author: ERVIN, Chief Judge. NIMMONS, Judge,

text:
    TACO NACHO, INC., Appellant, v. HASTY HOUSE RESTAURANTS, INC., Appellee.
    No. AM-178.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.

      Louise Stanton Warren and Carol Wind Donnelly, Jacksonville, for appellant.
    Daniel D. Akel of Blalock, Holbrook & Akel, P.A., Jacksonville, for appellee.
   ERVIN, Chief Judge.

Taco Nacho, Inc.” (Taco), appeals from a final judgment, entered following a non-jury trial, awarding plaintiff/appellee Hasty House Restaurants, Inc. (Hasty), damages for failure of Taco to make payments to Hasty on a promissory note. Taco also appeals from that portion of the final judgment relating to Taco’s counterclaim for breach of a lease agreement by Hasty, contending that the trial court erroneously computed the damages awarded for the breach. We affirm in part and reverse in part.

The promissory note and sublease agreement were executed on December 15, 1978, by Taco to Hasty for the purpose of Taco’s operating a new restaurant in Jacksonville. Hasty sold Taco certain restaurant equipment, and, after having paid $5,000 down in cash, Taco gave Hasty a note in the amount of $15,000 in payment. The principal and interest were payable in thirty-six monthly installments of $484, commencing on February 1, 1979. The note provided Hasty the option of accelerating the entire indebtedness upon Taco’s default. It further provided that “a default under the sublease executed this date by Maker to Hasty House Restaurants, Inc. shall be a default hereunder.”

The sublease was executed on the same date as the note. Under its provisions, Taco was required to pay rent in the sum of $1,000 per month, commencing on February 1, 1979. Taco had the option to renew for an additional five-year term under the same provisions as the original lease-term, which was to expire on December 31, 1982. Although Taco, as sublessee, agreed generally to comply with the conditions of the leases between Hasty and Grace Company, the owner of the premises, it was Hasty’s responsibility to continue making its periodic rentals to Grace Company, as required by the main lease agreement with Grace. And, in the event that Hasty failed to pay such amounts, Taco, as sublessee, had “the right to pay ... rental[s] directly to the Lessor and to deduct same from the rent due [Hasty] ...” There was an additional clause which provided that “a default under the promissory note in the amount of $15,-000 executed this date by sublessee and payable to sublessor shall be a default under the sublease.” (e.s.)

After approximately eight months, or on October 20, 1979, Hasty defaulted on its lease agreement with Grace by failing to pay the monthly rental amounts required; as a consequence of which Grace terminated its lease with Hasty and notified Taco of the termination, advising that all future rentals, in a sum excess of that Taco had agreed to pay to Hasty, should be paid by Taco directly to Grace. Taco was permitted by Grace to continue in possession of the premises on a month-to-month basis. Citing Hasty’s default, Taco stopped making payments on the note to Hasty, which then accelerated the indebtedness remaining unpaid, and filed suit against Taco, claiming entitlement to judgment for the balance due, as well as reasonable attorney’s fees. Taco counterclaimed for damages caused by Hasty’s breach of the sublease agreement.

In answer to Hasty’s claim for damages resulting from Taco’s failure to make the payments required by the note, Taco replies that the trial court erred in refusing to hold that Hasty’s breach of the sublease agreement operated also to release Taco of its obligations under the note. Taco argues that had the court applied the “contemporaneous instrument rule,” the note and sublease agreement would have been construed as one agreement, and upon its breach by Hasty, any further performance required of Taco would also be excused.

We disagree that the note and sublease agreement are such that they should be considered as one under the contemporaneous instrument rule. See 6 Fla. Jur.2d Bills and Notes § 114. Compare Policastro v. Rudt, 180 So.2d 472 (Fla. 2d DCA 1965). But even if we were to agree that such instruments should be considered as one agreement, Taco could not, as it seeks to do in this action, enforce the sublease agreement by seeking damages for its breach and, at the same time, inconsistently maintain that it is completely discharged from any further promises under the note. The evidence supported the trial court’s treatment of the note and sublease agreement as separate obligations. A contrary result is not indicated by the presence of the above-referred provisions in each of the two instruments providing that Taco’s breach of one would be deemed to be a breach of its responsibilities under the other instrument.

Taco also contends that the amount awarded Hasty by the trial court for breach of the note is not supported by the evidence. The final judgment provides for recovery on the note in the sum of $14,035 ($12,934 principal and $1100 interest). Such sum is substantially at variance with the testimony presented by Hasty in support of its damages. The trial court also awarded Hasty $900 as a reasonable attorney’s fee. This was attributable to Hasty’s prosecution of its claim on the note. Hasty was entitled to a reasonable attorney’s fee under the terms of the note. However, it appears that such fee was determined, in part, by the amount of damages awarded Hasty in the final judgment. Since, for the reasons stated, the amount of damages provided in the final judgment will, on remand, have to be refigured by the trial court, the amount awarded for attorney’s fees will also be vacated and, on remand, the trial court will also redetermine the amount of attorney’s fees to be awarded.

Taco further asserts that the $7,200 damages awarded Taco on its counterclaim for Hasty’s breach of the sublease agreement were insufficient in that the damages awarded did not take into consideration additional sums Taco would have to pay for rental of the subject premises after December 31, 1982, the date on which the initial term under the sublease agreement was to expire. If awardable, this element of damages would be attributable to Taco’s loss of its option to renew for an additional five-year term at the same rental provided in the sublease agreement. The specific error which Taco asserts the trial court committed was in sustaining Hasty’s objection to testimony as to what rental Grace Company would continue to charge Taco for renting the premises after December 31, 1982. Hasty responds that damages for the amounts Taco would be required to pay Grace after the expiration of the lease would be too speculative as the trial occurred on March 23, 1981, and the deadline for Taco under the terms of the lease to furnish notice of its option to renew would not occur until August 31, 1982.

The trial court apparently agreed with Hasty’s position. The objection to the admissibility of future damages, and the court’s ruling thereon, is specifically reflected in the following portion of the record:

THE WITNESS: Okay. Had we continued to operate under our agreement with Hasty House, our rent would have been $1,000 per month through the termination of the agreement which would have been through 1987.
MR. MASON: Your Honor, then I’d object to him making any projection, because that is if the option were exercised.
The actual lease terminated before— terminated in 1982 with a 5-year option to renew, and there’s been no testimony.
And, there can be no testimony as to what they would have done in 1982 as far as extending the option, and their damages should be limited under the breach if the Court finds that there is a breach to the period for the term of the Lease.
MS. WARREN: Your Honor, I think an Option to Lease property is an ownership interest in property, and I think that should be considered here as well as the practical matter of the business is as a growing concern. It’s obviously going to be operated at that same location.
THE COURT: What were the terms of the Option?
MS. WARREN: Just that the tenant has the right to do so at the end of the first five year term.
MR. MASON: Your Honor, there’s been no showing that they were obviously going to exercise their option.
THE COURT: Let me look at it and see. Excuse me. (Thereupon a brief recess was had.)
MS. WARREN: You were going to make a ruling whether or not he could give testimony on the second part of the lease on the exercise of the option.
THE COURT: And I’m going to sustain the objection. I’ve reviewed the lease. I think that’s too speculative. I don’t think the parties are in the position to know what they would be doing.

As it appears from the above, the court’s decision that such damages were speculative was based simply on the terms of the lease, not upon the substantiality of evidence concerning what the parties had in fact submitted on the question of whether it was probable that Taco would renew. The proper approach, under the circumstances, was for the trial court, acting as trier of fact, to have considered the existence of the renewal option, regardless of whether it had yet been exercised, and to award damages based upon the option, if it reasonably believed from the evidence that the lessee would have exercised it. Cf. State Road Department of Florida v. Tampa Bay Theaters, Inc., 208 So.2d 485, 487 (Fla. 2d DCA 1968). The lower court had before it the following evidence going to that issue: After being forced to buy $20,-000 worth of equipment from Hasty House, most of which was unusable in Taco’s operation, Taco purchased an additional $7,000 worth of equipment. Moreover, for the first eight months of the four-year lease, Taco promptly paid all of the $484 monthly installments for which it was obligated under the terms of the $15,000 note, and, after Hasty’s default of its obligation to Grace, made all increased monthly rental payments to Grace. The court has not yet ruled on whether such evidence would support a reasonable determination that Taco, had it not been for Hasty’s breach, would, within a reasonable probability, renew. It will be given such opportunity on remand.

As a general rule, in construing provisions relating to renewals or extensions of leases, where there is any uncertainty, the tenant is ordinarily favored, and not the landlord. 50 Am.Jur.2d, Landlord and Tenant § 1162, at 48 (1970). As it appears from the excerpted portion of the above record, the answer of the witness under examination, the president of Taco Nacho, Inc., clearly contemplated that the option would be exercised for an additional five-year period. Although it would have been preferable for the appellant’s attorney to have obtained a proffer of Taco’s intended testimony relating to the sublessee’s intention to renew, we fail to see that any such additional testimony was necessary in view of the court’s ruling. The rule is clear that if a proffer would be unavailing, failure to proffer the testimony will not preclude the urging of it on appeal. See Seeba v. Bowden, 86 So.2d 432 (Fla.1956). General Portland Land Development Co. v. Stevens, 291 So.2d 250 (Fla. 4th' DCA 1974). We therefore conclude the lower court’s preclusion of such evidence on the specific basis that the terms of the lease rendered it too speculative to consider was error.

It also does not clearly appear from the lower court’s final judgment whether it credited, for the benefit of Taco, a security deposit in the amount of $2,000, together with all accrued interest, that Taco was required by the lease to place with Hasty as security for the performance of its obligations. The court shall consider these items in redetermining the sum due Taco on its counterclaim.

