text:
    Bob MOORE, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Holiday Inn, Appellees.
    No. AX-121.
    District Court of Appeal of Florida, First District.
    July 24, 1984.
    Bob Moore, pro se.
    Geri Atkinson-Hazelton, Gen. Counsel, Unemployment Appeals Com’n, Tallahassee, for appellees.
   PER CURIAM.

We have treated appellant’s notice of appeal and letter of June 17, 1984, as his initial brief. Appellant has failed to raise grounds requiring reversal.

Accordingly, we affirm.

ERVIN, C.J, and SMITH and JOANOS, JJ, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICAN FREIGHT SYSTEM, INC., Appellant, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY and Donald R. Thomas, Appellees.
    No. 82-2828.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.

      T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Jonathan L. Alpert of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellees.
   PER CURIAM.

This appeal requires us to construe apparently conflicting provisions of Florida’s Workers’ Compensation Law and Florida’s Motor Vehicle No-fault Law. Stated succinctly, the central question is, does the exclusivity provision of the Compensation Act, section 440.11, Florida Statutes (1983), prohibit the reimbursement of personal injury protection benefits pursuant to section 627.7405, Florida Statutes (1983), from an employer who has paid out full workmen’s compensation benefits. We answer the question in the negative.

The facts are undisputed. Donald Thomas was injured in an automobile accident caused by the negligence of a hit and run driver while Thomas was operating a motor truck in the course and scope of his employment. Thomas brought suit against appellee seeking payment of personal injury protection benefits pursuant to his uninsured motorist coverage provided by appel-lee. Prior to a trial on the merits, appellee admitted that Thomas was entitled to the benefits in the sum of $10,000 and this amount was paid to Thomas.

Demand was then made by appellee upon appellant for reimbursement under section 627.7405. After appellant refused the demand, appellee filed this third party action. In answer to the third party complaint, appellant argued that the exclusive remedy of an employee against his employer is under the Compensation Act and that since appellant had paid full compensation benefits to Thomas it was not liable for any additional payment. Appellee subsequently filed a motion for summary judgment which was granted by the trial court. This appeal timely ensued.

Section 440.11 reads in pertinent part as follows:

440.11 Exclusiveness of liability.—

(1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.

Section 627.7405, on the other hand, provides that “any insurer providing personal injury protection benefits on a private passenger motor vehicle shall have ... a right of reimbursement against the owner or the insurer of the owner of a commercial motor vehicle if the benefits paid result from such person’s having been an occupant of the commercial motor vehicle.... ”

Suffice it to say that no inconsistency between the statutes exists. The Workers’ Compensation Act attempts to compensate an employee, without regard to fault, for the loss of wage-earning capacity due to work related injuries. Seaboard Coastline Railroad Co. v. Smith, 359 So.2d 427 (Fla.1978); Mullarkey v. Florida Feed Mills, Inc., 268 So.2d 363 (Fla.1972). By accepting the benefits of workers’ compensation, including the concomitant right to compensation and medical expenses, the employee relinquishes the traditional common law right to remuneration for every element of damage suffered by him for the injury. Seaboard Coastline Railroad Co. v. Smith; Mullarkey v. Florida Feed Mills, Inc.

Although the Compensation Act is a substitute for the common law rights and liabilities of employers and employees, it covers only those subjects within its self-contained limitations. It does not affect rights which are not within the purview of the act or which by necessary implication or negation are excluded therefrom. Grice v. Suwanee Lumber Manufacturing, 113 So.2d 742 (Fla.1st DCA 1959); see also Salkay v. Deuschle, 385 So.2d 181 (Fla.4th DCA 1980).

Having examined section 440.11, as well as the other provisions of the Act, it is clear to us the exclusivity provision only immunizes the employer against tort liability arising from the employee’s job-related injury. The provision does not preclude, nor does it purport to preclude, liability arising out of contract or some separate and distinct obligation incurred by the employer to the employee or others. With the passage of section 627.7405, the legislature required owners of commercial motor vehicles to reimburse no-fault carriers for the personal injury protection benefits paid as a result of accidents involving commercial motor vehicles. Because the obligation of reimbursement is a liability totally distinct from an employer’s liability in tort, it does no violence whatsoever to the exclusivity principle embodied in section 440.11.

Accordingly, we affirm the final summary judgment granted by the trial court.

BOARDMAN, A.C.J., and SCHEB and OTT, JJ., concur.


author: LEHAN, Judge.

text:
    P.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 83-928.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Appellant, a juvenile, appeals an order entered against her which withheld adjudication of delinquency and placed her in a community control program. She had been charged with making obscene or harassing telephone calls in violation of section 365.-16, Florida Statutes (1981). Appellant argues that the trial court erred in failing to grant her motion to suppress evidence obtained through the telephone company’s interception of a wire communication. We disagree and affirm the order.

The telephone company, pursuant to a request from the victim of those telephone calls but without notifying the police, used a computer to trace the origin of the victim’s incoming calls and to determine if the victim’s telephone number was dialed from appellant’s telephone. At appellant’s hearing the court admitted into evidence data which showed that appellant’s telephone number was one of the numbers which the trace identified. Section 934.09(9)(a), Florida Statutes (1981), provides for unlawfully intercepted evidence to be suppressed on an aggrieved party’s motion. The issue here is whether the telephone company’s use of the computer in this manner was an unlawful interception of a wire communication under chapter 934, Florida Statutes (1981). We conclude that it was not.

Section 934.03(1), Florida Statutes (1981), provides that it is unlawful to intercept any wire communication except as specifically provided in chapter 934. We find the type of device used here did not accomplish an unlawful “interception” within the meaning of the statute.

Section 934.03(2)(f) states,

It is lawful under this chapter for an employee of a telephone company to intercept a wire communication for the sole purpose of tracing the origin of such communication when the interception is requested by the recipient of the communication and the recipient alleges that the communication is obscene, harassing, or threatening in nature. The individual conducting the interception shall notify local police authorities within 48 hours after the time of the interception,

(emphasis added). Accordingly, if there was a statutorily defined “intercept” by the telephone company in this case, it apparently was authorized by the first sentence of section 934.03(2)(f). We need not reach the effect, if any, of the failure of the telephone company to notify the police pursuant to the second sentence in that statute. As explained below, there was no statutorily prohibited “intercept” under the foregoing provision which generally proscribes interceptions.

The term “intercept” is statutorily defined as,

the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.

§ 934.02(3), Fla.Stat. (1981). “Aural” is defined as “of or receiving through the ear or the sense of hearing.” Webster’s New World Dictionary (1952). “Contents” of a communication which may not be lawfully intercepted, except as otherwise provided in Chapter 934,

includes any information concerning the identity of the parties to such communication or the existence, substance, purport or meaning of that communication.

§ 934.02(7), Fla.Stat. (1981). Applying the above definitions to the instant facts, it appears that the computer’s trace did not “intercept” the appellant’s telephone conversation because there was no “aural acquisition” of the contents of the conversation.

Under Armstrong v. Southern Bell Telephone & Telegraph, 366 So.2d 88, 89 (Fla.1st DCA 1979), an “electronic device which records the number dialed” does not constitute an aural interception of the dialer’s communication. The Armstrong court found that:

The device attached to appellants’ telephone lines did not itself have the capability of intercepting nor recording the contents of any oral communication. The device only recorded, by electrical impulses, telephone numbers called from the telephone to which attached.
Although ... the device afforded a connection by which eavesdropping or recording equipment could have been attached no evidence was ever obtained that anyone ever actually made such a connection or that anyone actually ever listened to any conversation or communication or ever attempted to do so.

Id. Thus the court concluded that since the device did not discover the contents of any telephone conversation, it did not “aurally acquire” a communication, therefore no “intercept” occurred. Armstrong cited cases from other jurisdictions for the proposition that the foregoing is “well settled.” Id. at 90. Apparently the rationale was that even if the device, by tracing telephone numbers, provided information “concerning the identity of the parties” under section 934.02(7), it was not an “aural acquisition” under section 934.02(3) in that information was not received through the ear or the sense of hearing. This was the type of analysis used in United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), and United States v. Lanza, 341 F.Supp. 405 (M.D. Fla.1972).

New York Telephone and Lanza both employed that type of analysis in concluding that the use of a so-called “pen register” did not result in an “interception” within the meaning of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. sections 2510-2520 (1970 ed. and Supp. V). (The federal statute’s definitions of “intercept” and “contents” [sections 2510(4) and (8)] are the same as those of the Florida statute, [sections 934.-02(3) and (7)]; however, the federal statute does not contain a provision comparable to section 934.03(2)(f) for notification to the police by a telephone company). Under that analysis there was no “aural acquisition” from electronic recordings of telephone numbers.

Evidently a pen register was the type of device which was involved in Armstrong and which is somewhat different from the computer method used in this case. “A pen register is a mechanical device that records numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” New York Telephone, 434 U.S. at 161 n. 1, 98 S.Ct. at 366 n. 1., 54 L.Ed.2d at 382 n. 1. That is, a pen register apparently records the telephone numbers of outgoing calls from a particular telephone, whereas the computer method used here records the telephone number origins of incoming calls to a particular telephone. We find that distinction makes no difference because there was no “aural acquisition” by the telephone company in this case of the contents of any telephone conversation.

Also, in Michigan Bell Telephone Co. v. United States, 565 F.2d 385 (6th Cir.1977), the Sixth Circuit applied the same type of rationale in its holding that an electronic trace, apparently accomplishing the same sort of function as the computer trace employed in the case before us, did not constitute an “intercept.”

We conclude that the same rule applicable to pen registers also controls the orders requiring installation of card drops and other mechanical or electrical devices designed to trap and trace incoming telephone calls entered by the district court in the present case. The equipment used in trapping and tracing telephone calls is similar to a pen register in that it does not accomplish an “aural acquisition” within the meaning of Title III. Traces, like pen registers, neither hear nor monitor conversations.

