text:
    Frederick M. KERR and Robert A. Lopez, Appellants, v. Jill KERR, Appellee.
    Nos. 83-176, 83-200.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    John W. Persse, Alan E. Dubow, Coconut Grove, for appellants.
    Heller & Kaplan and Robert Golden and Daniel Heller, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

These are consolidated appeals by the defendants from a final judgment in consolidated actions, inter alia, dissolving marriage, reserving jurisdiction tQ determine property rights, and setting aside certain deeds to Lopez from the Kerrs.

The final judgment states, as follows:

THIS CAUSE came on to be heard upon due notice for final hearing. Those hearings occurred on the dates of June 10, 1981, September 14, 1981, September 15, 1981, December 21, 1981, June 15, 1982, June 16, 1982 and October 26, 1982, with the final closing argument set before the Court on Monday, December 6, 1982 at which time counsel were requested by the Court to submit their proposed Final Judgments.
There is also pending before this division, by Order of Honorable John Gale, Administrative Judge, entered December 16, 1981 the case of FRANCESCA CA-NALES and FREDERICK M. KERR, Plaintiffs vs. DANIEL NEAL HELLER, JILL KERR and BLANCHE LEAR, Defendants, being Case No. 81-15374, hereinafter referred to as Case No. 81-15374. In said Case No. 81-15374 the Court announced that it would first conduct the final hearing in Cases Nos. 76-20437 and 76-26613 before the hearing in Case No. 81-15374.
Cases Nos. 76-20437 and 76-26613 were consolidated for all purposes and were tried together pursuant to the Court’s Order of August 3, 1981. In said Order the Court did reaffirm the striking of the pleadings of FREDRICK M. KERR. The Court did, however, grant FREDRICK M. KERR the permission, without fear of apprehension or arrest to come to, remain for and depart from the State of Florida in order to testify in this cause at the time of trial and FREDRICK M. KERR has so testified. It is undisputed that FREDRICK M. KERR has not, with one minor exception subsequent to their entry, complied with the Orders for temporary relief, alimony and child support, attorney’s fees and Court costs and the Court does continue in effect all of said temporary orders for a final hearing on financial relief in Case No. 76-20437 which is now set at 9:30 o’clock, A.M., Wednesday, the 23rd day of February, 1983.
Upon the entire record made before the Court and based upon the Court’s personal observation of the manner and demeanor of the witnesses, it is thereupon
CONSIDERED, ORDERED AND ADJUDGED that:
1. The Court has and retains in per-sonam jurisdiction of the parties and jurisdiction of the subject matter.
2. In Case No. 76-20437 (the dissolution of marriage action) the Court finds that the bonds of marriage between petitioner, JILL KERR, and respondent, FREDRICK M. KERR are dissolved for that the marriage is irretrievably broken.
3. The petitioner, JILL KERR is a fit and proper person to have the care, custody and control of the minor child of this marriage, KEVIN DAVID KERR, subject to reasonable rights of visitation with FREDRICK M. KERR. The Court, sua sponte, does herein invoke the provisions of Chapter 787 of the Florida Statutes, 1981 and FREDRICK M. KERR is enjoined from leading, taking, enticing or removing KEVIN DAVID KERR beyond the limits of this state or to conceal the location of said child.
4. In Case No. 76-26613, upon the issues framed, the Court finds and holds that JILL KERR, plaintiff has sustained the allegations of her complaint by clear and convincing evidence and that at all times material hereto the defendant, counterclaimant, ROBERT A. LOPEZ had neither a legal nor an equitable interest in and to the following described parcels or in any notes or mortgages encumbering the following described parcels, to-wit:
Parcel “C” of Four Way Lodge, according to the Plat thereof as recorded in the Public Records of Dade County, Florida in Plat Book 31 at Page 55 of the Public Records of Dade County, Florida.
and
Condominium Parcel Number 9B in Yacht Harbor Condominium, according to the Declaration of Condominium thereof recorded June 17, 1975 under Clerk’s file Number 75R-120929 of the Public Records of Dade County, Florida.
and by the entry of this Final Judgment the Court finds and holds that JILL KERR and FREDRICK M. KERR were at all times material hereto the sole and exclusive owners in said properties to the exclusion of the said ROBERT A. LOPEZ and all persons claiming by through or under him with the express EXCEPTION that the conveyance by the said ROBERT A. LOPEZ, et ux., in and to Parcel “C” of Four Way Lodge made on December 29, 1976 to NEHOC CORPORATION, a Florida corporation, was in effect made as Trustee for and on behalf of JILL KERR and FREDRICK M. KERR and the said deed recorded in O.R. Book 9546, at Page 224, of the official records of Dade County, Florida, is not adversely affected by the entry of this Final Judgment.
5. Accordingly, ROBERT A. LOPEZ shall take nothing by his counterclaim and his addition to counterclaim.
6. The deed dated September 1, 1975 from JILL KERR and FREDRICK M. KERR, recorded on June 28, 1976, in O.R. Book 9369, at Page 52, of the official records of Dade County, Florida, to ROBERT A. LOPEZ to said Condominium 9B is declared of no force and effect, and is hereby set aside. Also, that certain apartment lease dated September 1, 1975 signed by JILL KERR and FREDRICK M. KERR to ROBERT A. LOPEZ on the same condominium parcel is declared of no force and effect and the said apartment lease is hereby cancelled.
7. JILL KERR is hereby given the exclusive use, enjoyment and possession of said Condominium parcel pending the further hearing hereinabove set before the Court at which time the Court will determine inter alia whether or not the interest of FREDRICK M. KERR in said subject Condominium shall be conveyed from FREDRICK M. KERR to JILL KERR by way of equitable distribution, special equity, lump sum alimony, etc., and FREDRICK M. KERR and all persons claiming by, through, or under him, are hereby temporarily enjoined and restrained from conveying, assigning, transferring, hypothecating or in any way disposing or encumbering any interest in said Condominium parcel or the contents thereof subject to the further Order of the Court.
8. The Court continues in effect the Lis Pendens on Lot 24 in LAKE R0-YALL EAST, according to the plat thereof, as recorded in Plat Book 86 at Page 5, of the Public Records of Dade County, Florida, being, in part, the subject matter of Case No. 81-15374 as well as the instant actions and the same will be resolved by the Court under this express reservation of jurisdiction.
9. The claims of all defendants in Case No. 76-26613 whether denominated as defendants or counterclaimants, be and the same are hereby denied with prejudice.
10. All previous temporary orders as well as the Court’s temporary injunction entered November 23, 1976, and all modifications thereto and extensions thereof shall remain in full force and effect until the Final Order of the Court.
11. The Court expressly reserves in personam jurisdiction of the parties and jurisdiction of the matter and the properties to enter such other and further Orders as are necessary.
12. Nothing herein contained is intended to preclude plaintiffs application for permanent alimony and child support.

Defendant Kerr’s contention on appeal is that the trial court erred in retaining jurisdiction over the parties and subject matter in circuit court case No. 76-20437. The points on appeal raised by defendant Lopez are that a prima facie case of fraud has not been established against him, that the burden of proof to overcome the presumptive validity of deeds has not been met, and that plaintiff Jill Kerr, being a tenant, is es-topped from denying her landlord’s title.

We have considered all these points in the light of the record, briefs and arguments of counsel, and have concluded that no reversible error has been demonstrated. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Cohen v. Mohawk, 137 So.2d 222 (Fla.1962); Phillips v. Blum, 139 So.2d 459 (Fla. 3d DCA 1982). See also Ben-Hain v. Tacher, 418 So.2d 1107 (Fla. 3d DCA 1982). Therefore, the judgment appealed is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Percival Michael MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-295, 83-718.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Diane Leeds and Richard Doran, Asst. Attys. Gen., for ap-pellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

We affirm the convictions appealed. We remand, however, for the entry of an order detailing the trial court’s reasons for re-taming jurisdiction in accordance with section 947.16(3)(a), Florida Statutes (1981), and for clarification to reflect that the court retains jurisdiction during one third of the total sentence. Goree v. State, 411 So.2d 1352 (Fla. 3d DCA 1982); § 947.16(3), Fla.Stat. (1981).

Affirmed and remanded.


text:
    R.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-533.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and LESTER M. IGNATIUS, Associate Judge.
   PER CURIAM.

The juvenile appeals from an adjudication of delinquency for carrying a concealed weapon. We reverse.

Section 790.001(3)(a), Florida Statutes (1981) defines a concealed weapon as follows:

“Concealed weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or any other deadly weapon carried on or about a person in such a manner as to conceal said weapon from the ordinary sight of another person.

Under the statute, the instrument carried by the juvenile may only be construed as a concealed weapon if it is either a “dirk” or “any other deadly weapon.” There was no proof adduced at trial that the instrument was a “straight stabbing weapon” so as to constitute a dirk, see Miller v. State, 421 So.2d 746, 747, n. 1 (Fla. 4th DCA 1982), nor was there testimony that the juvenile intended to use the instrument as a deadly weapon. See McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978).

Reversed.


text:
    J.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-761.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Bennett H. Brummer, Public Defender, and Entin, Schwartz, Dion & Sclafani, Ronald Dion and Spencer D. Levine, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   PER CURIAM.