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

MILLS, J., concurs.

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

NIMMONS, Judge,

concurring in part and dissenting in part.

I concur with the majority’s opinion in all respects except that, with respect to Taco’s counterclaim for Hasty’s breach of the lease agreement, I do not believe that the trial court erred in sustaining Hasty’s objection to testimony as to what rental Grace Company would continue to charge Taco for renting the premises after December 31, 1982. Such testimony would have been admissible if Taco had presented sufficient evidence from which it could reasonably be inferred that Taco would have exercised its right under the option to renew for another five-year term at the end of the initial term. However, Taco failed to offer evidence which would have entitled the trial court to find that it would have exercised such option.

Taco presented no evidence that it intended or even wished to continue operating at the subject premises after December 31, 1982. There was no testimony indicating the economic health or growth of Taco’s restaurant business which might have been considered as a circumstance supporting an inference that Taco would have renewed its option at the end of the original lease term in December 1982.

I am not persuaded that the evidence outlined in the majority’s opinion concerning Taco’s purchase of restaurant equipment and Taco’s regular rental payments on the leased premises was such that it could reasonably be inferred that Taco, when the time came, would have exercised its right to renew.

There was, therefore, no evidentiary foundation to permit the testimony Taco sought to elicit as to what rental Grace Company would probably charge Taco to continue renting the subject premises after December 31, 1982. In this regard, I respectfully dissent. Otherwise, I fully concur with the majority’s opinion.

      . After Hasty’s breach of the sublease agreement in October, 1979, Grace, as previously stated, continued to permit Taco to rent the subject premises under an oral agreement at $1100 a month but for no definite term. The damages awarded Taco by the trial court only included amounts attributable to increased rentals Taco would have to pay through the end of the initial four-year term, December 31, 1982.


source: Caselaw Access Project

author: MILLS, Judge. ERVIN, Chief Judge,

license: Public Domain

text:
    Larry VARNER, Appellant, v. STATE of Florida, Appellee.
    No. AO-56.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.

      Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Varner was convicted and sentenced for robbery with a firearm and attempted first degree murder. He contends in this appeal that the trial court erred in allowing him to represent himself at trial and in failing to grant a continuance on the court’s own motion. We affirm.

After Varner had been charged with the crimes for which he was later convicted, the Public Defender’s Office was appointed to represent him, and Harvey E. Baxter, Esquire, was assigned to the case. Varner became dissatisfied with Baxter, however, because he did not interview and apparently did not plan to use several unnamed witnesses which Varner considered to be necessary to his defense. On 24 May 1982, Varner filed a motion asking the trial court to appoint him a new attorney.

One day prior to trial, a hearing was held on that motion. Varner indicated at the hearing that he would like to have a new attorney appointed, but that if one could not be appointed, he wished to represent himself at trial. The trial court explained that new counsel would not be appointed and that his only options were either to have Baxter represent him or to proceed pro se. Faced with that choice, Varner elected to proceed pro se. Before allowing him to do so, however, the trial court warned him of the dangers and disadvantages of self-representation as it was required to do under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Our examination of the record convinces us that Varner knowingly and intelligently waived his right to assistance of counsel at trial. Thus, there was no error in allowing him to represent himself. State v. Cappetta, 216 So.2d 749 (Fla.1969).

Although not cited by the parties, we note parenthetically that the facts in this case are somewhat similar to those in Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982). However, after careful consideration, we find Keene distinguishable in two respects. First, Keene indicated that Connor, the attorney appointed to represent him at trial, had lied to him. This alleged conduct by Connor apparently generated some degree of ill feeling in Mr. Keene. On the other hand, Varner was dissatisfied with Baxter merely because of a disagreement over trial strategy. Second, unlike Varner, Keene never asserted that he wished to represent himself at trial.

Finally, we find no error in the trial court’s failing to grant Varner a continuance on its own motion. At trial, Varner indicated that he considered the testimony of Veronica Turner to be essential to his case. Turner had not been subpoenaed by the State or by the defense, however, and on the morning of the trial, Varner indicated that he did not wish her subpoenaed. Although he later recanted and stated that he did wish to have Turner subpoenaed, he never moved for a continuance. Varner has cited no authority, and we see no reason why his convictions should be reversed because the trial court failed to grant a continuance on its own motion.

AFFIRMED.

LARRY G. SMITH, J., concurs.

ERVIN, C.J., dissents with opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. In my judgment there is no material distinction between the facts before us and those in Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982). In both cases the defendants became dissatisfied with their court appointed attorneys and requested other counsel. In both cases the trial court gave the defendants the Hob-son’s choice of proceeding with the counsel assigned or self-representation. Faced with those limited options, the defendants elected to represent themselves. In Keene, we recognized that Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)

places the duty on the trial court, upon receiving a timely motion to proceed pro se, to make the defendant aware of the benefits he must relinquish, and the dangers and disadvantages of self-representation. Thereafter the trial court must determine whether defendant has made his choice voluntarily and intelligently. We have further held that the trial court should determine whether unusual circumstances exist which would cause the accused to be deprived of a fair trial if permitted to conduct his own defense, and that the purpose of such inquiries, such as the accused’s age, mental derangement, lack of knowledge, education, or inexperience in criminal proceedings, is to make certain that defendant is aware of the disadvantage under which he is placing himself by waiving counsel. Costello v. Carlisle, 413 So.2d 834 (Fla. 1st DCA 1982). See Robinson v. State, 368 So.2d 674, 675 (Fla. 1st DCA 1979), Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978).

Keene v. State, 420 So.2d at 910 (emphasis in original). Although the inquiry conducted by the trial judge below was far more thorough than that in Keene, the defect in both cases was the same: the failure of the record to demonstrate that the request to proceed pro se was clear and unequivocal.

In the case on review, at the outset of the hearing on the motion, which was labeled only for appointment of new counsel, and made no reference to pro se representation, the lower court advised the defendant that he could either proceed with appointed counsel or without counsel if the court found that he had the capability of representing himself. Faced with these limited choices, the defendant replied:

Well, I have decided like — I know I don’t have the qualifications as a lawyer and capability of a lawyer and I don’t know the court procedure — I feel as though, right, you know, if the jury bring a verdict of guilty back, I’m the one that have to do the time. And I do feel as though Mr. Baxter is not giving me the representation. So I will decide to represent myself.

Thus, appellant’s assertion of his right to self-representation was precisely like that of Keene’s: he simply felt he could do no worse in defending the case himself than could his appointed lawyer, with whom he had substantial conflict. The record hardly comports with the requirements stated in Faretta v. California that a defendant’s request to proceed pro se be clear and unequivocal. Observe the following:

MR. CERVONE: Do you feel that you are, in any circumstance, competent to represent yourself, or is it that you feel competent only because you don’t specifically want Mr. Baxter on the case?
MR. VARNER: Mr. Cervone, I don’t feel like I’m competent to represent myself during the trial, but, you know, where I’m at now, I don’t feel I’m getting no justification from Mr. Baxter as my attorney.

The prosecuting attorney himself voiced his own concern over the defendant’s competency to represent himself:

MR. CERVONE: By his own statements, he is not qualified. I think it’s simply a matter of different opinions between he and his legally trained counsel as to how he should be represented. I think we would be doing a great disservice against Mr. Varner to allow him to proceed pro se.
THE COURT: Well, he does have a constitutional right to make that request.
MR. CERVONE: Only if he’s qualified. But when he sits here and says, “I don’t feel competent to represent myself on this charge. If my option is this lawyer or myself, I’ll do it,” I don’t think that makes him competent.

Later on during the hearing, the prosecutor advised the court that there would later be submitted at trial technical testimony from a ballistics expert, and further expressed his reservations about the defendant’s ability to conduct meaningful cross-examination of such a witness.

As the record does not establish the defendant made a clear and unequivocal request to act as his own lawyer, I would, as in Keene, reverse the conviction and remand the case for new trial.


author: PER CURIAM.

text:
    Paul R. LAYTON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AP-249.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.
    Paul R. Layton, Lowell, pro se, for appellant.
    Enoch J. Whitney, Parole & Probation Com’n, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. May v. Florida Parole and Probation Commission, 435 So.2d 834 (Fla. 1983).

JOANOS, WIGGINTON and ZEHMER, JJ., concur.


author: PER CURIAM. NIMMONS, Judge,

text:
    Junior Wiley SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. AP-396.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.

      Junior Wiley Sullivan, pro se, for appellant.
    Wallace E. Allbritton, Tallahassee, for appellee.
   PER CURIAM.

Sullivan appeals the lower court’s denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, wherein he alleged, among other grounds, ineffectiveness of counsel. As no portion of the record on appeal conclusively reveals that Sullivan is entitled to no relief, we remand this cause to the trial court for an evidentiary hearing with respect to the issue of effectiveness of counsel. The trial court need not address any of Sullivan’s other allegations.

REVERSED AND REMANDED.

ERVIN, C.J., and WENTWORTH, J., concur.

NIMMONS, J., dissents.

NIMMONS, Judge,

dissenting.

Appellant’s motion fails to allege facts which, if proved, would establish ineffective assistance of counsel. In my view, the trial court correctly denied the motion without an evidentiary hearing.


text:
    The COCA-COLA COMPANY—FOODS DIVISION, and General Accident Group, Appellants, v. Willie LONG, Appellee.
    No. AR-60.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.

      Jesse F. Sparks, P.A., Orlando, for appellants.
    Irvin A. Meyers, of Meyers & Mooney, Orlando, for appellee.
   PER CURIAM.

