author: SHIVERS, Judge. MILLS, Judge,

text:
    Frances JACKSON, Appellant, v. DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellees.
    No. AV-226.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.

      Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellant.
    Steven Kronenberg, of Adams, Kelley & Kronenberg, Miami, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, Jackson appeals a deputy commissioner’s order which denies and dismisses her claim. She contends that the deputy commissioner erred in rejecting the testimony of her psychiatrist, Dr. Mutter. We reverse and remand.

Claimant was injured in a compensable industrial accident on January 27, 1981. She was in an elevator which stopped abruptly, throwing her to the side of the elevator and jarring her back. Dr. Stein, an orthopedic surgeon, diagnosed acute lumboscral strain and treated claimant for this injury. By August 13, 1981, appellant had reached maximum’ medical improvement (MMI) from an orthopedic standpoint. However, claimant was examined by Dr. Mutter, the only psychiatric expert to testify in this case, who opined that claimant suffered from agitated depression causally related to her industrial accident, that she needed psychotherapy and hypnotherapy, and that she had not reached MMI from a psychiatric standpoint.

Concerning Dr. Mutter’s testimony, the deputy commissioner found as follows:

I reject the opinions of Dr. Mutter for a variety of reasons, among which are the failure of the claimant to advise Dr. Mutter of her self-employment as a Shaklee distributor, her announced retirement as a school teacher, her high earnings as a Shaklee distributor, and my own observations of the claimant. All of these things have so lessened her credibility as to make that which she says unworthy of belief. In making these findings I have accepted the testimony of the private investigator, Juan Cayado, that the claimant told Cayado that she was making approximately $3,400 per month as a Shaklee distributor and that she had retired as a school teacher and did not wish to do that work any longer when she could make so much more money as a Shaklee distributor. It follows, therefore, that the claimant had financial reasons for not accepting and performing suitable employment with the School Board.

The deputy commissioner is, of course, entitled to reject claimant’s testimony as unworthy of belief. See John Caves Land Development Co. v. Suggs, 352 So.2d 44 (Fla.1977); Barnett v. Lakeland Construction Co., 417 So.2d 834 (Fla. 1st DCA 1982). A deputy commissioner can reject expert testimony, even uncontradicted expert testimony, where the expert’s opinion is based on assumptions not supported by the evidence. Arkin Construction Co. v. Simpkins, 99 So.2d 557 (Fla.1957). A deputy commissioner can reject expert testimony and base a decision on lay testimony and other evidence where the question concerns matters which are within the knowledge and sensory experience of lay persons, e.g., the existence and location of pain, sequence of events and actual ability or inability to perform work. Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). Some issues, however, involve essentially medical questions which are most persuasively answered by medical experts, e.g., whether a claimant has reached MMI. Sanlando Utility Corp. v. Morris, 418 So.2d 389 (Fla. 1st DCA 1982). Where the question is essentially a medical one, a deputy commissioner should offer a sufficient reason for rejecting expert medical testimony, especially if such testimony is unrefuted. Castro v. Florida Juice Division, 400 So.2d 1280 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982). In the instant case, we find the stated reasons for the rejection of Dr. Mutter’s testimony insufficient.

Although Dr. Mutter, at the time of his examination, was unaware of the claimant’s current vocational activities and did not know how much she earned, Dr. Mutter’s opinion did not change when he was informed of these matters on cross-examination. Dr. Mutter appeared to be uninterested in whether or not claimant was motivated to return to work. When asked if he formed any impression as to whether or not claimant was motivated to return to work he replied, “No, not at that point. My examination was more specifically centered towards determining whether or not she had a psychological problem, what it was related to, and what kind of treatment would be indicated to help her with that.” In short, the assumptions and facts underlying Dr. Mutter’s opinion appear to be wholly unrelated to the facts recited by the deputy commissioner in rejecting the doctor’s testimony. Dr. Mutter indicated that his suggested treatment was intended to help claimant alter some of her physical symptoms and alleviate her mental problems. Dr. Mutter’s opinion that claimant continues to have psychological problems was in small part bolstered by Dr. Stein’s note from January 1983, that claimant appeared anxious and depressed.

The facts of the instant case, which involve the relationship between a claimant’s credibility and a doctor’s opinion, are remarkably similar to those in Allman v. Meredith Corp., 451 So.2d 957 (Fla. 1st DCA 1984). In that case the deputy commissioner also rejected a doctor’s opinion because the claimant was untruthful, and the deputy commissioner found that the doctor was totally unfamiliar with claimant’s true physical abilities. This court stated that, although a claimant’s lack of candor about his disability might preclude an award of compensation benefits, All-man’s lack of credibility did not constitute an adequate basis for the wholesale rejection of the only competent, substantial evidence as to the cause of his condition. In the instant case, the deputy commissioner did not have the benefit of our opinion in Allman at the time he rendered his decision.

Although we find the deputy commissioner’s stated reasons for rejecting Dr. Mutter’s opinion are insufficient, the wording of the order implies that the deputy commissioner had other reasons for rejecting the opinion which he did not state. Therefore, we remand this case to the deputy commissioner to reconsider Dr. Mutter’s testimony in light of this opinion and All-man.

REVERSED and REMANDED.

WIGGINTON, J., concurs.

MILLS, J., dissents with opinion.

MILLS, Judge,

dissenting:

I dissent. I would affirm.

The deputy’s order is supported by competent substantial evidence and the law. I adopt the deputy’s order in part as my dissent. It is as follows:

3. The claimant sustained a compensa-ble injury on January 27, 1981, at which time an elevator in which she was riding jerked, causing her to reinjure her back. This claim was accepted as compensable by the employer and its servicing agent and the claimant was afforded authorized medical care through Dr. Jay Stein, Dr. Donald Dooley, Dr. Albert Ray, Dr. Jess Spirer, and Baptist Hospital. In addition, she was paid temporary total disability benefits from January 28, 1981; and from October 5, 1981, to November 9, 1981.
4. This claimant was previously injured on December 18, 1975, and March 18, 1977. On both occasions she suffered injury to her back and was given a permanent partial disability of the body as a whole rating by Dr. Basil Yates of 22%. That case was ultimately settled and an order was entered by former Deputy Commissioner Hughlan Long on October 7, 1980. That stipulation and the order approving same were admitted into evidence and the undersigned acknowledges the information contained therein.
5. In addition to the authorized physicians, the claimant was seen by Dr. Charles Mutter, an unauthorized psychiatrist. No claim was made for the bill of Dr. Mutter. I reject the opinions of Dr. Mutter for a variety of reasons, among which are the failure of the claimant to advise Dr. Mutter of her self-employment as a Shaklee distributor, her announced retirement as a school teacher, her high earnings as a Shaklee distributor, and my own observations of the claimant. All of these things have so lessened her credibility as to make that which she says unworthy of belief. In making these findings I have accepted the testimony of the private investigator, Juan Cayado, that the claimant told Cayado, that she was making approximately $3,400.00 per month as a Shaklee distributor and that she had retired as a school teacher and did not wish to do that work any longer when she could make so much more money as a Shaklee distributor. It follows, therefore, that the claimant had financial reasons for not accepting and performing suitable employment with the School Board.
6. I also accept the opinion of Dr. Stein over any opinions to the contrary since this deposition testimony is more in accord with my own observations about the claimant and her credibility. I accept Dr. Stein’s opinion that he had given a rating to this claimant of 20% of the body as a whole on October 2, 1978. That rating was based on the American Academy of Orthopedic Surgeons guide. (According to Dr. Stein, that would equate to 14% whole man impairment under the AMA guides.)
7. This claimant was seen by Dr. Stein on January 30, 1981, for the accident of January 27, 1981. As a consequence of that accident, Dr. Stein felt, and I so find, that the claimant had an acute lumbosacral sprain which was transient, not permanent, so that he expected it to be resolved by the Spring of 1981. The claimant failed to return to Dr. Stein from February 17, 1981, until August 13, 1981, by which latter date maximum improvement had been reached. I will give the claimant the benefit of this doubt and find that maximum medical improvement was reached August 13, 1981, at which time the temporary aggravation had subsided and she had reverted to the same condition she had and which existed prior to January 27, 1981. Therefore, I find that there is no permanent physical impairment existing as a result of this accident of January 27, 1981, so as to entitle this claimant to wage loss benefits.
8. Multiple hearings were held in this case commencing February 11, 1982. The claimant was present at each of those hearings. I have had the opportunity to observe her and her demeanor, as well as her physical actions. Prior to the showing of surveillance movies, the claimant demonstrated a rather pronounced inability to get around by herself. I observed her to walk holding on rather heavily to her husband. She also walked very slowly. I also observed her in the hearing room to walk slowly and in some instances to actually hold onto the wall in order to move from one place to the other. However, after the surveillance video tape was shown, the claimant did not walk in the same manner nor did she demonstrate to me any true evidence of disability and/or impairment.
9. A job was located for the claimant through Jackson Memorial Hospital and Mr. Randall Albert of that facility. I accept Mr. Albert’s evaluation of this woman and his opinion that her refusal to accept employment was based on an avowed fear of jeopardizing her workers’ compensation claim should she accept any employment. I also find that the claimant had physical capabilities beyond that which she admits and could do many things if she were so motivated.
10. Based on my finding that the claimant sustained only a temporary aggravation of her pre-existing condition by virtue of the accident of January 27, 1981, I find that the claimant is not in need of any further medical care and that no such care is attributable to the accident of January 27, 1981.