Id. at 388.

Accordingly, the trial court did not err in denying the motion to suppress. See United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970) (congress did not intend for a pen register to be an “interception”.) See also District Attorney for Plymouth District v. Coffey, 386 Mass. 218, 434 N.E.2d 1276 (1982) (evidence obtained by tracing incoming calls should have been admitted when state statute permitted telephone operator to intercept communications when necessary to prevent harassing phone calls); State v. Droutman, 143 N.J. Super. 322, 362 A.2d 1304 (1976) (evidence of defendant’s identity obtained as a result of telephone company’s tracing procedure held admissible because the trace was not an interception within the meaning of the New Jersey statute); State v. Holliday, 169 N.W.2d 768 (Iowa 1969) (evidence of telephone numbers dialed from alleged perpetrator’s phone obtained by telephone company’s use of pen register held admissible); State v. Hulsey, 15 Ohio App.2d 153, 239 N.E.2d 567 (1968) (evidence of the identity of the caller which was determined by a pen register attached to caller’s telephone line held admissible); Harmon v. Commonwealth, 209 Va. 574, 166 S.E.2d 232 (1969) (evidence obtained through use of pen register admissible at defendant’s trial for making obscene telephone calls).

Our conclusion that the trace in this case was not an “intercept” may seem to leave unanswered the question, “What does the language of section 934.03(2)(f) purport to govern if it does not govern the trace involved here?” The apparent answer is that although arguably the legislature may have had in mind the purpose of limiting the actions of a telephone company in situations like this, the statutory language cannot be construed to apply to these facts. If the legislature had wished to provide for notification to police concerning a trace of the type involved here, it could have done so, e.g., through a different definition of “intercept.”

Even if we were certain about the foregoing possible underlying legislative purpose, we could not overlook the foregoing definitional sections of the Florida act which are interpreted in the case law we have cited.

AFFIRMED.

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


author: SCHOONOVER, Judge.

text:
    Hazel NELSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1344, 83-1345.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.

      Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

This is an appeal from the judgments and sentences entered pursuant to two orders revoking the appellant’s probation. We reverse.

The appellant was charged with violating her probation by shoplifting from the T G & Y department store in Temple Terrace, Florida, and by having in her possession a stolen automobile “tag.”

The evidence presented at the probation revocation hearing revealed that the appellant, another woman, and three children entered T G & Y. The appellant and the children left the store, and thereafter, the other woman rushed out of the store carrying a full purse. An employee of the store testified she did not see appellant’s companion place anything in the purse, but she did notice the purse was empty when the woman came into the store and full when the woman departed. The police were summoned after the appellant, who was driving an automobile with a stolen tag, refused the employee’s request that she stop and return to the store. A short time later the police stopped appellant and she allowed them to view her purse and a diaper bag that was in the vehicle. The bag contained children’s clothing that lacked identification of any kind. The clothes were never taken to the store for identification. The employee who witnessed the events informed the police department that the store did not wish to prosecute the shoplifting charge because she could not identify what, if anything, had been taken. The appellant testified that she did not take anything from the store.

The state presented no testimony regarding the stolen tag. The assistant state attorney, however, informed the court that he had a witness present to testify the tag had been stolen and that it was on the vehicle being driven by the appellant. The appellant was allowed to present her former husband’s affidavit which stated that the appellant borrowed his automobile on the day in question. The affidavit further stated that the affiant had acquired the stolen tag, had placed it on the automobile, and that the appellant had no knowledge regarding the circumstances surrounding the tag.

At the conclusion of the hearing, the court found the appellant guilty of both charges, revoked her probation, and sentenced her to two consecutive five year sentences on the underlying charges.

When viewed in a light most favorable to the state, the evidence in the instant case fails to establish that the appellant violated her probation. Evidence sufficient to support a criminal conviction is not necessary to sustain a probation revocation order. The burden of proof needed to revoke probation is the greater weight of the evidence. Ivey v. State, 308 So.2d 565 (Fla. 2d DCA 1975). Yet, where the revocation is predicated upon the commission of a crime, mere suspicion that the probationer was involved in criminal activity does not suffice. Miller v. State, 420 So.2d 631 (Fla. 2d DCA 1982).

In order to support a conviction for larceny, it is necessary to prove that the property allegedly stolen was owned by someone other than the accused. Wilcox v. State, 183 So.2d 555 (Fla. 3d DCA 1966). In the case sub judice, no evidence indicated that the articles of clothing found in appellant’s possession belonged to TG & Y and not to appellant. In The Interest of E. W., a child v. State, 379 So.2d 1028 (Fla. 1st DCA 1980).

Additionally, the state failed to demonstrate that the defendant knowingly possessed an unlawful automobile license plate. In order to sustain a finding that appellant violated her probation in this regard, it would have been necessary for the state to prove knowing possession. The affidavit, which was admitted into evidence, and unrebutted, established that the appellant had no knowledge concerning this tag. Parrish v. State, 402 So.2d 530 (Fla.3d DCA 1981).

Accordingly, this cause is reversed and remanded to the trial court for reinstatement of the original orders placing appellant on probation.

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


text:
    UNITED STATES AVIATION UNDERWRITERS, Appellant/Cross-Appellee, v. Mack VAN HOUTIN and Sharon Rose Van Houtin, Appellees/Cross-Appellants.
    Nos. 83-1949, 83-2146.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.

      Martin L. Garcia of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellant/cross-appellee.
    William C. Gregg, III, Clearwater, for appellees/cross-appellants.
   PER CURIAM.

United States Aviation Underwriters seeks reversal of a final summary judgment and award of attorney’s fees entered in favor of the appellees, its insureds. The trial court’s judgment had the effect of holding that appellees were insured for physical damage coverage under the provisions of an aircraft policy issued by appellant. We agree with appellant that under the circumstances of this case, the policy did not provide such coverage. We reverse.

Appellees, Mac Van Houtin and Sharon Rose Van Houtin, obtained aircraft insurance on their airplane from appellant, United States Aviation Underwriters. The airplane was damaged during the policy period when Mac Van Houtin overshot a runway while attempting to land. The appellant denied coverage for physical damage because of Mac Van Houtin’s flying status at the time of the accident. However, the policy contained a lienholder’s endorsement under which appellant was obligated to pay Cessna Finance Corporation for damages to the aircraft up to the amount of Cessna’s lien without regard to coverage defenses. Therefore, appellant paid Cessna $14,750 representing the full amount of its lien.

Appellant then sued appellees for reimbursement of its payment to Cessna. The court ultimately entered final summary judgment and an award of attorney’s fees for the appellees, holding that appellant’s policy provided physical damage coverage for the accident. The only issue we discuss in this appeal concerns coverage.

The policy contained five printed sections, a coverage summary page, and several endorsements. The first printed section contained general provisions, the second described liability coverage, the third described physical damage coverage, the fourth described medical coverage, and the fifth described coverage for other aircraft. The coverage summary page specified the limits of appellees’ liability coverage, physical damage coverage, and medical coverage and included a pilots addendum which named Mac Van Houtin as the authorized pilot providing he met certain qualification requirements.

The first section of the policy which, was applicable to all coverages contained the following provision:

Limitations on use. To be covered under this policy the aircraft must be owned, maintained or used only for the purpose described on the Coverage Summary page and flown only by a pilot or pilots described there. The aircraft must also be registered under a “Standard” Category Airworthiness Certificate issued by the Federal Aviation Administration (FAA), or its foreign equivalent.

Three weeks after the policy was issued but before the accident occurred, endorsement number 4 was added, which provided:

This endorsement amends your coverage as follows:
1. The “Pilots” section shown on the Coverage Summary Page is changed to read:
“Pilots”
A) Mac Van Houtin or Greg Van Hout-in each holding an FAA Pilot Certificate. Each flight by Mac Van Houtin or Greg Van Houtin while holding a Student Pilot Certificate shall be under the direct supervision or have the specific approval of a pilot holding an FAA Flight Instructor Rating.
B) Any pilot holding an FAA Private Pilot Certificate who has flown a minimum of 300 hours as Pilot In Command, at least 10 hours of which shall have been in Cessna aircraft.
2. “Your Liability Coverage” shown on Page 2 and 3 of your policy will not cover claims made against you by passengers while Mac Van Houtin or Greg Van Houtin is operating the aircraft under a Student Pilot Certificate unless accompanied by a pilot holding an FAA Flight Instructor Certificate.
3. “Your Medical Coverage” shown on Page 5 of your policy will not cover Medical Expense while Mac Van Hout-in or Greg Van Houtin is operating the aircraft with passengers under a Student Pilot Certificate unless accompanied by a pilot holding an FAA Flight Instructor Rating.

It was undisputed that at the time of the accident Mac Van Houtin held only a Student Pilot Certificate and was not operating the airplane under the direct supervision or with the specific approval of a pilot holding an FAA flight instructor rating. Appellant argues that there was no physical damage coverage because Mac Van Houtin did not meet the limitations on use required by paragraph 1(A) of endorsement number 4. Appellees respond that paragraphs 2 and 3 of the endorsement had the effect of creating an ambiguity resolvable in their favor. In essence, appellees reason that since these paragraphs excluded liability coverage and medical coverage under certain circumstances, the absence of any reference to physical damage coverage suggested that there were no pilot qualification requirements applicable to physical damage coverage. We disagree.