Affirmed. State v. D.T.W., 425 So.2d 1383 (Fla. 1st DCA 1983); State v. M.N.M., 423 So.2d 987 (Fla. 3d DCA 1982).


author: NESBITT, Judge.

text:
    Hyman ASH, Guardian of the Person of Aaron Ash, Incompetent, Appellant, v. COCONUT GROVE BANK, Guardian of the Property of Aaron Ash, Incompetent, and Patricia Ash, Appellees.
    Nos. 83-839, 83-1327.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.

      Levin & Fishman and Jacob Fishman, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael P. Andersen, Harold M. Braxton, Miami, for appel-lees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

This is an appeal challenging the award of attorney’s fees to both the guardian of the person and the guardian of the property. For the reasons which follow, we reverse for reconsideration and reexamination of the fee awards.

This proceeding had its genesis in a final judgment of dissolution of marriage which awarded the natural father custody of the minor incompetent child, making him the natural guardian pursuant to section 744.-301(1), Florida Statutes (1983). The father, as next friend, already had in progress a medical malpractice action against the obstetrician for the birth defects which incapacitated his child. When it appeared that the child would receive a settlement award in excess of $5,000, both of the natural parents recognized that a guardian of the property must be appointed. § 744.-387(2), Fla.Stat. (1983). As they could not agree on who should be appointed, the parents ultimately petitioned the court to appoint the Coconut Grove Bank as guardian of their child’s property. Following that, the father then filed a “Petition for Order Authorizing Periodic Payments to Guardian of Person.” This petition was opposed by the Bank as guardian of the child’s property as well as by the child’s mother. The trial court granted the petition but disallowed some of the expenses.

The father appealed the adequacy of the award to this court and the mother and guardian of the property cross-appealed claiming that no reimbursement should have been allowed. The case culminated in our decision here. Ask v. Coconut Grove Bank, 443 So.2d 437 (Fla. 3d DCA 1984).

During the course of the proceedings in the lower court, the attorneys for the father filed a petition for legal fees incurred in setting up the guardianship and petitioning for reimbursement. The trial court granted their requested fees for setting up the guardianship, but allowed only six hours of compensable time in connection with the petition for reimbursement. In allowing only six hours to the father’s attorney, the trial court gave as its reason the “acrimony” that developed and existed between the child’s natural father and mother during that proceeding.

At a later hearing, the trial court awarded in full the fees and costs sought by the Bank as guardian of the property and deferred its ruling on the mother’s attorney’s fees award. The father has appealed all three orders relating to fees.

We first consider whether the father’s attorney was entitled to a fee award pursuant to section 744.424, Florida Statutes (1983). That section provides in pertinent part:

(1) An attorney who has been employed by a guardian and rendered service to the ward, or to the guardian in the ward’s behalf, may petition for attorney’s fees.

The guardian of the property argues that the statute does not contemplate that the attorney for a natural guardian be allowed fees. We need not consider this issue because we conclude, on the record before us, that the father was the guardian of the person. While there is no petition for appointment of a guardian of the person, the father’s request for reimbursement was titled “Petition for Order Authorizing Periodic Payments to Guardian of Person” and was apparently made pursuant to section 744.374, Florida Statutes (1983). In entering its order on the petition, the court specifically described the father as the guardian of the person and thus we consider this order as an order of appointment. The fact that no letters of guardianship of the person were issued does not affect the validity of the order appointing the guardian. § 744.313, Fla.Stat. (1983).

Section 744.374, Florida Statutes (1983) expressly empowered either the guardian of the person or the guardian of the property to petition for an order determining the proper amount of support to be allocated between the guardianship estate and the natural father. Since the reimbursement allowed by the court would be utilized for the ward’s care, we conclude that the petition sought to accomplish a service on behalf of the ward and accordingly find that an award of fees was proper.

We next determine whether the award to the father as guardian of the person was inadequate. For reasons which will become apparent, we answer this question in conjunction with our consideration of the correctness of the Bank’s fees. After the Bank was appointed as guardian of the property, it had a direct statutory obligation, pursuant to section 744.377, Florida Statutes (1983), to preserve and protect the assets of the guardianship estate. Thus, when the guardian of the person sought to use the guardianship assets for the care of the ward, it was the guardian of the property who had the responsibility to protect the ward’s assets. Nonetheless, at the hearing on the petition for reimbursement, counsel for the Bank advised the court that it was in the position of a “stakeholder” and that the natural parents, being “heirs at law” of the child, should be allowed to participate in the litigation. The trial court acquiesced and the mother’s counsel proceeded to cross-examine the father.

While the mother had an understandable interest in the matter, she did not constitute an interested person for the purpose of participating in this litigation. At all times, her only legitimate interest was coextensive with and entirely aligned with that of the Bank as guardian of the child’s property.

Because the guardian of the property had no adverse interest in the proceeding and thus was protecting the child’s property, the probate court should have exercised the broad discretion it has in managing and controlling litigation, see Fla.R.P. & G.P. 5.080(b), to preclude the mother from participating in the litigation beyond the appointment of the respective guardians of the person and property. Having failed to do so, a situation was created whereby the mother’s unwarranted participation caused needless litigation costs. The additional time which was spent should not, however, be attributed to the father who was by statute permitted to initiate the proceedings. Therefore, we reverse the trial court’s order which limited the father’s award and remand for a determination of a reasonable fee for services rendered. Lucom v. Atlantic National Bank of West Palm Beach, 97 So.2d 478 (Fla.1957); Dier- ickx v. Wisehart, 195 So.2d 614 (Fla. 3d DCA 1967).

As to the Bank, however, to the extent that the Bank’s abdication of its role as guardian of the property caused the fees to be increased beyond what would be normal and reasonable in defense of a petition for reimbursement, the award to it must be redetermined.

Reversed and remanded.

      . The appeal from the deferral of attorney’s fees to the mother was dismissed as a non-final order.

      . While the appellees have not filed a notice of cross-appeal on this point, we will treat its brief as sufficient notice that it cross-appeals on this point. City of Hialeah v. Martinez, 402 So.2d 602, 603, n. 4 (Fla. 3d DCA), pet. for review denied, 411 So.2d 380 (Fla.1981).

      . It is required that a guardian of the person be appointed when a person is adjudicated mentally or physically incompetent. § 744.331(9), Fla. Stat. (1983); In re Sepe, 421 So.2d 27 (Fla. 3d DCA 1982).

      . The following discussion transpired on this point:
      BANK’S COUNSEL: Your Honor, as things go on the property we’re almost [a stakeholder] because we’re trying to protect the property. On the other hand, since he's incapable and may very well be so for the rest of his natural life, the probability is that his heirs at law are really the most interested parties in this case, and of course the mother and father are both present in court.
      And we feel that any dispute over his finances ultimately effects [sic] the capability of Aaron. Since they are presently represented by counsel, we think that they should be present most of the case.


text:
    Lazro QUINONES, Fausto Pedro Astudillo, Angel Rafael Verdecia and Felipe Gonzalez, Appellants, v. The STATE of Florida, Appellee.
    No. 83-1009.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, Kurt Marmar and John H. Lipinski, Sp. Asst. Public Defenders, for appellants.
    Jim Smith, Atty. Gen., Michael J. Nei-mand, Asst. Atty. Gen., and Lawrence G. Price, Certified Legal Intern, for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The sentences which are under review by this appeal are reversed and the cause is remanded to the trial court for re-sentencing upon a holding that: (1) a trial court has discretionary authority to rule on the state’s motion to reduce sentence based on the defendant’s substantial assistance to the state pursuant to Section 893.135(3), Florida Statutes (1981), and is not bound by the state’s recommendation as to what sentence should be imposed on the defendant, State v. Benitez, 395 So.2d 514, 519 (Fla.1981); Cherry v. State, 439 So.2d 998 (Fla. 4th DCA 1983); (2) the trial court did not fully exercise its discretionary authority in ruling on the state’s motion to reduce sentence under Section 893.135(3), Florida Statutes (1981), as it (a) erroneously concluded that it had no legal authority to sentence the defendants to a more lenient sentence than that recommended by the state, (b) did not consider imposing such a sentence for supposed lack of legal authority to do so, and (c) thereupon sentenced the defendants to five years imprisonment in accord with the state’s recommendation, see Berezovsky v. State, 350 So.2d 80 (Fla.1977); (3) the trial court upon remand should exercise its full discretionary authority when ruling on the state’s motion to reduce sentence, under Section 893.135(3), Florida Statutes (1981), taking into consideration (a) the state’s recommendation thereon without in any way being bound thereby, and (b) any pre-sentence investigation report which may be called for in this case. See Fla.R.Crim.P. 3.710.

Reversed and remanded.


text:
    Anthony CANTY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1525.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Anthony Canty, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed on the authority of D.C.W. v. State, 445 So.2d 333 (Fla.1984).


text:
    Dorothy Helen DAYTON, M.D., Mary Johnson, Anne Cooper, Laurie Cauthen, Marcie Lynn Conger and George Drew Conger, Appellants, v. Thomas A. CONGER, Appellee.
    No. 83-1654.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael P. Andersen, Miami, for appellants.
    Sparber, Shevin, Shapo & Heilbronner and Jeffrey M. Weissman, Miami, for ap-pellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   NESBITT, Judge.

Various beneficiaries of decedent’s estate appeal an order awarding a trustee of estate assets attorney’s fees and costs in connection with an action instituted by him to set aside the exercise of a power of appointment. We reverse in part and affirm in part.