We affirm the well-reasoned opinion of Deputy Commissioner Wieland requiring the carrier to continue paying supplemental benefits to claimant until the Administrative Trust Fund affirmatively takes over such payments.

The claimant was injured on June 6,1973, and has been paid permanent total disability benefits since that time. In accordance with § 440.51(l)(b), Florida Statutes (1981), the carrier initially assumed the responsibility for making the supplemental benefit payments due claimant under § 440.15(l)(e), Florida Statutes (1981). On April 13, 1982, the carrier wrote to the Division of Worker’s Compensation requesting that it take over the supplemental benefit payments to claimant. The Division indicated in a letter to the carrier dated April 28,1982, that it would review the claimant’s file and that supplemental payments, if approved, would be made retroactive to May 4, 1982. Based upon this letter, the carrier terminated payments on May 4, 1982. On September 13, 1982, the claimant filed a claim for supplemental benefits because he had not received any payments since May 4, 1982.

We specifically approve the following findings from Deputy Commissioner Wie-land’s order of January 14, 1983:

2. That the claimant is due supplemental benefits subsequent to May 4, 1982, from the carrier until such time as the Administrative Trust Fund commences the payment of these benefits. This finding is based on the fact that the claimant is permanently and totally disabled, is entitled to the benefits and had been receiving supplemental benefits from the carrier until May 4,1982, when they were arbitrarily terminated. Following that termination date the carrier made no further inquiry to determine whether or not the Administrative Trust Fund had commenced the payment of these benefits and the carrier paid no additional supplemental benefits until November 1, 1982, when the carrier paid supplemental benefits for the period from May 5, 1982, through November 7,1982. Florida Statute 440.15(l)(e) was enacted to provide minimal relief against inflation for a worker who is permanently and totally disabled and the injured worker should not be deprived of those benefits because of an administrative breakdown or lack of communication between the Administrative Trust Fund and the carrier. Once the carrier commences the payment of these benefits it has a duty to continue payment as long as the claimant remains entitled or until payments are commenced by' the Administrative Trust Fund. (Emphasis added).

We also affirm the deputy commissioner’s award of attorney’s fees to claimant.

AFFIRMED.

JOANOS, WIGGINTON and ZEHMER, JJ., concur.

      . Section 440.51(l)(b) provides:
      The insurance companies may elect to make the payments required under s. 440.15(l)(e) rather than having these payments made by the division. In that event, such payments will be credited to the insurance companies, and the amount due by the insurance company under this section will be reduced accordingly.


text:
    Kenneth GOODSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AT-63.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1983.
    Kenneth Goodson, pro se, for appellant.
    John C. Courtney, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

The Commission’s motion to dismiss is denied. The circuit court’s order is AFFIRMED.

ROBERT P. SMITH, Jr., WIGGINTON and NIMMONS, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant/Petitioner, v. Ralph MARTHALLER, Appellee/Respondent.
    Nos. 82-1236, 83-1370.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1983.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant/petitioner.
    Charles I. Poole, Miami, for appel-lee/respondent.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the manifestly erroneous order suppressing a weapon seized from the defendant Marthaller and remand the cause for trial on the information charging Mar-thaller with carrying a concealed weapon.

The order of suppression under review recites in pertinent part:

“1. At approximately 1:15 A.M., on November 17,1981, Officers J. Moore and E. MacDougall of the Metro-Dade Police Department responded to a call of a disturbance involving men with guns at the Saga Bay Lounge, 20305 Cutler Road, Dade County, Florida. Upon arrival at the scene, the officers saw the Defendant, Ralph Marthaller, standing outside the door of the lounge. After entering the lounge and obtaining information from several witnesses, Officer Moore learned that the Defendant had been involved in an altercation with another patron inside the lounge approximately 15 minutes earlier and had produced a pistol and threatened the other patron with it.
“2. Returning outside the bar, Officer Moore observed that Defendant Marthal-ler had a bulge under his shirt in the waistline which resembled the shape and size of a pistol. Upon patting down the Defendant for her own safety, Officer Moore found a loaded .25 caliber sturm revolver in the Defendant’s waistband under his shirt. Officer Moore seized the revolver and placed the Defendant under arrest on the charge of carrying a concealed firearm. The pistol was subsequently tested by Officer Moore and found to be in operable condition.”
“Wherefore, on the basis of the foregoing facts, the Court finds that the firearm in question was unlawfully seized from the Defendant, Ralph Marthaller, following an illegal search, since the Defendant was physically searched by the arresting officer without being placed under arrest prior to the search for an offense against the laws of the State of Florida.”

The intricacies of the law of search and seizure have confounded courts and plagued professors for years and likely will continue to do so for years to come. Thus, it is unusual to find a case, such as the one before us, the result of which is not even fairly debatable and will come as no surprise to the most intransigent criminal defense attorneys and the most critical of law review commentators. The trial court’s order is reversed on the authority of McNamara v. State, 357 So.2d 410 (Fla.1978), which, apart from the caliber of the pistol found in the defendant’s pocket and the name of the defendant, is indistinguishable from the present case; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which first sanctioned, on even less probability that the defendant was armed, a search such as that made here; and State v. Abislaiman, 437 So.2d 181 (Fla. 3d DCA 1983); Acosta v. State, 431 So.2d 715 (Fla. 3d DCA 1983); Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981); State v. Byham, 394 So.2d 1142 (Fla. 4th DCA 1981); State v. Forbes, 353 So.2d 638 (Fla. 3d DCA 1977); and Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977), all of which make clear that it is wholly irrelevant that the frisk and discovery of the weapon preceded the defendant’s arrest.

Ordinarily, this would be the end of the matter. However, we have before us in Case No. 83-1370 the State’s petition for writ of certiorari seeking review of the trial court’s order refusing the State’s motion to reconstruct the record. The State’s motion was necessitated by the fact that the court reporter’s notes of the motion to suppress hearing were lost.

Officer Moore was the sole witness at the suppression hearing. Although there was absolutely no dispute about the testimony she gave at the suppression hearing and such testimony was identical to testimony she had previously given in a discovery deposition which was transcribed and available, the trial judge, giving no reason therefor, refused to allow the State to reconstruct the record. While we find the trial court’s action, or inaction, to be unjustified and arbitrary, we also find that we have no need for a record of the suppression hearing to decide the State’s appeal. The trial court’s suppression order recites all the facts necessary for us to determine that its conclusion is erroneous. Therefore, the State’s petition for writ of certiorari, more properly a motion to review, is dismissed as moot in light of our disposition of the State’s appeal.

Accordingly, the order of suppression under review in Case No. 82-1236 is reversed and remanded; the petition for writ of certiorari in Case No. 83-1370 is dismissed as moot.


text:
    ELLIOTT ENTERPRISES, INC. and Salvation Ltd., Inc., Appellants, v. Joseph SEROTA and Rose Serota, Appellees.
    No. 83-596.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 1983.
    Myers, Kenin, Levinson, Ruffner, Frank & Richards and William M. Grodnick, Miami, for appellants.
    No appearance, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellants, Elliott Enterprises, Inc. and Salvation Ltd., Inc., defendants and cross-defendants in the trial court, moved to dismiss the crossclaims filed against them by the Serotas on the ground of insufficiency of service of process, namely, that service by summons, not (as was done) by mail, was required. The trial court denied the motion, and pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), the appellants appeal.

We reverse the order under review upon the authority and reasoning of Fundaro v. Canadiana Corporation, 409 So.2d 1099 (Fla. 4th DCA 1982), which unequivocally holds that crossclaims against co-defendants require service by summons unless, which is not the case here, that requirement is waived. Id. at 1100.

Reversed with directions to dismiss the crossclaims for insufficiency of service of process.


text:
    Charles LYNN and Bobby Moore, Appellants, v. STATE of Florida, Appellee.
    Nos. AM-494, AN-187.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1983.
    Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Administrative confinement is not an arrest under the speedy trial rule and, therefore, it does not start speedy trial time. Powers v. State, 422 So.2d 981 (Fla. 1st DCA 1982).

The trial court properly denied the motion for discharge filed by Lynn and Moore because speedy trial time had not expired.

AFFIRMED.

LARRY G. SMITH, J., concurs.

ERVIN, C.J., specially concurs with opinion.

ERVIN, Chief Judge,

specially concurring.

Although I concur in the affirmance, I do not agree with the majority’s broad statement that “administrative confinement is not an arrest under the speedy trial rule, and therefore, it does not start speedy trial time.” Ante at 416. The majority relies upon Powers v. State, 422 So.2d 981 (Fla. 1st DCA 1982), for its position. The Powers opinion, however, was careful to say that “the evidence [did] not show an arrest as of the date of administrative confinement for purposes of commencing the 180-day speedy trial time.... ” 422 So.2d at 982 (e.s.). This rather cryptic statement does not enlighten us as to the circumstances involving the administrative confinement. As an appellate court is permitted to take judicial notice of its own records, Irvin v. Chapman, 75 So.2d 591 (Fla.1954); Foxworth v. Wainwright, 167 So.2d 868 (Fla.1964), I examined the record that was before the court in Powers and discovered that the appellants’ confinement may have been motivated by reasons other than the offenses which eventually gave rise to the charges filed. I found that a racial disturbance had occurred at the institution, following which the defendants were placed in administrative confinement. The evidence in the instant case also reflects that a riot occurred at the prison, resulting in appellants’ immediate confinement in maximum security.

