author: THOMPSON, Judge.

text:
    SABRE MARINE and Iowa National Mutual Insurance Company, Appellants, v. Vera Mae FELICIANO, Appellee.
    No. AY-301.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Bernard J. Zimmerman of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.
    Thomas R. Mooney, Orlando, for appel-lee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal an order awarding temporary total disability (TTD) benefits as well as past and future medical care- and treatment. The principal contention of the E/C is that the claimant’s present disability and need for medical treatment are not causally related to her industrial accident. We agree and reverse.

The claimant is a 42 year old mother of six children who is moderately overweight. She sustained a compensable injury on August 27, 1982, when a box of material she was attempting to remove from a shelf fell onto her left leg and hip, causing her to fall to the floor, striking her right knee. The authorized treating physician, upon initial examination of claimant, diagnosed lumbo-sacral strain and sprains of the knee and thumb. He noted that claimant had some diffuse swelling about the knee, and that there was also swelling in her lower leg and foot. A consulting orthopedic physician who saw claimant on October 27, 1982 felt that the problems with claimant’s knee, back and thumb were resolving satisfactorily. However, he noted that claimant had a possible sprained ankle and a possible venous insufficiency of the right leg. Being uncertain as to the etiology of the swelling in claimant’s lower leg and ankle, this orthopedist recommended that she receive a vascular evaluation. Although the precise date the vascular evaluation was performed cannot be ascertained from the record, there is evidence that such an evaluation was performed, and that it yielded negative results.

In an order entered on October 7, 1983, the deputy commissioner (deputy) found that claimant had reached maximum medical improvement from an orthopedic standpoint and that there was no evidence that she had any permanent impairment as a result of her industrial accident. Accordingly, he denied her claim for TTD benefits for the period after June 24, 1983. On October 9, 1983, the claimant was seen by Dr. Bowen, a general surgeon to whom she was referred by her authorized treating physician. Dr. Bowen hospitalized the claimant, with an admitting diagnosis of causalgia, “probably secondary to ... probable deep vein thrombophlebitis of the right leg.” During the ensuing six day hospitalization, tests were administered for the purpose of diagnosing or ruling out thrombophlebitis or other vascular disease. Among these tests was a venogram, which, according to the testimony of Dr. Bowen, is the most accurate test for diagnosing thrombophlebitis. All of the tests, including the venogram, yielded negative results. Following the hospitalization, Dr. Bowen continued to provide care and treatment for claimant’s causalgia syndrome.

The claim at issue in this appeal was for benefits for the TTD associated with claimant’s causalgia syndrome, as well as for past and future medical treatment therefor. The only medical evidence which in any manner tended to establish a causal relationship between claimant’s industrial accident and her causalgia syndrome was that given by Dr. Bowen in deposition. Dr. Bowen testified that although the causes of causalgia syndrome are unknown, the disease can be triggered by neural damage or by venous insufficiency. He indicated that the swelling in claimant’s leg was the result of the causalgia syndrome. He testified that the negative test results obtained during claimant’s hospitalization in October 1983 proved that she did not have thrombo-phlebitis at that time, but he opined that she had had thrombophlebitis at some point in the past and that the sequelae of the thrombophlebitis were chronic venous insufficiency and resulting causalgia. He testified that thrombophlebitis can be caused by trauma, by excessive standing, by obesity, or by venous anomolies, and he indicated that a 42 year old female who had had six children and was overweight would be more subject to episodes of thrombo-phlebitis than would the average person.

When first asked whether the thrombo-phlebitis which he believed claimant had suffered at some time in the past was caused by the accident, Dr. Bowen indicated that the doctors who treated claimant immediately after the accident would be in a much better position to answer the question. In his second response to questioning concerning a possible causal relationship between the accident and the condition for which he was treating the claimant, i.e., the causalgia, Bowen stated “there is a possibility it could be related but, you know, I can’t prove that.” (e.s.). He indicated that if the claimant had had thrombophlebitis as a result of the industrial accident, the condition should have been diagnosed by the doctor who had performed the prior vascular evaluations. On cross-examination, the doctor expressly stated that his opinion that a blood clot had formed as a result of the injury and that the clot had ultimately caused the causalgia was mere speculation. On redirect examination, claimant’s counsel again attempted to formulate a hypothetical question which would lead the doctor to testify that the probable cause of claimant’s causalgia syndrome was the industrial accident. The hypothetical question did not make any reference to the fact that a vascular evaluation performed after the accident, but before Dr. Bowen first saw the claimant, had yielded negative results. The posing of this hypothetical resulted in the following exchange:

