of damages based on the comparative negligence of Mitchell and D.O.T. respectively. Under this view the percentage of damages attributable to D.O.T.’s comparative negligence would constitute “damages ... resulting from the sole negligence” of D.O.T. and never be subject to indemnification. While it is possible that this is what the parties contemplated, that is simply not what the agreement says. Applying this interpretation, indemnity is appropriate if there is any evidence from which the judge could conclude that Mitchell was negligent. Mitchell candidly concedes that there is evidence that it was negligent. At the hearing, for example, an official of Mitchell testified that their employees were obligated to report soil erosion around lighting poles to the D.O.T. The D.O.T. introduced evidence that they were not notified of soil erosion around the pole hit by the car until after the accident. From this evidence, it is clear the judge could have concluded that Mitchell was negligent.

Accordingly, we affirm the decision of the trial court.

HERSEY and DELL, JJ., concur.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    Lauren S. PURITZ, Appellant, v. Jerome L. ROSEN, Appellee.
    No. 82-2488.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Rehearing Denied Jan. 17, 1984.

      Lee H. Schillinger, Coral Gables, for appellant.
    Eric R. Schwartz of Weitz & Schwartz, P.A., Lauderdale Lakes, for appellee.
   BERANEK, Judge.

This appeal concerns the dissolution of a partnership and the resulting suit for damages and an accounting which the plaintiff/appellant, Puritz, brought against defendant/appellee, Rosen. As framed by the pleadings, the primary issue presented for adjudication by the trial court was whether the accounting partnership established between Rosen and Puritz on April 1, 1974, survived their merger with the accounting partnership of Holtz & Company on February 1, 1977. The trial court denied all relief requested by plaintiff upon the finding that all rights and liabilities between the parties were terminated or merged upon the commencement of their dealings with Holtz & Company. We disagree and reverse.

In early 1974, Rosen and Puritz agreed to form a partnership. The parties drafted and executed a series of agreements which altogether constituted their partnership agreement. The documents included a partnership agreement which provided profit and loss sharing between Rosen and Puritz on an 80%/20% basis. In the case of a dissolution by withdrawal of either partner, they were required to liquidate the accounting practice between themselves. The value of each partner’s interest was to be determined in accordance with a valuation formula based on the previous calendar year’s gross billings. This formula was contained in a buy and sell agreement which was incorporated by reference into the partnership agreement. The parties also executed an agreement which clearly identified Puritz’s purchase of a 20% interest in Rosen’s accounting practice which included fixed assets of furniture, fixtures, equipment, a computer subject to a chattel mortgage and note, and the goodwill of Rosen’s accounting practice. Further, Ro-sen agreed to grant Puritz an option to purchase an additional 20% of his accounting practice, and this also was memorialized in a written option agreement. On April 29, 1976, the parties entered into an option agreement extension extending the option agreement until April 30, 1978.

In December, 1976, Rosen and Puritz were approached by Holtz & Company, a large accounting concern, which was considering opening an office in Fort Lauder-dale. An agreement was reached and on February 1, 1977, Rosen and Puritz joined Holtz & Company. On that same day, Ro-sen and Puritz exercised the extended option agreement existing between themselves by the execution of an agreement whereby Puritz purchased an additional 20% of Rosen’s accounting business for $30,000, thereby giving Puritz a total 40% interest in the accounting practice. As consideration, Puritz executed and delivered a promissory note for $35,000, payable to Rosen ($5,000 of which was for an unrelated debt). Rosen and Puritz then instructed Holtz & Company to split their attributable earnings at 60%/40%. Puritz made payments to Rosen pursuant to the promissory note.

In April, 1978, problems arose and the income split was changed to 70%/30%. Puritz acquiesced in this agreement. At the end of 1978, Puritz completed payment on the promissory note and received an acknowledgment from Rosen which stated:

JEROME L. ROSEN hereby acknowledges receipt of the sum of Ten Thousand Dollars ($10,000) from LAUREN S. PURITZ as full and final payment of a promissory note dated February 1, 1977 in the face amount of Thirty-Five thousand dollars ($35,000). ROSEN hereby tenders said promissory note on which PURITZ is the maker as acknowledgment of its payment and the completion of PURITZ’S purchase of an equity interest in ROSEN’S accounting practice. [Emphasis added.]

In January, 1980, Rosen informed Holtz & Company and Puritz that he was leaving and taking his accounting clients with him. Rosen did not return any of the money paid to him by Puritz, nor did he pay him any money in accordance with the formula contained in the buy and sell agreement. Pur-itz sued contending the original accounting firm was still in existence and seeking an accounting and damages from Rosen.

Rosen convinced the trial court that his partnership with Puritz was terminated when they joined Holtz & Company and the trial court denied all relief sought by Pur-itz. We are aware that it is the function of the trial court to evaluate and weigh the testimony and other evidence to arrive at findings of fact. It is not our function to reweigh the evidence nor to substitute our judgment for that of the trial court. However, we must look to whether the judgment of the trial court is supported by competent evidence. Oceanic International Corporation v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981). Applying this test, we hold that the findings of the trial court were clearly against the manifest weight of the evidence. The parties dealt with each other through written agreements. Neither party objected at trial to the parol testimony heard by the trial court. Nevertheless, the court allowed this parol testimony, particularly that of Rosen, to alter the intent expressed in all of the written agreements.

If the last act completed by the parties had been the joinder with Holtz & Company, Rosen would have had a plausible argument that the partnership was dissolved. However, the merger with Holtz & Company was not the final act. On that same day, Rosen and Puritz executed another agreement whereby Puritz exercised his existing option to purchase an additional 20%. of Rosen’s accounting practice for $30,000. Puritz paid off the note and received a receipt which clearly indicated the purchase of an equity interest in Rosen’s accounting practice. The trial court questioned Rosen as to what he was giving Puritz in return for Puritz’s promise to pay an additional $30,000. In response, Rosen answered: “He got an additional 20% interest in Holtz & Company.” The managing partners of Holtz & Company testified that the partners of Holtz & Company did not permit the sale of interests in their accounting practices. Obviously, Rosen’s response belies the clear import of the written documents, especially his receipt. It is undisputed that Rosen had no power or right to sell a portion of Holtz & Company. Further, Rosen, not Holtz & Company, received the entire consideration, none of which was returned to Puritz.

In addition to the factual matters discussed above, we hold that under the Uniform Partnership Act, Section 620.67(2), Florida Statutes (1981), there was no dissolution of the partnership. Certainly, there was no settlement or liquidation of the partnership affairs, especially in light of the February 1, 1977, agreement allowing Puritz to buy an additional 20% of Rosen’s accounting practice. Puritz is entitled to an accounting and to a determination of the amount due him in accordance with the valuation formula. This matter is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


author: PER CURIAM.

text:
    Bette T. TAICHER, Robert Louis Markowitz, Thomas P. Markowitz and Florence S. Markowitz as Trustee for Jerry Maurice Markowitz, Appellants, v. CITY OF HALLANDALE, Appellee.
    No. 83-395.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Rehearing Denied Dec. 27, 1983.
    Donald S. Rose, Miami, for appellants.
    Clark J. Cochran, Jr. of Hainline, Billing, Cochran & Heath, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from an order denying a motion in the nature of a 1.540 motion to set aside an order dismissing plaintiffs’ case for lack of prosecution.

This case originally commenced in 1975. It was dismissed after plaintiffs’ attorney failed to appear for jury selection. This matter was appealed and affirmed. The matter was refiled in 1979. The effect of the initial dismissal has yet to be litigated due to the lack of prosecution of the second case. No activity occurred for over a period of one year, at which time defendant filed a motion to dismiss pursuant to Florida Rule of Civil Procedure 1.420(e). Plaintiffs’ attorney subsequently filed a statement of good cause and a motion to set aside the judgment. The motion was denied, he appeals, and we affirm.

Our review of the matter is hampered by the absence of transcripts from the hearings, the absence of any sworn affidavits, or any other reliable testimony. The only facts before us are contained in the parties’ briefs which directly contradict each other and do not cite to the record.

Apparently because of poor health and a series of operations, the plaintiffs’ attorney, a sole practitioner, essentially closed his practice of law without notifying the court, the defendant’s attorney, or his clients. He failed to appear at the hearing on the motion to dismiss because by the time he picked up his mail, the hearing had already occurred. Although the time between the mailed notice and the scheduled hearing may have been short, appellant concedes he was eventually allowed to present all matters on his motion to set aside. On appeal, it is alleged that the court abused its discretion in denying the motion to vacate the order of dismissal.

In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the supreme court approved the following test for review of a judge’s discretionary acts:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir.1942).

Applying this test to the facts of this case, we conclude that the appellants have failed to show an abuse of discretion. We, therefore, affirm the order of the trial court denying the motion to vacate.