If the record before us had disclosed only that the administrative confinement was solely the result of the conduct which gave rise to the charges later filed, I would have no difficulty in agreeing with appellants’ contention that speedy trial time is triggered once the inmate is placed in administrative confinement. For example, in State v. N.B., 360 So.2d 162 (Fla. 1st DCA 1978), we held that two prison inmates were taken into custody for purposes of the speedy trial rule, when they were advised of their Miranda rights, questioned about the incident, and informed that charges would probably be filed, although they were not then formally arrested.

My belief that administrative confine-: ment may, under such circumstances, commence the running of speedy trial time is further bolstered by the provisions of Florida Rule of Criminal Procedure 3.191(a)(1), which, as amended effective January, 1981, and fully applicable to the facts before us, states that a person charged with a crime is entitled to a speedy trial under the rule whether such person is in custody either in jail or a correctional institution of this state, or is at liberty on bail or on recognizance. And, for the purposes of the rule, a person is taken into custody “when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, ...” Fla.R.Crim.P. 3.191(-a)(4)(i)(e.s.). Moreover, no formal words of arrest are necessary to commence the running of the speedy trial clock. Johnson v. State, 409 So.2d 152 (Fla. 1st DCA 1982). The requirements of the rule are satisfied once the defendant is sufficiently subject to an officer’s direction, notwithstanding the failure of any charges to be then filed. Id.

I therefore consider it more accurate to say that administrative confinement does not constitute an arrest under the speedy trial rule, if the record does not clearly disclose that the confinement was solely the result of the conduct which later gave rise to the charges filed. Because the record now on review does not so demonstrate, I concur in the result reached.


author: WIGGINTON, Judge.

text:
    Scott F. McELROY, Appellant, v. STATE of Florida, Appellee.
    No. AQ-237.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1983.

      Scott F. McElroy, pro se.
    No appearance for appellee.
   WIGGINTON, Judge.

This is an appeal from the trial court’s summary denial of McElroy’s Rule 3.850 motion for post-conviction relief. We affirm.

The order appealed states that the motion does not meet the minimal requirements of Rule 3.850, Florida Rules of Criminal Procedure. We note that the motion is deficient in at least three respects: (1) it does not include specific information of the judgments) and sentence(s) under attack, as there appear to be two involved; (2) it does not indicate whether a previous post-conviction motion has been filed; and (3) it does not set forth sufficient facts but, rather, conclusions of law. Our affirmance, however, is without prejudice to McElroy’s refiling the motion in proper form. Robinson v. State, 423 So.2d 466 (Fla. 1st DCA 1982); Cowick v. State, 419 So.2d 779 (Fla. 1st DCA 1982).

JOANOS and ZEHMER, JJ., concur.


text:
    Thomas J. WALDRIP and Warren P. Earp, Appellants, v. DYAL SALES CO., INC., a Florida corporation. Appellee.
    No. AT-129.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1983.
    Donald L. Braddock, of Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    S. Gordon Blalock, of Blalock, Holbrook & Akel, P.A., Jacksonville, for appellee.
   WIGGINTON, Judge.

Appellants appeal the trial court’s order denying their motions to dismiss appellee’s amended complaint on the ground of lack of in personam jurisdiction. We affirm.

Appellee company’s amended complaint alleges that appellants were salesmen for the company from 1976 until their resignation, that in the course of their employment with the company, they operated, conducted, engaged in, or carried on a business or business venture in Florida or had an office or agency in Florida in connection with their employment and that the cause of action sued upon arose out of their employment activities in Florida. The complaint further alleges that while employed by the company, appellants intentionally plotted to set up their own business and take the company’s established accounts with them, wrongfully appropriating company files and records upon their termination on July 1, 1982. The sketchy record before us includes a letter dated June 27, 1982, prepared by appellants and written on “Earp & Waldrip Sales Co.” letterhead to a company customer soliciting the account and requesting the customer to permit appellants’ new business to represent them in the future and stating that the main office of appellants’ new business would be located in Atlanta, Georgia, with appellant Waldrip continuing to operate out of Birmingham, Alabama.

An affidavit filed by appellant Earp, in support of his motion to dismiss, stated that during his association with the Dyal company, he was an independent contractor, lived and worked exclusively in the state of Georgia and received his compensation in Georgia by mail from the company. Waldrip filed no affidavit in support of his motion to dismiss.

Marvin Dyal, president of the company, filed affidavits as to both appellants stating that Waldrip originally worked for the company in Jacksonville, but in 1979 he was transferred to Birmingham, Alabama; even after his transfer, Waldrip as well as Earp visited the Jacksonville office on numerous occasions; the company acted as a home office and agency for appellants during the course of their employment, taking messages for appellants’ customers and for manufacturers, and processing orders from appellants’ customers in the amount of an average of twenty-five per week during the course of their employment; the Jacksonville office called customers on appellants’ behalf to inform them of price increases and promotions, and to give them messages from appellants; the office assisted appellants in collecting past due accounts and provided business cards, memos, purchase order forms, envelopes, and catalogues; weekly, appellants were sent copies of all information pertinent to their territories; they called the Jacksonville office on an average of two to three times a day during their employment to get messages or to receive other assistance; they received a draw and commission on all of their orders which the Jacksonville office processed and received the benefits from numerous other services handled by the office, including the collection of accounts and payment of sums due appellants.

The applicable long arm statute, Section 48.193(l)(a), Florida Statutes, provides that a person is subject to jurisdiction in this state if he “operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state .... ” Section 48.-193(3) provides that:

Only causes of action arising from acts or omissions enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section ....

According to Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1976), the criteria to be considered when applying the above long arm statute are: (1) whether the defendant purposely availed himself of the privilege of acting in the forum state or caused a consequence in the state; (2) whether the cause of action derived from the defendant’s activities there; and (3) whether the .acts of the defendant had a substantial enough connection with the state to make exercise of jurisdiction over the defendant reasonable.

Earp’s rather bare affidavit did not overcome the pleadings and affidavits filed by Dyal which therefore must be taken as true and which allege sufficient minimum contacts between appellants and the state of Florida to support application of Section 48.193(l)(a), Florida Statutes. Compare Dublin. The company is suing upon actions taken by appellants during the time they were, based upon the record before us, engaging in a business or business venture in this state as salesmen for the Dyal company. The cause of action arises from those activities, within the contemplation of Section 48.193(3), Florida Statutes.

The trial court did not err in denying the motion to dismiss.

AFFIRMED.

JOANOS and ZEHMER, JJ., concur.


author: HURLEY, Judge.

text:
    Sharif SHARIF, Appellant, v. STATE of Florida, Appellee.
    No. 82-166.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 1983.

      Gregory Scott of Craft, Craft & Scott, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

This case calls for an interpretation of Rule of Criminal Procedure 3.191(b)(2), the subsection which establishes the speedy trial time frame for a misdemeanor and felony which have been “consolidated” for disposition. We hold that “consolidated” as used in the rule is to be accorded its plain meaning: to join together into one whole; it encompasses joinder and consolidation.

The factual context of the case is simple. The state filed a two-count information which charged the defendant with battery, a misdemeanor, and false imprisonment, a felony. After the expiration of ninety days, but before trial, the defendant filed a motion to discharge. He claimed that the state’s failure to bring him to trial within ninety days on the misdemeanor charge or, in the alternative, the failure to obtain a court order consolidating the two offenses prior to the expiration of ninety days, mandated dismissal of the misdemeanor count. The trial court denied the motion and set the case for jury trial. Ultimately, the defendant was found not guilty of false imprisonment, the felony charge, and guilty of assault, a lesser included offense to the misdemeanor charge. On appeal, the defendant contends that the trial court erred in failing to grant the motion for discharge. We disagree.

At the outset, we note that there is a line of cases which holds that when a felony and misdemeanor are joined in a single charging document, the ninety-day speedy trial period applicable to misdemeanors continues in force. Pouncy v. State, 296 So.2d 625 (Fla. 3d DCA 1974); Sibert v. Hare, 276 So.2d 523 (Fla. 4th DCA 1973). These cases, however, were decided prior to the adoption of Rule 3.191(b)(2), Fla.R.Crim.P., which provides that “[wjhere a felony and misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony.” The committee note explains that “[t]o claim benefit under this provision, the crimes must be consolidated before the normal time period applicable to misdemeanors has expired.” The foregoing language makes it obvious that the expanded time frame of Rule 3.191(b)(2) applies to offenses which are consolidated pursuant to Rule 3.151, Fla.R.Crim.P. The question we must address is whether the expanded time frame is also applicable to offenses which are joined pursuant to Rule 3.150, Fla.R. Crim.P.

Prior to the adoption of Rule 3.191(b)(2), informations or indictments charging a felony and a misdemeanor were subject to two different speedy trial time frames: ninety days for the misdemanor and one hundred and eighty days for the felony. In practical terms, however, the state had to sacrifice the last ninety days of the one hundred and eighty day felony period in order to try the offenses together. This required the state to prepare serious and often complex cases for trial in compressed time frames. It also required the court to shoulder the management problem of monitoring this special category of cases which differed from all other cases in the circuit court. Rule 3.191(b)(2), Fla.R.Crim.P., resolved these problems by providing for a uniform speedy trial time frame for all offenses consolidated for disposition.

The rules of criminal procedure permit unification of offenses through two methods: (1) joinder pursuant to Rule 3.150, Fla.R.Crim.P., and (2) consolidation pursuant to Rule 3.151, Fla.R.Crim.P. Join-der of offenses occurs when the state files an information or indictment containing two or more counts. On the other hand, “two things must concur for a trial consolidation to be effective, namely, it must be upon motion of a party to the cause and it must be ordered by the Court.... ” Kilgore v. State, 271 So.2d 148, 150 (Fla. 2d DCA 1972).