      . Even if the deputy commissioner here ultimately accepts the testimony of Dr. Mutter, that acceptance would not automatically translate into an award of temporary compensation benefits. In fact, the deputy commissioner’s implied findings, that claimant is self-employed with a large income and that claimant no longer desires other work, would appear to preclude an award of temporary or permanent compensation benefits. Acceptance of Dr. Mutter’s testimony, however, would affect the finding of date of MMI as well as claimant’s entitlement to further psychiatric treatment.
      We reject appellee’s suggestion that no psychiatric care was claimed sub judice. The pretrial stipulation lists Dr. Mutter under "medical treatment claimed but not accepted.” Further, a claim was made for "future med.” We note that psychiatry is a branch of medicine and that Dr. Mutter is a psychiatrist.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Rodney POLITE, Appellant, v. STATE of Florida, Appellee.
    No. AW-29
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Rehearing Denied Sept. 17, 1984.

      Michael E. Allen, Public Defender; Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences for various offenses including battery, throwing a missile at an occupied vehicle, and attempted resisting an officer with violence. Since there is no such offense under the laws of Florida, we reverse the judgment and sentence for attempted resisting an officer with violence. Appellant having presented no other point of reversible error, we otherwise affirm the judgments and sentences appealed.

Appellant was tried on various charges including resisting an officer with violence in violation of § 843.01, Florida Statutes. The jury returned a verdict of not guilty as to the charged offense, but found appellant guilty of attempted resisting an officer with violence. As delineated in Plummer v. State, 455 So.2d 550 (Fla. 1st DCA 1984), since § 843.01 proscribes offering to do the prohibited act, the attempt is therefore a part of the crime and there is no lesser included offense of attempted resisting an officer with violence. Accord, Jordan v. State, 438 So.2d 825 (Fla.1983). It is reversible error to convict a defendant of such non-existent offense, even where, as here, the issue is not raised at trial. Plummer, supra; see also, State v. Sykes, 434 So.2d 325 (Fla.1983).

Appellant was also tried on charges of aggravated battery and throwing a missile at an occupied vehicle. The jury returned a verdict of not guilty as to the aggravated battery charge, but found appellant guilty of the lesser offense of simple battery. The jury also found appellant guilty of the charged offense of throwing a missile at an occupied vehicle. Both offenses were predicated upon appellant’s single act of hurling a brick which passed through the window of an automobile and struck an individual seated therein. Section 790.19, Florida Statutes, which prohibits throwing a missile at, within, or in an occupied vehicle, expressly requires that the prohibited act be done “wantonly or maliciously.” Relying on Golden v. State, 120 So.2d 651 (Fla.lst DCA 1960), appellant argues that this requirement, and the specific intent necessary to establish a battery under § 784.03, Florida Statutes, are mutually exclusive elements such that both statutes may not be violated by a single act.

In Johnson v. State, 436 So.2d 248 (Fla.5th DCA 1983) (Cowart concurring), it was indicated that § 790.19 might apply to one who acts “with reckless disregard of the potential deadly consequences,” and that:

The words ‘wantonly or maliciously’ relate to a mental element and describe the condition or attitude of mind which must accompany the prohibited act. But the statute does not require that the defendant’s malevolent attitude be that of a specific intent ... to harm the object involved.

As so construed, § 790.19 might thus be violated by one who has no malevolence toward a vehicle or structure itself, but acts with a wanton or malicious attitude directed toward an individual within or near the vehicle or structure. See also Skinner v. State, 450 So.2d 595 (Fla.5th DCA 1984), petition for review filed, Case No. 65,510; see generally, Ballard v. State, 447 So.2d 1040 (Fla.2d DCA 1984).

In the circumstances of the present case appellant’s convictions for both battery and throwing a missile at an occupied vehicle could therefore be predicated on the single act of hurling a brick which struck an individual within the vehicle. The mental elements which the offenses require are not in all instances mutually exclusive, and furthermore in the present case the evidence is such as to permit a conclusion that appellant intended his single act to effect damage and injury to both the vehicle and the individual therein. To the extent that Golden, supra, may suggest a result contrary to that reached in this case, we hereby recede therefrom and adopt the rationale expressed in Johnson.

The judgment of conviction and sentence for attempted resisting an officer with violence is hereby reversed, the various other judgments and sentences appealed are affirmed, and the cause is remanded for further proceedings.

SMITH and WIGGINTON, JJ., concur.

      . Other issues raised in this appeal are addressed in Carwise v. State, 454 So.2d 707 (Fla. 1st DCA 1984).

      . On remand appellant may again be tried upon the charge of resisting an officer with violence. See Jordan, supra; cf., Sykes, supra.


author: WIGGINTON, Judge.

text:
    James Michael SMALL and Steven Duane Linvick, Appellants, v. STATE of Florida, Appellee.
    Nos. AW-75, AW-76.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.

      Elwin R. Thrasher, Jr., Tallahassee, for appellants.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellants pled nolo contendere to a charge of conspiracy to deliver a controlled substance, in violation of section 777.04, Florida Statutes, reserving their respective rights to appeal the trial court’s order finding they waived speedy trial. We affirm.

The following recitation of facts shows how the relatively straight forward purpose of the speedy trial rule may be completely defeated. Appellants were arrested on February 11, 1983, and an information was filed on March 23, 1983, charging them with possession and the sale of cannabis, and conspiracy to deliver a controlled substance. On March 30, each filed a plea of not guilty and a demand for discovery. On May 3, the state filed its answer to the demand. The case was scheduled to be tried June 21, 1983.

On June 3, appellants filed their “Motion for Continuance Chargeable to the State,” on the ground that the defense required more time in which to conduct discovery. The hearing on the motion was held on June 6, at which time defense counsel stated, “Actually, Your Honor, I don’t necessarily care if you charge it to them [the state], just so you don’t charge it to my Defendants.”

In rebuttal the prosecutor, while admitting that the state had been somewhat tardy in filing its answer to the defense’s demand for discovery, took the position that the defense nonetheless had ample time (six or seven weeks) between the receipt of the answer and the trial date to prepare. In addition, the prosecutor argued that a defense motion for continuance “for whatever reason ascribed to it by the Defense does constitute a waiver of speedy trial ....”

The trial court responded, “As I read it, it doesn’t matter who it’s charged to, whether a continuance carries with it a waiver of speedy trial.” To which the prosecutor replied, “Right. I think it is a waiver.”

Thus ended the discussion on the subject of waiver, with no counter argument offered by the defense. Thereafter, counsel and court set their heads together to move the trial date to July 21, still within the speedy trial time.

On June 10, the trial court signed a written order, presumably supplied by the defense, granting the motion for continuance. Unfortunately, the prosecutor did not notice until mid-July that the order actually granted the “Motion for Continuance Chargeable to the State” (emphasis added). Being somewhat nonplussed about this turn of events, and having instant recall of the trial court’s true intent following the June 6 hearing, the prosecutor filed on behalf of the state a motion for order from the court rescinding its previous order granting the defense “Motion for Continuance Chargeable to the State.” At the hearing on the motion held on July 20, the prosecutor argued that from its understanding of the June 6 hearing, the trial court had no intention of charging the continuance to the state, as he had apprised the court of the rule that such a motion automatically waived the defendants’ rights to a speedy trial. Following intense discussion and debate on this issue, related hypotheticals, and equitable ramifications, the trial court agreed with the state’s opinion of the court’s prior intent, granted the state’s motion and entered an order finding the defense had waived speedy trial by its June 3 motion for continuance.

At that same hearing, the state orally moved to amend the information against appellant Linvick, and, of course, with impunity, moved for a continuance of the trial scheduled for the following day. Both motions were granted over defense objection.

The trial was thereafter rescheduled beyond August 10, the point 180 days from the date of appellants’ arrest and outside speedy trial time. No demand for speedy trial had ever been made by the defense pursuant to rule 3.191(a)(2), Florida Rules of Criminal Procedure, nor was there a motion for discharge filed under rule 3.191(a)(1). Instead, on September 29, 1983, appellants entered their plea of nolo contendere and reserved their respective rights to appeal.

Appellants now raise two points, under the first arguing that they were entitled to discharge, and under the second arguing that the trial court’s “eleventh hour” ruling amending its prior order denied them due process of law. Regarding the first argument, we have no difficulty in concluding from our reading of the record that the trial court did not intend to charge the state with the defense’s June 3 motion for continuance. The rule is well settled in Florida that a defense-requested continuance takes the matter out of the operation of the speedy trial rule. See Strickland v. State, 435 So.2d 934 (Fla. 1st DCA 1983); State v. Nieman, 433 So.2d 572 (Fla. 3d DCA 1983); Ehn v. Smith, 426 So.2d 570 (Fla. 5th DCA 1983); and see also State v. McCrery, 429 So.2d 739 (Fla. 1st DCA 1983); State v. Brown, 394 So.2d 218 (Fla. 5th DCA 1981); Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). As no exceptional circumstances were shown by the defense, the trial court was without authority to charge the continuance to the state, and therefore did not err in amending its order in that regard.

As to appellants’ second argument, we hold that they were not denied due process by the trial court’s amending its order. First we do not see in the record where appellants specifically presented this due process argument to the court, although they did tender an equitable argument based on self-serving speculation. Second, defense counsel was obviously present at the June 6 hearing, yet made no effort to seek clarification of the court’s decision on their motion. Of course, clarification would have been unnecessary as it is clear to us that the court was persuaded by the state; consequently, the order the trial court signed on June 10, did not reflect that which it had intended to do on June 6, and, accordingly, the court properly corrected its error.

AFFIRMED.

SMITH and WENTWORTH, JJ., concur.