DR. BOWEN: In the hypothetical case you described, that would be the possibility, a definite possibility that its probable that it is related to her accident.
CLAIMANT’S COUNSEL: You understand the difference between possibility and probability don’t you?
DR. BOWEN: Not in your terms.
CLAIMANT’S COUNSEL: Probability is more than 50%; possibility is less than 50%. Under those circumstances are we talking ...
DR. BOWEN: Let’s say probably in that case you’re describing.

On recross-examination, the doctor stated that the fact that the doctors who saw claimant before he began treating her found no phlebitic condition “would make me think something happened in the interim.” He again expressly stated that his opinion that there might be a relationship between the accident and claimant’s causal-gia syndrome was speculation.

As noted above, Dr. Bowen’s testimony was the only medical evidence which even suggested that there might be a causal connection between claimant’s industrial accident and the causalgia syndrome diagnosed by Dr. Bowen more than 13 months after the accident. Portions of the above quoted testimony of Dr. Bowen, if taken out of context, could lead a trier of fact to conclude that the doctor believed that there was a reasonable medical probability that a causal relationship existed between the accident and the causalgia syndrome. However, Dr. Bowen’s evidence, considered in its entirety, was clearly insufficient to establish the existence of the causal relationship.

Where only a single medical expert testifies concerning a particular medical question, and where that expert’s testimony is vague, uncertain, or ambiguous, the deputy should refrain from relying on isolated portions of the testimony and instead should consider all of the testimony and attempt to distill from it the essence of what the expert is attempting to say. Cintas Corporation v. Price, 424 So.2d 900 (Fla. 1st DCA 1982). Although we are reluctant to reverse a finding of fact made by the deputy based upon his evaluation of the testimony of a witness, and although we would not do so were this a case where the deputy had had to choose between the opinions of two or more experts whose opinions conflicted, we are of the opinion that in this particular case no reasonable person could conclude other than that the essence of Dr. Bowen’s testimony was that he believed that the claimant could have suffered an episode of thrombophlebitis as a result of her industrial accident, and that the throm-bophlebitis could have precipitated her causalgia. In this regard, we note that here, as in Cintas Corporation v. Price and Haga v. Clay Hyder Trucking Lines, 397 So.2d 428 (Fla. 1st DCA), pet. for rev. den., 402 So.2d 609 (Fla.1981), the medical evidence was not presented live, so that this court is at no disadvantage in assessing and evaluating the evidence. Because the doctor admitted that his testimony as to causation was speculative, the cases of Kashin v. Food Fair, 97 So.2d 609 (Fla.1957) and Newman Heating and Boiler Repair v. Newman, 418 So.2d 1008 (Fla. 1st DCA 1982), pet. for rev. den., 429 So.2d 7 (Fla.1983) require reversal of the deputy’s implicit determination that claimant had carried her burden of proving a causal relationship between her compensable injury and her causalgia syndrome.

Additionally, we note that the hypothetical question by which claimant’s counsel was finally able to elicit the doctor’s equivocal and ambiguous testimony concerning causation failed to include certain facts which the doctor himself subsequently testified were relevant to the question of causation. An expert’s opinion which is based on an incorrect or incomplete hypothetical cannot constitute competent substantial evidence. Dade Property Management Inc. v. Lazo, 418 So.2d 393 (Fla. 1st DCA 1982); Tallahassee Coca-Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). For the foregoing reasons, the order on appeal must be, and hereby is, REVERSED.

BOOTH and SMITH, JJ., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    Howard D. ZIPPER and Susan B. Zipper, Appellants, v. AFFORDABLE HOMES, INC., Appellees.
    No. AZ-2.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Rehearing Denied Jan. 23, 1985.
    Ause Brown and Lee S. Johnson, Jr. of Brown & Johnson, P.A., Gainesville, for appellants.
    Arthur G. Haller, P.A., Gainesville, for appellees.
   JOANOS, Judge.