Under the terms of decedent’s will, ap-pellee was named sole trustee of several testamentary trusts, including a marital trust. By the provisions of the marital trust, the decedent's spouse was given a special inter vivos power of appointment in favor of decedent’s descendants over the trust assets. The spouse purportedly exercised this power in favor of the beneficiaries herein, giving them some of the assets outright and other assets in trust. The trustee, thereupon, filed a petition to declare the exercise of the power ineffective. After trial on the issues raised in the petition, the probate court found that the decedent’s spouse lacked capacity to execute the exercise, that the exercise was the product of undue influence by the beneficiaries, and that the exercise distributed assets in a manner contrary to the decedent’s intent. Thus, the court declared the exercise ineffective. These findings of the probate court were not appealed.

Subsequently, the trustee filed a petition for assessment and allocation of interim attorney’s fees and for partial distribution. The order appealed from granted $50,000 in attorney’s fees and $4,626.25 in costs as a result of the action to set aside the exercise of the power of appointment. The court found the beneficiaries personally and jointly and severally liable for the above sums. The order directed, however, that the money be paid from their shares in the estate, and that execution on nonestate assets be stayed until good cause is shown or if the beneficiaries’ estate assets are insufficient.

The first issue presented is whether the beneficiaries can be held personally liable for attorney’s fees thus subjecting their non-estate assets to execution. The trial court, relying on Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1980), found that the beneficiaries could be held personally liable. We disagree.

We held, in Sheridan, that where the fees sought are those incurred during the lawsuit between the parties, the rule is that attorney’s fees will be awarded only pursuant to a contract or statute. 391 So.2d at 236-37. We then distinguished those cases which allowed recovery of attorney’s fees as an element of damages within a lawsuit. Sheridan, 391 So.2d at 237. See Tidwell v. Witherspoon, 21 Fla. 359 (1885) (attorney’s fees incurred in defending a prosecution are recoverable as an element of damages in a malicious prosecution action); Bondy v. Royal Indemnity Co., 134 Fla. 776, 184 So. 241 (1938) (attorney’s fees incurred in dissolving an improperly sued out writ of attachment are recoverable as an element of damages in a subsequent action); Susman v. Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976) (attorney’s fees incurred in removing the cloud from one’s title are recoverable as an element of damages in a slander of title action). In those situations, the rule requiring contractual or statutory authority to award attorney’s fees is inapplicable. In other words, pure attorney’s fees incurred in prosecuting or defending the action itself may only be awarded under the general rule requiring a statute or contract, but attorney’s fees allowed as special damages do not fall within this general rule. Glusman v. Lieberman, 285 So.2d 29, 31 (Fla. 4th DCA 1973). Because we find that this case, like Sheridan, involves a claim for fees for prosecuting the action itself, we find such an award is only permissible if provided for by statute or contract.

Although section 733.106(3), Florida Statutes (1983), provides for awarding fees for services rendered to the estate by attorneys, it must be strictly construed. Roberts v. Carter, 350 So.2d 78 (Fla.1977). So construed, it does not authorize the imposition of personal liability upon the beneficiary for the attorney’s fees at issue here. Recognizing that attorney’s fees may not be awarded against a party in the absence of a valid statute, Sanchez v. Sanchez, 435 So.2d 347, 350 (Fla. 3d DCA 1983), and finding no other statutory authorization, we conclude that the beneficiaries cannot be held personally liable.

The next issue presented is whether the probate court properly ordered that the attorney’s fees be paid out of the beneficiaries’ shares of the estate. Section 733.-106(4) provides:

When ... attorney fees are to be paid out of the estate, the court may, in its discretion, direct from what part of the estate they shall be paid.

This provision gives the probate court latitude in determining which assets of the estate should be used to pay attorney’s fees. The statute authorizes the court to order that attorney’s fees be borne unequally by different portions of the estate when warranted by appropriate circumstances. Here, the probate court, finding the beneficiaries had been guilty of wrongdoing, was acting within its discretion authorized by the statute when it ordered that the attorney’s fees be paid out of the beneficiaries’ shares of the estate.

The final issue presented is whether the portion of the court’s order assessing costs against the beneficiaries personally was proper. In any probate proceeding, the court may award costs as in chancery actions. § 733.106(1) Pla.Stat. (1983). The rule in chancery cases is that a court of equity may, as justice requires, order that costs follow the result of the suit, apportion the costs between the parties, or require all costs be paid by the prevailing party. Akins v. Bethea, 160 Fla. 99, 33 So.2d 638, 640 (1948). Here, the probate court found that the beneficiaries had wrongfully procured the exercise of the power of appointment. It was well within the court’s discretion, therefore, to tax the court costs against the losing beneficiaries. In re Estate of Sulin, 204 So.2d 28 (Fla. 2d DCA 1967). Of course, the probate court could also order these costs be paid out of the beneficiaries’ interest in the estate. § 733.106(4).

For the foregoing reasons, the portions of the probate court’s order imposing personal liability on the beneficiaries for attorney’s fees is reversed; the portions of the order directing that attorney’s fees be paid out of the beneficiaries’ shares of the estate, and imposing personal liability on the beneficiaries for costs are affirmed.

Reversed in part and affirmed in part.


author: SCHWARTZ, Chief Judge.

text:
    The STATE of Florida, Appellant, v. William Leon HURST, Michael Ian Dusakto and Hugh Raven Walker, Appellees.
    No. 83-1933.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellant.
    Alan I. Karten and Kenneth L. Marvin, Miami, Harvey Robbins, North Miami, for appellees.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J„ and M. IGNATIUS LESTER, Associate Judge.
   SCHWARTZ, Chief Judge.

We agree with Watts v. State, 447 So.2d 271 (Fla. 2d DCA 1983) that the constitutionality of the Florida loitering and prowling statute, Section 856.021, Florida Statutes (1981), as upheld in State v. Ecker, 311 So.2d 104 (Fla.1975) is not affected by Kolender v. Lawson, — U.S. —, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The trial court held otherwise and the order under review is therefore reversed.

This decision is certified to the Supreme Court of Florida as one which passes upon a question of great public importance as to the continued validity of Section 856.021, Florida Statutes (1981).

Reversed, question certified.


text:
    Rogelio A. MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2180.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Carl L. Masztal, Miami, Henry R. Barks-dale, Pensacola, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Rene Ruska, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J. and M. IGNATIUS LESTER, Associate Judge.
   PER CURIAM.

Affirmed. Knight v. State, 394 So.2d 997 (Fla.1981).


text:
    A.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2270.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

A.T. appeals his conviction of theft and subsequent adjudication of delinquency. Pedro Borges’ grandson owned a motorcycle which was kept in Pedro’s garage. On the morning of May 30,1983, some children were walking back and forth in front of Pedro’s house. Pedro left the house about noon. When Pedro returned an hour later he discovered that his grandson’s motorcycle was missing. Pedro reported this to the police. Later that afternoon Officer Moore stopped two youths on a motorcycle because the passenger, A.T., had no helmet. The driver had no driver’s license or vehicle registration. When Officer Moore inquired, the driver said a friend loaned him the motorcycle. According to Officer Moore, A.T. concurred with this statement by nodding his head or mumbling yes.

Pedro Borges saw A.T. in the police car after this incident. Officer Moore testified at trial that on May 30th, Pedro had positively identified A.T. as one of the children who had been walking past his house that morning. At trial Pedro testified that he had neither the past nor present ability to identify A.T., stating that he was not “on watch” that day and at most could only state that A.T. was about the same size as the children who were around the house. Pedro did not actually deny having made the identification Officer Moore claimed he made. A.T.’s attorney did not cross-examine Pedro.

We find no error in the admission of Officer Moore’s testimony concerning the extra judicial identification by Pedro. Webb v. State, 426 So.2d 1033 (Fla. 5th DCA 1983); Brown v. State, 413 So.2d 414 (Fla. 5th DCA 1982); Sections 90.801, 90.-803 and 90.806 Florida Statutes (1983). However, we find the evidence that the appellant was guilty of theft to be insufficient. Danek v. State, 429 So.2d 1369 (Fla. 3d DCA 1983); B.L.W. v. State, 393 So.2d 59 (Fla. 3 DCA 1981).

Therefore for the reasons above stated the adjudication of delinquency under review be and the same is hereby reversed with directions to discharge the appellant.

Reversed and remanded with directions.


text:
    Clara PORRO, Appellant, v. Jose Lopez FRANCO, Appellee.
    No. 83-2444.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Bryson & Berman and John E. Bergen-dahl, Miami, for appellant.

      Pardo & Pardo and Jeffrey J. Pardo, Miami, for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   PER CURIAM.

This is an appeal from a final judgment entered in favor of the respondent, appellee herein, after the trial court granted his motion for directed verdict at the conclusion of the petitioner’s opening statement in a non-jury trial. We reverse upon a holding that (1) the trial court was without authority to dismiss the petitioner’s case before completion of the case in chief, see Southern Wood Industries v. Florida Carolina Lumber Co., 84 So.2d 589 (Fla.1956); Henriquez v. Publix Super Markets, Inc., 434 So.2d 53 (Fla. 3d DCA 1983); Schurr v. Royal Globe Insurance Co., 353 So.2d 215 (Fla. 2d DCA 1977); Wilfork v. Associated Grocers of Florida, Inc., 343 So.2d 84 (Fla. 3d DCA 1977); Carmichael v. Shelley Tractor & Equipment Co., 300 So.2d 298 (Fla. 4th DCA 1974); Akdoruk v. Advanced Jet Systems, Inc., 296 So.2d 656 (Fla. 3d DCA 1974); Floyd v. Ott, 221 So.2d 163 (Fla. 2d DCA 1969); see also Pelle v. Diners Club, 287 So.2d 737 (Fla. 3d DCA 1974); and (2) notwithstanding that the respondent’s motion for summary judgment had been heard before trial and ruling thereon deferred and that, therefore, the trial court was authorized to grant summary judgment, here, as distinguished from Henriquez v. Publix Super Markets, Inc., 434 So.2d 53, the respondent was not entitled to a summary judgment, and the final judgment cannot thus be justified, because there existed a genuine issue of material fact as to whether the parties had entered into a common-law marriage in 1963.