      . See Fla.R.Crim.P. 3.220(a)(1).


author: PER CURIAM.

text:
    Antonio PEREZ a/k/a Oscar Perez; Eduardo Cabrera a/k/a Dagaburto Herrera a/k/a Miguel Barrera; Armando Sobrado a/k/a Armando Sobrado-Lopez, Appellants, v. The STATE of Florida, Appellee.
    No. 82-2244.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J. and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Castor v. State, 365 So.2d 701 (Fla.1978); Williams v. State, 110 So.2d 654 (Fla.1959); Sias v. State, 416 So.2d 1213 (Fla. 3d DCA 1982); Frank v. Blackburn, 646 F.2d 873 (5th Cir.1980); Section 90.404(2) Fla.Stat. (1979).


author: BARKDULL, Judge.

text:
    The STATE of Florida, Appellant, v. Larry JONES, Appellee.
    No. 83-2300.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.

      Jim Smith, Atty. Gen. and G. Bart Billb-rough, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   BARKDULL, Judge.

In this appeal we are called upon to review the propriety of an order suppressing certain tangible property, to wit: 48 cans of spray paint. From the record the following is found. At approximately 2:40 A.M., on March 31, 1983, two City of Miami police officers were patrolling in the commercial area of N.W. 20th Street, Miami, Dade County, Florida. The officers observed Larry Jones standing in front of City Auto Parts with a grocery cart containing several cartons. The officers circled the block, radioed that a possible burglary was in progress and returned to the corner where they had first observed Jones. After returning to the corner, the officers noticed that Jones had walked away from the grocery cart. The officers called for his attention, asked him to walk over to the car and stated that they wished to speak to him. Jones replied, “what about”? The officers asked why he had been pushing a shopping cart. Jones responded by stating that he didn’t know anything about it. When confronted by the fact that the officers had seen him pushing the cart, Jones said he had been asked to “keep an eye on it” for some other individuals and that the contents did not belong to him. When asked for identification, Jones had none. He stated that he lived in the Overtown area and pointed in a southward direction. When confronted by the officers’ observation that he had been walking in the opposite direction, Jones stated that he was really on his way to a gas station to get a soda. When the officers observed the contents of the boxes in the grocery cart, Jones was placed under arrest for loitering and prowling. He was subsequently charged with grand theft. At the conclusion of the suppression hearing the trial court orally ruled that the statement, “Will you come back to the car”, constituted an arrest. The court also concluded that the officers were acting on bare suspicion and did not have sufficient grounds to conduct a stop and frisk and therefore the arrest was illegal and the search of the contents of the four cartons were suppressible under the “fruit of the poisonous tree doctrine”.

We find that the trial court erred in suppressing the 48 cans of spray paint seized from the boxes inside the grocery cart. In order for an individual to invoke the benefits of the exclusionary rule and request suppression of evidence, it is necessary that he be a person aggrieved by the law enforcement conduct in question. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court held that the proponent of a motion to suppress has a burden of establishing that his own constitutional rights were violated by the challenged search and seizure. The courts of this state have similarly recognized that the defendant bears this burden of proof with regard to his expectation of privacy. State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981); Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981). If a defendant has failed to sustain his burden, the entry of an order suppressing evidence would be in error because the illegality of the search has not been demonstrated. State v. Hutchinson, supra.

Jones disavowed any knowledge of the boxes and, at best, stated that he was merely keeping an eye on them for someone else. Courts have uniformly recognized that the disclaiming of ownership or knowledge of an item ends any legitimate expectation of privacy in that item. State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979). See, also United States v. Hawkins, 681 F.2d 1343 (11th Cir.1982); United States v. Pirolli, 673 F.2d 1200 (11th Cir.1982); United States v. Bush, 623 F.2d 388 (5th Cir.1980); United States v. Canady, 615 F.2d 694 (5th Cir.) cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); United States v. Colbert, 474 F.2d 174 (5th Cir.1973) (en banc). The disclaimers by Jones regarding the property refutes any suggestion that an expectation of privacy existed.

The trial court further erred in concluding that the officers effectuated a “stop” or arrest during the initial encounter with Jones. The officers were merely conducting a preliminary investigation which did not involve Fourth Amendment violations. Having failed to dispel the officers’ suspicion, Jones was subjected to a lawful arrest for the offense of loitering and prowling.

The United States Supreme Court’s decision in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), makes clear that there are three types of police/citizen encounters: full scale arrest that must be supported by probable cause, brief “seizure” that must be supported by reasonable suspicion, and mere contact between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment and of Article I, § 12 of the Florida Constitution.

In Royer, the Supreme Court elaborated on mere contacts between police and citizens:

“(L)aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some question, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S.Ct. 2248, 2255 n. 12, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 31, 32-33, 88 S.Ct. 1868,1885-1886, 20 L.Ed.2d 889 (1960) (Harlan, J., concurring); Id., at 34, 88 S.Ct., at 1886 (White, J., concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Opinion of Stewart, J.). The person approached, however, need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, supra, 392 U.S., at 32-33, 88 S.Ct., at 1885-1886 (Harlan, J., concurring); Id., at 34, 88 S.Ct., at 1886 (White, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, 446 U.S., at 556, 100 S.Ct., at 1878 (Opinion of Stewart, J.). If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.” Florida v. Royer, supra, 103 S.Ct., at 1324.

It is this category of police/citizen contact that governs the present case. Both officers had an admittedly bare suspicion that Jones may have been involved in a burglary. Nothing about this suspicion, however, prevented them from seeking to dispel their concerns by talking with him. The officers used no force, threats, or coercion in talking with him. When asked if he would walk to the police car to talk with the officers, Jones agreed. He voluntarily answered all inquiries.

The officers in this case strictly followed the requirements of § 856.021, Fla.Stat. As required by the loitering and prowling statute, the officers afforded Jones an opportunity to dispel their suspicion by identifying himself and explaining his presence. Jones was found during the early morning hours alone in a commercial district. He had been seen pushing a shopping cart full of cartons, but disavowed any knowledge of them when confronted by police. He ' carried no identification and gave factually conflicting explanations regarding his intentions. As a result, his arrest was lawful and the seizure of the boxes proper.

Therefore the order of suppression under review be and the same is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded with directions.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    The CITY OF KEY WEST, a Florida municipality, and Paul Cates, Deputy Building Inspector for the City of Key West, Appellants, v. The STATE of Florida ex rel. E.E.S. ENTERPRISES, INC., a Florida corporation, Appellee.
    No. 84-87.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellants.
    Kirk, Pinkerton, Savary, Carr & Strode and L. Norman Vaughan-Birch and George Franjóla, Sarasota, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611 (Fla. 3d DCA 1974), cert. denied, 311 So.2d 670 (Fla.1975).

SCHWARTZ, Chief Judge

(specially concurring).

I concur in affirmance because the city tendered no disputed or justiciable issue of fact and the trial court correctly concluded, in applying the charter and code provisions in question, that the relator-appellee was entitled to the issuance of its building permit as a matter of law. I think it therefore unnecessary and, beyond that, highly inadvisable to rely upon the Bal Harbour Village decision cited by the court. Bal Harb-our Village perpetuates an archaic rule of pleading, applicable, for some unknown reason, only to mandamus proceedings, which I believe should not be permitted to survive in this supposedly enlightened age.


text:
    Elsa Lopez PEREZ, Appellant, v. Amanda Perez LOPEZ, Appellee.
    No. 84-212.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.

      Pestcoe, Slotnick & Garcia and Michael Slotniek, Coral Gables, for appellant.
    Simon, Schindler & Hurst and Thomas M. Pflaum, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The order under review was properly entered insofar as it acted to “freeze” or marshal assets — including corporate stock — in which the decedent may have had an interest, pending further order of the probate court in the administration of his estate. See Estate of Conger v. Conger, 414 So.2d 230 (Fla. 3d DCA 1982). To the extent, however, that it directly restrains the corporations themselves, which were not made parties to the proceedings below, it is overbroad, see Gettinger v. Gettinger, 165 So.2d 757 (Fla.1964), and should be modified to correct this defect after remand.

Affirmed as modified.

      . This opinion does not affect the lower court’s continuing authority, as specifically recognized by the trial judge, to modify the "freeze" order, if appropriate or necessary, upon application of any interested party.


text:
    Jeanine Pierre RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-1671.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of guilty of manslaughter and a fifteen year sentence.

Appellant poses several questions regarding the admissibility of inflammatory photographs, improper prosecutorial comments, and the identification of the victim by a relative. The last two points clearly do not constitute reversible error on the facts of this case.

The first point is a little more difficult. The state offered in evidence, over the objection that they were inflammatory and thus prejudicial, pictures of the victim taken at the morgue. Most of them depict a bullet hole in the victim’s chest. Only one of the photographs could be described as gruesome. That photo is a post-evisceration view of the empty chest cavity and the location of the bullet lodged in the victim’s spine. While we cannot say the introduction of that photograph was necessary, we also cannot say it is irrelevant. In fact, it is corroboration of the testimonial evidence and thus admissible. Straight v. State, 397 So.2d 903 (Fla.1981).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY and DELL, JJ., concur.

ANSTEAD, C.J., dissents without opinion.


author: DELL, Judge.

text:
    Thomas J. BIERSBACH and Sue H. Biersbach, his wife, Appellants, v. LANDIN, LTD., a North Carolina corporation, Appellee.
    No. 83-1840.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Christopher W. Boyden of Boyden & Laufer, North Palm Beach, for appellants.
    Freeman W. Barner, Jr., of Cromwell & Remsen, Riviera Beach, for appellee.
   DELL, Judge.

The buyers appeal from an adverse summary judgment in their action to recover the deposit they paid in a real estate transaction. We reverse and remand.