AFFIRMED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Roy C. SCARFONE, Appellant, v. Adrian S. MARIN and United States Fidelity and Guaranty Company, Appellees.
    No. 82-2349.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Rehearing Denied Dec. 21, 1983.
    Margot Pequignot of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clear-water, for appellant.
    Stephen C. Chumbris of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Pe-tersburg, for appellees.
   SCHOONOVER, Judge.

The appellant, Roy C. Scarfone, has appealed from a summary judgment entered against him on the ground that the applicable statute of limitations barred his claim against the appellees. We reverse.

On February 11, 1981, the appellant recorded a claim of lien against the real property of the appellee, Adrian S. Marin. The claim was based upon services rendered by appellant in the remodeling of Marin’s home. On October 29, 1981, the lien was transferred to a surety bond posted by the appellee United States Fidelity & Guaranty Company (USF & G) in accordance with section 718.24(1), Florida Statutes (1981).

On November 24, 1981, the appellant filed an action to foreclose his mechanic’s lien against Marin. Before a responsive pleading was filed, the appellant filed an amended complaint pursuant to Florida Rule of Civil Procedure 1.190(a). This complaint added USF & G as a party defendant and stated therein that it was an action for damages.

On March 4, 1982, after the trial court had granted the appellees’ motion to dismiss the amended complaint for failure to state a cause of action, the appellant filed his second amended complaint which alleged that it was an action to foreclose a mechanics’ lien. This complaint, as well as the previous complaints, attached a copy of the appellant’s claim of lien and the transfer bond, and sought a judgment for damages against the owner Marin and the surety USF & G.

The appellees’ answer and affirmative defenses included an allegation that the second amended complaint was filed more than one year after the recording of appellant’s claim of lien, and therefore, the action was barred by section 713.22(1), Florida Statutes (1981). The appellees’ motion for summary judgment based upon this allegation was granted, and this timely appeal followed.

Since the second amended complaint states a claim which arose out of the same conduct, transaction, or occurrence as set forth in the amended complaint, it relates back to the date of the amended complaint pursuant to Florida Rule of Civil Procedure 1.190(c), and accordingly the trial court erred in granting the summary judgment.

Both the amended complaint, which was filed less than one year after the appellant’s claim of lien was recorded, and the second amended complaint, contain substantially the same factual allegations and are based upon the same specific conduct, transaction, or occurrence between the parties. Each of these complaints include a copy of the appellant’s claim of lien and the transfer bond. Both complaints seek a judgment against the appellees as owner and surety, and the liability of the surety is based entirely upon the transfer of the lien from the property to its bond.

The only significant allegation included in the second amended complaint, which is not specifically alleged in the amended complaint, is that the action is to foreclose a mechanic’s lien. The nature and character of a pleading must be determined, not by its title, but by its contents and by the actual issues in dispute. Circle Finance Co. v. Peacock, 399 So.2d 81 (Fla. 1st DCA 1981).

As we stated in the case of Keel v. Brown, 162 So.2d 321 (Fla. 2d DCA 1964), at page 323:

[T]he proper test of relation back of amendments is not whether the cause of action stated in the amended pleading is identical to that stated in the original (for in the strict sense almost any amendment may be said to be a change of the original cause of action), but whether the pleading as amended is based upon the same specific conduct, transaction, or occurrence between the parties upon which the plaintiff tried to enforce his original claim. If the amendment shows the same general factual situation as that alleged in the original pleading, then the amendment relates back—even though there is a change in the precise legal description of the rights sought to be enforced, or a change in the legal theory upon which the action is brought.

In the case sub judice, the appellant alleged in his amended complaint that the appellees, as owner and surety, were indebted to him as a result of certain specific conduct between the parties. The appellant’s second amended complaint alleged substantially the same conduct. Therefore, Florida Rule of Civil Procedure 1.190(c) had the effect of causing the second amended complaint to relate back to the date of the amended complaint and the court accordingly erred in sustaining the appellees’ defense of the statute of limitations.

The appellees’ reliance on the case of Regal Wood Products, Inc. v. First Wisconsin National Bank, 347 So.2d 643 (Fla. 4th DCA 1977), is misplaced. In that case the subcontractor involved never filed any type of action against the owner of the property subject to the original lien. Accordingly, his claim of lien had expired before he attempted to sue the general contractor and its surety on a transfer bond.

Since the appellees were awarded attorneys’ fees as prevailing parties in a mechanic’s lien action, this award must be reversed without prejudice to the trial court awarding attorneys’ fees pursuant to section 713.29, Florida Statutes (1981), at the conclusion of the trial.

Reversed and remanded for proceedings consistent herewith.

HOBSON, A.C.J., and GRIMES, J„ concur.


author: OTT, Chief Judge.

text:
    Reginald ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-782.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Rehearing Denied Dec. 19, 1983.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Appellant challenges the denial of his motion to dismiss. We affirm.

Appellant pled guilty to two counts of uttering a forged instrument and one count of grand theft. On July 22, 1982, he was placed on probation for a period of six months for each count, to run concurrently. As a special condition of probation, he was ordered to pay restitution.

On January 20, 1983, two days before probation was to expire, the trial judge received a letter from appellant’s probation officer advising of appellant’s failure to pay restitution. Without notice to appellant or a hearing, the judge entered an order extending the probationary term for an additional six months. Restitution continued to be a condition of probation.

On March 7, 1983, appellant’s probation officer filed an affidavit charging that appellant had violated probation in three respects: (1) he had not filed monthly reports for November and December, 1982, and January, 1983, as ordered by condition one; (2) he was $40 in arrears on his $10 per month cost of supervision imposed by condition two; and (3) he had failed to pay $30 toward restitution as instructed by the probation officer on January 25, 1983.

Appellant was arrested pursuant to a warrant and a hearing was scheduled. Counsel for appellant filed a motion to dismiss, alleging that the trial court’s order extending probation was void because appellant did not receive notice and a hearing. The trial court agreed and set aside the order, but ruled that the January 20, 1983, letter served to initiate violation proceedings prior to the expiration of the probationary term. The court proceeded with the hearing, found appellant guilty of violating probation, and extended probation until December 1, 1983. Appellant’s counsel did not object to proceeding in this manner.

Revocation or modification of probation proceedings must be set in motion prior to the end of the period of probation. Bouie v. State, 360 So.2d 1142 (Fla. 2d DCA 1978); Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978). The letter was filed and recorded in appellant’s court file on January 20, 1983, prior to the expiration of his probationary term.

Appellant’s attorney did not object to the court’s use of the letter as the initiator of modification proceedings. Unless this constituted fundamental error, appellant cannot object for the first time on appeal. See Clark v. State, 363 So.2d 331 (Fla.1978).

“Fundamental error” is error which goes to the foundation of the case or goes to the merits of the cause of action. Even constitutional errors, other than those constituting fundamental error, are waived unless timely raised in the trial court. Id., 363 So.2d at 333. Fundamental error is error amounting to a denial of due process. Ray v. State, 403 So.2d 956 (Fla.1981).

Probation is a matter of grace rather than right. The trial judge has broad discretionary power to grant as well as revoke probation. This discretionary power must be exercised in accordance with certain due process requirements. Bernhardt v. State, 288 So.2d 490 (Fla.1974). The supreme court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), set out the minimum requirements of due process in a revocation of parole setting. These requirements were made applicable to probation revocations in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses; (e) a “neutral and detached” hearing body; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Morrissey; see also Bernhardt, 228 So.2d at 499.

In the instant case, appellant was afforded basic due process. He received notice of the violation charges and received a fair hearing. We find no deprivation of due process in allowing the letter to serve as the instrument initiating the violation proceedings. Therefore, because appellant did not object, he waived his right to appeal.

AFFIRMED.

RYDER and DANAHY, JJ., concur.


text:
    Keith Kirk TWINN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1494.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Keith Twinn offered to sell cocaine to an undercover police officer. Following Twinn’s arrest seven clear plastic bags containing a white powder, which later proved not to be cocaine or any other controlled substance, were found on his person.

Twinn was charged with violating the counterfeit controlled substance provision of the Florida Statutes, § 831.31, Fla.Stat. (1981). Twinn argues, and we agree, that it was inappropriate to charge him under section 831.31 rather than section 817.563, Florida Statutes (1981). We accordingly reverse the conviction and remand to the trial court for further proceedings.

Reversed and remanded for further proceedings.


text:
    F.J. SILLER & COMPANY, Appellant, v. KAMPHUIS EXCAVATORS, INC., Appellee.
    Nos. 82-2525, 82-2545.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Goldberg, Young & Borkson and Gary M. Farmer, Fort Lauderdale, for appellant.
    No appearance for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Those portions of the orders below which impose a $2,000 fine for contempt upon the plaintiff, F.J. Siller & Company, are reversed because the trial court did not comply with the pertinent procedural requirements of Fla.R.Crim.P. 3.840. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977). The remaining issues presented have been rendered moot.


text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. POTAMKIN DODGE, INC., Chrysler Credit Corporation, and Abko Properties, Inc., f/k/a Chrysler Realty Corporation, Appellees.
    No. 83-720.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.