At the outset, we recognize that insurance contracts are to be construed strictly against the insurer and liberally in favor of coverage. New Amsterdam Casualty Co. v. Addison, 169 So.2d 877 (Fla. 2d DCA 1964). Thus, if two interpretations may fairly be given to the language used in a policy, the one providing greater coverage should govern, particularly in the case of exclusions, since the burden rests on the insurer to phrase exceptions in clear and unmistakable language. Ward v. Nationwide Mutual Fire Insurance Co., 364 So.2d 73 (Fla. 2d DCA 1978). Nevertheless, while the policy provisions we have examined are rather complex, we find no ambiguities in the policy issued to appel-lees.

We begin our analysis by observing that the limitations on use provision clearly indicates that coverage would have been afforded only when the airplane was being operated by a pilot described in the coverage summary page. The coverage summary page as amended by the first paragraph of endorsement number 4 specifies that if Mac Van Houtin were flying under a student pilot certificate rather than an FAA certificate, his flight would have to be under the direct supervision of or have the specific approval of an FAA flight instructor. Mac Van Houtin did not meet these qualifications when the accident occurred. The second and third paragraphs of endorsement number 4 are simply additional limitations on the liability and medical coverages applicable under some circumstances. Paragraph 2 provides that there would have been no liability coverage for claims by passengers while Mac Van Houtin was operating under a student pilot certificate unless he was accompanied by a pilot holding an FAA flight instructor certificate. Likewise, paragraph 3 further limits medical coverage while Mac Van Houtin was operating the aircraft with passengers under a student pilot certificate to situations in which he was accompanied by a pilot holding an FAA flight instructor certificate. These additional limitations are peculiar to circumstances when passengers are involved. Such a restriction is not necessary for claims under physical damage coverage.

The absence of additional limitations on the physical damage coverage is not to be interpreted as eliminating the pilot qualification restrictions with respect to physical damage coverage. The general pilot qualification requirements of paragraph 1 apply to physical damage coverage under all circumstances. Since Mac Van Houtin did not meet these requirements at the time of the accident, the airplane was not covered. The provisions of this policy may appear complicated, but complexity should not be confused with ambiguity.

Accordingly, the final summary judgment is reversed. Likewise, the award of attorney’s fees to appellees (which was granted pursuant to section 627.428, Florida Statutes (1981)) must also be reversed.

GRIMES, A.C.J., and SCHEB and OTT, JJ., concur.

      . The lienholder’s endorsement provided in part:
      If we make any payment to a lienholder or lessor because you invalidated your policy:
      We will be entitled to all the rights the lienholder or lessor has against you through the lien or lease. They agree to transfer and assign to us all legal documents they hold regarding the collateral, security or rights of recovery they have with you regarding loss or damage to the aircraft.
      You agree to pay us back the full amount of the payment.

      . This endorsement was issued to include Greg Van Houtin as an additional pilot but did not otherwise change the provisions of the pilots addendum on the coverage summary page.

      . Hence, the pilot qualification requirements with respect to claims by those other than passengers would still be controlled by the provisions of paragraph 1.


author: CAMPBELL, Judge.

text:
    Richard James BELL, Appellant, v. STATE of Florida, Appellee.
    No. 84-701.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant appeals his sentence for a term of five years upon his plea of guilty to the offense of possession of a short-barreled shotgun in violation of section 790.221, Florida Statutes (1981). His sole point on appeal is that the trial judge erred in sentencing appellant to a more severe sentence than the range indicated as a recommended sentence on the guideline score sheet prepared in accordance with Florida Rule of Criminal Procedure 3.701(d). We affirm.

Appellant was charged by information filed March 25, 1983, with one count of possession of a short-barreled shotgun in violation of section 790.221, and a second count of possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1981). Appellant pled not guilty.

On August 15, 1983, appellant appeared before the trial judge with his court-appointed counsel who announced to the court that appellant desired to change his plea. The following colloquy then took place before the trial judge between assistant state attorney, Volz, and defense counsel, Kahle:

MR. VOLZ: He will be pleading guilty to possession of a short-barreled shotgun under one count, we will nolle prosse the other one with the understanding he will get five years.
MR. KAHLE: Your Honor, we’re here on a change of plea in State versus Bell, pursuant to negotiations with the State Attorney’s Office the Defendant has agreed to enter a plea of guilty to count one of the information, which is possession of a short-barreled shotgun. The State has agreed to nolle prosse count two.
It’s the Defendant’s further understanding that neither the State nor the Court on its own motion would invoke the provision of the habitual offender statute. The maximum term of prison the Defendant would be subjecting himself to by his plea is five years.
The Defendant has been advised by entering this plea he’s waiving his right to a jury trial, self-incrimination, and the right to confront his accusers.

The court then proceeded to determine that the plea was freely and voluntarily entered, and that appellant understood the consequences of his plea. The court then ordered a pre-sentence investigation and continued sentencing pending receipt of that investigation.

On October 10,1983, appellant was again brought before the trial judge for sentencing in regard to his plea bargain. Through his same court-appointed counsel, appellant elected to be sentenced pursuant to sentencing guidelines. The trial court acknowledged that “He will be sentenced at his selection. He will be sentenced under the sentencing guidelines. I would point out, however, that the Court of course may depart from those guidelines if there are sufficient reasons for doing so.” Defense counsel responded that he and appellant were aware of that, and then argued matters in mitigation.

The state responded, arguing that the pre-sentence investigation showed some twenty-two incidents which normally could not be considered in departing from the guidelines, but further pointing out the circumstances of the plea bargain. Defense counsel argued that the plea bargain was not for an agreed-to sentence of five years, but a maximum cap on sentencing at five years. The trial court acknowledging the plea bargain and the five-year cap, announced that because of it he was departing from the sentencing guidelines and proceeded to sentence appellant to the five-year maximum allowed by the plea bargain.

While Rule 3.701(d)ll allows departure from the presumptive sentence of the guidelines for clear and convincing reasons, it does not delineate what those clear and convincing reasons are. We are convinced, however, that a departure from the guidelines is clearly warranted when there is a plea bargain which specifies the permissible sentence.

Plea bargains are still encouraged by Florida Rule of Criminal Procedure 3.171(a). State ex rel. Miller v. Swanson, 411 So.2d 875 (Fla. 2d DCA 1981). The appellant was bound by his contract. Merely because of the availability of selecting the application of sentencing guidelines having intervened as of October 1, 1983, does not make the plea bargain contract void. It is of note that had appellant not elected application of Rule 3.701, he would have been subject to parole. Having voluntarily elected the application of Rule 3.701, however, removed the possibility of parole.

Affirmed.

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


text:
    Dorothy GRAY, Appellant, v. CASTLE COUNCIL, INC., a Florida nonprofit corporation and Davis-Clarke Realtors, Inc., a Florida corporation, Appellees.
    No. 83-1442.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.
    Edson L. Garrabrants, Jr., Port Richey, for appellant.
    Thomas J. Zandecki of Fisher & Sauls, P.A., Port Richey, for appellee Davis-Clark Realtors, Inc.
    No appearance for Castle Council, Inc.
   PER CURIAM.

Affirmed. See § 718.111(6), Fla.Stat. (1983); Wells v. Brown, 303 So.2d 395 (Fla. 2d DCA 1974); Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); First National Bank in St. Petersburg v. Ferris, 156 So.2d 421 (Fla. 2d DCA 1963).

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


text:
    Sherman PRESLEY and Lillie Presley, Appellants, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, a foreign corporation, Carole B. Wolf and Bernard A. Wolf, Appellees.
    No. 83-2393.
    District Court of Appeal of Florida, Second District.
    July 25, 1984.
    Barry M. Salzman of Chambers & Salzman, P.A., St. Petersburg, for appellants.
    John W. Hamilton of Lyle & Skipper, P.A., St. Petersburg, for appellees.
   PER CURIAM.

Affirmed. See Kaufman v. Rubin, 183 So.2d 284 (Fla. 3d DCA 1966).

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


text:
    Regina SHEEHAN, Appellant, v. Kenneth L. MARSHALL, as Trustee Under Trust Agreement as Trust No. 82-04, Appellee.
    No. 83-1716.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Michael J. Keane of Parker, Parker, Bit-ting, Keane & Hayes, and John T. Allen, Jr., St. Petersburg, for appellant.
    Michael P. Haymans and Darol H. M. Carr of Farr, Farr, Haymans, Moseley, Emerich & Sifrit, Punta Gorda, for appel-lee.
   PER CURIAM.

We have before us for review a final judgment entered by the Circuit Court for Sarasota County evicting the appellant from a mobile home park located in Charlotte County. We reverse because the Circuit Court of Sarasota County lacked subject matter jurisdiction to order the eviction of a residential tenant from premises located in another county. Such jurisdiction lies exclusively in the county court of the county where the premises are located. §§ 34.-011(2), 83.59 and 83.7594(4), Fla.Stat. (1983).

REVERSED AND REMANDED.

HOBSON, A.C.J., and BOARDMAN and DANAHY, JJ., concur.


author: RYDER, Chief Judge.

text:
    NO-RISK CHEMICAL CO., INC., a corporation, Appellant, v. Lisa EL-KERDI, Appellee.
    No. 83-2085.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Howard J. Hochman, Miami, for appellant.
    George Vega, Jr. and Harold S. Smith, II of Vega, Brown, Nichols, Stanley & Martin, Naples, for appellee.
   RYDER, Chief Judge.

On September 25, 1977, appellee, Lisa El-Kerdi, offered to buy a piece of real property owned by Duke and Grace Dur-fee. The written offer contained the following clause, which provided, inter alia, “Upon the understanding that all machinery, equipment, and appliances will be in working order at closing, the property covered by the agreement is acceptable to the buyer in its condition as of the date of this offer.” Handwritten in the form contract was the following sentence, “Seller to submit termite inspection report.” Mr. and Mrs. Durfee accepted the offer on October 12, 1977, the same day on which appellant, No-Risk Chemical Co., Inc. (No-Risk) submitted a termite inspection report stating that a visual inspection of the property evidenced no termite infestation but that the report was based on a visual inspection only and was not to be construed as a guarantee against termites.