In March of 1981, appellants entered into a contract for the sale and purchase of a garden apartment. They paid a total deposit of $5,990. Appellee’s form contract contained the following handwritten clause regarding financing:

12(g) Should the Purchaser fail to obtain a loan the Seller agrees to refund all deposit monies, provided that the Purchaser has made a diligent effort to obtain said loan from three lending institutions.

In late May, appellee offered financing to appellants, which they did not accept. Thereafter, appellants submitted applications to three lending institutions, which denied their applications. Appellants demanded the return of all deposit monies pursuant to Paragraph 12(g) of the purchase agreement. Appellee refused and advised appellants that it was retaining the deposit monies as liquidated damages. Appellants brought this action to recover their deposit. Both parties moved for summary judgment. The trial court denied appellants’ motion and granted ■ appellee’s motion.

Appellants contend that they made a diligent effort to obtain institutional financing and that the denial of their application by three lending institutions entitled them to the return of their deposit. Appel-lee, on the other hand, argues that appellants had a duty to make a good faith effort to secure financing and that their failure to pursue or accept available financing precludes the return of the deposit.

The first question which must be answered is whether appellants’ failure to accept financing from appellee entitles appellee to retain the deposit as a matter of law. The plain language of paragraph 12(g) relates only to institutional financing. The first phrase, “Should the Purchaser fail to obtain a loan the Seller agrees to refund all deposit monies,” cannot be separated from the standard agreed to by the parties which is defined in the second phrase, “provided that the Purchaser has made a diligent effort to obtain said loan from three lending institutions.” (Emphasis added.)

Since the only financing actually made available to appellants consisted of appel-lee’s offer of financing, and the contract contemplated financing from a lending institution, appellants did not act at their peril when they rejected appellee’s offer of financing. See Merritt v. Davis, 265 So.2d 69 (Fla. 3d DCA 1972). Therefore, summary judgment must be reversed.

Appellants contend that they are entitled to summary judgment. We disagree. Appellants can only recover their deposit if they “made a diligent effort to obtain said loan from three lending institutions.” “Normally, the question of the use of due diligence is a question of fact.” Fieldstone v. Chung, 416 So.2d 11, 12 (Fla. 3d DCA 1982); see also Allington Towers North, Inc. v. Teich, 345 So.2d 745 (Fla. 4th DCA 1977).

Therefore, the final summary judgment is reversed and remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Appellant, v. George Joseph STELLA, Appellee.
    No. 83-2363.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal of the dismissal of a criminal information. We reverse and remand.

Defendant/appellee George Joseph Stella was charged by information on December 31, 1981 with trafficking in cocaine. Stella filed a motion to dismiss the information and a hearing on the motion was held October 14, 1983. The court relied on arguments and evidence presented by codefend-ant Michael Lee Dorman, which had been adopted by Stella. The court dismissed the information against Stella on the ground that the state had used a convicted drug statute violator, Rene Delannoy, as a confidential informant to bring about Stella’s arrest. Stella was not shown to have been Delannoy’s accomplice, accessory, cocon-spirator or principal in the incident that had led to Delannoy’s prosecution. Because of this fact, the trial court found that such use of the confidential informant to obtain more lenient treatment for Delannoy under section 893.135(3), Florida Statutes (1983), constituted unconstitutional application of that statute to Stella. The state timely appealed.

The issue is whether the trial court erred in holding that section 893.135(3), Florida Statutes, was unconstitutionally applied against a defendant who was arrested through information supplied by a confidential informant who was prosecuted for an offense in which the defendant was not involved. We conclude that it did.

Section 893.135(3) permits the prosecutor to seek reduction or suspension of the sentence of a violator of the trafficking portions of the statute who is of substantial assistance in the identification, arrest or conviction of his accomplices, accessories, co-conspirators or principals. Evidently here, Delannoy was so convicted and then obtained more lenient treatment by assisting in the obtaining of evidence against Stella and others. None of these, however, were Delannoy’s accomplices, accessories, co-conspirators or principals in the incident leading to Delannoy’s prosecution.

If, as defendant/appellee claims, section 893.135(3) was not intended to produce leniency for an offender like Delannoy who helped to obtain criminal process against people not involved with him in his offense, Delannoy may have obtained a bonanza to which he was not entitled. Whatever benefit Delannoy received, the trial court erred in viewing such benefit as bearing in any way upon the information against Stella. Stella was not personally affected by De-lannoy’s receipt of more lenient treatment; and how or why Delannoy came to be a confidential informant also has no bearing on Stella’s case. If Stella could show entrapment, that would be a different matter; but here the court found section 893.135(3) unconstitutionally applied to Stella, when it was not applied to Stella at all, but to Delannoy.

Stella was not charged with violating section 893.135(3) (nor could he have been, for the sub-section does not define a criminal offense). Accordingly, Stella cannot challenge the constitutionality of that section or of its application to Delannoy. Stella has no personal stake in what happened to Delannoy and may not challenge those portions of a statute that do not adversely affect his personal or property rights. Sandstrom v. Leader, 370 So.2d 3, 4 (Fla.1979), citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). It is for the foregoing reason that we reverse. No one has a due process right not to be caught for his criminal conduct merely because the person assisting the police is out of prison when properly he should be behind bars. As for the argument that Stella was attacking the application of section 893.135(3) to him, and not to Delannoy, this is patently not true. The section has, moreover, been found constitutional from a variety of angles in State v. Benitez, 395 So.2d 514 (Fla.1981).

In sum, Stella appears to have transmogrified an entrapment defense into an attack on the constitutionality of the present application of the substantial assistance statute. If Stella can show he would not have committed the offense, that is, he lacked the predisposition to commit it, but was induced by Delannoy to commit it, let him. See, e.g., Morris v. State, 456 So.2d 471 (Fla.3d DCA 1984). Dismissal of the information because of Delannoy’s supposedly improper release from punishment is not the correct procedure.

DOWNEY and DELL, JJ., concur.


text:
    Kathryn R. LANES, Appellant, v. Daniel Robert LANES, Appellee.
    No. 83-2473.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.

      Esther A. Zaretsky, West Palm Beach, for appellant.
    William R. Staab, West Palm Beach, for appellee. i
   PER CURIAM.

Appellant-wife, Kathryn Lanes, appeals the trial court’s denial of her motion for relief from a final judgment of dissolution. We reverse.

Appellee-husband, Daniel Lanes, filed a petition for dissolution in November, 1982. Mrs. Lanes did not respond with an answer because her husband assured her that he was not serious about the divorce and that they could reconcile their differences. In fact, the couple continued to live together, with minor interruptions, 'at least until May, and possibly through mid-July of 1983. On one occasion, the wife consulted with an attorney while the reconciliation attempt was suspended in late January or early February, 1983. The wife and her counsel discussed the need to file an answer. However, the husband and wife reconciled again in mid-February and, consequently, the wife’s failure to file responsive pleadings went uncorrected.

In June of 1983, the husband reactivated the dissolution action by sending a notice to the wife’s attorney. The husband did not inform his wife of the suit’s reactivation. Moreover, a letter to the wife from her attorney, which disclosed the reactivation, was inexplicably misaddressed. Thereafter, the trial court entered a default and final judgment of dissolution which awarded the wife custody of the minor child and nominal child support. The date of the final judgment of dissolution was July 1, 1983.

The wife learned of the final judgment of dissolution shortly after its entry. On August 22, 1983, she filed a motion for relief from judgment pursuant to Rule 1.540(b), Fla.R.Civ.P., and asserted that she did not know of the suit’s reactivation and did not receive notice of the final hearing. She also alleged that she was entitled to a substantial financial settlement and possession of the marital residence during the child’s minority. Although the trial court increased the child support award, it denied the wife’s motion for relief from judgment.

The combination of these events: (1) the husband’s repeated assurances to wife that he would not attempt to obtain a divorce, (2) the parties’ apparent, albeit some times rocky, attempt to reconcile (which is favored by the law, see Little v. Little, 298 So.2d 474, 475 (Fla. 1st DCA 1974); Riley v. Riley, 271 So.2d 181 (Fla. 1st DCA 1972); § 61.001(2)(a), Fla.Stat. (1983)), (3) the informal but nonetheless real abatement of the action between November, 1982, and June, 1983, and (4) the misdirection of the attorney’s letter informing the wife of the suit’s reactivation, deprived the wife of “her day in court.” Under these circumstances, the wife sustained her burden of demonstrating a “mistake” as contemplated in Rule 1.540(b) and, thus, her entitlement to relief from judgment. The trial court abused its discretion in failing to grant that relief. See Barry v. Barry, 324 So.2d 644 (Fla. 4th DCA 1976).

Accordingly, the default and final judgment of dissolution are vacated and the cause is remanded for further proceedings.

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


text:
    John EBELING, Margot Brady, f/k/a Margot Ebeling, and Martha Eckert, f/k/a Martha Ebeling, Appellants, v. Elmer G. VOLTZ and Margaret Voltz, Appellees.
    No. 83-2624.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.

      Alvin Capp of Capp, Reinstein, Kopelow-itz & Atlas, P.A., Fort Lauderdale, for appellants.
    M. Daniel Hughes of Chappell & Brandt, P.A., Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

This is a timely appeal from a final judgment dismissing with prejudice appellant’s complaint. We reverse and remand.

The bare bones undisputed facts are as follows: Decedent married Voltz in 1967, the couple executing an antenuptial agreement in which Voltz agreed that decedent’s property would remain with her children after her death. In 1977, however, decedent executed a will leaving the bulk of her estate to Voltz. This will was offered for probate upon her death in 1979 and accepted without any contest. Decedent’s children, appellants here, acknowledge that they received notice of the probate and were aware of the will’s content.