The Zippers appeal from a final judgment in which they were found to have breached a real estate sales contract. They contend that the trial court erred in finding a breach had occurred, awarding damages of the difference between the selling price of the real estate on the date of breach and the selling price on the date the property was sold to another party, including in the damages an award of pre-judgment interest and one-half of the interest on the construction loan from the date of breach to the date of sale, and awarding attorney’s fees of $9,600.00. We find no error in the determination that the contract had been breached, but agree that the damages were improperly calculated.

There is substantial competent evidence to support the trial court’s determination that the Zippers breached the sales contract.

The measure of damages is the difference between the price the buyer agreed to pay for the property and the fair market value on the date of the breach. Frank Silvestri, Inc. v. Hilltop Developers, 418 So.2d 1201 (Fla. 5th DCA 1982). As noted in Frank Silvestri, Inc., additional damages must be alleged and proved to have been contemplated by the parties and a natural and proximate result of the breach. We, therefore, reverse the award of damages and remand for reconsideration in accordance with this opinion.

Consequently, the award of attorney’s fees must be recalculated to reflect the trial court’s redetermination of damages.

We affirm the portion of the final judgment in which the trial court determined that the Zippers had breached the contract. The damages portion and the award of attorney’s fees are reversed and remanded for disposition consistent with this opinion.

NIMMONS and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    Henry ESTES and Cleo Estes, his wife, Appellants, v. Frances E. ROCKINSON, et al., Appellees.
    No. AZ-178.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    David A. Barrett and Albert Craig Pen-son of Barrett & Bajoczky, Tallahassee, for appellants.
    Jeanette M. Andrews and S. William Fuller, Jr. of Fuller & Johnson, Tallahassee, for appellees.
   PER CURIAM.

The judgment on the pleadings entered by the trial court is affirmed. In affirming the judgment, we hold that a dental hygienist, when cleaning teeth, is a provider of health care within the meaning of section 95.11(4)(b), Florida Statutes (1983).

AFFIRMED.

SMITH, ZEHMER and BARFIELD, JJ., concur.


author: MILLS, Judge.

text:
    Jessie Lee STONE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. BA-116.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.

      Jessie Lee Stone, Jr., pro se.
    No appearance for appellee.
   MILLS, Judge.

Stone appeals the summary denial of his Rule 3.850 motion for postconviction relief. He alleges in his motion that he received a five-year sentence in violation of a plea agreement, wherein it was agreed that he would receive a 2lk to Zlh year sentence in return for his guilty plea. We affirm.

To its order denying the motion, the trial court attached a copy of the “waiver and plea” form signed by Stone. That form set forth the following plea agreement: “[I]n exchange for the defendant’s plea of guilty, the state agrees to the defendant’s present violation of probation charge to run concurrently with the sentence he receives on this charge.” Because the duration of the sentence Stone would receive was not a part of the plea agreement, he was not sentenced in violation thereof.

AFFIRMED.

SHIVERS and WENTWORTH, JJ., concur.


text:
    Michael Ruffin ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. BA-313.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.
    Michael Ruffin Adams, pro se.
    No appearance for appellee.
   MILLS, Judge.

Adams appeals from the summary denial of his Rule 3.850 motion for postconviction relief. The summary denial was improper because the portion of the file attached by the trial court in support of its order does not “conclusively show that the prisoner is entitled to no relief.” Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for an evidentiary hearing on Adams’ motion.

On 22 December 1981, Adams pled guilty to separate counts of armed robbery without the use of a firearm. He received concurrent sentences of 30 years. On 19 March 1982, Adams pled guilty to two counts of armed robbery, two counts of carrying a concealed firearm and three counts of possession of methaqualone. He was sentenced by a different judge to two concurrent 30-year terms on the armed robbery counts, and to five concurrent five-year terms on the rest of the charges. The 19 March sentences were to run concurrently with each other and with the sentences received on 22 December.