Although joinder and consolidation are achieved through different procedures, they share the same standards and safeguards. For example, in Paul v. State, 385 So.2d 1371 (Fla.1980), the supreme court partially adopted Judge Smith’s dissent which stressed the commonality between joinder and consolidation. Judge Smith noted that both “consolidation rule 3.151 and its counterpart, joinder rule 3.150 refer to ‘connected acts or transactions’ in an episodic sense .... ” Paul v. State, 365 So.2d 1063, 1065-66 (Fla. 1st DCA 1979). Similarly, another court noted that “if offenses cannot be joined, they cannot be consolidated; and if they cannot be consolidated, they cannot be joined.” Macklin v. State, 395 So.2d 1219, 1220 n. 2 (Fla. 3d DCA 1981). The only distinction between joinder and consolidation is that joinder is accomplished unilaterally by the state whereas consolidation is achieved through the exercise of judicial discretion. Ashley v. State, 265 So.2d 685 (Fla.1972). On closer inspection, however, it becomes evident that this is a distinction without a difference. Joinder too can be subjected to judicial review by a motion to sever. See Rule 3.152(a), Fla.R.Crim.P.; Crum v. State, 398 So.2d 810 (Fla.1981).

It is clear that the rules of civil and criminal procedure have been carefully crafted with an eye toward their precise application. See, e.g., Casto v. Casto, 404 So.2d 1046 (Fla.1981). Even so, we are convinced that the drafters of Rule 3.191(b)(2) did not intend that the word “consolidated” be construed narrowly, as a legal term of art. In our view, it would be senseless to construe “consolidated” in such a restrictive fashion. It would only discourage the state from exercising its prerogative of joining offenses while still permitting the state to achieve the same result by filing separate informations and then moving for and obtaining an order of consolidation. This circuitous process would hinder the efficient administration of justice without adding any greater protection to the defendant’s rights. Hence, we hold that the word “consolidated” as used in Rule 3.191(b)(2), Fla.R.Crim.P., is to be given its plain meaning: to join together into one whole. This construction encompasses join-der as well as consolidation, thus preserving the present scheme which is both balanced and workable.

Turning to the case at bar, we note that the defendant failed to challenge the state’s decision to join the misdemeanor offense of battery with the felony offense of false imprisonment. Therefore, he waived his right to attack the validity of joinder on appeal. In accord with our construction of Rule 3.191(b)(2), Fla.R.Crim.P., we hold that the speedy trial time frame for disposition of both offenses in the case at bar was one hundred and eighty days. Thus, the judgment on appeal is

AFFIRMED.

DOWNEY and BERANEK, JJ., concur.

      . Rule 3.191(b)(2), Fla.R.Crim.P., took effect on January 1,1981. In re Rules of Criminal Procedure, 389 So.2d 610 (Fia.1980).

      . Brown v. State, 424 So.2d 950, 954 (Fla. 1st DCA 1983), characterized the state’s ability to join offenses as a “right.”


author: GLICKSTEIN, Judge. LETTS, Judge,

text:
    Norton Kent EUART, Petitioner, v. Charles FERNSELL, Respondent.
    No. 82-203.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 1983.

      Samuel L. Heller, Fort Lauderdale, for petitioner.
    J. Michael Nifong of Squire, Sanders & Dempsey, Miami, for respondent.
   GLICKSTEIN, Judge.

It appears that the trial judge who conducted the hearing on December 11, 1981, upon petitioner’s motion for protective order was not the judge who signed the order on December 29, 1981, denying the motion, notwithstanding the availability of the first judge. Such practice is anomalous and must be disapproved. See Delehant v. Delehant, 409 So.2d 213 (Fla. 4th DCA 1982); Bradford v. Foundation & Marine Construction Co., 182 So.2d 447 (Fla. 2d DCA 1966), cert. denied, 188 So.2d 821 (Fla.1966); and Dash v. Dash, 306 So.2d 543 (Fla. 3d DCA 1974). Accordingly, we grant the petition for writ of certiorari and quash the order.

However, we do so without prejudice to respondent to obtain a proper order from the trial judge who conducted the hearing. Perhaps in the interest of judicial economy we would have simply relinquished jurisdiction for the entry of an order to be properly signed nunc pro tunc. However, it further appears from the transcripts made available to us that the deposition of petitioner considered by the trial judge may not have reflected the fact that petitioner did not waive reading and signing.

The trial judge who conducted the hearing of December 11, 1981, should sign any future order and should consider — with appropriate memoranda of law from the parties — what effect, if any, the deponent’s not having waived the reading and signing of his deposition had upon the primary issue in this matter. As a final expression, we remind the petitioner, his related appeal having been dismissed, that neither the trial court nor this court should reconsider the matters involved therein.

HURLEY, J., concurs.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting.

As written, the opinion appears to stand for the proposition that a writ of certiorari may be available whenever one judge is substituted for another without any showing of prejudice. It is also interesting that not even the petitioner thought this grounds for the issuance of a writ in his original petition and it was this court which first introduced the subject.

I also cannot see a departure from the essential requirements of the law in this case even if there was reversible error.


text:
    Joseph KALMAN, Appellant, v. Christine KALMAN and Kalchris Corporation, Appellees.
    No. 82-2427.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 1983.
    Tom Bush of the Law Offices of Tom Bush, P.A., Fort Lauderdale, for appellant.
    Edward G. Stephany of the Law Office of Edward G. Stephany, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED. See Bosem v. Bosem, 279 So.2d 863 (Fla.1973).

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


author: LETTS, Judge.

text:
    A-ONE DAHILL MOVING & STORAGE CO., INC., Appellant, v. The AMERICAN INSURANCE COMPANY, a corporation, Appellee.
    No. 83-694.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 1983.
    Melvyn Trute of Melvyn Trute and Marvin I. Moss, P.A., Bay Harbor Islands, for appellant.
    Mark D. Cohen of Britton, Cohen, Kaufman & Schantz, P.A., Fort Lauderdale, for appellee.
   LETTS, Judge.

This non-final appeal has, as its genesis, a trial court order denying a motion to dismiss based on insufficient service of process. We reverse.

The instant corporate summons was served supposedly on the “office manager” of the domestic corporation which now appeals. Both parties spend time arguing about whether the served employee held himself out to be the office manager, was in fact the office manager, or was merely the bookkeeper. However, under the facts of this case we do not believe it matters.

Section 48.081, Florida Statutes (1981), which governs service of process on corporations, must be strictly construed Carlon, Inc. v. Lindy’s of Omni, Inc., 408 So.2d 243 (Fla. 4th DCA 1981). A reading of this statute directs that service be had upon the President, Vice President, or “other head of the corporation.” Lacking the presence of all of the aforesaid, service may be effected on the cashier, the treasurer, the secretary or the general manager. In the absence of all of the above, then a director may be served and failing a director, any corporate officer or business agent will suffice.

There is only one of the foregoing categories that an “office manager” might fit into under the facts presented here and that is “a general manager.” Yet common understanding and usage distinguish the two. Thus, while an office manager might double as a general manager, or a corporate officer, anyone occupying such a dual role would have the burden of establishing it. Not only was no such proof adduced here, but to the contrary, proof established that the general manager was in fact a different person altogether and he was physically present on the premises when the summons was served.

We, therefore, hold that the term “office manager” used in this particular summons, fails to comply with Section 48.-081. See Ludlum Enterprises, Inc. v. Outdoor Media, Inc., 250 So.2d 649 (Fla. 4th DCA 1971).

This cause is not without its irritations. Undoubtedly, the corporation was put on notice of the suit and it is sad the facts demonstrate a game of hide-and-seek with the process server of the kind that increasingly clutters up the time of the courts. Nonetheless, there can be but one result here, because no matter what the reason, proper service was not obtained,

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.

      . It is not even contended that a bookkeeper would qualify for service.


text:
    The DOLL HOUSE, INC., and Argonaut Insurance Company, Appellants, v. John Douglas PORTER, TCB, Inc., d/b/a Sugars, and The Travelers Insurance Company, Appellees.
    No. AP-344.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1983.

      Wendell J. Kiser, P.A., and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Randy Fischer of Haas, Boehm, Brown, Rigdon & Seacrest, Orlando, for appellee John Douglas Porter.
    Robert G. Brightman, Orlando, for appel-lees TCB, Inc. and The Travelers Ins. Co.
   PER CURIAM.

This cause is before us on appeal from an order of the deputy commissioner finding that claimant sustained an industrial accident arising out of and in the course and scope of his employment with The Doll House, Inc. and that there was no agreement between The Doll House, Inc. and T.C.B., Inc., d/b/a Sugars, to share claimant as a “loaned employee,” so that claimant was not an employee of T.C.B., Inc. at the time of the incident. In his order, the deputy retained jurisdiction to hold further hearings as necessary to determine what benefits were due claimant as a result of the accident; the parties stipulated that the hearing which resulted in the order appealed from would be limited to the sole issue of compensability of the claim, so as to determine whether claimant sustained injury in the course and scope of employment with either The Doll House, Inc. or T.C.B., Inc.

An order determining compensability only and reserving jurisdiction to determine benefits has generally been found to be a non-reviewable, non-final order. See, Town of Palm Beach v. Watts, 426 So.2d 1312 (Fla. 1st DCA 1982); The Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982); Ray Roofing Co., Inc. v. Young, 419 So.2d 672 (Fla. 1st DCA 1982); Special Disability Trust Fund v. Motor and Compressor Company, 417 So.2d 1151 (Fla. 1st DCA 1982); Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982); General Electric Company v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982); and The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982). However, because the order sought to be reviewed results in removal of one party, T.C.B., Inc., from further proceedings, we elect to treat the appeal as a petition for a writ of certiorari and to review the merits of the order below.