In 1983, appellants filed suit against Voltz, alleging that Voltz made certain fraudulent statements inducing them not to contest the will and seeking relief therefor. Voltz moved to dismiss their complaint on the ground that they failed to exhaust their probate remedy, thus barring them from collaterally attacking, under Section 733.-103, Florida Statutes (1983). The trial judge granted this motion, dismissing the complaint with prejudice, and appellants pursue this appeal.

For purposes of review of an order granting a motion to dismiss, the following facts alleged by appellants must also be considered true. Appellants say that their mother executed a will in 1972 which left her estate to them, and that the 1977 will was invalid because their mother had become incompetent by that time, suffering from Alzheimer’s disease. They further claim that Voltz induced them not to contest the will by telling them that they would get their mother’s assets despite its provisions, knowing that they would rely on this representation.

The issues on appeal are as follows:

I. Whether the facts alleged present a cause of action cognizable by a court. We conclude they did.
II. Whether Section 733.103(2), Florida Statutes is an unconstitutional infringement on the Supreme Court’s power to promulgate rules of procedure. We conclude it is not.

I

There has been little case law illuminating Section 733.103(2), Florida Statutes (1983), so we must rely heavily on DeWitt v. Duce, 408 So.2d 216 (Fla.1981), to interpret its application to the instant situation. The facts in DeWitt were that the testator revoked a previous will and replaced it with a will less favorable to the appellants and more favorable to the appellees, who, according to appellants, exercised undue influence over the testator. Appellants originally intended to contest this will, but dismissed their petition and the will was duly probated. Later, they tried to file an action for wrongful interference with an inheritance in federal court. That court certified the question of whether such a suit was barred by Section 733.103(2) to the Florida Supreme Court, and the answer is the DeWitt opinion.

Section 733.103(2), Florida Statutes, both in 1977 and presently, provides that the probate of a Florida will shall be conclusive of the testator’s competence in any collateral action relating to property devised by the will. Thus, the first question, as recognized and explored in DeWitt, is whether the attack is collateral to the will or an independent action. From the eases cited, the DeWitt court determined that an attack is considered collateral if there would have been adequate relief in the probate proceeding. In DeWitt, the appellants/plaintiffs had a prior will which they could have offered, in addition to testimony attacking the later will for lack of capacity and undue influence. It rejected the idea that punitive damages could affect the adequacy of the relief because they are not a valid expectation. Accordingly, the court found that there was an adequate remedy in probate which appellants had failed to pursue, barring them from collateral attack by the limitation in Section 733.103(2).

DeWitt would appear to be disposi-tive of this case; however, the opinion contains language that a later action might be allowed where “the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.” 408 So.2d at 219. Extrinsic fraud, or in other words, fraud alleged in the prevention of the will contest, as opposed to in the making of the will, would appear to be the type of circumstance that would preclude relief in the probate court. Fraud can consist of a promise to perform a material matter in the future, if at the time the promise is made, the promisor had no intention of performing. Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367, 1371-72 (Fla. 4th DCA 1981). Appellants have alleged that this was the case in their complaint, and we accept the truth of this allegation for purposes of this appeal.

The cases cited and discussed in DeWitt fall in with the theory that an attack to probate is not impermissible where fraud or other circumstances prevented contestants from having their day in court. In the instant case, the facts alleged by appellants and accepted as true for purposes of the motion to dismiss indicate fraud on appellants, preventing them from litigating the incapacity claim. This case therefore falls into the category of cases that DeWitt considers outside the purview of Section 733.103(2), Florida Statutes.

II

By the very cases cited by appellants’ briefs, procedural rules are those governing the way in which parties present their cases in court. The instant statute, on the other hand, relates to a preclusion of a remedy, in which the legislature had made a policy decision regarding the merits of allowing continuing litigation over wills. This is a decision going to parties’ rights, not to the means through which they will be implemented, so the law is substantive and not procedural. No procedure, no conflict.

DOWNEY and DELL, JJ., concur.


text:
    Oscar COGAN and Cogan and Sandler, M.D. P.A., Petitioners, v. Richard E. SALEEBY and Saleeby Ransier, P.A., Respondents.
    No. 84-1349.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Wayne Carson of Bernstein, Bernstein & Stein, Fort Lauderdale, for petitioners.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for respondents.
   DELL, Judge.

Petitioners seek review by common law certiorari of an order of the circuit court granting respondents’ motion to sever.

Respondents filed suit to recover compensation for legal services rendered to petitioners. Petitioners answered by filing affirmative defenses and a counterclaim in which they alleged “that the work and/or services supplied by [respondents] were deficient and lacking in professional competence so as to constitute a failure of consideration, negligence and professional malpractice.” Respondents moved to sever the counterclaim from the main action. Respondents asserted that the State of Florida had entered an order of liquidation which barred the prosecution of suits against the insureds of Lawyers Professional Liability Insurance Company for a period of six months. The trial court granted respondents’ motion to sever.

Petitioners argue that the trial court abused its discretion because the severance may result in inconsistent verdicts. Although petitioners’ concern may be well founded, certiorari jurisdiction of this court does not lie because petitioners have failed to demonstrate a material injury which cannot be remedied by plenary appeal. See United States Fidelity & Guaranty v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981), review denied, review dismissed, 419 So.2d 1195, 1201 (Fla.1982); Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976).

Accordingly, the petition for common law certiorari is denied.

CERTIORARI DENIED.

HURLEY and WALDEN, JJ., concur.

      . Respondents did not introduce any evidence in support of this assertion. We direct the trial court’s attention to Chrysler Corp. v. Miller, 450 So.2d 330 (Fla. 4th DCA 1984); Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982).


text:
    Shon D. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 84-1528.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Shon D. Robinson, pro se.
    No appearance required by appellee.
   PER CURIAM.

AFFIRMED without prejudice to appellant’s right to seek relief by appropriate utilization of Rule 3.850, Florida Rules of Criminal Procedure.

ANSTEAD, C.J., and HERSEY and GLICKSTEIN, JJ., concur.


author: ORFINGER, Judge.

text:
    James Joseph DEVLIN and Joanne Devlin, his wife, Appellants, v. FLORIDA RENT-A-CAR, INC., et al., Appellees.
    No. 83-1040.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    Ronnie H. Walker, of Walker, Buckmas-ter, Miller & Ketcham, P.A., Orlando, for appellants.
    Roland A. Sutcliffe, Jr. and Stephan Carter, of Zimmerman, Shuffield, Kiser & Sut-cliffe, P.A., Orlando, for appellees.
   ORFINGER, Judge.

Plaintiffs appeal from an adverse summary judgment in an action for personal injuries. Thé sole issue presented is whether, under Florida’s dangerous instrumentality doctrine, the owner of a motor vehicle is vicariously liable to a bailee passenger who is injured as a result of the negligence of the driver of the automobile to whom the bailee has entrusted its operation. The trial court held that as a matter of law the owner was not liable. We agree and affirm.

Plaintiff, James Devlin, rented an automobile from defendant Florida Rent-A-Car, Inc. While en route to Miami, Devlin allowed his passenger Thomas Palmer to drive the car, and because of Palmer’s alleged negligent operation, the automobile left the road, struck a tree and Devlin was injured. He contends that under Florida’s dangerous instrumentality doctrine as pronounced in cases such as Southern Cotton Oil Company v. Anderson, 80 Fla. 441, 86 So. 629 (1920) and Susco Car Rental Systems of Florida, Inc. v. Leonard, 112 So.2d 832 (Fla.1959), the owner of the vehicle is vicariously liable for the negligent operation of the vehicle no matter who is driving, so long as there has not been a breach of custody of the automobile amounting to a species of conversion or theft. Susco, 112 So.2d at 835, 836.

While that contention is generally correct, the dangerous instrumentality doctrine is not without its exceptions. For example, in Castillo v. Bickley, 363 So.2d 792 (Fla.1978) the supreme court held that the owner of a motor vehicle who delivers the vehicle to a garage or service station for repairs or service is not liable for injuries caused by negligence of the repairman or serviceman with whom the vehicle is left so long as the owner does not exercise control over the injury-causing operation of the vehicle and is not otherwise negligent. There was no conversion or theft in that case. The court specifically receded from the broad statement of an owner’s liability announced in Susco Car Rental Systems of Florida v. Leonard, 112 So.2d 832 (Fla. 1959), at least to the extent of the facts in Castillo.