In his motion, Adams alleges that the 19 March sentences for armed robbery were imposed in violation of a plea agreement, wherein he agreed to plead guilty in exchange for a reduction of four counts of armed robbery to four counts of armed robbery without use of a firearm. He alleges that while the 22 December sentences reflected the plea agreement, the 19 March sentences did not, despite the second judge’s acknowledgment of and agreement to abide by it. The trial court denied the motion, attaching copies of the judgments and sentences entered against Adams.

An allegation of imposition of sentence in violation of an accepted plea agreement is a legally sufficient basis for relief by a 3.850 motion. Howard v. State, 417 So.2d 1152, 1153 (Fla. 1st DCA 1982). When legally sufficient grounds are stated in the motion, the court must either attach “copies of that portion of the files and records which conclusively show that the prisoner is entitled to no relief,” Rule 3.850, or hold an evidentiary hearing on the allegations of the motion. Howard, supra. Here, the copies of the judgments and sentences provided by the trial court do not conclusively show that Adams was not sentenced in violation of a plea agreement.

The order of the trial court summarily denying Adams’ motion is reversed, and the case is remanded for an evidentiary hearing on the allegation contained therein.

SHIVERS and WENTWORTH, JJ., concur.


author: SHIVERS, Judge.

text:
    David M. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. BA-454.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1984.

      David M. Smith, pro se, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

Appellant appeals the trial court’s denial of his RCrP 3.850 motion for post-conviction relief. In his motion, appellant alleged several grounds in support of relief. The trial court summarily denied appellant’s motion, without attaching to its order any portions of the file or record in this case. We affirm in part, reverse in part, and remand with directions.

First, we find that the trial court properly summarily denied appellant’s claims that the trial judge erred in ordering only one psychological evaluation of appellant to determine if appellant was temporarily insane at the time of the offense and that the trial judge erred in not ordering a presentence investigation report. See, respectively, Brown v. State, 418 So.2d 464 (Fla. 4th DCA 1982) (that court stating that the defendant’s allegations concerning matters which preceded and were wholly unrelated to the entry of his plea were foreclosed by virtue of the defendant’s plea, citing Robinson v. State, 373 So.2d 898 (Fla.1979)) and Washington v. State, 397 So.2d 285, 287 (Fla.1981) (the Florida Supreme Court stating that a presentence investigation report is discretionary with the trial court, citing Hargrave v. State, 366 So.2d 1, 4 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979)).

Next, we find to be without merit appellant’s allegation that defense counsel rendered ineffective assistance in advising appellant to plead guilty to armed robbery without adequately investigating the possibility of raising an insanity defense. Here, appellant attached to his 3.850 motion a report by Dr. James L. Larson, a psychiatrist, wherein Dr. Larson opined that appellant “is competent to stand trial and at the time of the offense he should be considered legally responsible.” In light of this report, defense counsel was not obligated to seek additional expert opinion in the hope of fabricating an insanity defense. See Holmes v. State, 429 So.2d 297, 300 (Fla.1983).

Finally, appellant alleged in his motion, somewhat inarticulately, that defense counsel was ineffective in allowing appellant to plead guilty in light of a possible defense of lack of intent. Voluntary intoxication is a defense to specific intent crimes, Presley v. State, 388 So.2d 1385 (Fla. 2d DCA 1980), and robbery is a specific intent crime, Bell v. State, 394 So.2d 979 (Fla.1981). See also Gurganus v. State, 451 So.2d 817, 822 (Fla.1984) (the Florida Supreme Court stating that when specific intent is an element of the crime charged, evidence of voluntary intoxication, or for that matter, evidence of any condition relating to the accused’s ability to form a specific intent, is relevant). Here, appellant averred in his motion that he did not have the intent to commit robbery because of his ingestion of numerous quaalude tablets and an excessive quantity of beer prior to committing the offense. Moreover, in Dr. Larson’s report, mentioned above, Dr. Larson opined that appellant “was suffering from an alcoholic blackout spell during the time of commission of the alleged offense.” In light of appellant’s allegations and Dr. Larson’s report, we cannot say that appellant’s motion conclusively shows that he is entitled to no relief as to this alleged deficiency on the part of defense counsel in allegedly not adequately investigating and/or advising appellant of this possible defense prior to appellant entering his plea of guilty. Accordingly, to the extent that the trial court’s order summarily denies relief with respect to appellant’s claim on this point, it is hereby reversed and this cause remanded to the trial court to either again summarily deny appellant’s motion as to this claim and attach to its order those portions of the record that conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on this claim by appellant. The order is affirmed in all other respects.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