      Jim Smith, Atty. Gen., and Thomas L. Barnhart, Asst. Atty. Gen., for appellant.
    Paige & Catlin and Kyle R. Saxon, Greenberg, Traurig, Askew, Hoffman, Li-poff & Quentel and Rudolph F. Aragon, Shutts & Bowen, Miami, and Gale Ciceric Payne, Fort Lauderdale, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the decision of the trial court that the Department of Revenue is a general creditor and may take only a pro rata share of the purchase money deposited in the registry of the court. Section 212.-15, Florida Statutes (1981), prescribes the method for obtaining a sales tax lien and states it is the duty of the state to do so when sales taxes are delinquent or otherwise in jeopardy. No lien attaches until a warrant is filed for the taxes due. § 212.-15(4), Fla.Stat. (1981); General Motors Acceptance Corp. v. Tom Norton Motor Co., 366 So.2d 131 (Fla. 4th DCA 1979). The Department failed to follow this procedure and perfect its lien. Cf. Sun First National Bank of Orlando v. Miller, 397 So.2d 943 (Fla. 5th DCA 1981) (properly perfected tax lien takes priority over subsequently filed security interest). Therefore, the Department has no prior claim on the funds deposited into the registry of the court. Section 212.10, Florida Statutes (1981), does not create a lien by stating that it is the duty of the purchaser to withhold sufficient funds from the purchase money to pay delinquent sales taxes. Screens Unlimited, Inc. v. Aetna Insurance Co., 37 Fla.Supp. 175, 177 (Fla. Pinellas Cty.Ct. 1972). At this time, we need not reach the question whether depositing the purchase money into the registry of the court was a means of withholding these funds sufficient to discharge the purchaser’s personal liability for failure to withhold and we expressly decline to do so.

Affirmed.


text:
    KENT INSURANCE COMPANY, Jarasha Corporation, Murray Berkowitz, Shirley Berkowitz, his wife, Abbey Berkowitz and Robin Berkowitz, d/b/a the Shore Club, and Simcha, Inc., Appellants, v. Ronnie HILL, Appellee.
    No. 83-444.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.

      Kathleen V. McCarthy, Miami, for appellants.
    Hershoff & Levy and Jay M. Levy, Miami, for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

The defendants appeal a final judgment rendered in favor of the plaintiff upon a jury verdict awarding $31,128.50 for personal injuries sustained by plaintiff in a slip and fall accident. The accident occurred when the plaintiff, while making a delivery of supplies to the Shore Club by way of a ramp that was known by plaintiff to be slippery, slipped on the ramp.

It is defendants’ contention on appeal that the trial court abused its discretion in denying their motion for new trial since the verdict finding no comparative negligence on the part of plaintiff went against the manifest weight of the evidence which demonstrated plaintiff’s knowledge of the dangerous condition.

We have carefully considered appellants’ contentions in the light of the record, briefs and argument of counsel, and have concluded that no reversible error has been demonstrated. See Florida First National Bank of Jacksonville v. Dent, 404 So.2d 1123 (Fla. 1st DCA 1981), dismissed, 411 So.2d 381 (Fla.1981); Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st DCA 1975).

Affirmed.


text:
    Michael Joseph DOLAN, Appellant, v. The STATE of Florida, Appellee.
    No. 88-744.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Bennett H. Brummer, Public Defender and Gerald D. Hubbart, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand and Calvin L. Fox, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), rev. denied, 408 So.2d 1096 (Fla.1981), cert. denied, — U.S. -, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983).


text:
    D.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-760.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.

      Bennett H. Brummer, Public Defender and Michael Mathis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

The adjudication of delinquency is reversed upon a holding that the evidence presented at trial was circumstantial and failed to exclude every reasonable hypothesis of innocence. Redding v. State, 357 So.2d 483 (Fla. 3d DCA 1978). See A.M. v. State, 440 So.2d 478 (Fla. 2d DCA 1983). In addition, mere presence at the scene of a crime is insufficient to establish intent to participate. G.C. v. State, 407 So.2d 639 (Fla.3d DCA 1981). See also T.M. v. State, 415 So.2d 904 (Fla.3d DCA 1982); D.M. v. State, 394 So.2d 520 (Fla.3d DCA 1981).

Reversed.


text:
    P & H ADDITIONS, INC., Appellant, v. Juan C. ACOSTA and Fidelia Acosta, his wife, Appellees.
    No. 83-2190.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Stephen F. Kessler, Miami, for appellant.
    Fernando E. Heria, Hialeah, for appel-lees.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

The Order on Plaintiff’s Motion for Extraordinary Relief is affirmed. Because there is not a complete absence of a justiciable issue of law or fact, the award of attorneys’ fees based upon section 57.105, Florida Statutes (1981), is reversed.

Affirmed in part; reversed in part.


author: WALDEN, Judge. PER CURIAM.

text:
    In re ESTATE OF S. Cyrus LEWIS, Deceased.
    No. 83-392.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 1983.
    Rehearing Denied Jan. 11, 1984.

      James G. Pressly, Jr. of Gunster, Yoak-ley, Criser & Stewart, Palm Beach, for appellant Dr. Paul Rosch.
    Frank J. Bennardo, Boca Raton, for ap-pellee, Hertha M. Lewis, Personal Representative.
   WALDEN, Judge.

Dr. Rosch, a beneficiary under the terms of the decedent’s will, appeals from the denial of his claim for attorney’s fees, which claim was based upon the provisions of F.S. § 733.106 (1979). We reverse.

Mrs. Lewis, as personal representative, petitioned to revoke the devise to Dr. Rosch on the grounds of undue influence. Substantial litigation followed to include a visit to this court. In Re Estate of Lewis, 411 So.2d 368 (Fla. 4th DCA 1982).

The details of the litigation are not material to our determination of the instant issue. Suffice it to say, Mrs. Lewis ultimately abandoned her suit by obtaining a voluntary dismissal under the terms of Fla. R.Civ.P. 1.420(a).

We do not know why Mrs. Lewis chose to drop her suit and her reasons are not really important. However, it might be reasonably speculated that she became persuaded in light of Dr. Rosch’s defense that her assault upon the will was groundless. In any event, Dr. Rosch was successful in maintaining the testamentary devise to himself with the net result being that the terms of the will were upheld even though as a consequence of Mrs. Lewis’ discontinuance. We feel that indeed Dr. Rosch was the prevailing party in this will contest upon the same rationale as was expressed in Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976) where there was a voluntary dismissal of a mechanic’s lien action which entitled the prevailing party to recover costs and attorney’s fees as provided by statute.

The applicable statute here is F.S. 733.-106(2) and (3):

“(2) A person nominated as personal representative of the last known will, or any proponent of the will if the person so nominated does not act within a reasonable time, is in good faith justified in offering the will in due form for probate, shall receive his costs and attorney fees out of the estate even though he is unsuccessful.
(3) Any attorney who has rendered services to an estate may apply for an order awarding attorney fees, and after informal notice to the personal representative and all persons bearing the impact of the payment the court shall enter its order on the petition.”

Under this statute, an attorney who has rendered services to an estate may apply for the award of his fees. The statute has been interpreted as requiring that the services benefit the estate. In Re Gleason’s Estate, 74 So.2d 360 (Fla.1954); In Re Estate of Stanton Griffis, 366 So.2d 80 (Fla. 4th DCA 1978); In Re Farris’ Estate, 113 So.2d 721 (Fla. 3rd DCA 1959), cert. den., 116 So.2d 775 (Fla.1959). “Benefit” as used in this context is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in simply effectuating the testamentary intention set forth in the will. Samuels v. Estate of Lucia S. Ahern, 436 So.2d 1096 (Fla. 4th DCA 1983).

In our opinion, the services rendered by Dr. Rosch’s attorney benefitted the estate in that by successfully resisting Mrs. Lewis’ attack upon the will, the testamentary intention set forth in the will was effectuated. We do not think that it matters that the suit was voluntarily dismissed as opposed to an adjudication upon the merits. It can be realistically postured, as an instance, that if Dr. Rosch did not defend the will, Mrs. Lewis would have obtained a default and thereby frustrated the decedent’s testamentary intention. Moreover, we think it would be an unfortunate anomaly if we were to say that, in light of the statute, someone could attack a will and litigate up and down the court system, causing the defender large expenditures for attorney’s fees and then dismiss the action and have the Estate say that it was not benefitted. While it might be usually expected that the personal representative would defend the will, here the personal representative initiated the action which initiation was later held to be improper in In Re Estate of Lewis, supra.

We reverse and remand with instructions to grant Dr. Rosch’s claim for attorney’s fees per F.S. § 733.106 (1979).