Reversed and remanded for further proceedings.

      . Although, as will be seen infra, the motion and the ruling thereon were premature, we note in passing that the appropriate motion in a non-jury trial is a motion for involuntary dismissal. See Fla.R.Civ.P. 1.420(b).

      . The petitioner’s statements that Franco promised to marry her at a time after 1963 can be read to refer to a ceremonial marriage to take place in the future, rather than, as Franco argues, a lack of mutual consent to a common-law marriage in 1963. See Marsicano v. Marsicano, 79 Fla. 278, 84 So. 156 (1920).


text:
    Francisco LARIA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2562.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Jerrell A. Breslin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 316 So.2d 267 (Fla.1975); see Ferguson v. Stone, 415 So.2d 98 (Fla. 4th DCA 1982); Morgan v. State, 414 So.2d 593 (Fla. 3d DCA 1982); Smith v. State, 192 So.2d 41 (Fla. 2d DCA 1966).


text:
    ATLANTIC NATIONAL BANK OF FLORIDA, a national banking association, Appellant, v. George TWOROGER, Luise Tworoger, Arthur Leroy Brittle, Philomena M. Brittle, Expert Dairy Products, Inc., Kenworth Truck of South Florida, Inc., Plaza Bank of Miami, Kenneth F. Tworoger, Tworoger & Sader, P.A. and J & W Plumbing Service, Inc., a Florida corporation, Thomas M. Tworoger and Leslie A. Tworoger, Appellees.
    No. 83-2580.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Fleming, O’Bryan & Fleming and Paul R. Regensdorf, Fort Lauderdale, for appellant.
    Tworoger, Sader & Ferrell and William W. Haury, Jr. and Kenneth F. Tworoger, Fort Lauderdale, for appellees.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   PER CURIAM.

On the main appeal, we reverse that portion of the order and final judgment which awarded attorneys’ fees to the appellees under Section 701.04, Florida Statutes (1983); on the cross-appeal, we affirm that portion of the order and final judgment which refused to award attorneys’ fees to the appellees/cross-appellants under Section 57.105, Florida Statutes (1983).

Section 701.04 is a statute in derogation of the common law and must be strictly construed. Rudolph v. Unger, 417 So.2d 1095 (Fla. 3d DCA 1982). It has, accordingly, been held that the attorneys’ fees provision of Section 701.04 which became effective on October 1, 1980, see Ch. 80-17, § 1, Laws of Fla., cannot be retroactively applied to mortgages which, as here, were created before that date, notwithstanding that the proceedings concerning the failure to satisfy the mortgage lien occurred after October 1980. Rudolph v. Unger, 417 So.2d 1095. But even if, ar-guendo, the mortgages herein were created after October 1, 1980, the same rule of strict construction requires us to hold that attorneys’ fees are not recoverable here, where the suit was instituted by the mortgagee bank to foreclose the mortgages, and the mortgagors’ entitlement to satisfactions was a result of the foreclosure action being resolved by settlement of the litigation. In our view, “a civil action arising out of the provisions” of Section 701.04, the express predicate to the recovery of attorneys’ fees, is necessarily confined to one brought by a person who has fully paid an outstanding mortgage, lien or judgment, but despite such payment is compelled to sue to obtain a satisfaction in order, in the usual case, to remove the cloud on the title caused by the previously recorded mortgage, lien or judgment.

We find no error in the trial court’s refusal to award attorneys’ fees to the appellees under Section 57.105, since the trial court could fairly conclude that the bank’s position was not so devoid of merit, both on the facts and the law, as to be completely untenable and frivolous. See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982).

Accordingly, that portion of the order and judgment of the trial court awarding attorneys’ fees to the appellees is

Reversed.

      . The statute provides:
      "701.04 Cancellation of mortgages, liens, and judgments. — Whenever the amount of money due on any mortgage, lien, or judgment shall be fully paid to the person or party entitled to the payment thereof, the mortgagee, creditor, or assignee, or the attorney of record in the case of a judgment, to whom such payment shall have been made, shall execute in writing an instrument acknowledging satisfaction of said mortgage, lien, or judgment and have the same acknowledged, or proven, and duly entered of record in the book provided by law for such purposes in the proper county. Within 60 days of the date of receipt of the full payment of the mortgage, lien, or judgment, the person required to acknowledge satisfaction of the mortgage, lien, or judgment shall send or cause to be sent the recorded satisfaction to the person who has made the full payment. In the case of a civil action arising out of the provisions of this section, the prevailing party shall be entitled to attorney's fees and costs." (emphasis added).


text:
    STIMPSON COMPUTING SCALE CO., etc., Appellant, v. Robert Brian ESCH and Heather Esch, his wife, Appellees.
    No. 84-25.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and David B. Mishael, Miami, for appellant.
    Daniels and Hicks and Louise H. McMur-ray; Headley & Webb, Miami, for appel-lees.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Williams v. Dickenson, 28 Fla. 90, 9 So. 847 (1891); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975); Spalding v. Von Zamft, 180 So.2d 208 (Fla. 3d DCA 1965).


text:
    Victor Fabio FREYRE, Appellant, v. STATE of Florida, Appellee.
    No. 82-2178.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied May 2, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Joan Fowler Rossin and Grace M. Gonzalez, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Victor Fabio Freyre appeals from a judgment and sentence for trafficking in cocaine.

Appellant raises four points on appeal. However, we need address only one because it is dispositive of the case. Appellant contends the evidence was insufficient to support his conviction. We have carefully reviewed the record and found the evidence does not establish that appellant had either actual or constructive possession within the standards of Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981) and Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979), cert. denied, 376 So.2d 76 (Fla.1979).

Accordingly, the judgment is reversed and the case is remanded with directions to discharge appellant.

REVERSED and REMANDED with directions.

DOWNEY and DELL, JJ., concur.

ANSTEAD, C.J., dissents without opinion.


text:
    Patrick L. KNIGHT, as Personal Representative of the Estate of John J. Knight, Sr., Deceased, and Rhea Ann Knight and Stephen Andrew Knight, minor beneficiaries under the Last Will and Testament of John J. Knight, Sr., Appellants, v. John J. KNIGHT, Appellee.
    No. 83-1172.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.

      Robert B. Butler of Ellis, Spencer, Butler & Kisslan, Hollywood, for appellant Patrick L. Knight.
    Paul L. Backman of Law Offices of Paul L. Backman, Hollywood, for appellants Rhea Ann Knight and Stephen Andrew Knight.
    Russell Morton Brown, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See In re Estate of Carpenter, 253 So.2d 697 (Fla.1971) and In Re Estate of Lightfoot, 433 So.2d 607 (Fla. 4th DCA 1983).

ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur.


text:
    ACCREDITED SURETY & CASUALTY CO., INC., and A. Harden Bail Bonding, Surety, Appellants, v. Walter Patrick HAGMAN and State of Florida, Appellees.
    No. 83-1403.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    William M. Winkel of Winkel & Sims, West Palm Beach, for appellants.
    David M. Wolpin, Asst. County Atty., West Palm Beach, for appellee, State of Fla.
   PER CURIAM.

This matter is dismissed without prejudice to file an application for remission pursuant to Section 903.28, Florida Statutes (1983).

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: VOCELLE, L.B., Associate Judge.

text:
    Dierdre Jane FAILE, Appellant/Cross Appellee, v. David Hall FAILE, Appellee/Cross Appellant.
    No. 83-1523.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.

      Sidney A. Stubbs, Jr., of Jones & Foster, Larry Klein, West Palm Beach, and James H. Ryan, of Gary, Dytrych & Ryan, North Palm Beach, for appellant/cross appellee.
    L.M. Taylor, of L.M. Taylor, Lawyers, North Palm Beach, for appellee/cross appellant.
   VOCELLE, L.B., Associate Judge.

Appellant wife seeks review of a Final Judgment of Dissolution.

Appellee husband cross appeals and cites error of a lump sum alimony awarded to the wife.

The husband is 63 and in very poor health. He has a 50-50 chance of surviving five years. His net worth is over 6 million dollars. The marriage is of some 19 years.

The trial court adequately provided for the wife’s needs and uniquely required an irrevocable trust to be set up by the husband for payment. The trial court reserved jurisdiction for the forming, funding and all aspects of the provision of the trust.

The trial court likewise provided a lump sum alimony to the wife of a condominium in Palm Beach. The condominium was purchased by the husband for the wife to live in after he was determined to divorce her and asked her to move out of the house. He purchased the condominium for cash. However, after the dissolution proceedings began, he encumbered the condominium with a mortgage of $515,000.00. The original term was three years. Most peculiarly, the trial court, without request from the parties, refinanced the mortgage by providing a payment period of 119 months.

The judgment does not expressly direct the irrevocable trust to make the monthly mortgage pay off after the husband’s death.