At closing, El-Kerdi received a copy of the termite inspection report and became aware that the house had previously been treated for termites when she received a copy of a subterranean termite contract between No-Risk and the Durfees. Approximately two weeks later, El-Kerdi discovered a termite on the property and contacted No-Risk who treated the house free of charge several times over the next four years until El-Kerdi stopped seeing termites.

El-Kerdi sued No-Risk for breach of warranty and negligence in conducting its termite inspection. At trial, No-Risk’s inspector testified that he was familiar with the prior termite problems in the house on his October 12, 1977 inspection and searched the structure for signs of active infestation, but found none. Although there was obvious termite damage to the house after closing, no witness testified that the house was infested with termites on October 12, 1977 when No-Risk made its report. Even the HRS entomologist who inspected the house three months after closing was unable to state that a visible infestation was present on October 12, 1977.

We hold, therefore, that the trial court erred in entering a judgment for El-Kerdi because the record lacks competent, substantial evidence to support the judgment. Holland v. Gross, 89 So.2d 255 (Fla. 1956); Richards v. Dodge, 150 So.2d 477 (Fla. 2d DCA 1963). Furthermore, El-Ker-di may not complain about damage from the previous infestation because she purchased the property “as is” and was informed of the previous infestation at closing.

Accordingly, the judgment entered by the trial court is REVERSED and set aside, and the cause REMANDED with instructions that judgment be entered in favor of No-Risk.

DANAHY and CAMPBELL, JJ., concur.


author: DANAHY, Judge.

text:
    Quintin C. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 83-2136.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant Quintín C. Taylor appeals from his judgments and sentences for aggravated assault, second degree murder, and arson. The public defender has filed a motion to withdraw as counsel for appellant pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on the basis that there are no meritorious grounds for this appeal.

Taylor pled guilty to the charges of aggravated assault and second degree murder. He also entered a plea of nolo contendere to the charge of arson and failed to reserve his right to appeal any ruling by the trial court. By so doing, Taylor waived his right to appeal all matters relating to the judgments, including the issues of guilt or innocence. Fla.R. App.P. 9.140(b)(1); Fla.R.Crim.P. 3.172(c)(iv). The record reflects no appeal-able issues which occurred contemporaneously with the entry of his pleas. See Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

Taylor did not seek to withdraw his plea before the trial court. Therefore, we have no jurisdiction to entertain this appeal. Accordingly, the appeal is dismissed. Counts. Accord, Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

The public defender’s motion to withdraw is hereby granted.

DISMISSED.

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


text:
    Stephen Louis HOUSER, Appellant, v. STATE of Florida, Appellee.
    No. 84-199.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Thomas A. McDonald of McDonald & McDonald, Lakeland, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant appeals from conviction of two counts of agreeing to sell a controlled substance and then selling another substance in lieu of such controlled substance, contrary to section 817.563, Florida Statutes (1983).

We reject defendant’s contention that the substantive portions of the statute are unconstitutional. State v. Growden, 437 So.2d 783 (Fla. 2d DCA 1983); State v. King, 435 So.2d 370 (Fla. 2d DCA 1983); M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983); State v. Thomas, 428 So.2d 327 (Fla. 1st DCA), petition for review denied, 436 So.2d 101 (Fla.1983). In upholding the constitutionality of the statute, we recognize our decision directly conflicts with State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984).

We also reject defendant’s claim that the penalty provisions of the statute are unconstitutional.

AFFIRMED.

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


text:
    Henry Lee LINDSEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-2153.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1984.
    Jerry Hill, Public Defender and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

Lindsey appeals the judgment and sentence on three counts for the sale of phenobarbital, section 893.13(l)(a)(2), Florida Statutes (1981), and one count for the sale of substance in lieu of a controlled substance, section 817.563, Florida Statutes (1981).

The appellant has attacked section 817.-563 as being unconstitutionally vague as a fraud statute and an improper exercise of police power. He argues that in State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984), the Fourth District ruled that section 817.-563 is unconstitutional, and that this court should follow suit.

In M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983), this court considered this same issue and held that section 817.563 was constitutional. See also Houser v. State, 453 So.2d 484 (Fla. 2d DCA 1984); State v. Growden, 437 So.2d 783 (Fla. 2d DCA 1983); State v. King, 435 So.2d 370 (Fla. 2d DCA 1983); and State v. Thomas, 428 So.2d 327 (Fla. 1st DCA 1983). Despite the view of our sister court in Bussey, we adhere to our holding in M.P. and reaffirm the constitutionality of the statute.

As to the second point on appeal, we hold that there was sufficient circumstantial evidence upon which the jury could find Lindsey guilty. Therefore, the trial judge did not err in denying Lindsey’s motion for judgment of acquittal.

The two final points on appeal deal with the appellant’s sentencing pursuant to Florida Rules of Criminal Procedure 3.701 and 3.988. We find merit in Lindsey’s arguments in regard to both the trial judge’s departure from the guidelines and the use of the scoresheet.

Under rule 3.701(d)(ll), a trial judge is allowed to depart from the range set forth in the rules only where there are “clear and convincing reasons to warrant aggravating or mitigating the sentence.” (Emphasis added). In this case, the trial judge departed from the guidelines and imposed an aggravated sentence’ on the appellant. During the sentencing proceeding, the judge stated that facts which came out during the trial showed that the appellant was a drug dealer. The trial judge explained that, although the four counts upon which the appellant was convicted were taken into consideration within the sentencing guideline point system, the appellant could have been convicted of ten or twenty counts if the undercover police officers had continued to buy drugs from him rather than stopping after four transactions. We hold that the judge could properly take into consideration the fact that the appellant was a drug dealer based upon facts which were revealed during trial. However, the judge’s reasoning that the appellant “could have” been convicted of ten or twenty counts is speculative. Speculation as to what the appellant might have done in the future is not a clear and convincing reason for departure from the guidelines, and therefore, although we affirm the judgment of guilt, we reverse and set aside the sentence imposed and remand for resentencing.

The appellant also contends that the trial judge incorrectly used the sentencing scoresheet from Category VII (drugs), rule 3.988(g), whereas he should have used the scoresheet from Category VI (theft, forgery, fraud), rule 3.988(f). The appellant was convicted on three counts under a drug statute, and one count under a fraud statute. All four counts are third degree felonies. According to the then rule 3.701(d)(3)(b), which was in effect at the time of sentencing, if there are two or more offenses of the same degree the primary offense is determined by “the lowest numerical offense category.” In this case, the third degree fraud conviction is within a lower numerical offense category than the three third degree drug convictions. Therefore, upon remand for resentencing, the judge should use the scoresheet from Category VI to calculate the sentence.

The judgment of guilt is AFFIRMED; the sentence is REVERSED and set aside and the matter is REMANDED for resen-tencing in accordance with instructions.

HOBSON and BOARDMAN, JJ., concur.


text:
    Robert G. THORPE, Appellant, v. STATE of Florida, Appellee.
    No. 84-256.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We find no merit in appellant’s contention that the trial court lacked jurisdiction over this matter, and thus we affirm appellant’s judgment and sentence for concealing a child contrary to court order, a violation of section 787.04, Florida Statutes (1988). We agree with appellant’s assertion, however, that the trial court improperly imposed court costs and attorney’s fees against appellant for his defense by the public defender.

Section 27.56(1), Florida Statutes (1983), authorizes assessment of the challenged costs and fees against an indigent defendant after compliance with the notice and hearing requirements specified in section 27.56(7). Jenkins v. State, 444 So.2d 947, 950 (Fla.1984); Shaffer v. State, 446 So.2d 1156, 1157 (Fla. 2d DCA 1984); Anderson v. State, 415 So.2d 49, 50 (Fla. 2d DCA 1982). See also Fla.R.Crim.P. 3.720(d)(1). Our review of the record discloses that the trial court ordered payment of these costs without affording appellant adequate notice and an opportunity to object to the court’s determination. Accordingly, we vacate that portion of the final judgment imposing these assessments and remand for proper consideration of this matter. We affirm appellant’s judgment and sentence in a11 other respects.

RYDER, C.J., and HOBSON and BOARDMAN, JJ., concur.


author: OTT, Judge.

text:
    Theodore and Joann M. ZIELINSKI, as parents and guardians of Jeffrey Zielinski, and Richard and Gwendolyn Nurge, as parents and guardians of Jeffrey Nurge, Petitioners, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, a corporation, Respondent.
    No. 84-368.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.

      Bruce D. Frankel of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for petitioners.
    Vicki L. Sproat of Henderson, Franklin, Starnes & Holt, Fort Myers, for respondent.
   OTT, Judge.

Petitioners, the defendants in the trial court, ask this court to review an order of the circuit court sitting in its appellate capacity. The circuit court affirmed the trial court’s determination that respondent, petitioners’ insurer, was entitled to reimbursement of medical benefits paid. Based on section 627.7372, Florida Statutes (1981), Molyett v. Society National Life Insurance Co., 452 So.2d 1114 (Fla. 2d DCA 1984), and Prince v. American Indemnity Co., 431 So.2d 270 (Fla. 5th DCA 1983), we quash the circuit court’s order as a departure from the essential requirements of the law and remand to the trial court for entry of final judgment in petitioners’ favor.

Minors Jeffrey Zielinski and Jeffrey Nurge were riding on a motorcycle owned by Mr. Zielinski and insured by respondent when the motorcycle was struck by a motor vehicle driven by John D. Kimble, Jr. The boys suffered personal injuries and incurred medical expenses. Respondent paid $2,000 in medical benefits to petitioners. Petitioners subsequently settled their personal injury claims with Mr. Kimble and his insurer. In this action, respondent sought reimbursement of the medical benefit payments pursuant to the subrogation clause in its insurance contract.