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.

UPON PETITION FOR REHEARING

PER CURIAM.

Appellee, Hertha M. Lewis, asks for rehearing because this Court’s opinion did not mention or distinguish Campbell v. Maze, 307 So.2d 234 (Fla. 4th DCA 1975), affirmed, 339 So.2d 202 (Fla.1976), a case upon which appellee relied. We fully considered the case in making our determination and felt that it was obviously inapplicable, a view we still hold. However, its lack of applicability must not have been sufficiently obvious as attested by the content of the Petition For Rehearing. We oblige by now discussing it.

The holding expressly approved by the Supreme Court in Campbell v. Maze, supra, was adopted from the dissent in Royal-Globe Insurance Companies v. Indian River Gas Company, 281 So.2d 380, 381 (Fla. 1st DCA 1973), as follows:

“It has long been the law of Florida that except where attorney’s fees may be allowed in equity from a specific fund or property which may be lawfully charged with their payment, attorney’s fees may not be recovered except when specifically authorized by statute or by agreement of the parties.... ” (Footnote Omitted.) [Emphasis supplied.]

To distinguish Campbell v. Maze, supra, we note that it was a personal injury action with no statute authorizing payment of attorney’s fees, while the instant case is an estate case where attorney’s fees are provided by statute.

Thus, the instant case fits the exception provided in Campbell v. Maze, supra, “except when specifically authorized by statute,” with the result being that Dr. Rosch was entitled to an award of attorney’s fees.

Having addressed the Petition For Rehearing, it is

DENIED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


author: RYDER, Judge.

text:
    Manuel G. MANOUSOS, Appellant, v. Florence A. MANOUSOS, Appellee.
    No. 83-25.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1983.
    David L. Anderson, P.A., Holiday, for appellant.
    Sally Foote Corcoran of Richards, No-dine, Gilkey, Fite, Meyer & Thompson, P.A., Clearwater, for appellee.
   RYDER, Judge.

Appellant Manuel Manousos appeals a portion of the final judgment of dissolution of marriage in which the trial court found he had proven a $3,000.00 “investment” in the marital home, but ruled he was not entitled to any special equity or ownership interest. Upon examination of the record, we hold the trial court did not abuse its discretion in evaluating the conflicting evidence and ruling that Mr. Manousos did not prove he was entitled to any special equity, see Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and his former wife did not intend to make a gift to him of one-half interest in the marital home, see Marsh v. Marsh, 419 So.2d 629, 630 (Fla.1982). We therefore affirm these rulings.

Nevertheless, that same examination of the record requires us to remand the case with directions to the court to amend the final judgment to include appropriate provisions requiring the former wife to remit to Mr. Manousos the $3,000.00 “investment.” The reason for this modification is that the trial court intended for the $3,000.00 amount to be recoverable as a loan, as admitted below by the former wife, and the evidence adduced at the final hearing supports that intended result. Sharpe v. Sharpe, 202 So.2d 822, 823 (Fla. 2d DCA 1967). The written judgment, apparently drafted by the former wife’s trial counsel, neglected to require the repayment of the loan and must therefore be corrected. Furthermore, the trial court is also directed on remand to conduct additional proceedings to determine whether Mr. Manousos is entitled, pursuant to the intentions of the parties, to any interest on the loan, and if so, the rate, repayment schedule, and any ar-rearages due.

Accordingly, we AFFIRM the final judgment of dissolution, except as modified herein, and REMAND for proceedings consistent herewith.

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


author: DANAHY, Judge.

text:
    Marsha HARRIS, Appellant, v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORP., LTD., a corporation, Tropicana Products, Inc., a corporation, and Clyde Eldon Stewart, Appellees.
    No. 83-289.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1983.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appel-lees.
   DANAHY, Judge.

In this case the trial judge upheld the constitutionality of section 627.7262, Florida Statutes (Supp.1982), and applied it to an action founded on an automobile accident which occurred on March 14, 1980. The statute became effective on October 1, 1982.

In the recent case of VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), our supreme court ruled that the statute is constitutional and that it may not be applied retroactively to causes of action accruing prior to its effective date.

Therefore, we affirm the trial court’s ruling on the constitutionality of the statute, but reverse the court’s retroactive application of the statute to this case.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

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


author: LEHAN, Judge.

text:
    Craig R. COURTNEY, Appellant, v. R.L. SCHMECKPEPER, INC., Appellee.
    No. 83-936.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1983.

      James H. Siesky, Naples, for appellant.
    William E. McGrew of Jones & Zelman, P.A., Naples, for appellee.
   LEHAN, Judge.

Plaintiff appeals from the trial court’s dismissal of the complaint for lack of subject matter jurisdiction. We reverse for the reason that in this breach of contract case the amount in controversy was a matter for the jury because the contract is ambiguous as to whether the amount contracted for exceeded $5,000.

Plaintiff, a painter, prepared a written agreement to provide painting services for defendant, a builder. The first page of the agreement was a printed form describing the type of interior and exterior painting to be done and stating that the work would be performed at “Kings Lake Model B.” The space for the contract price was filled in with the figure of $2,350.

Attached to the printed form were two pages of additional contract provisions, handwritten by plaintiff. Paragraph Seven of those provisions states “Pricing has been based on painting 49 houses Model A, B, or C or any combination of the three models totaling 49 houses. If less than 49 houses are painted, the painting cost per house will be negotiated upwards.” Several changes to the handwritten provisions had been made by defendant. In Paragraph Seven, the first “49” had been circled and the figure “20 ± ” had been inserted.

The contract was not performed, and plaintiff sued for its breach. The complaint alleged that the agreement was that plaintiff would be paid $2,350 per house for painting forty-nine houses, unless fewer than forty-nine houses were built, in which case the parties had agreed to negotiate a higher price per house.

Plaintiff began the trial by testifying on his own behalf. Plaintiff testified that he and defendant had agreed that plaintiff would paint the houses built by defendant in the Kings Lake development. According to plaintiff, at the time the contract was signed it was anticipated that defendant would build, and plaintiff would paint, forty-nine houses. Plaintiff testified that he based his price per house on the assumption that he would paint a large number of houses because he paid a lower price for the paint if he bought in lots large enough to paint ten houses.

During cross-examination of plaintiff, the trial court ruled as a matter of law that the face of the contract showed that it was for the painting of only one house with the pricing based on painting either forty-nine houses or “20 ±” houses. The court then ruled that it did not have jurisdiction because the possible damages were less than $5,000 and transferred the cause to county court.

On appeal, plaintiff contends that the issue of the correct interpretation of the contract should have been submitted to the jury. We agree. Because of our disposition of this first issue, we need not reach plaintiffs other point on appeal, which involves whether plaintiffs initial good faith demand in the complaint for damages exceeding $5,000 met the jurisdictional amount requirements in the circuit court notwithstanding developments at trial.

As to the first issue, in our view the written contract was ambiguous. The provisions of the contract relating to the number of houses to be painted are reasonably susceptible to more than one interpretation. The plaintiff testified that the contract was for more than one house. Paragraph Seven originally stated that pricing was based upon forty-nine houses, then was changed by defendant to read “20 ±” houses. Although the trial court stated that this provision pertained only to pricing and not to the number of houses contracted to be painted, it can be argued that it would be illogical to base a contract to paint one house upon the cost of painting forty-nine houses. In any event, an indication of the contract’s ambiguity is its statement in Paragraph Eight that “rooms in houses may be painted in pastel colors,” referring to more than one house.

Because the contract is ambiguous, the issue should be submitted to a jury for resolution as a question of fact. Hoffman v. Terry, 397 So.2d 1184 (Fla. 3d DCA 1981). See Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952).

REVERSED AND REMANDED.

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


author: GRIMES, Judge.

text:
    Phillip A. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1293.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1983.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Pursuant to a plea bargain, Phillip A. Thomas pled guilty to charges of robbery, aggravated battery, and carrying a concealed firearm. The plea bargain contemplated that Thomas could receive any sentence from probation up to twenty years in prison with all three counts to run concurrently. Thomas was then adjudged guilty. Subsequently, at sentencing the court ordered that Thomas serve fifteen years for robbery, five years consecutive for aggravated battery, and three years for carrying a concealed firearm to run concurrently with the prior sentences. Thomas directly appeals to this court, arguing that the consecutive sentence violates the plea agreement.

The record reflects that Thomas did not object at the time of the imposition of the sentence, nor did he move to withdraw his plea. Any alleged infirmity concerning the intelligent or voluntary nature of a plea must first be raised in the trial court. Thomas should move the court to reconsider its ruling or permit him to withdraw his plea. If Thomas is aggrieved by the court’s decision, he can then seek review from this court. Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

Accordingly, the judgment and sentence are affirmed without prejudice to Thomas’ filing of an appropriate motion under Florida Rule of Criminal Procedure 3.850 in the trial court.