The supreme court has also recognized an exception to the dangerous instrumentality doctrine in situations where, as here, the bailee is injured by the negligence of another to whom the bailee has entrusted the driving of the automobile. In Raydel, Ltd. v. Medcalfe, 178 So.2d 569 (Fla.1965), a case relied on by the trial court here, Mr. and Mrs. Medcalfe, as part of their employment agreement with Mrs. Soper, were permitted to use an automobile owned by Ray-del, Ltd., a corporation controlled by Mrs. Soper. Mrs. Medcalfe could not drive. On their Sunday off, the Medcalfes went fishing, taking the car which Mrs. Soper had permitted them to use, and while Mr. Med-calfe was driving, an accident occurred as a result of which Mrs. Medcalfe was injured. She sued Raydel, Ltd. as owner of the vehicle under the dangerous instrumentality doctrine. In reversing a judgment for plaintiff, the supreme court said:

The automobile in question was entrusted to both Mr. and Mrs. Medcalfe jointly as husband and wife. From the quoted facts they were either co-bailees of the car or their personal use of it at the accident was in furtherance of a common purpose; viz., a fishing trip. Under either relationship they had jointly been entrusted and had control and dominion of the car for their personal purposes at the time of the accident. The facts negative the idea the car was entrusted only to Mr. Medcalfe and that he negligently operated it while his wife was merely his guest passenger in the car, injuring her. * * * # * *
In Hale v. Adams, 117 So.2d 524 (Fla. App. 1st 1960), an owner sued the driver of owner’s automobile to recover for injuries suffered by the owner, a passenger in the car, resulting from the driver’s negligent operation of the automobile. The driver sought to escape liability by imputing his negligent operation of the car to the owner because the latter had entrusted the car to him to drive. In disallowing this contention the District Court of Appeal said “ * * * the doctrine of imputed negligence has no application in an action by a principal against an agent.” Similarly, the Medcalfes, as co-bailees, cannot impute their negligent operation of the automobile to Petitioners, who entrusted them the car and thus render Petitioners liable for injuries suffered by the Medcalfes or by one of them. Mrs. Medcalfe cannot impute to Petitioners, the owners of the car, the negligent operation of it by her husband, since with her husband she had been jointly entrusted with the car. Unless the negligent driving can be imputed in law to an owner there can be no recovery from the owner. Not only was Mrs. Medcalfe jointly entrusted with the car by the owners, but at the time of the accident it is quite apparent that as one so entrusted with the possession of the car she in turn was consenting to its being driven for her personal benefit by her husband. Compare Weber v. Porco, 100 So.2d 146, 5th headnote (Fla.).
It is well recognized that an owner of an automobile is not liable under the dangerous instrumentality doctrine for injuries sustained by the driver of the automobile to whom he entrusted it because of the driver’s negligent operation of it. This principle was repeated in the recent case of Florida Power and Light Co. v. Price, 170 So.2d 293, 298 (Fla.), as follows:
For example, this exception would appear to be supported by the principle of law that the driver of an automobile which was entrusted to him by its owner cannot hold the owner liable for injuries sustained by the driver arising from his own negligent operation of the automobile. * * *
The same rule applies where a bailee instead of driving the automobile himself permits a third party to drive it for him and is injured by the driver’s negligence while a passenger in the car. Mrs. Medcalfe was in this category.
Clearly indicated in the above cases (although they are not factually paralleled with the instant ease) cited for conflict is the legal principle that an owner, master, employer, principal or bailor who entrusts his automobile to an agent, servant, employee, bailee or other person is not civilly liable under the dangerous instrumentality doctrine to the person entrusted therewith for injuries sustained personally by that person solely because of the latter’s negligent operation of the automobile, or solely because of the negligent operation thereof by a third person who in turn was entrusted with the automobile by the one initially entrusted with it.

Id. at 570-572. (Emphasis supplied).

The principle espoused in Raydel applies here. Appellant is the bailee. The automobile was entrusted to him by the owner under the rental agreement. The only injury claimed here is to the bailee himself. Thus cases such as Roth v. Old Republic Insurance Company, 269 So.2d 3 (Fla.1972), and Avis Rent-A-Car, Inc. v. Garmas, 440 So.2d 1311 (Fla. 3d DCA 1983) are inapposite because they involve circumstances where “third parties” not connected in any way to the relationship between the owner and the bailee have been injured through the negligence of the bailee’s per-mittee. Those facts do not obtain here. Appellant is not a “third person” as that term is used in Susco, Roth or Avis Rent-A-Car. At first blush the case of Toner v. G & C Ford Company, 249 So.2d 703 (Fla. 1st DCA 1971), cert. dismissed, 263 So.2d 214 (Fla.1972), a case cited by neither party, appears to conflict with Raydel and with our decision here, but a careful review of the decision shows it to be distinguishable. There, the owner, G & C Ford, loaned the automobile to Senator Pope, who in turn let Toner use it. Pope was not in the automobile when Toner allowed McGowan to drive the car, and when Toner was injured following McGowan’s alleged negligence in operating the vehicle. The court reversed the dismissal of Toner’s action against G & .C Ford, holding that at the time of the accident Toner was merely a third party passenger, or at least could be so found by the jury. What distinguishes Toner from this case is that in Toner, Pope was the bailee, not Toner, and when Toner turned over the operation of the vehicle to McGowan, the jury could find that Toner’s temporary relationship with the automobile ended, and McGowan became Pope’s implied permittee and thus an implied bailee of G & C Ford. If the jury so found, Toner could be a “third party” passenger, thus entitled to recover from the owner for the bailee’s (or permittee’s) negligent operation. No such situation exists here. Without dispute, appellant was the bailee of the automobile and it was in his custody and control during its operation. Appellant can no more hold the owner liable for his per-mittee’s negligent driving than he could if he, himself, had been driving when the accident occurred.

AFFIRMED.

DAUKSCH and COWART, JJ., concur.

      . In Raydel, the supreme court cites other cases announcing exceptions to the dangerous instrumentality doctrine. See 178 So. at 572.


text:
    Earl PERRY, Jr., et ux, Appellants, v. William T. SAWYER, et ux, Appellees.
    No. 83-1605.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    Eugene Collier, Merritt Island, for appellants.
    David T. Young of Young, Murray, Townsend & Denman, Rockledge, for ap-pellees.
   PER CURIAM.

This is an appeal from a non-final order setting aside a simple default (as distinguished from an order under Florida Rule of Civil Procedure 1.540 setting aside a default judgment). Such an interlocutory order is not appealable. See Tieche v. Fla. Physicians Ins. Reciprocal, 431 So.2d 287 (Fla. 5th DCA 1983); Palmer v. Palmer, 416 So.2d 35 (Fla. 5th DCA 1982); French v. Wellman, 413 So.2d 143 (Fla. 5th DCA 1982); Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980).

DISMISSED.

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


text:
    Johnny Lee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-53.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

This is another appeal from a guidelines sentence. We affirm.

Appellant Johnny Lee Williams was charged by a two-count indictment with first degree murder and killing of an unborn child by injury to the mother. The appellant pled guilty to second degree murder and manslaughter, lesser included offenses, and elected to be sentenced under the new sentencing guidelines.

Appellant contends that because the crimes to which he pleaded both involve death of the respective victims, the trial court erred in adding to his point score any points for “victim injury,” because in so doing the court improperly aggravated his score by a factor inherent in the respective crimes.

While it is true that the Sentencing Guidelines Commission could have constructed the point scoring system for a homicide conviction in such manner as to include victim injury within the scope of the crime itself, it clearly chose not to do so. This concept is indicated by the scale of points listed for Category 1, Homicide, in Florida Rule of Criminal Procedure 3.988, as well as in Rule 3.701(d)(7) which provides that victim injury shall not be scored if not a factor of an offense at conviction. Since the same chart would be used for an attempted homicide where there could be any degree of victim injury from none to severe, but not death, the intent of the commission to separately add points for victim injury becomes clear.

We hold that adding points for victim injury (death) in a homicide case is not an unlawful “doubling” or enhancement but is a product of a mathematical calculation by which the initial offense is scored at a proportionately lower rate so that victim injury may be added where appropriate, in arriving at a total point score. Since the trial court properly included points for victim injury in the two homicides, there was no error in the sentences. Accordingly, the sentences are

AFFIRMED.

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


text:
    Clifford W. CARROLL, Appellant, v. STATE of Florida, Appellee.
    No. 84-202.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.

      James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant pleaded guilty to violation of probation, and elected to be sentenced under the new sentencing guidelines. The trial court rejected this request because the crime for which appellant had originally been placed on probation had occurred pri- or to the effective date of the guidelines. We remand for resentencing.

The State’s contention that appellant may not appeal because he pleaded guilty is not well taken. Á defendant may appeal a sentence which he contends is not in conformity with the guidelines, even after the entry of a guilty plea to the substantive charge. Key v. State, 452 So.2d 1147 (Fla. 5th DCA 1984).

On the merits, a defendant who was placed on probation prior to the effective date of the new sentencing guidelines and whose probation is revoked after they became effective may elect to be sentenced under the guidelines. Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984). This follows the supreme court’s mandate that the guidelines apply to sentences imposed after the effective date of the rule for applicable crimes committed prior thereto, where affirmatively selected by the defendant. In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla. 1983). Because defendant so elected here, he was entitled to be sentenced in accordance with the guidelines, although the trial court may determine, for clear and convincing reasons, that a departure from the guidelines is warranted. See, e.g., Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984). Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984).

The sentence is vacated and the case is remanded to the trial court for resentenc-ing.

REMANDED FOR RESENTENCING.

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


author: SCHEB, Judge.

text:
    Brian VILETA, Appellant, v. STATE of Florida, Appellee.
    No. 83-2397.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Brian Vileta challenges his sentences for carrying a concealed firearm, armed burglary, and grand theft as being imposed outside the recommended range of the sentencing guidelines. We reverse.

On February 3, 1982, the state charged defendant with carrying a concealed firearm in violation of section 790.01(2), Florida Statutes (1981). Defendant pled guilty and was placed on probation for three years. Subsequently, on April 18, 1983, an affidavit of violation of his probation was filed. Defendant pled guilty, his probation was revoked, and he was sentenced on the firearm charge on October 19, 1983.

In a separate unrelated incident, defendant was charged on July 19, 1982, with armed burglary in violation of section 810.-02(2) and grand theft pursuant to section 812.014. Defendant pled guilty to these charges but failed to appear for sentencing as scheduled in January 1983. Subsequently, he came before the trial judge for sentencing at the same date and time as the sentencing for the offense for which his probation was revoked.

Defendant elected to be sentenced under the new sentencing guidelines. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983); Harrington v. State, 455 So.2d 1317 (Fla.2d DCA 1984). In determining defendant’s sentences, the trial court used one scoresheet for the charge of carrying a concealed firearm and a separate scoresheet for the armed burglary and grand theft charges. Defendant was sentenced for sixty-six months on the armed burglary and, concurrently, sixty months on the grand theft. He received a thirty-month sentence on carrying a concealed firearm, consecutive to the armed burglary and grand theft sentences. Thus, he effectively received a total sentence of eight years.