The legal issue raised by the parties is whether respondent is entitled to reimbursement of the medical benefits paid to its insureds. Our recent holding in Molyett controls disposition of the instant controversy. Therein, on facts indistinguishable from those in the case at bar, we determined that the insurer was not entitled to assert its right of subrogation or reimbursement for the monies already paid to the insureds. See also Prince v. American Indemnity Co., supra.

The circuit court’s decision affirming the trial court’s grant of summary judgment in respondent’s favor is QUASHED. The case is REMANDED to the trial court for entry of a final judgment in petitioners’ favor.

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


text:
    Donna Gail CLARKE, Appellant, v. STATE of Florida, Appellee.
    No. 84-420.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.

      Jerry Hill, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

After reviewing the briefs and record on appeal, we find that the appellant has failed to demonstrate reversible error; therefore, the judgments and sentences appealed from are affirmed. We remand, however, for correction of clerical errors in the court’s written judgment and sentence form.

The appellant was originally charged by a seven count information. A jury found her guilty of attempted aggravated battery with a firearm (count I), improper exhibition of a firearm (counts II and III), and discharging a firearm in public (count V).

In open court, appellant was sentenced on count I to five years in prison, with a minimum sentence of three years pursuant to section 775.087(2), Florida Statutes (1983). The court withheld sentence on counts II, III, and V, and placed the appellant on probation. The probationary terms under counts II and III were to run concurrent with one another and consecutive to the prison term. The probationary term under count V was to run consecutive to the other terms of probation.

The written judgment and sentence form failed to mention the three year minimum sentence imposed in open court and referred to the wrong count numbers when setting forth the terms of the probationary periods. A court’s written order of judgment and sentence must conform to its oral pronouncement. Yates v. State, 429 So.2d 815 (Fla. 2d DCA 1983).

We, accordingly, remand this cause to the trial court for correction of these clerical errors. The judgments and sentences are affirmed in all other respects.

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


author: CAMPBELL, Judge. GRIMES, Acting Chief Judge,

text:
    Barbara J. MILLER, Petitioner, v. FORTUNE INSURANCE COMPANY, Respondent.
    No. 84-1002.
    District Court of Appeal of Florida, Second District.
    July 27, 1984.

      Associates and Bruce L. Scheiner, Fort Myers, for petitioner.
    Charles P. Schropp and William A. Gil-len, Jr. of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for respondent.
   CAMPBELL, Judge.

This is a petition for writ of certiorari to review an order of the circuit court affirming the county court’s denial of petitioner’s request to remove the words “with prejudice” from her notice of voluntary dismissal. We cannot determine that the lower courts departed from the essential requirements of law and, therefore, deny certiora-ri.

Petitioner, Barbara J. • Miller, initially filed suit in county court against Fortune Insurance Company for medical expenses incurred as a result of an automobile accident. Subsequently, petitioner filed a notice of voluntary dismissal “with prejudice” dismissing the action. Thereafter, petitioner filed, pursuant to Rule 1.540(b), Florida Rules of Civil Procedure, a motion for relief from voluntary dismissal on the ground that the filing of the notice “with prejudice” was the result of secretarial error. In support of her motion, she filed two affidavits executed by her attorney and his secretary, which stated that the filing of the notice “with prejudice” was in fact the result of secretarial error and/or excusable neglect.

The county court denied petitioner’s motion for relief and she appealed to the circuit court, which affirmed the county court’s order. She thereupon sought review in this court by certiorari.

Since we are provided with no record in this case, we cannot determine the basis of the trial judge’s ruling denying the motion to remove the words “with prejudice” from the notice of voluntary dismissal. It appears that if the trial judge intended to deny the motion on the basis that he did not believe the affidavits that the words “with prejudice” were placed on the notice as a result of clerical or secretarial error, an evidentiary hearing should have been held and live testimony presented. However, the ruling of the trial court can be sustained as a matter of law on the basis of the holding in Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978), that a trial court is divested of jurisdiction once there is a voluntary dismissal of an action. See also Piper Aircraft Corporation v. Prescott, 445 So.2d 591 (Fla. 1st DCA 1984); United Services Automobile Association v. Johnson, 428 So.2d 334 (Fla. 2d DCA 1983).

In Randle, the plaintiff brought a wrongful death action against Randle-East-ern Ambulance Service, Inc. for negligence in performing ambulance services. At trial, the plaintiff was prohibited from introducing certain evidence and, thereupon, voluntarily dismissed the suit. Prior to dismissing the action, the statute of limitations had expired. Subsequently, the plaintiff filed a motion for relief from the voluntary dismissal citing Rule 1.540(b), Florida Rules of Civil Procedure. The trial court granted the motion for relief and reinstated the cause of action. On appeal, the supreme court held that the plaintiff’s voluntary dismissal divested the court of jurisdiction to relieve the plaintiff from the dismissal and, thus, the court had no jurisdiction to reinstate the cause of action.

In denying certiorari and holding in accordance with Randle, we consider that we are in conflict with the holding in Shampaine Industries, Inc. v. South Broward Hospital District, 411 So.2d 364 (Fla. 4th DCA 1982). In Shampaine, the plaintiff sought to have the words “with prejudice” removed from her intentionally filed voluntary dismissal contending that the words were inadvertently included in the dismissal. The appellate court affirmed the trial court and allowed the words to be removed, stating that relief is available for voluntary dismissals entered as a result of mistake, inadvertence or excusable neglect. We have some difficulty in deciding exactly what the court in Shampaine has held. The fourth district there observed that it was possible to distinguish Randle from Shampaine on the basis that Randle involved a motion to reinstate the cause of action, and Shampaine was a motion to correct the dismissal by expunging the words “with prejudice.” However, the court concluded that such a distinction “would be both highly academic and unjustified.” We agree that such a distinction is one without a difference. The fourth district also concluded that if, as stated in Randle, the court loses jurisdiction on a voluntary dismissal, it matters not whether the dismissal was “with prejudice” or “without prejudice.” We also agree with that conclusion. The Shampaine court then seems to focus on whether the dismissal was “volitional” or deliberate. They conclude that Randle intended to withhold Rule 1.540(b) relief only where the voluntary dismissal was entered deliberately, and as the result of attorney miscalculation. The Shampaine court then decides that the voluntary dismissal was “with prejudice,” rather than “without prejudice,” because of secretarial error and, therefore, it was not a “volitional dismissal,” and 1.540(b) relief was available. That final decision seems to contravene the courts other conclusions that it matters not whether the dismissal was with prejudice or without, because in Shampaine there was no dispute that there was an intent to dismiss, but just not with prejudice.

The Shampaine court thus seems to be using the mistake in dismissing with prejudice to convert the intentional dismissal into an unintentional dismissal. We cannot agree with that position because we believe Randle clearly holds that either type of voluntary dismissal causes the court to lose jurisdiction. We could probably concur with Shampaine if their final conclusion hinged purely on whether any dismissal at all was intended. If, therefore, a dismissal, whether with prejudice or without, was mistakenly filed, relief under Rule 1.540(b) might be appropriate. But Shampaine, though originally appearing to have made that holding, upon closer examination, rests the distinction on the mistaken use of the words “with prejudice.”

Since we have no record here, we cannot determine the underlying reasons for the dismissal. However, we conclude that makes no difference, for if the court loses jurisdiction, it is lost for all purposes. There is also no representation here that petitioner did not intend to dismiss at all, and that the dismissal, whatever its nature, was a mistake.

Therefore, we affirm the decision of the trial court and deny petitioner’s request for certiorari.

SCHOONOVER, J., concurs.

GRIMES, A.C.J., concurs specially with opinion.

GRIMES, Acting Chief Judge,

concurring specially.

The taking of the voluntary dismissal in this case was clearly volitional. Only the inclusion of the words “with prejudice” might be considered nonvolitional and therefore subject to correction under rule 1.540(b). Under this rationale, a party’s attorney could not be relieved of the unanticipated consequence of an act he intended to take, but he could be relieved of the consequences of an act he did not intend to take. Misapprehension of law or fact would fall within the first category, while secretarial error would fall within the second.

I might be persuaded to this view if we were writing upon a clean slate. See Chief Judge Ervin’s concurring opinion in Piper Aircraft Corp. v. Prescott, 445 So.2d 591 (Fla. 1st DCA 1984). However, Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978), plainly holds that the taking of a voluntary dismissal divests the court of jurisdiction to grant any relief even by way of rule 1.540. If the law on this subject is to be changed, it can only be accomplished by the supreme court.

      . Though the Shampaine court certified the question, apparently neither party elected to present the issue to the supreme court.


text:
    WORLDWIDE AMUSEMENT CORPORATION, Blue Grass Shows Incorporated, and Ambassador Insurance Company, Appellants, v. Tausha SANCHEZ, a minor By and Through her best friend and mother, Twanna SANCHEZ, and Twanna Sanchez, individually, Appellees.
    No. AU-394.
    District Court of Appeal of Florida, First District.
    July 27, 1984.
    Charles A. Schuster and Robert Heath, Pensacola, for appellants.
    Thayer M. Marts, Tallahassee, and Herman D. Laramore, Marianna, for appellees.
   PER CURIAM.

Appellants seek review of the trial court’s order denying their motion to set aside a default. Subsequent to the entry of the judgment below, this court decided Florida Aviation Academy v. Charter Air Center, 449 So.2d 350 (Fla. 1st DCA 1984), which states the applicable law on excusable neglect. Accordingly, the cause is reversed and remanded for a hearing and resolution of all factual issues presented in the light of Florida Aviation Academy, supra.

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.


author: NIMMONS, Judge.

text:
    Curley L. MILLER, Appellant, v. LEON COUNTY BOARD OF COUNTY COMMISSIONERS and American Liberty Insurance Company, Appellees.
    No. AV-477.
    District Court of Appeal of Florida, First District.
    July 27, 1984.