Competent substantial evidence in the record supports the deputy’s findings of fact and his conclusion that claimant was within the course and scope of his employment with The Doll House, Inc. at the time he was injured. The deputy has not been shown to have departed from the essential requirements of law, the petition for writ of certiorari is denied, and the cause is remanded for further proceedings.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


author: NIMMONS, Judge.

text:
    Donald PERRY, Appellant, v. STATE of Florida, Appellee.
    No. AQ-139.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1983.

      Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Perry, an inmate in the State corrections system, was charged with various offenses arising out of an altercation with certain corrections officers at the Florida State Prison in Bradford County. He was tried and convicted of aggravated battery, battery and possession of contraband by an inmate. He asserts several grounds for reversal. We need only address his point claiming error by reason of the denial of his motion for discharge under the Speedy Trial Rule inasmuch as we agree that it was error to deny the motion.

The information was filed on June 14, 1982. Defense counsel filed a demand for speedy trial on July 26, 1982, pursuant to Fla.R.Crim.P. 3.191(a)(2). Perry was not brought to trial within 60 days thereafter as required by the Rule, and on September 28, 1982, defense counsel filed a motion for discharge pursuant to Fla.R.Crim.P. 3.191(d)(1).

Although the trial judge preliminarily announced his intention to grant the motion, he was persuaded otherwise by the prosecuting attorney who advanced the additional argument that the motion should be denied on the basis that there was an undis-posed of pro se motion which Perry had previously filed in which motion Perry sought discharge under the Speedy Trial Rule predicated upon an earlier pro se demand for speedy trial filed by Perry prior to the filing of the information. The State asserts, as it did in the trial court, the novel proposition that since the defense attorney, upon his appointment to represent Perry, had filed a document purporting to adopt any pro se motions previously filed by Perry and since Perry’s pro se motion for discharge had never been heard, Perry must, therefore, be deemed not ready for trial when his attorney filed the July 26, 1982, demand for speedy trial, thus rendering that demand a nullity.

The State relies upon the line of cases which hold that a demand for speedy trial may be disregarded where the defendant’s actions and conduct belie his implicit claim in his demand that he is ready for trial. See State ex rel Ranalli v. Johnson, 277 So.2d 24 (Fla.1973) (demand for speedy trial held spurious where motion to dismiss filed two weeks later alleged insufficient information to prepare defense); Turner v. State ex rel. Pellerin, 272 So.2d 129 (Fla. 1973) (demand for speedy trial held ineffective where it was followed by motion to compel certain witnesses to give depositions and motion to compel disclosure of favorable evidence); State v. Wright, 389 So.2d 289 (Fla. 3rd DCA 1980) (defendant sought continuance after filing demand for speedy trial); State v. Kaufman, 421 So.2d 776 (Fla. 5th DCA 1982) (defendant filed demand for discovery and scheduled depositions after filing demand for speedy trial). The above cases relied upon by the State are soundly premised. They are also patently distinguishable from the case sub ju-dice.

There is nothing in the record of this case, as there was in each of the above cases, suggesting actions or conduct on the part of the defendant belying the genuineness of his July 26,1982, demand for speedy trial. Of significance to us is the case of State v. Embry, 322 So.2d 515, 516 (Fla. 1975). Eleven days after filing a demand for speedy trial, the defendant filed a motion to suppress. The trial court, regarding the defendant’s motion as inconsistent with a bona fide demand for speedy trial, struck the demand as spurious. The Supreme Court held that the trial court erred, noting that,

[T]he mere filing of a motion to suppress is not tantamount to a finding of law that the speedy trial demander does not have a bona fide desire to obtain trial, that he is not prepared for trial. [322 So.2d at 518]

The fact that the defendant's pro se motion for discharge (based upon his prior pro se demand for speedy trial) was never called up for hearing does not, in any manner, impeach the genuineness of defense counsel’s subsequent demand for speedy trial upon which the subject motion for discharge was based. Perry clearly was entitled to be brought to trial within 60 days of the filing of the subject demand. In default thereof the Speedy Trial Rule requires the defendant’s discharge.

Accordingly, the judgment is reversed and remanded with directions to vacate and set aside the judgments and sentences and enter an order of discharge.

REVERSED AND REMANDED.

ROBERT P. SMITH, Jr., and SHIVERS, JJ., concur.

      . See also Fla.R.Crim.P. 3.191(c) which provides, in part, that a demand for speedy trial is a representation that the defendant can be prepared for trial within five days from the date of demand.


author: COBB, Judge.

text:
    Gary Ray FRANCE, Appellant, v. STATE of Florida, Appellee.
    No. 82-839.
    District Court of Appeal of Florida, Fifth District.
    Aug. 25, 1983.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Brian R. Hanson, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant, Gary Ray France, appeals from his conviction of the offense of possession of a firearm by a felon in violation of section 790.23, Florida Statutes (1981). That section provides:

(1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding one year to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.
(2) This section shall not apply to a person convicted of a felony whose civil rights have been restored.
(3) Any person convicted of violating this section is guilty of a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.-084.

Prior to this charge, France had received a Certificate of Restoration of Civil Rights from the governor’s office. It purported to restore France’s rights, “except the specific authority to possess or own a firearm.” On the basis of this Certificate, France moved to dismiss the charge, arguing that the governor was without constitutional authority under Article IV, Section 8(a) of the Florida Constitution to partially restore his rights and, therefore, the exception in the certificate relating to firearms was invalid. The constitutional provision states:

(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses. [Emphasis added.]

The trial court, after argument which centered primarily upon the case of Williams v. State, 402 So.2d 78 (Fla. 1st DCA 1981), entered the following order:

AMENDED ORDER

THIS CAUSE coming on to be heard on March 17,1982, upon the motion of the defendant to dismiss the information charging the defendant with possession of a firearm by a felon on the basis that the Office of the Governor of the State of Florida acted contrary to Article 4, Section 8(a) of the Constitution of the State of Florida when the Office of Executive Clemency attempted to only partially re*store the defendant’s civil rights; and this Court hearing argument and being otherwise fully advised in the premises, it is
HELD that Article 4, Section 8(a) of the Constitution of the State of Florida was not violated by the Governor partially restoring the defendant’s civil rights, and specifically withholding the right to bear arms by a felon while otherwise restoring that felon’s civil rights, it is therefore
ORDERED AND ADJUDGED that the defendant’s Motion to Dismiss Count I of the Information is hereby denied.

That order resulted in a nolo contendere plea and consequent conviction, with preservation of the issue on appeal as to the constitutional validity of the exception in the restoration order executed by the governor. This issue, in accordance with a trial court stipulation, is dispositive of the charge now on appeal.

Williams v. State, 402 So.2d 78 (Fla. 1st DCA 1981), is factually analogous to the instant case. In Williams, the appellant appealed his adjudication of guilt for possession of a firearm, by a convicted felon. Williams previously had obtained an executive clemency order from the governor, restoring all his civil rights, except the specific authority to possess or own a firearm prior to the charge at issue. When he was later charged with possession of a firearm by a felon under section 790.23, he moved to dismiss, claiming that his civil rights had been restored. After the trial judge denied the motion, Williams pled nolo contendere, reserving his right to appeal from the denial of the motion.

Williams contended on appeal that the civil rights suspended under section 944.292, Florida Statutes (1979), do not include possession of a firearm so, therefore, all his civil rights were restored by the governor’s order, resulting in a complete defense under section 790.23(2) to the firearm charge. The First District rejected Williams’ argument, and affirmed the conviction, stating:

What appellant actually received was a partial restoration of his civil rights rather than a complete restoration. When the appellant was convicted of a felony, one of the rights that he previously held as a citizen, the right to possess a firearm, was taken away by virtue of section 790.23(1). Appellant can no longer legally possess or own a firearm. This was clearly a “civil right” that he no longer possessed. Under the governor’s discretionary clemency power (Article IV, Section 8, Florida Constitution), appellant was restored to all other pre-conviction rights except the authority to possess or own a firearm. The trial court properly dened the motion to dismiss because appellant had not had his “civil rights” restored for purposes of section 790.23 when the event for which he was charged occurred.

402 So.2d at 79.

Appellant contends that Williams is inapplicable to the instant case, since the court in Williams addressed only what rights were involved in “civil rights,” without addressing whether the right to partial restoration of all rights by the governor even exists. From the language quoted above, however, it is apparent that the Williams court did determine that partial restoration is properly within the governor’s discretionary authority under the Florida Constitution.

The power of pardon is reposed exclusively in the chief executive with the approval of three members of the cabinet. The people of the state, through adoption of Article IV, Section 8, Florida Constitution (1968), expressed their will that the power of pardon and restoration of civil rights vest in the executive. In Re Advisory Opinion of Governor Civil Rights, 306 So.2d 520 (Fla.1975).

Pursuant to its power, the governor and cabinet adopted the Rules of Executive Clemency on September 10, 1975. Section 9(A) of the Rules, effective November 1, 1975, provides as follows:

When a person receives final release from the Florida Parole and Probation Commission Department of Offender Rehabilitation or county jail, his civil rights shall be automatically reinstated, except the right to possess or own a firearm shall be specifically withheld.

In Re Florida Board of Bar Examiners, 341 So.2d 503 at 505 (Fla.1976).

Additionally, Section 4(E) of the Rules provides:

RESTORATION OF CIVIL RIGHTS. Restores to the applicant all or some of the rights of citizenship enjoyed before conviction in the State of Florida or restores all or some civil rights in the state for persons convicted under the laws of another state or government.