The husband has liquid assets of over 6 million dollars. The complications created by the mortgage pay off arrangement far outweigh the input of the husband having to repay the $515,000.00 so that the wife owns the apartment free and clear.

It is obvious the lower court intended the wife to own the condominium free and clear, but by postponing the payment of the encumbrance for 10 years complicates matters to the detriment of the wife without any real advantage to the husband.

The Final Judgment as to the award of lump sum alimony in the condominium with a mortgage of $515,000.00 is reversed with instructions to the lower court directing the husband to satisfy the mortgage existing on the condominium and award the condominium to the wife free and clear of any encumbrance.

All other aspects of the Final Judgment are affirmed.

HURLEY, J., concurs.

LETTS, J., concurring in conclusion only.


text:
    Thomas James LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1720.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We grant the public defender’s motion to withdraw, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and affirm the conviction and sentence. We note that although the court imposed a lawful sentence, it cited the wrong statute in so doing. The provision which permits the court to set a one year mandatory minimum sentence for a youthful offender is section 958.05(3). We therefore remand for correction of this technical error.

AFFIRMED and REMANDED.

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


text:
    In re Trust Agreement of Jane Greer KELLY.
    No. 83-1851.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Hendrik C. Milne of Squire, Sanders & Dempsey, Miami, for appellant J. Michael Nifong, as third successor personal representative of the estate of Jane Greer Kelly.
    Easley, Massa & Willits, and Jane Kreus-ler-Walsh and Larry Klein, West Palm Beach, for appellee David S. Yoakley.
   PER CURIAM.

AFFIRMED. See § 689.075, Fla.Stat. (1983) and Tanner v. Robinson, 411 So.2d 240 (Fla. 3d DCA 1982).

ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur.


text:
    DELIA & WILSON, INC., and William Delia, Appellants, v. Robert L. WILSON and Viola Wilson, Appellees.
    No. 83-1854.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Jeff M. Brown of Lavalle, Wochna, Rutherford & Brown, Boca Raton, for appellants.

      Edward G. Stephany of Marko, Stephany & Lyons, Fort Lauderdale, for appellees.
   NORRIS, WILLIAM -A., Jr., Associate Judge.

Although the trial court correctly dismissed appellants’ amended complaint for failure to state a cause of action, it was improper to dismiss this complaint with prejudice. A dismissal with prejudice should not be ordered without giving the party offering the defective pleading an opportunity to amend unless it is clear that the pleading cannot be amended so as to state a cause of action. Hansen v. Central Adjustment, Bureau, Inc., 848 So.2d 608 (Fla. 4th DCA 1977). We believe that appellants should be given the opportunity to amend so as to state a cause of action. We reverse the trial court’s order dismissing the amended complaint with prejudice; upon remand appellants shall be allowed to file an amended complaint.

REVERSED and REMANDED.

HURLEY and WALDEN, JJ., concur.


text:
    NORTH BROWARD HOSPITAL DISTRICT, d/b/a Broward General Medical Center, Petitioner, v. Keven J. LUCAS, a minor, By and Through his mother and next friend, Annie M. LUCAS and Annie M. Lucas, individually, Respondents.
    No. 83-2127.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    James C. Sawran of Bernard & O’Brien, Fort Lauderdale, for petitioner.
    Sheldon J. Schlesinger, Fort Lauderdale, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for respondents.
   PER CURIAM.

This is a petition for common law certio-rari. It is directed to an order compelling North Broward Hospital District to produce:

1. Any and all records of each and every individual in the labor room and the delivery room on the date of the incident complained of herein, from 4:00 P.M. until 10:00 P.M.
2. The names and records of each and every caesarian section performed from 5:00 P.M. to 9:00 P.M. on the date of the incident complained of herein.

We have jurisdiction and grant review upon authority of Fla.R.App.P. 9.030(b)(2).

We grant certiorari and quash the above-mentioned upon authority of Argonaut Insurance Co. v. Peralta, 358 So.2d 232 (Fla. 3d DCA) cert. denied, 364 So.2d 889 (Fla. 1978); Fidelity & Casualty Co. of New York v. Lopez, 375 So.2d 59 (Fla. 4th DCA 1979); Teperson v. Donato, 371 So.2d 703 (Fla. 3d DCA 1979).

Our action should not be read as preventing the respondent/plaintiff from obtaining the names and addresses of other patients who were present in the labor room and who may be potential witnesses.

CERTIORARI GRANTED.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    Fred A. THOMAS, Pinch-a-Penny, Inc., and Sun Wholesale Supply, Inc., Appellants, v. James N. ENGLISH, Norma English, William T. Makielski, Denise Makielski, Richard C. Hardway, Alice F. Hardway, E.A. Shirah, Janice Shirah, James J. Curtis and Janet S. Curtis, Appellees.
    No. 83-2258.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    David J. Glatthorn of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., West Palm Beach, for appellants.
    Robin A. Lloyd, Sr., and Elizabeth A. Jackson of Moss, Henderson & Lloyd, P.A., Vero Beach, for appellees.
   HERSEY, Judge.

Appellants question the legal propriety of a temporary injunction granted by the trial court. We respond affirmatively, holding that abatement of an action is appropriate where two actions are pending simultaneously which involve the same parties and the same or substantially the same causes of action. It matters not whether true abatement is sought defensively (by motion to abate) or affirmatively (by application for a temporary injunction). See, e.g., Knight v. Global Contact Lens, Inc., 220 So.2d 693 (Fla. 3d DCA 1969), Sarasota County v. Stanton Investment Co. of Missouri, 283 So.2d 152 (Fla. 2d DCA 1973) and Birnholz v. Steisel, 338 So.2d 862 (Fla. 3d DCA 1976). Further, we find competent substantial evidence supporting the actions of the trial court and therefore hold that the exercise of discretion which resulted in the granting of the injunction meets the reasonableness test sired by Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, it was error to grant the injunction without bond in the absence of a finding of appellees’ financial inability to respond to such a requirement. Fla.R.Civ.P. 1.610(c). We therefore reverse and remand to permit the trial court to conduct a hearing and thereafter to require a bond upon such terms and conditions and in such amount as may be found appropriate.

REVERSED and REMANDED.

LETTS and HURLEY, JJ., concur.


author: DOWNEY, Judge. WALDEN, Judge,

text:
    Thomas J. DOHERTY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2523.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Thomas J. Doherty in pro per.
    No appearance required for appellee.
   DOWNEY, Judge.

Appellant, Thomas J. Doherty, was charged with aggravated battery and violation of probation. The appellant and the state negotiated a plea that included as a part thereof that appellant would pay $800 to the victim of the aggravated battery within one week.

On March 31, 1982, the negotiated plea was presented to the trial judge by appellant’s counsel in the context that it was appellant’s desire to make restitution to the victim.

The plea bargain presented to the court was that appellant would plead guilty to a violation of his probation and guilty to the substantive offense of aggravated battery, and be adjudged on the substantive offense. The appellant would make restitution of $800 to the victim “up front” prior to sentencing. He was to be released from jail on his own recognizance so as to make the restitution within one week. If he successfully made restitution within the week, he was to be sentenced to one year in the county jail for the probation violation and one year for the substantive crime to run concurrently. If appellant failed to meet the restitution provision of the agreement, he waived any right to vacate the plea and the court would be free to sentence him to the maximum penalties allowed by law.

During the long colloquy among the judge, counsel, and appellant the judge expressed skepticism about appellant’s ability and reliability to perform. However, after a most meticulous discussion of the appellant’s rights, the punishment that would result if appellant failed to show up one week later with the money, and all of the ramifications of the bargain, the trial judge accepted the proposal. During the hearing appellant acknowledged that whether he was able to raise the money or not would be irrelevant. He said he was aware that, if he did not pay by April 7, 1983, he was to be sentenced for the aggravated battery. The court gave appellant an additional four weeks to comply with the agreement. When he still had not complied, the court imposed a sentence on the aggravated battery charge.

Predictably, the appellant now contends the state violated the agreement and the agreement was unlawful in any event.

The jurisprudence of this state is filled with cases requiring the state to comply with plea bargains. We see no reason why a defendant should not be required to comply also, assuming the agreement is not illegal. Here, appellant asked the court to withhold sentencing him for the aggravated battery if he made restitution to the victim. To ignore the reciprocity of such an agreement would have a deleterious affect upon any plea bargain in which restitution is an ingredient. The defendant could enter into such an agreement knowing he could not perform but then preclude subsequent action by the state by showing he did not have the ability to perform.

The law is well settled that probation cannot be revoked for violation of a condition thereof requiring restitution if the probationer is financially unable to comply. All of the cases relied on for reversal in this case are decisions involving the violation of a condition of probation requiring payment of costs, restitution, and the like. It appears to us the same rule is inapposite here. This was not a court imposed condition; it was agreed upon by the appellant, who requested the court to accept it.

For these reasons we hold the order appealed from should be and is affirmed.

AFFIRMED.

DELL, J., concurs.

WALDEN, J., dissents, with opinion.

WALDEN, Judge,

dissenting:

In substance, Thomas J. Doherty pled guilty to aggravated battery and violation of probation through aggravated battery as a part of a plea bargain. The court sentenced Doherty to five (5) years imprisonment on the violation of probation charge. It withheld adjudication and sentence upon the aggravated battery charge upon the condition that Doherty pay the victim of the aggravated battery the sum of Eight Hundred Dollars ($800.00) within four weeks, in which case the court would favorably consider a motion to reduce sentence for violation of probation. If no restitution was made, the court would not reduce the five (5) year sentence but would additionally impose a sentence of up to fifteen (15) years on the aggravated battery charge.