On appeal defendant alleges a number of errors in the sentencing procedure of October 19, which resulted in his sentence being outside the recommended guidelines. First, he argues that the court erred in using two separate scoresheets to compute his sentence. He is correct. Florida Rule of Criminal Procedure 3.701(d)(1) is explicit on this point and states that only “[o]ne guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing” (emphasis added). This is true despite the fact that various offenses may have been committed by defendant on different dates. Since defendant’s “primary offense” was armed burglary, rule 3.701(d)(3), the score-sheet for carrying a concealed firearm must be stricken as incorrect. On resen-tencing, grand theft and carrying a concealed firearm are to be scored as additional offenses pursuant to rule 3.701(d)(4).

Defendant next correctly argues that the court erred in scoring his primary offense of armed burglary. Armed burglary is a first degree felony punishable by imprisonment for a term of years not exceeding life imprisonment. § 810.02(2), Fla.Stat. (1981). It is not a life felony. See § 775.082(3)(a) and (b). The trial judge, however, improperly scored this offense as a life felony presumably because the scoresheet for burglary offenses did not specify a point total for first-degree felonies punishable by life. Since, at the time of the sentencing, the guidelines only specified point assessments for first-degree felonies or life felonies, but nothing in between, see rule 3.988(e), the offense should have been scored as a felony of the first degree.

The record reveals that several times during the proceedings the trial judge made remarks to the effect that he intended to deviate from the guidelines by aggravating defendant’s presumptive sentence. Nevertheless, the imposition of a total sentence of eight years was within the recommended range based on the court’s own calculations. Since these calculations were incorrect (our own calculations resulted in a presumptive sentence of only three years), the sentences are actually outside the guidelines; yet, it is not clear from the record that the trial judge really intended to depart from the guidelines. Because of this ambiguity, we decline to address at this time the contentions of the parties concerning the court’s justification for deviating from the guidelines.

Accordingly, we vacate defendant’s sentences and remand for resentencing. On remand defendant should be sentenced under the guidelines in effect on October 19, 1983, with his score to be computed in accordance with our opinion. See Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984). Of course, a sentence must be imposed for each offense, but the total sentence cannot exceed the total guideline sentence, rule 3.701(d)(12), unless the court should desire to deviate from the recommended range, whereupon it shall state in writing its reasons for doing so. Rule 3.701(d)(ll). See Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984). We also point out that defendant’s judgment of conviction should be changed to indicate that he was charged with, and convicted of, armed burglary, a first-degree felony, rather than a second-degree felony. Should the trial court impose a sentence outside the range recommended by the guidelines, then either party may appeal after resentencing. §§ 924.06(l)(e), 924.07(9), Fla.Stat. (1983).

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

      . The information alleged a violation of section 810.02(3) when it should have alleged section 810.02(2). However, defendant clearly was aware that he was being charged with armed burglary, a violation of section 810.02(2), and no prejudice resulted to defendant due to the incorrect citation. See Wood v. State, 354 So.2d 134 (Fla. 1st DCA), cert. denied, 361 So.2d 836 (Fla.1978); King v. State, 336 So.2d 1200 (Fla. 2d DCA 1976), cert. denied, 345 So.2d 424 (Fla.), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977).

      . The guidelines were subsequently amended on May 8, 1984. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), No. 65,216 (Fla. May 8, 1984). The new scoresheets for category five (burglary) offenses now specify a separate point assessment for first degree felonies punishable by life, in addition to life felonies and first-degree felonies.


text:
    Albert SNEIJ, M.D., License No. 34499, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 84-213.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1984.
    Herzfeld & Rubin, New York City, and Jonas J. Schattner, Sunrise, for appellant.
    Joseph W. Lawrence, II, and John E. Hale and Julie Gallagher, Tallahassee, for appellee.
    Before SCHWARTZ, C.J., HUBBART, J., and SHARP, WINIFRED J. (Associate Judge).
   PER CURIAM.

The final administrative order under review is affirmed insofar as it finds that the respondent Dr. Albert Sneij was guilty of failing to keep appropriate medical records as charged in counts 8 and 12 of the administrative complaint. Plainly, substantial, competent evidence was adduced before the hearing examiner below to support the Board’s findings thereon. § 120.68(10), Fla.Stat. (1983).

The final administrative order under review is reversed, however, insofar as it finds that the respondent Dr. Albert Sneij was guilty of committing the acts of professional misconduct charged in counts 1-7, 9-11, 13-33 of the administrative complaint. We conclude that there was no substantial, competent evidence adduced before the hearing examiner below to support the Board’s findings thereon. § 120.-68(10), Fla.Stat. (1983). Indeed, the hearing examiner below found that these counts had not been proven due to the paucity of evidence presented thereon. The hearing examiner concluded the following in her recommended order:

“In the instant case, the Petitioner failed to establish by clear and convincing evidence that the Respondent, in his care and treatment of the eight patients named in the Administrative Complaint, inappropriately prescribed controlled substances or prescribed excessive amounts of controlled substances, made deceptive or untrue or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine, or prescribed controlled substances without good faith and outside the course of his professional practice. The Petitioner did establish by clear and convincing evidence, violations of Section 458.331(l)(n), Florida Statutes, in that the Respondent failed to keep written medical records justifying the course of treatment of John Marsden and Carol Rosen, as alleged at Counts 8 and 12 of the Administrative Complaint.”

A doctor testified at the hearing below that he had examined Dr. Sneij’s prescriptions and medical records on eight patients. These records, without dispute, were sparse and inadequate. Based on these records, as well as an investigative file, he concluded that the records kept by Dr. Sneij did not justify the heavy dosages of dilaudid prescribed for these patients by Dr. Sneij. This witness did not talk to any of the patients involved nor did these patients testify at the hearing. Dr. Sneij also testified at the hearing and admitted that his medical records were poorly kept. He denied any other wrongdoing, however, although his memory of the patients involved was somewhat shaky. No other witnesses testified at the hearing. Plainly, this evidence was woefully insufficient to establish any of the charges against Dr. Sneij, save for the record-keeping violations. See Walker v. Florida State Board of Optometry, 322 So.2d 612 (Fla. 3d DCA 1975).

Beyond that, the law is clear that the Board was not free to reject the hearing examiner’s findings when, as here, these findings were based on competent, substantial evidence. This being so, the Board had no authority, in any event, to reject summarily the hearing examiner’s findings and to substitute its own findings therefor. Kimball v. Hawkins, 364 So.2d 463 (Fla.1978); § 120.57(l)(b)(9), Fla.Stat. (1981).

Inasmuch as we are upsetting some of the essential findings of the administrative order under review, we are compelled to reverse the penalty imposed which was based, in part, on these findings, see § 120.68(10), Fla.Stat. (1983), and remand the cause to the Florida Board of Medical Examiners with directions to (1) modify the order under review so as to accept the hearing examiner's findings and (2) impose a new penalty on Dr. Sneij based solely on the record-keeping violations committed herein.

Affirmed in part; reversed in part and remanded.

SCHWARTZ, Chief Judge

(specially concurring).

While I do not disagree with the majority’s assessment of the evidence, I think it inappropriate for this court even to engage in such an exercise. I would base the conclusion to reverse solely on the ground that since the findings of the hearing officer, whose function it is to make these determinations, are supported by substantial competent evidence, the agency improperly set them aside. Section 120.57(l)(b)(9), Florida Statutes (1981); Kimball v. Hawkins, 364 So.2d 463 (Fla.1978).


author: HURLEY, Judge.

text:
    Patricia J. JOHNSON, Appellant, v. Jerome A. JOHNSON, Appellee.
    No. 83-2464.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.

      Norman D. Zimmerman, Pompano Beach, for appellant.
    Gary L. Self, Pompano Beach, for appel-lee.
   HURLEY, Judge.

The wife, Patricia J. Johnson, appeals from a final judgment of dissolution. We affirm in part and reverse in part.

The parties in this proceeding were married for twelve years and do not have any children. Prior to and during the marriage, the wife was employed by Pompano Beach Marine Center, Inc., a corporation owned by the husband and the husband’s father. (The husband owns 49% and his father owns 51% of the corporate stock.) The wife worked part-time for the corporation as a bookkeeper for ten years without salary. At the time of dissolution, she was an unemployed, full-time college student.

The final judgment of dissolution awarded the wife a one-half interest in the $77,-000 equity in the marital home, title to a 1979 Buick Regal automobile as lump-sum alimony, and $685 per month for four years as rehabilitative alimony. The trial court justified the equal division of the $77,000 equity in the marital home by reasoning that the husband was entitled to a special equity in the home, which amount was equal to the sum owed the wife as 49% of her compensation for bookkeeping services rendered to the corporation (which it la-belled “lump sum alimony ... for her equitable distribution”).

We first address the propriety of the trial court’s award to the husband of a special equity in the marital home, which the parties acquired as tenants by the entirety. At trial, the husband’s father testified that he gave his son the down payment of $24,800.00 in a cashier’s check which named only the son as payee. The father also stated that he did not expect repayment. The wife testified that her father-in-law told her he intended to make a gift of that sum to both parties. The father-in-law, however, denied ever discussing that issue with his daughter-in-law. In view of the contradictory testimony on this point, the trial court was free to disbelieve the wife. Although the father-in-law never testified that he did not intend a joint gift, there was sufficient evidence to support a finding of an exclusive gift to the son.