Quoted at 341 So.2d 505.

It is clear that the executive branch has provided under these rules for restoration of some, but not all, civil rights for released felons. Given the broad discretion granted the executive branch and the policy sought to be served by restricting the use of firearms by felons, we perceive no constitutional deprivation.

Accordingly, the judgment and sentence of the trial court are

AFFIRMED.

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

      . Section 944.292 states:
      Upon conviction of a felony as defined in Section 10, Article X of the State Constitution, the civil rights of the person convicted shall be suspended in Florida until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to Section 8, Article IV of the State Constitution.

      . In Re Florida Board of Bar Examiners dealt with admission to the Bar following restoration of civil rights. The Supreme Court stated, in regard to Section 9(A):
      We feel constrained to comment that the constitutionality vel non of this Rule has not yet been presented to the Court as an alleged violation of Article IV, Section 8, Constitution of Florida.
      341 So.2d at 505.


author: BARKDULL, Judge. DANIEL S. PEARSON, Judge,

text:
    Carol MANNER f/k/a Carol Tello, Appellant, v. GOLDSTEIN PROFESSIONAL ASSOCIATION, Appellee.
    No. 82-787.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1983.
    Thomas S. Wilson, Jr., Miami, for appellant.
    Stephens, Lynn, Chernay & Klein and Robert Klein, Miami, for appellee.
    Before BARKDULL, BASKIN and PEARSON, DANIEL, JJ.
   BARKDULL, Judge.

Appellant wife in a then pending divorce proceeding entered into a property settlement agreement which provided in part as follows:

“WHEREAS, irreconcilable differences have arisen between Husband and Wife, and both are desirous of settling their respective property rights, and Husband desires to make provisions for the support and maintenance of the parties’ minor child, the welfare of that child being the primary concern of the parties,
NOW, THEREFORE, in consideration of the mutual agreements set forth hereinafter, together with other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged by each, Husband and Wife do hereby specifically agree that:
2. Husband specifically agrees to convey to Wife both as lump-sum alimony and as recognition of property rights which she might have in the property, his interest in the parties’ marital home. In consideration of the above conveyance, and in settlement of Husband’s compromise of his property rights over and above the lump-sum portion being paid to Wife, Wife specifically agrees to pay in cash to Husband the sum of Ten Thousand and no/100 Dollars ($10,000.00).
4. As and for additional lump-sum alimony and in settlement of Wife’s respective property rights, Husband agrees to transfer to Wife: ... (c) a sum of money sufficient to pay all outstanding medical bills for Wife’s psychologist, Dr. Adler, not to exceed $1,000.
12. Except with regard to the lump-sum alimony referred to in paragraphs 2 and 4, supra, Wife hereby specifically waives and renounces any and all claim to alimony and support money for herself, including dower rights and any other rights claims or demands of any nature or character whatsoever against Husband for now, the past, and all times in the future.
14. ... that each enters into this agreement freely and voluntarily, acknowledging that the agreement is in the best interests of the parties and the parties’ minor child and is fair and equitable. Each party agrees to pay their respective attorneys their fees and suit costs.
16. Each of the parties understands and agrees that this agreement constitutes the entire contract of the parties. It supersedes any prior understandings or agreements between them upon the subjects covered in this agreement. There are no representations or warranties other than set forth herein.” (emphasis added)

Thereafter she refused to pay attorneys fees notwithstanding her undertaking. An action was then commenced by her attorneys to collect their fees, which was met by a counterclaim alleging malpractice on the part of her former attorneys, in one, failing to apply for temporary alimony or support payments for the minor child and two, failing to require the former husband to pay the total amount of the outstanding medical bills, notwithstanding the terms of the agreement.

The trial court entered a summary judgment on the counterclaim in favor of the counter-defendant. At the time he entered the summary judgment there was an unrebutted affidavit by a prominent member of the bar of this state on file stating that the action of her counsel, in not applying for temporary alimony under the circumstances wherein the father was paying one-half the mortgage expenses and the mother was engaged in conduct not in the best interest of the child, did not depart from the expected degree and care of conduct of counsel for a mother of a domestic relation matter. Sims v. Helms, 345 So.2d 721 (Fla.1977); Sunshine Kitchens, Inc. v. Mallin, 388 So.2d 1260 (Fla. 3d DCA 1980); Drawdy v. Sapp, 365 So.2d 461 (Fla. 1st DCA 1978); Weiner v. Moreno, 271 So.2d 217 (Fla. 3d DCA 1973). The record reveals that the husband paid $50.00 per week during the litigation as voluntary support.

As to the claim for the additional $600.00 in doctors bills, this was clearly contrary to the terms of the property settlement agreement. The wife was attempting to avoid the terms of the written agreement by simultaneous oral declaration. We find that this should not be permitted. Schwartz v. Zaconick, 68 So.2d 173 (Fla. 1954); Gulf Theaters v. Guardian Life Insurance Company of America, 157 Fla. 428, 26 So.2d 188 (1946); Linear Corp. v. Standard Hardware Company, 423 So.2d 966 (Fla. 1st DCA 1982); Garlon Inc. v. Southland Diversified Company, 381 So.2d 291 (Fla. 4th DCA 1980); Donnelly v. Marriott Corporation, 266 So.2d 183 (Fla. 3d DCA 1972).

It is significant that, the wife, in the final settlement of all the matters between her and her then husband, received the husband’s interest in the marital premises which had a value, of $25,000 for a payment of $10,000 in settlement of all claims and in the “best interest of the minor child”.

Therefore for the reasons above stated the final summary judgment hereunder review be and the same is hereby affirmed.

Affirmed.

DANIEL S. PEARSON, Judge,

dissenting.

I dissent only from that part of the majority opinion which affirms the summary judgment against the wife on her claim for $600 against her former attorney. The essence of this claim is that the wife, in reliance on Goldstein’s representation that he and the husband’s attorney had a side agreement that the full amount of the psychologist’s bill would be paid (presumably by the husband or his attorney)^ executed the written settlement agreement limiting the husband’s obligation with respect to this $1,600 bill to $1,000. Whatever the merits of her claim, it is clear that she is not attempting to avoid the terms of her written agreement with her husband, but instead is asserting that her attorney’s false representation detrimentally caused her to enter into the agreement by which she is concededly bound. Since she makes no effort to vary the terms of the written agreement, the parol evidence rule which would prevent such an effort is simply inapplicable.

For these reasons, I would reverse in part the summary judgment entered against the wife.

      . The counterclaim reads in part as follows:
      “... Thereafter, Goldstein failed to pursue temporary alimony and child support in a timely and effective manner and failed to respond to repeated telephone messages left by the Defendant/Counter-Plaintiff urging the speedy resolution of her petition for dissolution of marriage.

      8. As a result of Goldstein’s failure to effectively and timely pursue legal remedies for her client, the Defendant/Counter-Plaintiff suffered monetary damages in excess of $2,250 and suffered severe mental and emotional distress.

      11. Upon presentation of redrafted settlement agreement for execution, Defendant/Counter-Plaintiff inquired as to the change in terms for the payment of outstanding medical bills. Goldstein advised that an oral agreement existed between Goldstein and counsel for Respondent/Husband effectuating the intent of the original officer. In reliance upon Goldstein’s representations, Defendant/Counter-Plaintiff executed the settlement agreement as redrafted.
      * * * * * *
      12. As a result of her reliance upon Gold-stein, Defendant/Counter-Plaintiff has suffered monetary damages in excess of $600.00....

      . The wife had drawn and submitted to her counsel a proposed settlement agreement to be submitted to counsel for her then husband, which was identical to that ultimately entered into as to all questions on review in this appeal, except that the husband put a $1,000 cap on his obligation to pay the psychologist’s bfll. The wife testified that at the time of signing of the agreement she raised this cap with her counsel, he told her that notwithstanding the limitations of this provision, he had an oral agreement with the husband through his counsel that he would pay the incurred bill as originally proposed.

      . It also appears that if the wife is correct on the alleged oral agreement, with which we do not agree, she would first have to bring an action against her then husband and if unsuccessful because the finder of fact found there was not such oral agreement then she might have an action for misrepresentation or malpractice against her then counsel.

      .Moreover, even if it were arguable that the thrust of the wife’s counterclaim is to vary the agreement between her and her husband, the counterdefendant attorney (a stranger to the agreement) cannot invoke the parol evidence rule. Palmer v. R.S. Evans Jacksonville, Inc., 81 So.2d 635 (Fla.1955); Pittman v. Providence Washington Insurance Co., 394 So.2d 223 (Fla. 5th DCA 1981). See J.N. Roof v. Chattanooga Wood Split Pulley Co., 36 Fla. 284, 18 So. 597 (1895).


text:
    Michelle GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1805.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1983.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The defendant appeals her conviction for attempted robbery and burglary alleging that the trial court erroneously overruled her objection and denied her motion for a mistrial when the prosecutor made the following statement during closing argument:

But strange enough, her testimony, when she was arrested by police, when she was arrested, when she was detained by the police, there was never any mention of that entire sequence.

This comment directly called to the jury’s attention the defendant’s post-arrest silence, Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), and accordingly we reverse and remand for a new trial.


text:
    Donnie FUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1898.
    District Court of Appeal of Florida, Third District.
    Aug. 30, 1983.