Restitution not being made within the alloted time the court entered judgment and sentence of five (5) years on the aggravated battery charge to be served concurrently with the five (5) year sentence on the violation of probation charge.

With respectful reference to the majority opinion, it says, “To ignore the reciprocity of such an agreement would have a deleterious affect upon any plea bargain in which restitution is an ingredient. The defendant could enter into such an agreement knowing he could not perform but then preclude subsequent action by the state by showing he did not have the ability to perform.” I agree with this observation, and if the majority hypothetical correctly reflected Do-herty’s situation, I would agree that he should not be relieved from his bargain. However, it appears from the transcripts of earlier hearings that Doherty entered into the agreement in good faith with a seemingly foolproof plan to make restitution. However, prior to the day of reckoning, the lady who had authorized payment of $800.00 to Doherty from certain judgment proceeds was incapacitated in an automobile accident and was thereby unable to sign certain releases so as to make the money available to Doherty. In other words, this testimony reflects that for totally unforeseen reasons, which reasons were beyond Doherty’s control, Doherty was unable to pay $800.00 on time, and as a consequence, Doherty received a sentence of five years. I feel that under these circumstances, if established at a proper hearing, Doherty should be afforded relief from his bargain. To add a dissenter’s hypothetical, which I think is more illustrative, I suggest that a defendant who agrees to make restitution from his bank account containing sufficient funds and the bank goes into receivership with the result that the defendant’s funds are frozen through no fault of such defendant, he should not suffer because of his innocent default but rather should be relieved of his plea bargained guilty plea and allowed to go to trial.

The matter is before us now pursuant to Florida Rule of Criminal Procedure 3.850 with one of the assertions being that Do-herty is imprisoned for not making restitution when he had no ability to do so. His petition to the trial court was denied without a hearing or without inquiry being made as to whether Doherty had the ability to make restitution.

I would reverse and remand with instructions to hold an evidentiary hearing as to whether Doherty has the ability to make restitution. Florida Rule of Appellate Procedure 9.140(g); Murphy v. State, 442 So.2d 1047 (Fla. 4th DCA 1983); Grimsley v. State, 408 So.2d 1075 (Fla. 2d DCA 1982); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978).

I do, therefore, respectfully dissent.


author: LEHAN, Judge.

text:
    Gary Patrick MASTRO, Appellant, v. STATE of Florida, Appellee.
    No. 83-1815.
    District Court of Appeal of Florida, Second District.
    April 18, 1984.

      Tom Grogan, Naples, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

The issue in this case is whether vehicular homicide is a lesser included offense of DWI manslaughter. We find that vehicular homicide is not a Category 1 lesser included offense notwithstanding its designation as such in the Florida Standard Jury Instructions. The list of lesser included offenses in that publication is not binding. See Linehan v. State, 442 So.2d 244 (Fla. 2d DCA 1983); Bragg v. State, 433 So.2d 1375 (Fla. 2d DCA 1983). We also find that under the facts of this case vehicular homicide was not a Category 2 lesser included offense of DWI manslaughter.

The defendant was charged with DWI manslaughter, a violation of section 316.-1931(2), Florida Statutes (Supp.1982). Defendant objected to the inclusion of vehicular homicide as a lesser included offense on the proposed verdict form and proposed jury instructions. The trial court denied the objection. The jury found defendant guilty of vehicular homicide, and defendant appeals.

All of the elements of a Category 1 lesser included offense must be elements of the greater offense. See White v. State, 412 So.2d 28 (Fla. 2d DCA 1982). Vehicular homicide, a violation of section 782.071, Florida Statutes (1981), requires proof that defendant’s reckless behavior caused the death for which he is charged. See, e.g., J.A.C. v. State, 374 So.2d 606 (Fla. 3d DCA 1979). However, conviction for DWI manslaughter apparently does not require proof that defendant’s negligent behavior caused the death. See Baker v. State, 377 So.2d 17 (Fla.1979). Thus vehicular homicide requires proof of an element of causation that the greater offense of DWI manslaughter does not require. Accordingly, vehicular homicide is not a Category 1 lesser included offense of DWI manslaughter.

Vehicular homicide could be a Category 2 lesser included offense of DWI manslaughter if the charging document contained allegations of all the elements required for vehicular homicide. See Baker v. State, 425 So.2d 36, 52 (Fla. 5th DCA 1982) (Cowart, J., dissenting). However, we do not find that the language in the information which charged defendant with DWI manslaughter contained allegations of the element of recklessness required for vehicular homicide.

It has been suggested that the inclusion of vehicular homicide as a lesser included offense on the verdict form in this case was harmless error because the defendant was on notice, by virtue of the list of lesser included offenses in the standard jury instructions, that vehicular homicide might be submitted to the jury as a lesser included offense. We disagree. A jury should be given the right to exercise its pardon power by receiving instructions on the proper lesser included offenses. See State v. Bruns, 429 So.2d 307 (Fla.1983). The jury in this case chose not to convict defendant of the crime charged, but to convict him of what the jury was instructed was the most serious of the lesser included crimes. It may be that if vehicular homicide had not been included on the list of lesser included offenses, the jury might have convicted defendant of one of the remaining lesser included offenses, which would have been less severe than vehicular homicide. We therefore cánnot say that defendant was not harmed by the improper inclusion of vehicular homicide as a lesser included offense of DWI manslaughter.

REVERSED AND REMANDED FOR NEW TRIAL.

OTT, C.J., and SCHOONOVER, J., concur.


author: SCHEB, Judge.

text:
    Joe Nathan BREWSTER, Appellant, v. STATE of Florida, Appellee.
    No. 84-197.
    District Court of Appeal of Florida, Second District.
    April 18, 1984.
   SCHEB, Judge.

This appeal is from the trial court’s summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Defendant raises three points in his motion, only two of which have merit. Defendant first alleges that his sentence was in excess of the maximum authorized by law, and second, that the trial court violated the plea bargain negotiated by defendant. These allegations, if true, would entitle defendant to relief. However, the trial court failed to either conduct an eviden-tiary hearing or attach relevant portions of the record which refute the allegations raised by defendant as required by Rule 3.850.

Accordingly, we reverse the trial court's denial of defendant’s motion and remand the case to the trial court. On remand the trial court may either again summarily deny the motion as to the two allegations specified and attach to its order those portions of the record which conclusively show defendant is not entitled to relief, or hold an evidentiary hearing and then rule on the grounds alleged in defendant’s motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review defendant must appeal the new ruling of the trial court.

REVERSED.

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


author: ORFINGER, Chief Judge.

text:
    Tondrick HOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 83-690.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

The issue on appeal is whether the statutory three-year minimum penalty provided for in section 775.087(2)(b) Florida Statutes (1981), may be imposed on a defendant found guilty of an armed robbery participated in with others, in the absence of a finding by the jury that the defendant had the firearm in his actual possession.

There was sufficient evidence presented at trial to find appellant guilty of the crime charged because, despite a dispute in the evidence as to which of the three participants actually had possession of the single gun employed in the robbery, if any one of them carried the firearm during the commission of the crime, all of them are guilty as principals under section 777.011, Florida Statutes (1981). See § 812.13(2)(a), Fla.Stat. (1981).

This is not to say, however, that the three-year minimum mandatory sentence may be imposed merely on the basis of the finding of guilt, because the imposition of the mandatory minimum sentence requires that defendant have had actual, as distinguished from vicarious, possession of the firearm during the robbery. Earnest v. State, 351 So.2d 957 (Fla.1977). This court has previously held that unless the crime charged is such as requires actual possession of a firearm to commit the crime or unless the allegations and proof lead to the inescapable conclusion that the defendant possessed a firearm during the commission of the crime, then the jury must specifically find that defendant possessed the firearm during the commission of the crime. Tindall v. State, 443 So.2d 362 (Fla. 5th DCA 1983). Although the information charges appellant with the commission of the robbery while carrying a firearm, the State’s proof at trial was very much in dispute as to which of the three participants actually had possession of the gun at the time the robbery was committed. Because a finding of guilt of armed robbery in a fact situation such as the one before us does not necessarily require a finding that defendant actually possessed the gun, a special finding by the jury to that effect was required before the minimum mandatory sentence could be imposed.

Because the jury was not requested to make such finding and because the sentencing error was fundamental (Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983)) even in the absence of objection below, we are compelled to set aside the three year minimum mandatory sentence. In all other respects, the judgment and sentence are affirmed.

AFFIRMED in part and REVERSED in part.

SHARP and COWART, JJ., concur.


author: SHARP, Judge.

text:
    Willie HARMON, Appellant, v. STATE of Florida, Appellee.
    No. 83-793.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Harmon appeals from a final judgment adjudicating him guilty of attempted robbery. The only issue of substance is whether the trial judge erred in sending to the jury room, in response to the jury’s request for further instructions, a set of standard jury instructions, which the judge had apparently read to them in court. The inapplicable parts of the instructions were blackened-out and the judge sent along a note which said: “Hopefully, the attached instructions will be of assistance. Ignore the blackened portions completely!” Defense counsel objected to this procedure because the print of the inapplicable part of the instructions could be read through the black marks.

This procedure is risky at best, because prejudicial matter might conceivably be sent to the jury. However, appellant has failed to point out any damaging or prejudicial material legible beneath the blackened-out portions of these instructions. Therefore, we

AFFIRM.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . §§ 777.04, 812.13(2)(c), Fla.Stat. (1981).