MILLS and WENTWORTH, JJ„ concur.


text:
    William WALKER, Appellant, v. GULF AND WESTERN FOOD PRODUCTS and National Employers Company, Appellees.
    No. AX-44.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Michael H. Stauder, West Palm Beach, for appellant.
    Patrick J. Malone, of Beisler & Beisler, West Palm Beach, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, the claimant appeals the deputy commissioner’s order which denies his claim for wage-loss benefits. We affirm.

Claimant injured his neck and shoulder in a compensable accident on November 15, 1981. Thereafter, claimant came under the care of three treating physicians, Drs. Se-hayik, Ford, and Juan. Dr. Sehayik was claimant’s initial treating physician and treated claimant from December 1981 through May of 1982. Dr. Sehayik released claimant to return to work without restrictions on May 7, 1982. As of this date, the doctor opined that claimant had reached maximum medical improvement without any permanent impairment.

Next, claimant came under the care of Dr. Ford. Dr. Ford treated claimant from June of 1982 through November of 1982. On November 9, 1982, Dr. Ford advised the employer/servicing agent that claimant could be on full work activities without functional impairment.

Finally, claimant came under the care, or, more specifically, was examined by Dr. Juan in June of 1983. In Dr. Juan’s report dated June 22, 1983, Dr. Juan noted that he could not find any clinical evidence to justify claimant’s complaints of pain. However, pursuant to a letter dated July 12, 1983, Dr. Juan opined that claimant had reached maximum medical improvement with a permanent disability to the body as a whole of 5%. Dr. Juan later on advised claimant’s attorney that claimant’s impairment rating was based on the AMA Guides to the Evaluation of Permanent Impairment.

In the order on review, the deputy found that claimant sustained no permanent impairment to either his neck or shoulder as a result of his industrial accident and, therefore, denied claimant’s claim for wage-loss benefits. The deputy specifically noted in his order that Drs. Sehayik, Ford, and Juan found no clinical and/or objective basis for claimant’s continued complaints of pain. The deputy accepted the findings of Drs. Sehayik and Ford that claimant did not sustain any permanent impairment as a result of his industrial accident. However, the deputy did not explicitly note and/or reject Dr. Juan’s testimony to the contrary in his order. The claimant contends this was error. We disagree.

A deputy commissioner may accept the testimony of one doctor and reject that of another, even without explanation. Hirschensohn v. David Wood Personnel, 455 So.2d 537 (Fla. 1st DCA 1984). Here, the acceptance of Drs. Sehayik’s and Ford’s findings that claimant did not sustain any permanent impairment as a result of his industrial accident was an implicit rejection of Dr. Juan’s finding to the contrary. See Glades County Sugar Growers v. Gonzales, 388 So.2d 333, 335 (Fla. 1st DCA 1980). Moreover, it cannot reasonably be contended that the deputy overlooked or ignored Dr. Juan’s testimony. Cf. Poorman v. Muncy & Bartle Painting, 433 So.2d 1371 (Fla. 1st DCA 1983). In his order, the deputy specifically noted that Dr. Juan was claimant’s most recent treating physician and that Dr. Juan could find no clinical basis to explain claimant’s complaints of pain. Additionally, at the hearing on claimant’s claim for wage-loss benefits, it was brought to the attention of the deputy that it was claimant’s position that he had sustained a 5% permanent impairment as a result of his industrial accident.