      P. Kevin Davey of Douglass, Davey, Cooper <& Coppins, Tallahassee, for appellant.
    J. Craig Knox of Fuller & Johnson, P.A., Tallahassee, for appellees.
   NIMMONS, Judge.

Miller appeals from an order of the deputy commissioner denying wage loss benefits. We affirm on the grounds that Miller failed to show that his inability to obtain employment was “due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment” as required by Section 440.15(3)(b)2, Florida Statutes (1983). The work search evidence presented by the claimant showed only that the prospective employers contacted by the claimant were not hiring. Unlike the situation in the recent case of City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), there is no indication from the record that the claimant’s physical impairment was a factor in his rejection by such employers.

Also without merit are the appellant’s assertions (1) that the deputy erred in applying the 1983 amendment (Chapter 83-305, Laws of Florida) of Section 440.-15(3)(b)2 to the instant case which involves a 1981 accident, see City of Clermont v. Rumph, supra; and (2) that Section 440.-15(3)(b)2, being procedural in nature, imper-missibly encroaches upon the Florida Supreme Court’s rule-making authority, cf. Farrell v. Amica Mutual Insurance Co., 361 So.2d 408 (Fla.1978).

AFFIRMED,

ERVIN, C.J., and JOANOS, J., concur.


author: BOOTH, Judge.

text:
    Cynthia A. SANDLIN, Appellant, v. McKINNEY-GREEN, INC., Appellee.
    No. AW-99.
    District Court of Appeal of Florida, First District.
    July 27, 1984.

      Raymond M. Ivey of Williams & Castello, Gainesville, for appellant.
    Theodore M. Burt of Burt & Philman, Trenton, for appellee.
   BOOTH, Judge.

Appellant, Cynthia Sandlin, defendant below, seeks review of the order granting final summary judgment entered in favor of appellee, McKinney-Green, Inc. We reverse.

On September 7, 1982, Danny Sandlin Home Builders, Inc. (Corporation) and ap-pellee, a mortgage lender, entered into a construction loan agreement for the construction of a duplex upon real property owned by the corporation and described in the construction loan agreement. The corporation was also the maker of a promissory note and mortgagor of a mortgage to appellee, both note and mortgage being part of the construction loan agreement. The promissory note was personally guaranteed by Danny Sandlin and his wife, Cynthia Sandlin, the appellant. The Corporation began performance of the construction loan agreement, and the appellee dispensed $10,000 to the Corporation.

In December, 1982, the Corporation’s President, Danny Sandlin, notified the ap-pellee that, due to financial problems, it would not be able to complete construction of the improvements on Lot 77 as required by the construction loan agreement. Appellant alleges that at this time the appel-lee, through its president, and the Corporation, through its president, Danny Sandlin, orally agreed that, in exchange for a conveyance of Lot 77 and the improvements thereon from the Corporation to J. Phillip Weidler, an employee of appellee, and to Shirley Z. Weidler, his wife, the appellee would complete construction of the duplex. Appellee completed the construction of the duplex. On March 29, 1983, the Corporation executed and delivered a warranty deed to Lot 77 and the improvements thereon to J. Phillip Weidler, an employee of the appellee, and to Shirley Z. Weidler, his wife.

On April 26, 1983, the appellee filed its complaint against the Corporation, Danny Sandlin, and the appellant for payment of the promissory note. On June 29, 1983, a suggestion of bankruptcy was filed, staying the proceedings as to the corporation and Danny Sandlin. Thereafter, on September 22, 1983, summary final judgment in the amount of $14,233.46 was entered against the appellant, and this appeal followed.

The appellant raises three issues here: (1) that the summary final judgment should be reversed because the record shows a genuine issue of a material fact concerning an oral agreement for discharge of the note, thereby releasing the appellant from liability; (2) that there exists a genuine issue of a material fact as to the amount owed; and (3) that the appellee released the security for its note to the appellant’s detriment and without her consent or knowledge, in violation of Section 673.606, Florida Statutes. The third issue was not before the trial court and cannot be considered for the first time on appeal. However, as to the first and second issues, supra, we agree with appellant that summary judgment was improper due to existing material issues of fact. The record before us raises doubt as to whether there was an oral agreement for discharge of the note and as to the amount owed, if any. When affirmative defenses are raised by a defendant, a summary judgment cannot be entered if the plaintiff neither disproves those defenses by evidence nor establishes their legal insufficiency. Howdeshell v. First National Bank of Clearwater, 369 So.2d 432, 433 (Fla.2d DCA 1979). In the case sub judice, the appellee did not carry its burden of either disproving the appellant’s affirmative defenses by evidence or establishing the legal insufficiency of those defenses.

Accordingly, the judgment below is set aside and the cause reversed and remanded for further proceedings consistent herewith.

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

      . "If the pleadings, depositions, answers to interrogatories, admissions, affidavits and other evidence in the file raise the slightest doubt upon any issue of material fact then a summary judgment may not be entered." Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975), cert. dismissed, 336 So.2d 105 (Fla.1976).


author: BARFIELD, Judge.

text:
    Stephen J. GROSS, Appellant, v. John LEE and American States Insurance Company, Appellees.
    No. AU-488.
    District Court of Appeal of Florida, First District.
    July 27, 1984.
    Donald M. Hinkle of Green & Fonvielle, P.A., Tallahassee, for appellant.
    Fred M. Johnson and Robert C. Crabtree of Fuller & Johnson, P.A., Tallahassee, for appellees.
   ON MOTION FOR REHEARING

BARFIELD, Judge.

This case is before the court on appel-lees’ motion for rehearing. The motion is granted. The opinion previously filed on May 30, 1984 is withdrawn.

Stephen J. Gross appeals from a final judgment awarding him 17 percent of six dollars in damages following the verdict of the jury. We hold that the trial court erred in refusing to grant a new trial because of inadequate damages. Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941). The pain medication purchased by Gross was more than eleven times the amount of the jury award. The month’s stay in the hospital coupled with attendant medical care satisfy the court that the jury verdict is grossly inadequate. The record creates a strong suspicion that the inadequate damage award resulted from a lack of conviction by the jurors in their liability finding. Duquette v. Hindman, 152 So.2d 789 (Fla.1st DCA 1963). The judgment of the trial court is REVERSED and a new trial on liability and damages is directed.

THOMPSON and NIMMONS, JJ., concur.


author: JOANOS, Judge.

text:
    STATE of Florida, Appellant, v. Mark Alan PLAWCHAN, Appellee.
    No. AX-445.
    District Court of Appeal of Florida, First District.
    July 31, 1984.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellant.
    Antony E. Fiorentino, Pensacola, for ap-pellee.
   JOANOS, Judge.

State of Florida petitions for writ of cer-tiorari to review the circuit court’s determination that the State’s failure to preserve a sample of Plawchan’s breath constituted suppression of evidence and a denial of constitutional due process.

Plawchan was initially charged for driving under the influence of alcohol. Breath analysis, using a device called a breathalyzer, indicated a .16 blood alcohol content. Plawchan entered a plea of nolo contendere to the amended charge of driving with an unlawful blood alcohol level, specifically reserving his right to appeal the denial of his motion to suppress the results of the breath analysis. The motion to suppress was based upon the State’s failure to preserve a sample of Plawchan’s breath which would be material to his defense. The breathalyzer used to test Plawchan’s blood alcohol level was not equipped to preserve breath samples. The parties stipulated that Plawchan had requested production of the breath sample, that the breath sample had not been preserved and could not be produced, and that denial of the motion to suppress was dispositive of the issue of Plawchan’s blood alcohol level. Expert testimony showed that the breathalyzer could be modified at an approximate cost of $200.00 to preserve a suspect’s breath sample for six months. The circuit court, acting in its appellate capacity, found no bad faith in the State’s failure to preserve a sample of Plawchan’s breath, rather, it was routine procedure to destroy the samples in all cases. The circuit court determined, however, that under the circumstance that there was a scientifically approved method of preserving breath samples, the State’s failure to do so amounted to suppression and destruction of evidence in violation of Plawchan’s constitutional right to due process.

The State’s intentional or negligent suppression of material evidence favorable to the accused after request for such evidence constitutes a denial of due process, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Due Process Clause of the Fourteenth Amendment, however, does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial. California v. Trombetta, — U.S. —, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

Accordingly, State of Florida’s petition for writ of certiorari is granted, the decision of the circuit court is quashed and the order of the trial court is reinstated.

SMITH and ZEHMER, JJ., concur.


text:
    Desmond J. TUTSON, Appellant, v. STATE of Florida, Appellee.
    No. AY-3.
    District Court of Appeal of Florida, First District.
    July 31, 1984.
    Desmond J. Tutson, pro se.
    No appearance for appellee.
   JOANOS, Judge.

Tutson has appealed from an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Tutson asserted that his constitutional rights were violated because he was arbitrarily not classified as a youthful offender pursuant to Section 958.04(3), Florida Statutes 1979.

The documents filed before us reflect that Tutson was arrested May 11, 1978, convicted on a plea of guilty on August 15, 1978, and sentenced on September 15,1978. All of these events occurred prior to the effective date of the Youthful Offender Act, Chapter 78-84, Laws of Florida, now contained in Chapter 958, Florida Statutes (1983). There was, therefore, no error in not sentencing Tutson under those statutory provisions. Sentencing under the Youthful Offender Act prior to the effective date of the act would be an impermissible retroactive application. Bradley v. State, 385 So.2d 1122 (Fla. 1st DCA 1980).

The order appealed from is AFFIRMED.

SMITH and ZEHMER, JJ., concur.


text:
    James CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2081.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before FERGUSON and JORGENSON, JJ., and WILLIAM A. NORRIS, Jr., Associate Judge.
   PER CURIAM.