      Bennett H. Brummer, Public Defender, and Kathleen G. Gallagher, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

During voir dire examination, the prosecutor asked a prospective juror, “Does it bother you that a 14 year old girl is going to be the victim in this case, it is going to be her word against his word?” While the question generally represented the projected evidence in the case, (which consisted of the victim’s testimony pitted against that of the defendant’s admissible confession) the question nonetheless constituted a comment upon the defendant’s failure to testify in his own behalf. Smith v. State, 358 So.2d 1137 (Fla. 3d DCA), dismissed, 364 So.2d 892 (Fla.1978).

For this reason, the defendant’s conviction of attempted sexual battery is reversed and remanded for a new trial.


text:
    Curtis E. BROOMFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 82-215.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Debra Mann, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

On rehearing, the following opinion is substituted for the opinion issued on March 9, 1983.

The defendant was ..charged by information with the offenses of armed robbery and grand theft. He was tried, convicted and sentenced on both counts.

On appeal, the defendant maintains that the prosecutor made an improper argument to the jury that the release of the defendant would foster similar criminal activity. Whether the comment constitutes harmful error must be determined by consideration of its effect when viewed in context with other circumstances appearing in the record. Darden v. State, 329 So.2d 287 (Fla.1976), cert. denied, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982). Although our review of the record discloses no support for the prosecutor’s comment, the error is harmless in view of the overwhelming evidence of guilt in this case.

The defendant next contends that he cannot be convicted and sentenced for armed robbery and also convicted and sentenced for grand theft. We agree. The offense of grand theft is a lesser offense included in the offense of armed robbery. See Brown v. State, 206 So.2d 377 (Fla. 1968); James v. State, 399 So.2d 424 (Fla. 5th DCA 1981). In light of Bell v. State, Fla., 437 So.2d 1057 (1983), we reverse both the conviction and sentence for grand theft.

This cause is remanded to the trial court with instructions to vacate the conviction and the sentence for grand theft.

LETTS, C.J., BERANEK and DELL, JJ., concur.


text:
    Eddie Jack WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1276.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Waters, 436 So.2d 66 (Fla.1983).

AFFIRMED.

BERANEK and HURLEY, JJ., and BURNSTEIN, MIETTE K., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. David Anthony SCHWARZ, Appellee.
    No. 81-1370.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by the State of Florida from an order dismissing an information charging defendant with burglary. The trial court granted the motion to dismiss because the information failed to allege intent to commit a specific offense. The necessity of pleading a specific offense in the information was considered by the Florida Supreme Court recently in State v. Waters, 436 So.2d 66 (Fla.1983). There the supreme court held that it was not necessary to specify the offense to be committed. The Waters decision requires that we reverse the order of the trial court. Of course, the trial court did not have the Waters opinion before it at the time of the ruling herein.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

LETTS, DOWNEY and BERANEK, JJ., concur.


text:
    Paul T. HINSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1001.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst..Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant was convicted and sentenced for a felonious violation of section 509.151, Florida Statutes (1981) — the statute which prohibits obtaining food or lodging with intent to defraud. Since the information failed to allege that the food, lodging or other accommodations in question had a value of one hundred dollars or more, we reverse and remand with instructions to correct the judgment of conviction and modify the sentence to reflect a misdemeanor conviction. Cf. Tillman v. State, 329 So.2d 370 (Fla. 2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975).

HERSEY, HURLEY and DELL, JJ., concur.

      . A review of the trial record fails to disclose any conduct by the defendant which would estop his right to assert the error complained of on appeal. But cf. Lumia v. State, 372 So.2d 525 (Fla. 4th DCA 1979).


text:
    David R. MARGOLIS, Appellant, v. CITY NATIONAL BANK OF HALLANDALE, a national banking corporation, Ira Lustig, James D. Brusso, Martin Fomento, Joel Brusso and the Apartment, Inc., a Florida corporation, Appellees.
    No. 82-1873.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Charles Wender of Smith, Smith & Wen-der, P.A., Boca Raton, for appellant.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Allan M. Rubin of Rubin & Rubinchik, P.A., Hollywood, for appellee — City Nat. Bank of Hallandale.
   LETTS, Judge.

This appeal involves the assignment of a lease to a lender bank to secure a loan to the tenant for leasehold improvements. Included in the assignment executed by the landlord, the tenant and the bank was the following language:

[THE TENANT] hereby grants, bargains, sells, assigns, transfers and sets over unto CITY NATIONAL BANK OF HALLAN-DALE, its successors and assigns forever, all of the right, title and interest of the assignor in and to that certain lease entered into by [the LANDLORD] dated December 12, 1979, wherein a leasehold interest was conveyed to the [TENANT], in and to the following described room or space as
City National Bank of Hallandale does hereby agree to assume all of the terms and conditions of the Lease between [the Landlord], as trustee and the [Tenant] dated December 12, 1979.

Subsequently the tenant defaulted on the rent and the landlord demanded payment from the bank. Not surprisingly, the bank refused and claimed in the court below that its officer executed the absolute assignment (drawn up by the landlord) by mistake and that only a collateral assignment was intended. As a result, the trial court can-celled and rescinded the assignment as “inequitable and even unconscionable” based on the oral testimony of the bank officer that he had never intended that the bank assume the lease. Needless to say the landlord disagrees, claiming, also by oral testimony, that he had specifically ref used, an earlier request to surrender his landlord’s lien and that the language of the absolute assignment, and its legal consequences, were exactly as he intended.

We assume that the oral testimony of the bank officer is to be believed if only because banks invariably intend to seek subordination from prior lien holders and obligate borrowers, never themselves. Nonetheless, the language of this assignment is plain and unambiguous and it cannot be varied by parole testimony. Pearson v. Pearson, 342 So.2d 1018 (Fla. 4th DCA 1977).

We therefore reverse with instruction to enter final judgment in favor of the landlord.

HERSEY and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    Richard C. GEISINGER, Appellant, v. Mildred K. GEISINGER, Appellee.
    No. 82-2009.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    J. Patrick Dyal of Rogers, Morris & Ziegler, Fort Lauderdale, for appellant.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, and S. Robert Zimmerman, Pompano Beach, for appel-lee.
   DOWNEY, Judge.

This litigation arose out of the marriage relation existing between the parties, who were married for thirty-four years but lived together slightly less than half that time. Two children were born of the union; both are adults, but one remains a dependent child within the meaning of Section 743.-07(2), Florida Statutes (1981). During the separation of the parties from 1962 until this suit commenced the husband supported the wife on a very meager basis, sending her $500 to $600 per month. Upon commencement of this suit $1,000 a month temporary alimony was awarded to the wife; that award was later increased to $2,500 per month in addition to her mortgage payment.

The husband was a successful real estate dealer with an estate the trial court found to be valued at not less than three and one-half million dollars. The trial court recognized the wife’s need for alimony and the husband’s ability to pay. Accordingly, among other things, in the final judgment of dissolution the court awarded the wife the husband’s interest in the marital home in Fort Lauderdale, an automobile, and lump sum alimony of $1,000,000 to insure her an equitable distribution of property acquired by the husband during the marriage. Each of the parties was required to pay $400 per month to their dependent daughter and to share equally in paying her medical expenses. Finally, the judgment provided that the $1,000,000 lump sum alimony was to become vested immediately but was payable in annual installments of approximately $98,000, plus interest at 10% (payable monthly) on the balance due.

Upon filing an appeal from the final judgment, the husband sought a stay thereof, which the trial court granted upon the husband’s filing a bond in the amount of $1,175,000. The trial court refused to grant a supersedeas of the installments as they became due. A motion was then filed in this court for reduction of said bond without success. Thereafter, no bond was ever posted to supersede the final judgment of dissolution dated January 9, 1981.

When the first installment payment became due, the wife had the installment, together with interest, reduced to a judgment for $170,000. That judgment was also appealed but the husband filed a supersede-as bond, pursuant to Florida Rule of Appellate Procedure 9.310(b), to supersede that judgment.

When the second installment became due, the wife moved the court to hold the husband in contempt for failing to pay the judgment entered for the first annual payment and for failure to pay the second installment. A hearing before a special master resulted in a recommendation that the husband be held in contempt for nonpayment of both installments. From an order overruling exceptions to the master’s report and confirming his recommendations and refusing to allow the husband to purge himself by giving the wife a deed to some real property alleged to be worth $200,000 the husband has perfected this appeal.

The three appellate points suggest error was committed in (a) holding the husband in contempt for nonpayment of a superseded judgment, (b) in refusing to allow the husband to purge himself by furnishing a deed to real property, and (c) in finding the husband’s failure to pay was willful or that he had voluntarily divested himself of the ability to comply with the final judgment.

While this appeal was pending this court affirmed the final judgment of dissolution and the entry of judgment in favor of the wife for the first annual installment plus interest.

Our study of the briefs and record convinces us that the husband has failed to demonstrate any reversible error. We summarily dispose of the contention that the husband cannot be held in contempt for failure to pay the judgment entered upon the first annual installment of lump sum alimony because it was superseded. We hold that the bond posted by the husband was ineffective to supersede that judgment because the trial court had refused to allow the installment payments of lump sum alimony under the final judgment of dissolution to be superseded as they became due. Therefore, the husband was subject to the contempt power of the court even as to that installment of alimony.

No question is presented by the parties relative to the propriety of resorting to contempt to enforce a judgment for lump sum alimony awarded to assure an equitable distribution of property accumulated during the marriage. Therefore, we will not plumb the various aspects of that problem. However, we note for this record that, although lump sum alimony was resorted to in this case as a vehicle to effect an equitable distribution of property, there is no question that there is inherent in the lump sum award alimony for the support and maintenance for the wife. She clearly had a need and he the ability for payment of alimony.

Accordingly, the judgment appealed from is affirmed in all respects.

BERANEK and HERSEY, JJ., concur.