      . Cf. McCarthy v. State, 446 So.2d 252 (Fla. 5th DCA 1984); Dewitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983).


text:
    FIREMAN’S FUND INSURANCE COMPANY, Petitioner, v. The Honorable Judge Louis WEISSING, Respondent.
    No. 84-811.
    District Court of Appeal of Florida, Fourth District.
    April 19, 1984.

      Jeff F. Dodson and David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for petitioner.
    H. Jack Klingensmith of Blank, Rome, Comisky & McCauley, Miami, for respondent.
   PER CURIAM.

In Foremost Insurance Co. v. Barkett, 441 So.2d 179 (Fla. 4th DCA 1983), we granted a writ of mandamus because of an inadequate notice of trial which prejudiced the parties. In the case at bar, the petitioner/ defendant received no notice of trial. See Rule 1.440(b) and (c), Florida Rules of Civil Procedure. Accordingly, we grant the writ of mandamus and direct the trial court to strike the cause from the April 23rd trial calendar. The matter may be reset within a reasonable period of time and after proper notice in compliance with the rule.

DOWNEY, HERSEY and HURLEY, JJ., concur.


author: HURLEY, Judge.

text:
    Richard A. SHAW, Appellant, v. Barbara L. SHAW, Appellee.
    No. 81-1176.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    James K. Pedley, Fort Lauderdale, for appellant.
    John L. O’Brien, Boca Raton, for appel-lee.
   HURLEY, Judge.

The former husband appeals from an order denying his petition for modification of “alimony” payments. The trial court found that the payments were due under a non-modifiable property settlement agreement. Alternatively, the trial court held that even if the agreement were legally subject to modification, the husband was not entitled to modification under section 61.14(1), Florida Statutes (1983), because he failed to make a sufficient showing of changed financial circumstances. We find it unnecessary to review the sufficiency of the husband’s evidence in support of modification because we agree that the property settlement agreement is non-modifiable. Therefore, we affirm.

Under the terms of the settlement agreement, the wife agreed to convey to the husband her interest in jointly held property and to relinquish claims against property in the husband’s name. The husband, in turn, promised to convey to the wife his interest in various pieces of real estate, as well as a 1971 Cadillac automobile. The agreement further provides that “[t]he wife, for and in exchange of the conveyances to her by the husband as aforesaid, agrees to relinquish, release any claim for alimony or support over that specifically provided in Paragraph 2.” Under paragraph 2, the husband promised to pay the wife a lump sum of $20,000.00 plus $1,600.00 per month until the wife dies or remarries. The monthly payments were to survive the death of the husband and be a claim against his estate under the specific terms of the contract.

The husband eventually sought modification of the term providing for monthly support payments, arguing that he had suffered a financial setback such that his assets decreased from a value of $547,710.05 at the time the agreement was executed, to a value of $367,638.00, of which no part are liquid; at the same time, the value of the wife’s assets increased substantially. The wife counterclaimed for arrearages of support payments and specific performance of the agreement.

We think the trial court correctly denied the request for modification under section 61.14, Florida Statutes (1983), because the contract was a true property settlement agreement not subject to modification. See Salomon v. Salomon, 196 So.2d 111 (Fla.1967). Support or alimony payments made as consideration for the relinquishment of valuable property rights cannot be modified. See Karch v. Karch, 445 So.2d 1077 (Fla. 3d DCA 1984); Mills v. Mills, 339 So.2d 681 (Fla. 1st DCA 1976); cf. Wolfe v. Wolfe, 424 So.2d 32 (Fla. 4th DCA 1982); Pujals v. Pujals, 414 So.2d 228, 229 n. 1 (Fla. 3d DCA 1982); Brisco v. Brisco, 355 So.2d 506 (Fla. 2d DCA 1978). But see Hogshead v. Hogshead, 444 So.2d 74 (Fla. 5th DCA 1984). Here, the wife bargained away her interest in the husband’s property as well as jointly held properties in return for ownership of various pieces of real estate, an automobile, and a lump sum of $20,000 plus support payments of $1,600 per month for life. The parties were clearly bargaining for the exchange of valuable property rights under this agreement, and its terms are therefore not subject to modification.

Accordingly, we affirm.

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


author: WALDEN, Judge. ANSTEAD, Chief Judge,

text:
    David S. YOAKLEY, Appellant, v. David A. RAESE, et al., Appellees. In re Trust Agreement of Jane Greer KELLY.
    Nos. 81-1949, 82-1570 and 82-214.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.

      Jane Kreusler-Walsh, Larry Klein and Easley, Massa & Willits, P.A., West Palm Beach, for appellant David S. Yoakley, trustee.
    J. Michael Nifong and J. Donald Cairns of Squire, Sanders & Dempsey, Miami, for appellee Charles Fernsell.
   UPON PETITION FOR REHEARING

WALDEN, Judge.

We grant the Petition for Rehearing filed by J. Michael Nifong. The initial opinion is withdrawn and the following substituted:

Case Nos. 81-1949 & 82-1570

This appeal involves the resolution of a conflict between the terms of a trust, a will and a statute, all with reference to the responsibility for the payment of certain of the decedent’s obligations.

The settlor, testator and the decedent are the same person, Jane Greer Kelly Brown, who died in 1980.

The 1974 trust provided in essence that following the settlor’s death the trustee would pay to the testator’s personal representative from the trust principal such sums as might be needed to pay certain enumerated debts of the decedent such as taxes and expenses (the amounts and kinds of which are not in controversy), to the degree that the testator’s residuary estate might be insufficient and thereby unable to pay same.

The 1978 Will provided that the taxes such as here involved shall be paid out of the residuary estate without reimbursement or contribution from any person and that debts and administrative expenses be paid in the due course of the administration of the estate.

The statute, Section 733.805(1), Florida Statutes (1981), provided that such expenses shall be paid out of the fund provided by the will (here the residuary estate) and if the fund so designated is insufficient, the estate property will be used to supply the insufficiency delineating an order of priority as concerns the source.

In due course the personal representative certified to the trustee that the testator’s residuary estate was insufficient to pay the testator’s debts, expenses and income taxes in the sum of $278,987.25. Payment was requested per the terms of the trust. The trustee refused to pay. The trial court ordered the trustee to make the payment from the trust property. The trustee appeals. We reverse.

For clarity we digress to more specifically identify the parties. The trustee is David Yoakley, plaintiff in the trial court and appellant here. The first successor personal representative was Wilson Smith, defendant in the trial court and appellee here. A second successor personal representative as of July 16, 1982, is named Charles Fernsell and is now the appellee.

The basic question before us is whether the pertinent terms of the trust control so as to avoid the terms of the statute inasmuch as the will did not track or corroborate the terms of the trust but rather provided that such funds be paid out of the residuary estate without reimbursement or contribution, and that expenses and debts be paid in due course of the administration of the estate.

We hold that the terms of the trust do not control. The terms of the statute control. Thus the residuary estate is liable for the payment of the taxes in question and, if it is insufficient, then the shortage shall be provided and paid from the estate property in order outlined in the statute.

The leading case on this question is Guidry v. Pinellas Central Bank and Trust Co., 310 So.2d 386 (Fla. 2d DCA 1975). In Guidry the issue before the Second District was whether a settlor’s direction in a trust instrument for the payment of estate taxes was sufficient to avoid the application of the apportionment statute then in force, Section 734.041, Florida Statutes (1973), [Repealed, Ch. 74-106 § 3] which required that estate taxes be apportioned between probate and nonprobate assets unless the decedent’s will provided otherwise. In that particular case the settlor’s direction was not included in the will but was unequivocally expressed in the trust instrument. The Second District, in reversing the trial court’s summary judgment based on the theory that the trust instrument was controlling, held that the statute controls unless the decedent specifically directs otherwise in the will.

The appellee attempts to distinguish Gui-dry from the case at bar by contending that the will in the present case is more specific with respect to the question of taxes. However, a review of the will does not reveal that there is the specificity called for in Guidry.

This Court has held that where the provision of a trust and a will conflict, the will prevails. See In Re Estate of Strohm, 241 So.2d 167 (Fla. 4th DCA 1970). In the instant case the will unequivocally directs the personal representative to pay taxes from the residuary estate without contribution from any other source.

We feel that the trust instrument here is not sufficient to avoid or defeat the terms of the statute because the will failed to specifically designate the source for payment of the taxes in the event of an insufficiency in the residuary estate.

We would note that some payment of estate, inheritance or death taxes from the trust corpus may be necessitated if the residuary estate is depleted with taxes still owing, and if so, it is fully authorized under Section 733.817, read in conjunction with Section 733.805.

We reverse and remand Case Nos. 81-1949 and 82-1570 for further proceedings consistent herewith.

Case No. 82-214

Inasmuch as the appealed ruling here is consistent with our opinion above in Case Nos. 81-1949 and 82-1570, we affirm.

Case No. 82-214 is affirmed.

Petition for Rehearing is GRANTED.

BERANEK, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

Jane Greer Kelly Brown died in 1980. Before she died she executed a will which provided:

I further direct that all estate, transfer, succession, inheritance, legacy and similar taxes, including any interest and penalties thereon, if any, with respect to any property that may be included in my gross estate under the provisions of any tax law, whether or not passing under this Will or any Codicil that I may hereafter execute, shall be paid out of my residuary estate without reimbursement or contribution from any person.