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


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    STATE of Florida, DEPARTMENT OF AGRICULTURE and Division of Risk Management, Appellants, v. David R. HINOTE, Appellee.
    No. AS-226.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1983.

      James N. McConnaughhay and Arthur C. Beal, Jr., of McConnaughhay, Roland & Maida, Tallahassee, for appellants.
    Barry Silber of Levin, Warfield, Middle-brooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The Department of Agriculture, employer of this injured claimant, urges that the deputy erred in holding the claim not barred by the two-year statute of limitations, section 440.19(2)(b), Florida Statutes (1979). The issue arises on an order for the payment of medical benefits alone, on account of surgery and other services required for treatment of claimant’s detached retina. Claimant, a livestock specialist engaged in brucellosis testing, sustained this eye injury in June 1980 when he was trampled and knocked unconscious.

According to the deputy’s finding, which the employer doubts, claimant’s retinal detachment was aggravated some months after his initial injury, in January 1981, when handling other cattle claimant took another blow to the head. The sticking point is that, despite the undoubted injury in June 1980, claimant’s retinal detachment remained asymptomatic, and his eyesight unimpaired, until the summer of 1982. The deputy’s order noted medical testimony that it is “not uncommon to have a long delay between the initiating event and the appearance of symptoms in such cases.” And so this claim for medical benefits was not filed until October 1982, soon after the injury was diagnosed and treated by surgery. The employer last provided remedial attention for the June 1980 injury, by paying a drug bill not associated with the unknown retinal injury, in September 1980.

The question, then, is whether the two-year statute, section 440.19(2)(b), began running no later than when that remedial attention was last voluntarily furnished for the June 1980 injury, and so barred the October 1982 claim, or ran from the disputed aggravation in January 1981, and so did not. The deputy likened this case to those involving an “occupational disease,” American Beryllium Company v. Stringer, 392 So.2d 1294 (Fla.1980), or to those involving “repeated exposure,” Food Machinery Corp. v. Shook, 425 So.2d 163 (Fla. 1st DCA 1983), and reasoned that the statute of limitations should not be considered as running until this claimant’s disability was manifest. Without laboring the point, we agree with the employer that the award may not be so predicated; that the criteria for “occupational disease” or “repeated exposure” awards, discussed in the cited decisions, are not satisfied.

Alternatively, claimant urges that if the statute of limitations would otherwise bar his claim two years after his initial injury or after the last provision of remedial attention by the employer, the statute is unconstitutional as applied, for it operates to bar the claim before claimant could reasonably have been expected to discover and perfect his claim. We need not reach this constitutional issue.

Only medical benefits are at issue here, for claimant now receives permanent total disability benefits on account of an entirely unrelated industrial injury to his back in January 1981. Because of that circumstance, the present limitations question may be considered without concern for how a claim for benefits other than medical benefits, arising from an eye injury unknown for nearly two years, would be affected by long-standing limitations doctrine.

The October 1982 claim for medical benefits was not barred because, as the deputy found on substantial competent evidence, the 1980 retina injury was aggravated by the second blow to the head in January 1981. As the claim was filed well within two years from the second causative event, the claim was timely. We have here no occasion for apportionment, even if we are to assume that a latent retinal detachment in June 1980, compensable except for the limitations statute, is “a preexisting disease or anomaly” within the meaning of section 440.02(18). That statute requires apportionment, only “with respect to death or permanent impairment” benefits. On that general subject, see the seminal decision Evans v. Florida Industrial Comm’n., 196 So.2d 748 (Fla.1967).

Though we therefore reserve certain of the questions addressed by the deputy and by counsel’s briefs, it seems appropriate that we respond directly to claimant’s argument that the limitations statute, § 440.-19(2)(b), begins the two-year period only upon the manifestation of claimant’s retinal detachment, not earlier when it occurred. That argument goes like this: The limitation on claims for “remedial attention,” like the limitation on claims for “compensation for disability, impairment, or wage loss” stated in 440.19(2)(a), runs from “the time of injury”; the “time of injury” is defined by 440.02(17) to mean “the time of the occurrence of the accident resulting in the injury”; and the term “accident” as so employed is defined by 440.02(18) to mean “an unexpected or unusual event or result, happening suddenly” (emphasis added). Therefore, it is said, since the unusual “result” of claimant’s bout with the cows in June 1980 was that he suddenly lost some central vision in the summer of 1982, the limitations statute did not begin running until that occurred.

Though claimant’s argument resourcefully exploits the convoluted words-within-words of the definitional section in chapter 440, the argument does not bear analysis. It hinges upon the idea that the legislation which added “or result” to the antecedent “unexpected or unusual event” in 440.02(18) postponed the running of the limitations statute until the occurrence of postponed pathological sequelae following the accidental “event” which triggered chapter 440 coverage. But chapter 28238, Laws of Florida (1953), which added “or result” to 440.02(18) [then (19)], Fla.Stat. (1951), had no such purpose or effect. Plainly that legislation simply put an imprimatur on the Supreme Court’s recent decision, Gray v. Employers Mut. Liability Ins. Co., 64 So.2d 650 (Fla.1953), which awarded compensation to a waitress whose arm was injured when she picked up a can of waffle batter.

The Gray issue was compensability notwithstanding the absence of an “accidental event” in the narrow sense of a “slip, fall or misstep.” Ameliorating the apparent restriction in such decisions as Brooks-Scanlon, Inc. v. Lee, 44 So.2d 650 (Fla.1950), the Gray court said “[i]t is enough then, if there is an unexpected result, even though there was no unexpected cause, such as a slip, fall or misstep, in order to constitute an ‘accident’ ” covered by 440. 64 So.2d at 651. That decision, and the confirming legislation that soon followed, would be useful to assure claimant compensation if his employment-related retinal detachment did not result from an unexpected “cause,” which the trampling obviously was; but those authorities do not postpone the running of the limitations period until the accident suddenly yields new manifestations two years later. In this respect Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla.1952), still survives, notwithstanding that limitations statutes running from the “accident” rather than from the later manifestation of latent injury may justly be condemned as an “irrational cruelty.” LARSON’S WORKMEN’S COMPENSATION LAW § 78.42(b) et seq. (1983).

Though this claimant would not easily be rid of limitations problems if his present claim arose solely from his June 1980 accident, his claim for medical benefits is yet compensable, as we have said, because it was made within two years of the second causative accident in January 1981.

We now address the parties’ arguments on the significance of the January 1981 accident as an aggravation causally related to the medical benefits sought. Medical testimony before the deputy established that “when retinal detachments are contained [as was claimant’s, so the medical examination showed], ... secondary and further trauma can easily cause that situation to decompensate.” In other words, said the physician,

[T]o me it’s quite reasonable to conclude from medical evidence that both episodes of trauma, the June 23, 1980, and the January 19, 1981, had significant contributory relationships to the predicament that he found himself in as far as his visual loss, secondary to retinal detachment.

The employer correctly points out that its cross-examination of the physician was effective; that the physician appears to have conceded that he “cannot state with a reasonable degree of medical probability that [the January 1981 head trauma] was, in fact, involved_” But the physician elaborated:

I think it’s quite possible that if there were demarcation lines at the time that the January, 1981, incident occurred, that this incident could have caused those demarcation lines to break just as dams break and fluid flows through dams. It is also quite possible that the January, 1981, incident could have had nothing whatsoever to do with the natural progression of this detachment, and it would have progressed anyway.

This testimony is sufficient to support the deputy’s finding that claimant’s retinal detachment, initially caused by the blow to his head in June 1980, “was probably aggravated by the events in January 1981.” While the critical causation finding might more appropriately have been expressed by the factfinder as a fact, rather than as a probable fact, we regard his expression as equivalent.

Where as here the latent injury is by its nature so obviously susceptible of aggravation and acceleration, and is also progressive in effect without aggravation, expert medical testimony concerning the putative aggravating event must necessarily be as circumspect as it was in this case. Such circumspection on causation no more renders the medical opinion incompetent than would medical certitude, in other circumstances, be excluded as invading the fact-finder’s prerogative. Delap v. State, 440 So.2d 1242 (Fla.1983); Carraway v. Armour and Co., 156 So.2d 494 (Fla.1963); 7 Wigmore, Evidence (Chadbourn rev. 1978) § 1976; 2 Jones on Evidence (6th ed. 1972) § 14:29. See also Nelson v. Hebrew Home for Aged, 276 So.2d 468 (Fla.1973); Matott v. Ward, 48 N.Y.2d 455, 423 N.Y.S.2d 645, 399 N.E.2d 532 (1979).