Affirmed. See State v. Murray, 443 So.2d 955 (Fla.1984); O’Callaghan v. State, 429 So.2d 691 (Fla.1983); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Hall v. State, 444 So.2d 1019 (Fla. 3d DCA 1984); Pitts v. State, 307 So.2d 473 (Fla. 1st DCA), cert. dismissed, 423 U.S. 918, 96 S.Ct. 302, 46 L.Ed.2d 273 (1975).


text:
    Pedro FUENTES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-370.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Bennett H. Brummer, Public Defender, and Lionel Barnet and James Greason, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See United States v. Llinas, 603 F.2d 506 (5th Cir.1979); Lucas v. State, 376 So.2d 1149 (Fla.1979); Kaelin v. State, 410 So.2d 1355 (Fla. 4th DCA 1982).


text:
    Jorge RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1350.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before FERGUSON and JORGENSON, JJ., and WILLIAM A. NORRIS, Jr., Associate Judge.
   PER CURIAM.

Affirmed. State v. Murray, 443 So.2d 955, 956 (Fla.1984); Johnson v. State, 449 So.2d 921, 925 (Fla. 1st DCA 1984); Tucker v. State, 417 So.2d 1006, 1010 (Fla. 3d DCA 1982); Zamot v. State, 375 So.2d 881 (Fla.3d DCA 1979); Francis v. State, 343 So.2d 932, 933 (Fla. 3d DCA 1977); Broge v. State, 288 So.2d 280, (Fla. 4th DCA), cert. denied, 295 So.2d 302 (Fla.), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 74 (1974).


author: HENDRY, Judge.

text:
    Betty A. MEARS and the State of Florida, Department of Health and Rehabilitative Services, Appellants, v. Larry M. LUTERMAN, Appellee.
    No. 83-1367.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Melvin A. Rubin, Miami, Kenneth Friedman, North Miami, for appellants.
    No appearance, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

The Department of Health and Rehabilitative Services and Betty A. Mears, custodial grandmother of the child receiving Aid for Dependent Children funds, appeal from an order of the trial court withholding a ruling on their petition for support which had been filed against respondent Larry Luterman, the child’s natural father. After a hearing, the trial court entered an order directing that no action be taken against respondent father until a petition for support was filed against the natural mother also and both cases brought before the court at the same time. We reverse on the basis of the plain language of section 409.2564(1), Florida Statutes (1983), which states in relevant part:

In each case in which regular child support payments are not being made to the department as provided herein, the department shall institute, within 30 days after determination of the responsible parent’s reasonable ability to pay, an action for support against any person liable for the support of the child.

The statute makes clear that the Department of Health and Rehabilitative Services must file a petition for support against at least one parent (or possibly both), as long as there has been a determination that there is a reasonable ability to pay. The statute does not require that when both parents appear to be in a position to pay child support that petitions against both parents must be filed or filed against neither at all. To read such a requirement into the statute would thwart the legislative intent, which is clearly expressed in section 409.2551:

It is declared to be the public policy of this state that this act be construed and administered to the end that children shall be maintained from the resources of responsible parents, thereby relieving, at least in part, the burden presently borne by the general citizenry through public assistance programs.

The department determined that respondent had a reasonable ability to pay $25.00 a week toward the support of his child; it is free to find that the mother has a reasonable ability to pay some amount also. Until it does so, however, the department is not foreclosed from asking that respondent pay his share of the child’s expenses.

Reversed.


text:
    Robert Lee BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1413.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before HUBBART and JORGENSON, JJ., and WILLIAM A. NORRIS, Associate Judge.
   PER CURIAM.

Affirmed. See Wilson v. State, 414 So.2d 512 (Fla.1982).


text:
    ROYAL INSURANCE COMPANY OF AMERICA, a foreign corporation, Appellant, v. VENE-EMBARQUES, INC., a Florida corporation, Appellee.
    No. 83-2306.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Donovan, Maloof, Culp & Kennedy and W.R. McClenathen, II, Jacksonville, for appellant.
    Neil Carver, Coral Gables, for appellee.
    Before FERGUSON and JORGENSON, JJ., and NORRIS, WILLIAM A., Jr., Associate Judge.
   PER CURIAM.

In this action brought pursuant to an open marine cargo insurance policy, there was competent, substantial evidence to support the judgment finding coverage and awarding damages to plaintiff. See Peninsular Fire Insurance Co. v. Wells, 438 So.2d 46, 53 (Fla. 1st DCA), rev. dismissed, 443 So.2d 980 (1983); Liberty Mutual Insurance Co. v. Flitman, 234 So.2d 390, 391 (Fla. 3d DCA 1970); see generally Hillcrea Export & Import Co. v. Universal Insurance Co., 110 F.Supp. 204, (S.D.N.Y.1953), aff'd, 212 F.2d 206 (2d Cir.), cert. denied, 348 U.S. 834, 75 S.Ct. 57, 99 L.Ed. 657 (1954) (question of whether or not loss is within terms of marine cargo insurance policy is one of fact). The judgment under review is therefore

AFFIRMED.


author: PER CURIAM. BASKIN, Judge

text:
    James TER KEURST and Cecilia Ter Keurst, Appellant, v. MIAMI ELEVATOR COMPANY and Centaur Insurance Company, Appellees.
    No. 84-196.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Maguire & Friend and Michael P. Ma-guire, Coral Gables, for appellant.
    Schwartz & Hasty and G.J. Godfrey, Miami, for appellees.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

We affirm the judgment below on the authority of Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923 (Fla.3d DCA 1983) which specifically approved the method used in this case for selection of the jury panel. We hereby certify to the Supreme Court of Florida that this decision passes upon a question of great public importance:

May a trial court require the parties to exercise all of their peremptory challenges simultaneously in writing where the original panel has been thoroughly examined and challenges for cause exercised, and there remain sufficient members to comprise a jury after all peremptory challenges have been exhausted?

Affirmed; question certified.

BASKIN, Judge

(dissenting).

I disagree with the conclusion in the majority opinion that Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923 (Fla. 3d DCA 1983) forecloses our consideration of the issue raised in this appeal. In Gellert the court addressed the inability of a litigant to exercise all his peremptory challenges when there were fewer than six prospective jurors remaining in the box. Because the trial court had denied the litigants an opportunity to challenge prospective jurors seated later, this court reversed.

Now, however, we are confronted with a different problem. Appellants complain that under the system used by the trial court in reliance on Gellert, they were deprived of the opportunity to exercise intelligent judgment because they were required to submit their peremptory challenges simultaneously with those submitted by opposing counsel. Thus, when they exercised their peremptory challenges at the time specified by the trial court, they did not know which prospective jurors had been excused by opposing counsel. In fact, the trial court stated:

[Tjhis will be the only time that you will have a chance to exercise your challenges and if you do not use all three of them, you will waive them ....

Appellants maintain that the court should have ordered a system which would permit the parties to take turns in exercising peremptory challenges. They would then have avoided wasting their peremptory challenges on individuals already excused by opposing counsel. Their claim has merit.

In my view, the procedure utilized by the trial court denied appellants the opportunity guaranteed by law to reach an intelligent decision as to the exercise of peremptory challenges. Loftin v. Wilson, 67 So.2d 185 (Fla.1953); Minnis v. Jackson, 330 So.2d 847 (Fla. 3d DCA 1976). Once the litigants have used their challenges on individuals already excused by an opponent, they lack further recourse, especially when, as here, the trial court announces that failure to exercise peremptories at the stated time constitutes a waiver of peremp-tories. It is impractical to require them to violate the court’s ruling in order to obtain the information they need.

My disagreement with the majority is based on two reasons. First, waiver is the intentional relinquishment of a known right. Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (Fla.1945); Hochman v. Lazarus Homes Corp., 324 So.2d 205 (Fla. 3d DCA 1975). In this case, however, the court required counsel to exercise their peremp-tories in total ignorance of the action taken by opposing counsel. Under these circumstances, no waiver could lawfully occur.

My second reason stems from the language of the rule pertaining to examination of prospective jurors by the parties. Rule 1.431(b) of the Florida Rules of Civil Procedure states that the parties have the right to examine jurors orally on their voir dire. It continues: “The order in which the parties may examine each juror shall be determined by the court.” It is readily apparent that the rule itself contemplates an order to be determined by the court for the exercise of peremptory challenges. Unfortunately, the order set in this case was no order at all, but a simultaneous exercise of challenges depriving the litigants of an opportunity to exercise fair judgment.

For these reasons, I would reverse the judgment and remand for a new trial.


text:
    Bruce Allan RENDALL, Appellant, v. The STATE of Florida, Appellee.
    No. 84-238.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

This appeal questions the propriety of the trial court revoking the appellant’s probation and further alleges error in the trial court failing to correctly give the appellant credit for previous time spent in the county jail. We affirm the revocation. Edwards v. State, 439 So.2d 1028 (Fla. 3d DCA 1983); Chappell v. State, 429 So.2d 84 (Fla. 5th DCA 1983); Roth v. State, 406 So.2d 121 (Fla. 2d DCA 1981); Aaron v. State, 400 So.2d 1033 (Fla. 3d DCA 1981); Adams v. State, 330 So.2d 505 (Fla. 1st DCA 1976).

We find merit in the failure to specifically name the amount of time to which the appellant should be credited and therefore remand the matter to the trial court for resentencing. Lund v. State, 396 So.2d 255 (Fla. 3d DCA 1981); Scherer v. State, 366 So.2d 840 (Fla. 2d DCA 1979).