Nor can it reasonably be contended that the reason for the deputy’s finding on this point is not apparent from the record. Poorman, supra. Here, two treating physicians, Drs. Sehayik and Ford, opined that claimant had not sustained any permanent impairment as a result of the industrial accident and one treating physician, Dr. Juan, opined that claimant had. All three treating physicians, however, found that there was no clinical and/or objective basis to explain claimant’s complaints of pain, thereby casting doubt on whether claimant’s complaints of pain were medically verifiable. In light of this finding by all three physicians, specifically mentioned by the deputy in his order, the deputy simply chose to accept the opinions of Drs. Sehay-ik and Ford over that of Dr. Juan on whether claimant is permanently impaired. No more elaborate findings of fact were required by the deputy to support his choice. See Buró v. Dino’s Southland Meats, 354 So.2d 874, 877 (Fla.1978).

Accordingly, the deputy’s order, being supported by competent, substantial evidence, is AFFIRMED.

WENTWORTH, J., concurs.

NIMMONS, J., concurs in result only.


text:
    Fred Lorenzo BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. AY-4.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1984.
    Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Clem v. State, 462 So.2d 1134 (Fla. 4th DCA 1984); Spurlock v. State, 449 So.2d 973 (Fla. 5th DCA 1984). Cf. Lollis v. State, 449 So.2d 430 (Fla. 2d DCA 1984).

Finding that this decision passes upon questions of great public importance, we certify to the Supreme Court of Florida the same questions certified in Clem v. State, supra:

1. WHEN A PERSON IS SENTENCED AS A YOUTHFUL OFFENDER PURSUANT TO CHAPTER 958.05(2), FLORIDA STATUTES (1979), DOES THE CIRCUIT COURT HAVE JURISDICTION TO REVOKE THE COMMUNITY CONTROL PROGRAM STATUS OF THAT PERSON?
2. IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE POSITIVE, MAY THE CIRCUIT COURT, UPON REVOCATION OF A YOUTHFUL OFFENDER’S COMMUNITY CONTROL PROGRAM STATUS, TREAT THE DEFENDANT AS THOUGH IT HAD NEVER PLACED HIM IN COMMUNITY CONTROL AND SENTENCE HIM IN ACCORDANCE WITH SECTION 948.06(1), FLORIDA STATUTES?

SMITH, ZEHMER and BARFIELD, JJ., concur.


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

text:
    Kurtis SMITH, etc., Appellant, v. STATE of Florida, Appellee.
    No. 84-138.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 1984.

      James B. Gibson, Public Defender, and Lucinda Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Kurtis Smith appeals his sentence after entering nolo contendere pleas to grand theft and aggravated assault. During discovery, the state had filed notice that it intended to seek an enhanced penalty under the habitual offender act, section 775.084, Florida Statutes. Smith elected to be sentenced under the sentencing guidelines. A scoresheet showed a recommended sentence of twelve to thirty months incarceration.

Over objection, the state introduced a pre-sentence investigation report which revealed that Smith had a lengthy prior adult criminal record relating back to 1969. At the hearing, the state presented the probation-parole investigator who prepared the PSI. On cross-examination, he testified that in compiling the PSI, he used information from an FBI rapsheet, FDLE rapsheet and Orange County Sheriff’s Office rap-sheet. Smith acknowledged a conviction for burglary of a conveyance on August 31, 1977, but objected to use of the PSI, arguing that a rapsheet was not sufficient evidence of prior convictions and constituted hearsay.

The trial court found that based on the 1977 burglary conviction and sentence, Smith was an habitual offender. Finding that an extended sentence was necessary for the protection of the public because of Smith’s extensive criminal record, the court sentenced him to consecutive sentences of seven and one-half years on each charge. The written reason for departure was stated as follows:

Court found defendant to be an habitual offender and imposed extended terms of imprisonment pursuant to F.S. 775.084(4) which the Court finds to be a clear and convincing reason for departure.

Smith first argues that the habitual offender act has been repealed by implication by the sentencing guidelines which provide for consideration and scoring of prior o£ fenses.

This court has held that a sentencing judge may depart from the guidelines based on the defendant’s prior criminal record, even though such record is taken into account in determining the recommended sentence. Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984). It follows that the habitual offender act may continue to exist with the guidelines and may constitute a clear and convincing reason to deviate from the recommended sentence, Florida Rule of Criminal Procedure 3.701(d)(ll), where its provisions are satisfied. Accord Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984).