Because the doctor’s opinion was competent evidence, the deputy was well within his power in crediting it, with the other medical history, in finding a causal relationship between the January 1981 accident and claimant’s medical needs in the summer of 1982. Palardy v. Dura-Clad Systems, 381 So.2d 347 (Fla. 1st DCA 1980), app. dism., 385 So.2d 756, might nearly be proof that the deputy was obliged to find the contested causation, but we need not go so far. For deciding close causation questions on inconclusive evidence is peculiarly the task of the trier of facts, as the dissent argued in Palardy. We should not be surprised if this deputy, like jurors in other cases, was influenced by a statute of limitations that would otherwise bar a meritorious claim of which claimant had no knowledge during much of the limitations period. Such influences are inevitable in close calls, and for those the trier of facts must accept responsibility; but they are not our concern on appeal.

AFFIRMED.

WIGGINTON, J., concurs.

BOOTH, J., concurs specially with an opinion.

BOOTH, Judge,

specially concurring:

I concur in the result of the majority opinion, but would do so on the more fundamental basis that the statute of limitations, Section 440.19(2)(b), Florida Statutes, did not begin to run until the retinal injury manifested itself and was known, or reasonably should have been known, to the claimant.


author: ORFINGER, Chief Judge.

text:
    Freddie Lee WRIGHT and Theodore Jerome Page, Appellants, v. STATE of Florida, Appellee.
    No. 82-424.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

In an earlier decision in this case, we denied the State’s motion to dismiss the appeal, holding that the appellant could raise on appeal an issue of ineffective assistance of counsel because of an alleged conflict of interest arising out of joint representation of co-defendants. See Wright v. State, 423 So.2d 633 (Fla. 5th DCA 1982).

No objection to the joint representation of Wright and his co-defendant Page was ever raised in the trial court at any stage of the proceedings. The issue is raised for the first time on appeal. In Wright I, we agreed that there is no per se rule that requires reversal of a conviction because of joint representation of co-defendants. See Belton v. State, 217 So.2d 97 (Fla.1968); Washington v. State, 419 So.2d 1100 (Fla. 3d DCA 1982). We further held that even in the absence of objection in the trial court, the defendant might nevertheless point to the record to demonstrate that an actual conflict of interest existed. See Foster v. State, 387 So.2d 344 (Fla.1980).

An examination of the record discloses no conflict here. Defendants picked up a hitchhiking family and later forced the husband and daughter out of the car at gunpoint, but keeping the wife in the car. Defendants took turns driving, each holding the gun and each sexually assaulting the wife. Both in their individual statements, given on their arrest and at trial, they both testified that Wright had the gun. They both admitted sex with the wife, but both contended that she had consented. Their testimony on how Page was possessed of the wife’s rings was also consistent. Neither testified against the other, and they maintained a common defense throughout the trial.

“Conflict of interest” has been held to arise when one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing. Webb v. State, 433 So.2d 496, 498 (Fla.1983). Wright complains that conflict appears when Page testified that Wright first pointed the gun at the victims. But Wright also testified that he had the gun. Both Page and Wright testified that the victim offered sex for a ride to Pennsylvania, and they both argued consent as a defense. Both stated that the victim gave Wright her rings to pawn for gas money, and that Wright gave them to Page. Neither defendant was sacrificed for the other, nor were their interests adverse or hostile to each other. We find no conflict of interest in the record. The judgments of conviction are therefore

AFFIRMED.

DAUKSCH and COWART, JJ., concur.


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

text:
    Jack Alan TOWNSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 82-856.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    James B. Gibson, Public Defender, and Curley R. Doltie, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Townsley appeals from a judgment and sentence for two counts of aggravated assault with a deadly weapon and one count of burglary of a structure. All of the charges arose from the same criminal episode. Townsley was sentenced to serve two consecutive three-year mandatory minimum terms on the aggravated assault charges and a five-year sentence for the burglary charge to run concurrently with the other sentences.

We find no merit in Townsley’s contention regarding an alleged violation of his right to speedy trial and accordingly affirm the judgment. However, we agree with Townsley’s contention that the imposition of cumulative mandatory minimum sentences was improper. While this appeal was pending, the Florida Supreme Court rendered its decision in Palmer v. State, 438 So.2d 1 (Fla.1983), prohibiting the imposition of cumulative mandatory minimum sentences for multiple offenses arising out of the same criminal episode. We therefore remand the cause to the trial court to correct the sentences in accordance with the principles enunciated in Palmer.

Affirmed in part and remanded to the trial court for correction of the sentences.

SHARP and COWART, JJ., concur.


author: SHARP, Judge.

text:
    Willie James BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 82-922.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Willie James Barber appeals to this court "contesting the trial court’s denial of his motion to suppress evidence. Barber filed a notice of appeal on July 1, 1982, from “final” orders the trial court “rendered” on June 29, 1982. The judgment and sentence, however, were filed in open court on September 22, 1982, and in the clerk’s office on September 27, 1982.

We accept jurisdiction over this appeal, see Jones v. State, 423 So.2d 520 (Fla. 5th DCA 1982), and find that the trial court did not err in denying Barber’s motion to suppress. However, we remand this case to the trial court to correct a clerical error in the final judgment: Barber is guilty of possession of cannabis in violation of section 893.13(l)(e), Florida Statutes (1981), rather than section 893.03(l)(c), Florida Statutes (1981).

AFFIRMED AND REMANDED.

COBB and COWART, JJ., concur.


text:
    Jimmie RAMSEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-1623.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    Rehearing Denied Dec. 28, 1983.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Jimmie Ramsey, Jr. appeals from a judgment and sentence for escape. Ramsey entered a plea of no contest to the charge, specifically reserving his right to appeal the denial of his motion to dismiss the information on the ground that the facts taken in a light most favorable to the state did not establish a prima facie case of escape.

According to undisputed facts, Ramsey was stopped for passing another vehicle in a no-passing zone and for several other traffic violations. While writing up the citations, the deputy received information from his routine computer check that there were two outstanding capiases for Ramsey from Seminole County. Ramsey was informed of the capiases, placed under arrest, and instructed to put his hands on the trunk of the patrol car. Ramsey then turned around and said, “No way!” and ran from the scene. At no time was Ramsey restrained and the arrest procedure had not progressed to the point where the deputy had removed his handcuffs from their carrying place.

The statute with which we are concerned is section 944.40, Florida Statutes, (1981), which provides:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

“Prisoner” is defined in section 944.02(5), Florida Statutes (1981), as follows:

‘Prisoner’ means any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department, as provided by law.

The state contends that if Ramsey were a prisoner under section 944.02(5) and thus in lawful custody at the time that he left the scene of arrest, then he was, as part of the arrest procedure, in the process of being transported to a place of confinement.

We do not agree. If section 944.-40 were intended to encompass situations such as the one before us, then the legislature would have provided in the statute that any prisoner who escapes from lawful arrest is guilty of escape. This it did not do. Instead, it required that the escape, in order to come within the confines of the statute, occur while the prisoner is being transported. It follows then that the legislature intended to punish conduct other than fleeing from the custody of an arresting officer. Interpreting the statute in this way, the question as to when the “transportation” of a prisoner begins becomes an important one and is normally a factual issue to be determined by the jury. Here, however, the facts were not in dispute. Ramsey had not been handcuffed, had not been placed in the police car and the officer had not announced that he was taking him to jail. As a result, transportation of the prisoner had not yet begun.

In reaching the opposite conclusion, the trial court relied upon State v. Akers, 367 So.2d 700 (Fla. 2d DCA 1979), a case factually distinguishable from this case only in that Akers had been handcuffed while Ramsey had not. In Akers, the court stated:

Construing the statutes [§§ 944.40 and 944.02(5), Fla.Stat. (1977)], in pari mate-ria, we conclude that the legislature intended that any person under arrest and in the lawful custody of a law enforcement official who escapes while being transported to or from a place of confinement shall be guilty of a felony.
We acknowledge that prior to the amendment of these statutory provisions in 1971, only persons who were convicted and sentenced could violate the provisions of Section 944.40, Florida Statutes (1969). Brochu v. State, 258 So.2d 286 (Fla. 1st DCA 1972). Florida courts have interpreted the present escape statute to include confinement after arrest but pri- or to conviction and sentencing. Estep v. State, 318 So.2d 520 (Fla. 1st DCA 1975). Such confinement is not limited to confinement in jail. Johnson v. State, 357 So.2d 203 (Fla. 1st DCA 1978). For conviction under the escape statute, the state need show only (1) the right to legal custody and (2) a conscious and intentional act of the defendant in leaving the established area of such custody. Watford v. State, 353 So.2d 1263 (Fla. 1st DCA 1978).

367 So.2d at 702.

We believe, however, that the statute as framed requires the state to show more than a mere right to legal custody as required by Akers and, to that extent, we are in conflict with Akers. While it may be true, as suggested by Akers, that such a result may allow a “prisoner” to walk away after he has been lawfully arrested and is in lawful custody without penalty, we cannot penalize conduct omitted or overlooked by the legislature or not properly charged by the state. Penal statutes must be strictly construed and under the facts here there was no showing whatever that Ramsey was being transported as required by the statute. Since there was no such proof, the court should have granted Ramsey’s motion to dismiss.