In addition to her will, the same Ms. Brown executed a trust agreement which provided:

Following the death of the Settlor [Ms. Brown] and upon written request of the Executor or Executors of the Settlor’s estate (including any Trustee serving under this agreement also serving as an Executor thereof), the Trustee shall pay to such Executor or Executors from the principal of this trust such amount as shall be certified to be the amount by which the Settlor's residuary estate shall be insufficient for payment of (1) any estate, inheritance or other death tax assessed in the Settlor’s estate; (2) the Settlor’s debts; (3) the Settlor’s funeral expenses; and (4) the expenses of administering the Settlor’s estate. The Trustee shall be under no duty to determine the propriety of the payment of any sum or sums to the application thereof by such Executor or Executors, or to withhold any distribution in anticipation of any such request.

Under these provisions it would appear that Ms. Brown’s intent was clear. She executed a will providing for the payment of certain taxes, etc., out of the residuary estate and executed a trust providing for the payment of those same taxes, etc., out of the trust in the event that the residuary estate proved insufficient. Why else would she specifically provide in the trust for the possibility that the residuary estate might be insufficient to cover the taxes, etc.?

I cannot agree that the provisions of a Florida Statute, specifically section 733.805, entitled “Order in which assets are appropriated,” require us to ignore Ms. Brown’s intent as expressed in her will and trust. Section 733.805, as the title suggests, provides a list of the testator’s assets that are to be utilized for the payment of taxes, etc., in the event that the testator makes either no provision or inadequate provision for the payment of such taxes by his will or does not otherwise designate the funds or property to be used to pay such taxes. Since Ms. Brown has, by her will and the trust provision set out above, adequately provided for the payment of such taxes, section 733.805 simply does not apply. Why invoke a statute that provides a priority list of assets to be used for the payment of certain obligations when the deceased herself has told us which assets she wants used to pay these obligations?

I fail to see any conflict between the provisions of the will and the trust mandating invocation of the rule that the will provisions, and, hence, the statutory provisions, control. In my view, section 733.-805(1) merely creates a convenient device to substitute for a testator’s intent as to how estate expenses should be paid when the testator himself has either failed to make any provision or his provisions have proven inadequate. Ms. Brown did make provision, and there is no claim that the provisions she made are inadequate. Furthermore, although I believe the dissent in Guidry v. Pinellas Central Bank and Trust Co., 310 So.2d 386 (Fla. 2d DCA 1975), is the better view, I also believe Guidry is clearly distinguishable from the case at hand. In Guidry the Second District felt compelled to follow the mandatory dictates of then section 734.041, because the statute expressly provided that taxes “shall, except as otherwise directed by the decedent’s will, be equitably apportioned” according to the statutory scheme. Id. at 388. The statute applied in Guidry provided for only one exception to payment by the statutory scheme: except as otherwise directed by the decedent's will. Because no provision of any kind was made in the deceased’s will for the payment of taxes, the Guidry court felt compelled to apply the statutory scheme. On the other hand, the present statute, unlike the Guidry statute, provides for apportionment only if the testator does not make adequate “provision by his will or designate the funds or property to be used, for the payment” of debts, etc. This language is even repeated in the statute: “If no provision is made or any fund designated, or if it is insufficient,” etc. Clearly, the will and trust provisions made by Ms. Brown are of the type contemplated by the present statute as a provision made or fund designated. Therefore, unlike the Second District, we are under no statutory mandate to disregard the express intent of the testator.

The first and last rule of probate law is to discover and give effect to the intent of the testator. After examining the complimentary provisions Ms. Brown made in her will and trust for the payment of taxes, etc., can there really be a doubt as to her intent? Of course, she could have specifically provided in her will, as she did in her trust, that the trust would pay what the residuary estate could not, but was that really ■ necessary? Could Ms. Brown, having specifically provided for the payment of these obligations to the extent that the residuary estate was short, have intended to void that specific provision by including the words “without reimbursement or contribution from any person” in the residuary clause? Was she including the trust as one of the “any'persons” referred to here? I think not, on the basis of the plain meaning of the provisions themselves. Surely the “any person” referred to contemplated the persons named as beneficiaries in the will, the very persons who will now be forced to contribute to the payments by reason of the trust being relieved of that obligation despite Ms. Brown’s express directions to the contrary. This turns Ms. Brown’s plan completely upside down.

I conclude by noting my agreement with the views expressed by the Supreme Judicial Court of Massachusetts in reaching a different result than that of the majority herein, when confronted with a similar situation:

Although much can be said in favor of “clear” rules of law to guide estate planning decisions and the administration of estates, when a slip-up has obviously occurred in the estate planning process, evidence of the circumstances known to a testator-settlor may be particularly instructive in achieving the ultimate goal of recognizing and carrying out the testator-settlor’s intention. Here, if the allegations of the Florida executor concerning the tax obligations of Peters’ estate are proved, the view espoused by the trustees would result in total failure of all testamentary gifts, including the gift of income to Peters’ friend, who is not an income beneficiary of the trust. There may be no logic in a result which would fully achieve an expressed testamentary purpose of paying all taxes from the residue while in the process destroying the only gifts expressed in the will. Why would Peters’ will implicitly preserve the trustees’ obligation to pay debts and expenses of the estate, a relatively small item, and yet relieve the trustees entirely of their obligation to pay estate and inheritance taxes?

First National Bank of Mt. Dora v. Shawmut Bank of Boston, 378 Mass. 137, 389 N.E.2d 1002, 1006-07 (1979).

      . FOURTH: Following the death of the Settlor and upon written request of the Executor or Executors of the Settlor’s estate (including any Trustee serving under this agreement also serving as an Executor thereof), the Trustee shall pay to such Executor or Executors from the principal of this trust such amount as shall be certified to be the amount by which the Settlor’s residuary estate shall be insufficient for payment of (1) any estate, inheritance or other death tax assessed in the Settlor’s estate; (2) the Settlor’s debts; (3) the Settlor's funeral expenses; and (4) the expenses of administering the Settlor’s estate. The Trustee shall be under no duty to determine the propriety of the payment of any sum or sums so certified to him, or to see to the application thereof by such Executor or Executors, or to withhold any distribution in anticipation of any such request. [Emphasis supplied.]

      . MY VALID DEBTS AND ADMINISTRATION EXPENSES shall be paid by my personal representative in the due course of the administration of my estate (except such of my debts, if any, as may be secured by mortgage on real estate). The expenses of my last illness and funeral, the reasonable expenses incurred in administering my estate, including the expenses of ancillary proceedings that may be required in another state or country, the expenses of delivering any bequest or devise under my Will shall be considered administration expenses. I further direct that all estate, transfer, succession; inheritance, legacy and similar taxes, including any interest and penalties thereon, if any, with respect to any property that may be included in my gross estate under the provisions of any tax law, whether or not passing under this Will or any Codicil that I may hereafter execute, shall be paid out of my residuary estate without reimbursement or contribution from any person. [Emphasis supplied.]

      .733.805 Order in which assets are appropriated.—
      (I) If a testator makes provision by his will or designates the funds or property to be used, for the payment of debts, estate and inheritance taxes, family allowance, exempt property, elective share charges, expenses of administration, and devises, they shall be paid out of the funds or from the property or proceeds as provided by the will so far as sufficient. If no provision is made or any fund designated, or if it is insufficient, the property of the estate shall be used for such purposes, except as otherwise provided in s. 733.817 with respect to estate, inheritance, and other death taxes, and to raise the shares of a pretermitted spouse and children, in the following order:
      (a) Property not disposed of by the will.
      (b) Property devised to the residuary devisee or devisees.
      (c) Property not specifically or demonstratively devised.
      (d) Property specifically or demonstratively devised.

      . Id.

      . Id.


author: GLICKSTEIN, Judge.

text:
    Alan Anthony MARTINES, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee. Samuel L. HOLTON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee. Carlos RODRIGUEZ, Appellant, v. FLORIDA PAROLE AND PROBATION, Appellee. Raymond MARTINEZ, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    Nos. 82-327, 82-328, 82-470 and 82-947.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Alan Anthony Martines, pro se.
    Samuel L. Holton, pro se.
    Carlos Rodriguez, pro se.
    Raymond Martinez, pro se.
    Enoch J. Whitney, Gen. Counsel, and John C. Courtney, Asst. Gen. Counsel, Tallahassee, for appellee.
   GLICKSTEIN, Judge.

This is a consolidation of four appeals pursuant to section 120.68, Florida Statutes (1981), of Florida Parole and Probation Commission determinations of presumptive parole release dates (PPRD’s). We dismiss for appellants’ lack of standing to appeal under section 120.68. Though it has been held that prisoners could previously appeal PPRD’s under the aegis of section 120.68, Roberson v. Florida Parole & Probation Commission, 444 So.2d 917 (Fla.1983), we agree with the first district, on the basis of the reasoning of that court, that the statutory change effected by Chapter 83-78, Laws of Florida, cuts off this right of appeal in cases still pending when the change became effective, Rothermel v. Florida Parole & Probation Commission, 441 So.2d 663 (Fla. 1st DCA 1983). We also join the first district in certifying to the Florida Supreme Court, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) the following question as one of great public importance:

Did the enactment of Chapter 83-78, Laws of Florida, terminate section 120.68 appeals by prisoners from Florida Parole and Probation Commission final action pertaining to presumptive parole release dates where such appeals had not been determined on the effective date of that legislative act?

BERANEK and HERSEY, JJ., concur.