Thus, the husband carried his initial burden of proving that some of the consideration for the jointly held property was supplied from a source unconnected with the marital relationship. See Ball v. Ball, 335 So.2d 5 (Fla.1976). The burden was therefore on the wife to affirmatively show that the husband intended a gift when he placed the property in the joint names. Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978). This she failed to do. Under cross-examination, the wife admitted that her husband never said that he was making a gift of one-half of the down payment to her. The husband testified that he talked to the wife about the purchase of the home, but did not recall whether the issue of title was discussed.

On this record we cannot say that the special equity awarded to the husband was in error. The wife wholly failed to carry her burden of showing that a gift was intended; thus, the husband had no obligation to disprove donative intent. We therefore affirm the special equity awarded to the husband. Cf. Agudo v. Agudo, 449 So.2d 909 (Fla. 3d DCA 1984); Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980), petition for rev. denied, 392 So.2d 1375 (Fla.1980).

Next, we turn to the related issues of the trial court’s denial of the wife’s motion to join the closely-held corporation as a party defendant and the court’s adjudication of the wife’s claim against the corporation for work performed over a ten-year period. The trial court calculated a monetary figure for the wife’s work and, then, awarded her 49% of that figure, apparently on the theory that the husband, as a 49% minority stockholder, was responsible only for 49% of the corporation’s debts. This approach is manifestly unfair; it leaves the wife with half a loaf. The 49% award affirms the validity of her claim, but only provides partial satisfaction. This is erroneous.

In the first place, the trial court erred in characterizing the wife’s compensation as “lump sum alimony.” When a wife takes an active part in a family business, her direct contribution to the commercial enterprise must be recognized as a special equity in that business when the marriage assets are being allocated upon dissolution of marriage. Neff v. Neff, 386 So.2d 318 (Fla. 2d DCA 1980). Moreover, a “special equity” in the sense in which it is used here is not alimony. See Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). Accordingly, we vacate the 49% award and remand with instructions to grant the wife’s motion to join the closely held corporation as a party defendant, see Hoecker v. Hoecker, 426 So.2d 1191 (Fla. 4th DCA 1983), and to re-evaluate the wife’s claim in light of the principles set forth in Neff and Duncan, supra.

The next issue presented is whether the trial court erred in refusing to consolidate this proceeding with a pending suit filed by the father-in-law seeking to establish a resulting trust in real estate owned jointly by him and the parties. Because the ends of judicial economy would be better served if the parties are allowed to finally adjudicate all issues relevant to distribution of marital property in one proceeding, we find that the refusal to consolidate amounted to an abuse of discretion and reverse on this point. Cf. Tropic-Air Development Co. v. Rosen, 248 So.2d 537 (Fla. 3d DCA 1971), cert, denied, 252 So.2d 800 (Fla.1971).

The wife further argues on appeal that the trial court erred in failing to order a partition of the marital home. We disagree. The wife’s petition for dissolution requested the court to partition the parties’ real property, but did not contain a full description of the property at issue. Thus, her request for partition did not conform to the requirement of Section 64.041, Florida Statutes (1983). The trial court therefore had no authority to order partition of the home. See Wischman v. Wischman, 310 So.2d 428 (Fla. 2d DCA 1975); cf. In re Marriage of McDade, 359 So.2d 38 (Fla. 2d DCA 1978).

We have also reviewed the wife’s challenge to the sufficiency of the rehabilitative alimony award, and conclude that reasonable people could differ as to the propriety of the award. We are therefore bound to affirm. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983). For the same reason, we are not free to disturb the trial court’s refusal to award permanent alimony: A determination by this court that the wife has been “short changed” would fall within the prohibition of Conner, supra.

Finally, we affirm the partial attorney fee award to the wife because the record does not contain a copy of the trial court’s final order on fees and costs, see Peace Creek Drainage District v. Turner, 97 Fla. 486, 121 So. 469 (1929), or a transcript of the attorney’s fees hearing. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Starks v. Starks, 423 So.2d 452 (Fla. 1st DCA 1982).

In sum, we reverse the final judgment of dissolution insofar as it denies the wife’s motion to join the corporation as a party defendant and her motion to consolidate the collateral real estate proceeding, and remand for further proceedings to determine the amount the wife is entitled to as a special equity in the family business, and the interest, if any, that she is entitled to in the collateral real estate. In all other respects the judgment on appeal is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

ANSTEAD, C.J., and GREEN, OLIVER L., Jr., Associate Judge, concur.

      . We do not believe that a special equity award is a question of fact shielded from appellate review under Conner v. Conner, 439 So.2d 887 (Fla.1983). See Haney v. Haney, 450 So.2d 256 (Fla. 2d DCA 1984).


author: PER CURIAM. LETTS, Judge,

text:
    Willie PEAVY, Petitioner, v. JUDGE, DIVISION “S”, FIFTEENTH JUDICIAL CIRCUIT, Respondent.
    No. 84-1299.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Richard L. Jorandby, Public Defender, and Donnie Murrell, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition to prevent the court below from bringing him to trial beyond the speedy trial period.

Petitioner was arrested on November 28, 1983, and charged with a strong-arm robbery. The State filed a petition in juvenile court charging petitioner with that offense. However, on January 4, 1984, the state attorney nol-prossed the juvenile case and filed an information charging petitioner as an adult. Judge Adams issued a felony warrant in Belle Glade and petitioner was rearrested. On February 16, 1984, at the arraignment before Judge Adams, an assistant public defender orally entered a plea of not guilty and said that he waived jury trial on behalf of petitioner. Petitioner did not execute a written waiver of jury trial and the court did not conduct an examination of petitioner to determine whether or not he voluntarily and intelligently waived jury trial. Also on February 16, the trial judge set the case on the March 29,1984 non-jury trial docket. On March 8, 1984, petitioner’s counsel filed a notice of election to have the case transferred to West Palm Beach and requested a jury trial. On March 16th, Judge Adams transferred the case to West Palm Beach. The court promptly set the case for jury trial with a calendar call scheduled for May 25, 1984. The record is silent as to what activity, if any, occurred between March 16 and May 25th. On May 25th petitioner announced ready for trial but the State requested a continuance because it had not issued its witness subpoenas. On June 1, 1984, petitioner filed his motion for discharge under the speedy trial rule. The court granted the State a week to respond and on June 8th, after an additional hearing, the court ruled that the notice of election to transfer the case to West Palm Beach constituted a defense continuance waiving his right to speedy trial.

Petitioner contends that his notice of election to transfer the case to West Palm Beach and his demand for jury trial should not be construed as a defense continuance which waived his speedy trial rights. We agree.

Respondent relies on Atkins v. State, 265 So.2d 72 (Fla. 3d DCA 1972) and Barlow v. State, 345 So.2d 758 (Fla. 1st DCA 1977) to support the trial court’s determination that the petitioner’s actions constituted a defense continuance which resulted in a waiver of his right to speedy trial. We find both of these cases distinguishable from the case sub judice. In Atkins, the defendant had made a valid waiver of jury trial which he subsequently withdrew and then requested jury trial. Here, petitioner did not validly waive his right to jury trial. See Williams v. State, 440 So.2d 1290 (Fla. 4th DCA 1983). In Barlow, the defendant requested transfer of his case from municipal court to county court; that is, a transfer from the jurisdiction of one court to another. Here, petitioner requested an in-tra-eourt transfer, pursuant to local administrative order. Barlow made his request on the last day of the speedy trial period.

Petitioner had a fundamental right to trial by jury. He also had the option, pursuant to local administrative order, to have that trial take place in West Palm Beach. He exercised his right and his option at an early stage in the proceedings with ample time remaining in the speedy trial period. On the other hand, ten weeks after petitioner’s request for trial by jury in West Palm Beach, nine weeks after petitioner’s case was set on the trial calendar, and the 179th day of the speedy trial period, the State requested a continuance because it had not yet issued its witness subpoenas. The State has failed to demonstrate how petitioner’s request for jury trial in West Palm Beach constituted a delay chargeable to the accused as a defense continuance.

Accordingly, we remand this cause to the trial court with directions to discharge the petitioner and order his release from custody in this matter. We withhold formal issuance of the writ of prohibition since we are confident the trial court will follow the mandate of this court.

GLICKSTEIN and DELL, JJ., concur.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting.

I disagree. The defendant’s counsel appeared at the arraignment in Belle Glade, specifically pled his client not guilty to strong-arm robbery and asked that trial be set on the nonjury docket in Belle Glade.

Pursuant thereto, the case was set for nonjury trial in Belle Glade well within the speedy trial period. Subsequently, the defendant elected to have a later jury trial held in West Palm Beach. The trial judge found this election tantamount to a request for a continuance. So do I.

It is conceded that a waiver of jury trial must be in writing and that the defendant must be examined to determine the volun-tariness of the waiver. It is also conceded that the waiver here was not in writing and there was no such examination. So what? That merely establishes the defendant could still have demanded a jury trial. I do not think it follows that his counsel’s procedural posture, accidental or deliberate, for the purpose of gaining time to look into the matter further, should be used to dismay the prosecution.

Moreover, we have before us a petition for a writ of prohibition. The woods are full of appeals seeking to reverse erroneous rulings by trial judges relative to speedy trial which we normally receive on plenary review. Here we avoid actual issuance of the writ and content ourselves with a mandate, but its effect looks like prohibition and smells like prohibition to me.

      . ADMINISTRATIVE ORDER NO. 1.006-1/80 Circuit Court Criminal

      Normally, all felony jury trials are held at the main courthouse in West Palm Beach; however, where the situs of the crime is within the Glades Jury District, defendant’s counsel may request a jury trial at the Glades Annex. In all such cases, the Clerk shall furnish defendant’s counsel with form of "Notice and Preference re Jury District," which form shall be signed and filed by him no later than fifteen days after the case is set for trial.