REVERSED.

SHARP and COWART, JJ., concur.

      . Consider, however, section 843.02, Florida Statutes (1981), which proscribes the act of resisting an officer without violence to his person.


author: COBB, Judge.

text:
    Virgil L. GRACEY, Appellant, v. Grace Anna LAWRENCE, as Guardian of the Estate and Person of Anna Flemings Wonnacott, Appellee.
    No. 83-110.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.

      Michael D. Jones, P.A., Winter Springs, for appellant.
    John DeM. Haines of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellee.
   COBB, Judge.

The plaintiff below, Grace Lawrence, in the capacity of guardian of the Estate of Anna Flemings Wonnacott, sought rescission of a deed executed by the latter on November 12, 1981, conveying real property to the defendant, Gracey. The issue is the mental capacity of the then 81-year-old Wonnacott at the time of the execution of the deed.

Evidence at the non-jury trial revealed that Anna Wonnacott was confused and greatly concerned as to the amount of property tax owed on her property in November, 1981, and was tired of being responsible for the payment of the taxes and for the upkeep of the building. Consequently, she initiated contact with Gracey, a business tenant on the first floor of the building, and offered to sell him the proper-1‘ ty for $15,000 plus a life estate to Wonna-cott for her apartment in the building, with Gracey paying the taxes during the life estate. The evidence presented at trial showed that immediately after the conveyance, Gracey had the property appraised at $225,000, and that he entered into a contract to sell the property for $385,000.

Letters written by Anna Wonnacott in November and December, 1981, were presented at trial. While some letters showed displeasure over the sale and confusion in her mind, others contained passages such as the following:

It sounded like a bad deal I made but I feel it will work out okay. I sold it cheap. My income tax to pay shows a loss. Then to have my apartment as long as I live free of tax and rent. That alone is worth today $25,000. I could get perhaps as much as $141,000 but time I paid the tax on the sale and found an apartment for $69,000 where I would be — and no apartment as lovely as mine built just as I wanted it.... So I got away from worry and still have to get things adjusted.... It was a hard thing to face but I feel it was for the best.
The reason I sold it so cheap I am going to have my apartment free of taxes and rent as long as I live here. No time limit.
Sfc * * * *
Today there is a new way of owning your apartment. You pay what the apartment is worth. New buildings fix for sale their apartments. One I looked at with friends asked $69,000 for a one bedroom apartment not near a store across from town near the post office and a bank but you had to have a car to really go places to a store. They were smaller apartments than mine and one bedroom.... I was upset by the big tax and thought best to sell it and take the apartment I still have for life. I may have five or ten more years and not have to do all the work here to keep the building up as it was getting me down. Now all I can do is a carefree life as the old saying you can’t take it with you but be sure you have it in writing.

The trial court’s final judgment ordered cancellation of the deed and restoration of the parties to their status quo. The crucial paragraph in that judgment provides:

Anna Flemings Wonnacott probably did understand the nature of her transaction, but in any event the totality of the evidence indicates that there was such a degree of mental weakness that coupled with woeful and inadequate consideration requires equity to set aside the deed.

We find that the law applicable to this case was set out by the Florida Supreme Court in Hassey v. Williams, 127 Fla. 734, 174 So. 9 (1937):

This court is committed to the rule that mere mental weakness will not authorize a court of equity to set aside a deed if such weakness does not amount to inability to comprehend the effect and nature of the transaction and is not accompanied by evidence of imposition or undue influence. The presumption always supports the validity of the deed and the sanity of the grantor until overcome by a preponderance of the evidence. The deed will under no circumstances be voided unless proven that the mind of the grantor was so affected as to render her incapable of comprehending the nature and effect of the transaction.

174 So. at 11.

Given the trial court’s finding that Anna Wonnacott probably understood the nature of her transaction, and the absence of evidence of undue influence exerted by Gra-cey, the judgment below cannot stand.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


text:
    In re FORFEITURE OF ONE 1976 CHEVROLET CORVETTE, VIN 1Z37L6541240. Lawson L. LAMAR, as Sheriff of Orange County, Appellant, v. Karin HAYES, Appellee.
    No. 83-153.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    Rehearing Denied Dec. 22, 1983.
    William C. Vose, Orlando, for appellant.
    James K. Freeland, Orlando, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Lawson Lamar, as Sheriff of Orange County, appeals a final judgment denying forfeiture of a 1976 Chevrolet Corvette owned by Karin Hayes. The sole question in this case is who has the initial burden of proof in a forfeiture action.

Section 932.704(2), Florida Statutes (1981), provides the only legislative guidance for the courts to follow in forfeiture of property for which title or registration is required. It provides in part:

[T]he state attorney ... shall give notice of the forfeiture proceedings by registered mail ... to each person having such security interest in the property and shall publish, in accordance with chapter 50, notice of the forfeiture proceeding once each week for two consecutive weeks in a newspaper of general circulation ... in the county where the seizure occurred. The notice shall be mailed and first published at least four weeks prior to filing the rule to show cause ... and state the name of the court in which the proceeding will be filed and the anticipated date for filing the rule to show cause....

In this case, Sheriff Lamar filed a complaint for rule to show cause and for final order of forfeiture alleging that Hayes’ automobile had been seized after being used in the commission of an aggravated battery. Hayes filed an answer to the complaint admitting all allegations except those relating to the commission of the felony. Upon application for rule to show cause, an affidavit of a deputy sheriff was submitted detailing the commission of the felony and the involvement of the automobile. Hayes was not present nor required to be. The court then issued the rule to show cause, ordering Hayes to file pleadings indicating why the court should not enter an order of forfeiture. Hayes filed an answer to the rule denying that she had any knowledge that the felony had been committed.

At the forfeiture hearing, counsel for the Sheriff contended that the burden was on Hayes to proceed and show why the property should not be forfeited. The court disagreed and ruled that, as Hayes, the claimant, had filed an answer denying the allegation set forth by the Sheriff, the burden had now shifted back to the Sheriff to go forth with proof in support of his claim of forfeiture. Counsel for the Sheriff declined to do so and the court discharged the rule and entered final judgment denying forfeiture. We affirm.

In two recent cases, In re: Forfeiture of United States Currency in the Amount of $5,300, 429 So.2d 800 (Fla. 4th DCA 1983) and In re: Forfeiture of Approx. $48,900 in U.S. Currency, 432 So.2d 1382 (Fla. 4th DCA 1983), the Fourth District enunciated detailed procedures for forfeiture actions which we hereby adopt. In In re: Forfeiture of United States Currency in the Amount of $5,300, the court set out the following procedures for forfeiture actions:

[Fallowing all the statutory notice requirements, the seizing agency should file a verified petition for a rule to show cause with the appropriate circuit court. The petition should be drawn in accordance with the provisions of Florida Rule of Civil Procedure 1.110(b). The seizing agency should then apply to the court ex parte for the issuance of the rule. If the petition states a cause of action for forfeiture the rule should issue without the necessity of taking testimony. The rule to show cause should be served on all persons claiming ownership as well as those claiming a security interest, along with a copy of the petition for rule to show cause. It should require those persons claiming an interest in the property to file a responsive pleading and to appear at time and place certain to show cause why the property should not be forfeited. The responsive pleading should admit or deny or explain the petition’s material allegations and should assert any affirmative defenses, all as provided by Florida Rule of Civil Procedure 1.110(c) and (e). Failure to respond will entitle the seizing authority to default as provided by Florida Rule of Civil Procedure 1.500. It is at that time that the forfeiture hearing will take place with respective parties presenting their evidence in accordance with the issues drawn by the pleadings with recognition of their respective burdens of proof.

At 803.

In In re: Forfeiture of Approx. $4-8,900 in U.S. Currency, the court addressed the burden of proof standard in such cases:

The burden of proof in a forfeiture proceeding is allocated in the following manner: The governmental entity seeking forfeiture bears the initial burden of going forward, but it must only show probable cause that the res subject to forfeiture was illicitly used within the meaning of the forfeiture statute. Once the governmental entity has established probable cause, the burden shifts to the claimant to rebut the probable cause showing or, by a preponderance of the evidence, to establish that the forfeiture statute was not violated or that there is an affirmative defense which entitles the claimant to repossession of the item, [footnote omitted]

At 1385.

It was necessary that the Sheriff carry the initial burden at the forfeiture hearing to show the automobile was illicitly used within the meaning of the forfeiture statute. Because of his failure to do this, the trial court was correct in denying forfeiture.

AFFIRMED.