Affirmed in part and reversed in part with directions.


text:
    James R. JUTAGIR, Appellant, v. Kenneth MARLIN, Harris J. Buchbinder and Ira M. Elegant, Appellees.
    No. 84-987.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Stinson, Lyons & Schuette and Mark D. Greenberg, Miami, for appellant.
    Harris J. Buchbinder and Ira M. Elegant and Arnold Nevins, Miami Beach, for appel-lees.
    Before FERGUSON and JORGENSON, JJ. and NORRIS, WILLIAM A., JR., Associate Judge.
   PER CURIAM.

The issue presented by appellant’s motion to transfer venue is whether a complaint to rescind an agreement for the conveyance of land based on fraudulent misrepresentation, to which there is a counterclaim for specific performance, is a local action which must be heard where the land is located. The trial court correctly rejected appellant’s contention that any action in which the major issue involves real property is in the nature of an in rem proceeding, and is a local action.

The test for the proper action venue has generally been not whether the direct effect of the action would be in rem or in •personam, but whether the occurrence giving rise to the action could have happened only in one place or might have happened anywhere. Hartford Accident & Indemnity Co. v. City of Thomasville, 100 Fla. 748, 751, 130 So. 7, 9 (1930). In this case, the alleged fraudulent misrepresentations could have been made in any county. Further, an action for specific performance of an agreement to sell land is purely an in personam action which need not be brought in the county where the land is located. Bailey v. Crum, 120 Fla. 36, 46, 162 So. 356, 360 (1935); McMullen v. McMullen, 122 So.2d 626, 631 (Fla. 2d DCA 1960).

The order denying the motion to transfer is AFFIRMED.


text:
    Milton S. MONYEK, Appellant, v. Arlyne S. MONYEK, Appellee.
    No. 84-993.
    District Court of Appeal of Florida, Third District.
    July 31, 1984.
    Bryson & Berman and John E. Bergen-dahl, Miami, for appellant.
    Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbaugh and Herman J. Russo-manno, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal from an order entered in a post judgment marriage dissolution proceeding, which order we interpret to be a final judgment. The order confirms a previously filed report of a general master, subject to timely exceptions; it also enters a “final judgment in the sum of $13,750.00 plus interest at the legal rate from November 24,1983, for which let execution issue.” We are compelled to reverse this final judgment because it was entered on a master’s report without conducting a hearing upon certain exceptions timely filed by Milton S. Monyek, the former husband, and without ruling thereon, as required by Fla.R.Civ.P. 1.490(h). See Kay v. Kay, 430 So.2d 532 (Fla. 4th DCA 1983). Beyond that, we find no other error committed below upon this appeal.

The final judgment under review is, therefore, reversed and the cause is remanded to the trial court with directions to conduct a hearing pursuant to Fla.R.Civ.P. 1.490(h) on the above-stated exceptions and thereafter to enter an appropriate order thereon.

Reversed and remanded.


text:
    John C. RUSSO, Appellant, v. STATE of Florida, Appellee.
    No. 83-676.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Stephen H. Broudy of the Law Offices of Stephen H. Broudy, Fort Lauderdale, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Silver v. State, 188 So.2d 300 (Fla.1966); State v. Werner, 402 So.2d 386 (Fla.1981).

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


author: HERSEY, Judge.

text:
    Jeffrey Conrad SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-829.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Jeffrey Conrad Smith, convicted of first degree felony murder and attempted robbery, raises three issues for our consideration.

We find, preliminarily, that appellant’s position with regard to the trial court's refusal to suppress an incriminatory statement, is devoid of merit.

Appellant next complains of contact between the trial court and the jury out of the presence of appellant. Shortly after the jury began its deliberations, it requested of the trial court that it be given the penalties for lesser included offenses. After conferring with the prosecutor and defense counsel, the latter specifically waiving the presence of appellant, then absent, the trial court denied the jury’s request. Subsequently, and at a time when appellant was present in the courtroom, the request was repeated and again denied. The issue is whether the initial contact constitutes reversible error per se.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to be present during crucial stages of his trial, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), or “at the stages of his trial where fundamental fairness might be thwarted by his absence.” Francis v. State, 413 So.2d 1175, 1177 (Fla. 1982). Rule 3.180(a)(5), Florida Rules of Criminal Procedure, provides that in all criminal prosecutions the defendant shall be present at all proceedings before the court when the jury is present. An exception to the rule is permitted where the criminal defendant in contemplation of law has voluntarily absented himself from the proceedings. Fla.R.Crim.P. 3.180(b). However, constructive presence satisfies the constitutional requirement where

a defendant is absent but is represented by counsel to whom he has not objected, who waives objection to the defendant’s absence, [in which case] actual or constructive knowledge of the proceedings may be imputed to the defendant. Recognizing the possibilities of abuse of this doctrine, its application has been, and should be, limited to those cases in which the defendant, upon his reappearance at his trial, acquiesces in or ratifies the actions taken by his counsel during his absence.

State v. Melendez, 244 So.2d 137, 139 (Fla. 1971).

It is now well established that proceeding with trial in the absence of the criminal defendant who is neither constructively present nor has voluntarily absented himself constitutes per se reversible error under most circumstances. The rationale is that:

Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless.

Ivory v. State, 351 So.2d 26, 28 (Fla.1977). Error of this category has never been considered harmless where the criminal defendant is absent during proceedings contemplated by Rule 3.410, Florida Rules of Criminal Procedure, which provides:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

See Ivory, 351 So.2d at 28.

During appellant’s absence the request made of the trial court by the jury was to be advised of the penalties attendant upon lesser included offenses. This is not within the purview of Rule 3.410. If there was error, we find it to have been harmless. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). And see Turner v. State, 431 So.2d 328 (Fla. 3d DCA), pet. for rev. denied, 438 So.2d 834 (Fla.1983) and Rose v. State, 425 So.2d 521 (Fla.1982), pet. for rev. denied, — U.S. —, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).

As we have previously noted, a similar request for the penalties was later made and denied in the presence of appellant. It is our considered judgment (not necessary to our holding here, however) that this constituted a waiver by appellant of his previous absence (or cured any error when he failed to object to the course of action followed by the trial court, implying that he would not have objected or taken other action had he been present upon consideration of the initial inquiry).

Appellant also correctly argues that he may not be convicted of felony murder and the underlying (or predicate) felony as well. Bell v. State, 437 So.2d 1057 (Fla.1983); Jones v. State, 452 So.2d 643 (Fla. 4th DCA 1984).

We reverse the conviction for attempted robbery on the basis of Bell; in all other respects we affirm.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GLICKSTEIN and DELL, JJ., concur.


text:
    David Allen PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 83-898.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Trainer v. State, 346 So.2d 1081 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977).

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


text:
    CITY OF WEST PALM BEACH, Florida, and Donald G. Black, Appellants, v. Robert WHITTEMORE, III, Appellee.
    No. 83-1577.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.

      William P. Doney, West Palm Beach, for appellants.
    Steven W. Gomberg of Lubin, Hamill & Gomberg, P.A., West Palm Beach, for ap-pellee.
   PER CURIAM.

This is an appeal from a judgment entered pursuant to a jury verdict against appellants for false arrest and imprisonment. We affirm.

Initially, we reject appellants’ claim that the verdict was so excessive as to require a new trial. We believe the evidence sufficient to support the verdict, and appellants have cited no other grounds to justify our interference with the judgment of the jury and the trial court.

We also reject appellants’ claim that section 396.072(8), Florida Statutes (1981), grants them absolute immunity from actions for false arrest or false imprisonment. In the trial court the appellants alleged as an affirmative defense that section 396.072(8) granted them a qualified immunity when they acted in good faith pursuant to the provisions of section 396.-072 to take an apparently intoxicated person into custody and otherwise follow the procedures of the statute. That defense was considered and rejected by the jury. On appeal the appellants claim that they are immune from liability regardless of their good faith as long as they assert that they were acting pursuant to section 396.-072 in taking a person into custody. We cannot agree. In our view section 396.-072(8), as part of an overall statutory scheme decriminalizing public intoxication, merely affords the police the proper authority to take someone into custody, since the police are no longer acting under their arrest powers. Since a proper seizure under the statute is no longer an arrest, as it once was when intoxication was treated as a crime, the police are immunized from claims, when they act properly in accord with the statute, of false arrest or imprisonment. We feel this issue was properly treated by the trial court.

Accordingly, the judgment of the trial court is affirmed.

ANSTEAD, C.J., DOWNEY, J., and RODGERS, EDWARD, Associate Judge, concur.


text:
    Ruthie Mae WASHINGTON, Appellant, v. PIC-N-PAY SUPERMARKET, INC., Appellee.
    No. 83-1857.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.

      David William Boone of Boone & Davis, P.A., Wilton Manors, for appellant.
    Kathleen V. McCarthy, Hialeah, for ap-pellee.
   PER CURIAM.

Appellant seeks reversal of a final judgment based upon a directed verdict in favor of appellee.

The case arose out of a slip and fall experienced by appellant while shopping in appellee’s supermarket. Among other things, appellant testified that she slipped on “[s]ome old nasty collard green leaves.” She also said they “looked like they had been there for quite awhile.” Furthermore, there was considerable evidence concerning the manner in which appellee operated the store, with particular reference to its handling of the produce, including collard greens. The collard greens were handled in a different manner from the other vegetables. They were not wrapped in saran wrap, and they were handled in such a way that the bunches were allowed to come apart and drop leaves when picked up and transported by grocery cart. The inferences to be drawn from the direct evidence regarding appellee’s operation, plus appellant’s description of the substance that caused her fall, together with the abundant circumstantial evidence, create a question of fact for the jury, precluding a directed verdict. Camina v. Parliament Insurance Co., 417 So.2d 1093 (Fla. 3d DCA 1982); Winn Dixie Stores, Inc. v. Burse, 229 So.2d 266 (Fla. 4th DCA 1969).

Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED with directions.

ANSTEAD, C.J., and DOWNEY and WALDEN, JJ., concur.