DAUKSCH and COBB, JJ., concur.


text:
    Guy Lee BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1480.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    Rehearing Denied Dec. 16, 1983.
    Guy Lee Bryant, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The lower court’s order denying petitioner’s 3.850 motion is affirmed. This affirmance is not based upon a consideration of the merits of Bryant’s motion, but solely upon the lower court’s lack of jurisdiction to consider the collateral relief motion while an appeal from Bryant’s conviction is pending in this court. Harpham v. State, 415 So.2d 863 (Fla. 5th DCA 1982); Fick v. State, 388 So.2d 1352 (Fla. 5th DCA 1980).

ORFINGER, C.J., and SHARP, J., concur.


text:
    STATE of Florida, Appellant, v. Donald WADE, Appellee.
    No. AJ-160.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellant.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellee.
   PER CURIAM.

Understandably relying on a long history of case law requiring of a burglary charge an intent to commit a specific offense, see, e.g., State v. Speights, 417 So.2d 1168 (Fla. 1st DCA 1982), quashed and remanded, 437 So.2d 1387 (1983), the trial court dismissed the burglary charge against appel-lee. Since the trial court’s order dismissing this information, however, the Florida Supreme Court has held that a burglary information need only allege the essential element of intent to commit an offense, as does this information. State v. Waters, 436 So.2d 66 (Fla.1983). Accordingly, this cause is REVERSED and REMANDED to the trial court with directions that the information charging appellee with burglary be reinstated.

ERVIN, C.J., JOANOS, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: SHIVERS, Judge. ZEHMER, Judge,

text:
    Billy Powell CLAYTON, Appellant, v. Ruthe Lee CLAYTON, Appellee.
    No. AQ-296.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    Rehearing Denied Jan. 6, 1984.
    Norm La Coe, of La Coe & Thompson, P.A., Gainesville, for appellant.
    Zelda J. Hawk, of Sieg, Comfort, Hawk, Costello & Reid, Gainesville, for appellee.
   SHIVERS, Judge.

This is an appeal by the husband from a judgment of dissolution of marriage. Because we agree with appellee, wife, that the record is insufficient for appellate review, we affirm.

The record provided for review in this case includes the pleadings of the parties, including financial affidavits, depositions from the wife’s doctor and psychologist, and the final judgment of the court. The final hearing in this case, however, was not recorded. Pursuant to Florida Rule of Appellate Procedure 9.200(b)(3), appellant filed a statement of the evidence, giving appellant’s version of the evidence adduced at the final hearing. Appellee filed objections to appellant’s statement of the evidence and filed an appellee’s statement of the evidence. Although some areas of agreement exist, there remain substantial differences and conflicts between the two versions of the final hearing. Moreover, the statements of the evidence do not reveal the nature of the arguments, if any, made to the trial court.

Although the statements and objections were presented to the trial court for settlement and approval pursuant to Rule 9.200(b)(3), the trial court entered an order stating that the court was unable to sufficiently recall the proceedings so as to be able to approve or reconstruct a record in accordance with Rule 9.200.

The decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error. It is the decision of the trial court, and not the reasoning used in the written final judgment, which matters. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). As in Applegate, we find that the lack of a trial transcript or a proper substitute is a fatal flaw in appellant’s case. See also Starks v. Starks, 423 So.2d 452 (Fla. 1st DCA 1982) (stipulated statement signed by counsel for both parties was deficient, and therefore not a sufficient substitute for a hearing transcript); Morgan v. Kearney, 395 So.2d 570 (Fla. 4th DCA 1981) (record insufficient where trial judge resigned without taking action on conflicting statements of evidence prepared by the parties); Kauffmann v. Baker, 392 So.2d 13 (Fla. 4th DCA 1980) (record insufficient where trial court did not settle any factual differences between the parties or approve any version of the facts).

AFFIRMED.

MILLS, J., concurs.

ZEHMER, J., concurs specially, with opinion.

ZEHMER, Judge,

concurring.

I concur, albeit reluctantly, in the majority opinion. The parties did not agree on a stipulated record, and the trial judge, because of an understandable lack of memory, did not settle the disputes and approve the stipulation. We have no stipulated record approved under rule 9.200, Florida Rules of Appellate Procedure, and therefore have no alternative but to affirm under Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), and the other decisions cited in Judge Shivers’ opinion for the court.

I am troubled, however, by this disposition of the case. It appears to me that the facts agreed upon by the parties in the stipulated record — ignoring the disputed facts in that stipulation — are in themselves sufficient to demonstrate reversible error. No useful purpose is served by reciting that evidence in detail. In my view, however, the agreed facts show, for example, that the total monetary amount appellant is ordered to pay from his monthly income for the wife’s support and mortgage payments on her house is significantly more than the remaining amount available to the husband, which is insufficient for his own support. In addition, the trial court apparently was unduly and improperly influenced by the husband’s alleged misconduct, recited in the judgment. We have not reached these and some other questions presented, however, for lack of a proper record. Perhaps the rule in Applegate should be modified, but that is for the Supreme Court, not us, to decide.

As demonstrated in the cases cited by Judge Shivers, the lesson to be learned from this is simple, but of utmost importance. Unless a party determines, at the commencement of a trial involving disputed facts, to accept the trial court’s ruling without further review by another court, it is imperative that such party employ the services of a court reporter and obtain a reported transcript of the proceedings in order to preserve ,and guarantee the right of full appellate review.

Perhaps the wife has now resumed working and become self-sustaining, as was prognosticated by the deposition testimony filed with the court below, so that the appellant may seek modification of his ostensibly onerous burden. If he does so, hopefully he is now adequately forewarned to make a full record if he expects us -to review an adverse decision.


author: MILLS, Judge.

text:
    John R. GRAY, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. AS-102.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    John R. Gray, pro se.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Gray appeals an order of the Circuit Court summarily dismissing his petition for writ of habeas corpus. We affirm because the issue of violation of the speedy trial rule, the ground on which Gray challenges his detention, could have been raised on direct appeal. Nelson v. State, 406 So.2d 539 (Fla. 4th DCA 1981). Gray took a direct appeal. Gray v. State, 381 So.2d 782 (Fla. 4th DCA 1980). Habeas corpus is not a substitute for direct appeal. Hargrave v. Wainwrigkt, 388 So.2d 1021 (Fla.1980).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Linda POWELL, Appellant, v. Jerry Frank WELLS, Appellee.
    No. AS-322.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.

      Jeffrey H. Abrams, of Roberts, Baggett, LaFace, Richard and Wiser, Tallahassee, for appellant.
    Michael W. Duggar, Tallahassee, for ap-pellee.
   PER CURIAM.

AFFIRMED. See Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967).

MILLS, THOMPSON and WIGGINTON, JJ., concur.


text:
    Darryl Gene WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. AS-453.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Kathryn L. Sands, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See, Apfel v. State, 429 So.2d 85 (Fla. 5th DCA 1983); Faver v. State, 393 So.2d 49 (Fla. 4th DCA 1981), and Deshler v. State, 298 So.2d 428 (Fla. 1st DCA 1974).

ERVIN, C.J., JOANOS, J., and TILLMAN PEARSON (Ret.) Associate Judge, concur.


text:
    William Patrick BREWSTER, Appellant, v. ALACHUA TIRE AND FUEL SERVICES, INC., Appellee.
    No. AT-245.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    Kenneth E. Brooten, Jr., Gainesville, for appellant.

      Jack M. Ross, Gainesville, for appellee.
   PER CURIAM.

William Patrick Brewster, the guarantor of one Jerry Estopy, appeals from the trial court’s final order awarding Alachua Tire and Fuel Services, Inc., $24,921.30 in compensatory damages, $8,237.98 in additional pre-judgment interest, and $898.30 in costs. While we find no error in the trial court’s admission into evidence of certain documents under the business records exception to the hearsay rule, § 90.803(6)(a), Fla. Stat., nor in its failure to give two of Brewster’s requested jury instructions, we do agree that the trial court should not have assessed pre-judgment interest pursuant to Alachua Tire’s post-trial motion seeking such an assessment.

In Florida law, interest is allowable from the time a debt becomes due and payable. Vacation Prizes, Inc. v. City National Bank of Miami Beach, 227 So.2d 352 (Fla. 2d DCA 1969). Further, whenever a verdict liquidates a claim and fixes it as of a prior date, interest should follow from that date. English and American Ins. Co. v. Swain Groves, Inc., 218 So.2d 453, 457 (Fla. 4th DCA 1969). However, a jury verdict for a debt is considered the equivalent of a liquidated claim, and thus eligible for a post-trial motion seeking the assessment of pre-judgment interest, only where it conclusively detemrines the exact amount due and the date from which interest can be computed. Vacation Prizes, at 353. In this case, there is no conclusive jury determination, such as a special verdict or finding, fixing the date at which Estopy’s debt, and hence Brewster’s debt, became due. In light of this deficiency, the award of pre-judgment interest must be stricken. The trial court’s final order is otherwise affirmed.

AFFIRMED in part, and REVERSED in part.

ERVIN, C.J., JOANOS, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.