In order to impose an enhanced sentence under the habitual offender act, the court must find: (1) that the present offense was committed within five years of the date of a prior felony conviction or within five years of the defendant’s release from a prison sentence for a felony, (2) that the defendant was not pardoned for the crime nor was his conviction set aside, and (3)that the enhanced sentence is necessary for the protection of the public.

Smith stipulated that he had been sentenced to four years imprisonment in 1977 for burglary. Certified copies of two certificates of mandatory conditional release were introduced showing that Smith had been released from the Department of Corrections on parole first on March 16, 1979, which was revoked, and again on May 1, 1981. A photograph and fingerprints of Smith, taken by the Department of Corrections, were included with the certificates. The trial judge in this case stated that the photograph was that of Smith. Since both dates of release fall within the five-year period (the present offense was committed on September 18, 1982) and it was uncontested that Smith was not pardoned nor was his 1977 conviction set aside, the first two conditions above were met by competent, substantial evidence.

The real issue is whether the court im-permissibly relied on uncorroborated hearsay in finding that the enhanced sentence was necessary for the protection of the public. Smith argues that the court did, because it based such finding on the PSI which revealed Smith’s extensive prior criminal record, but derived from rapsheets of which the compiling officer had no first hand knowledge.

In Eutsey v. State, 383 So.2d 219 (Fla.1980), the supreme court ruled that while there is no constitutional prohibition against the use of a PSI report in habitual offender proceedings, where the defendant disputes the truth of hearsay statements in such a report, the state must produce corroborating evidence to support such statements in order for them to be relied upon in making the required statutory findings. See also McElveen v. State, 440 So.2d 636 (Fla. 1st DCA 1983) and Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979), which hold that reliance on uncorroborated hearsay in a PSI report to support a finding that an enhanced sentence was necessary for protection of the public violates due process. However, the defendant must object to particular information in the PSI in order to trigger the state’s obligation to come forward with corroborating evidence and cannot merely make a general objection to the use of the PSI. See Eutsey, 383 So.2d at 226.

The objection which the defense made to the PSI follows:

MR. LORINCZ: One, it would be hearsay; two, I notice there is alleged criminal history, many of the entries not having dispositions. As far as I know, there are only one or two or three of those entries wherein there is evidence that the offenses.belonged to this defendant.
It just appears to me under the circumstances in this case that all of this is not proper to be admitted in this proceeding. We would say with regard to each and every offense which the State would attempt to use for purposes of enhancement, they are going to establish by credible proper evidence that the particular offense attributed to my client is, in fact, properly attributable to him. And my position is that an FBI rap sheet or a rap sheet of any sort is insufficient for that purpose; the accuracy and the duplication and the errors with regard to a rap sheet, it’s well known to one and all. On that basis, I do not believe that that sort of criminal history is appropriate to be entered into evidence in a case of this type and a proceeding of this type.

We do not think this objection was sufficient. It is not enough to say that the report contains hearsay. The defendant must dispute the truth of the material in the PSI. In other words, the defendant must identify the portions of the PSI he challenges. Only then does the state have the obligation to present proof to overcome the hearsay included in the report. This is consistent with Eutsey, wherein the court stated:

It follows that the sentencing court must devise orderly procedures for identifying hearsay in the presentence report which is disputed by the defendant, which the court intends to consider in its potential 776.084 findings, and which the court finds, is subject to witness confrontation and cross-examination rights_ (emphasis added).

383 So.2d at 225.

AFFIRMED.

DAUKSCH and ORFINGER, JJ., concur.


text:
    Ronald CLARK, Appellant, v. L.L. WAINWRIGHT, et al., Appellees.
    No. AW-250.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.
    Ronald Clark, pro se.
    Kurt E. Ahrendt, Asst. Gen. Counsel, Tallahassee, for appellees.
   MILLS, Judge.

Clark, an inmate at the state prison at Raiford, appeals from an order denying his petition for writ of habeas corpus.

In the petition, he alleges that the Florida Parole and Probation Commission arbitrarily and without notice changed his presumptive parole release date from 21 June 1983 to 21 June 1993. Clark says the reasons given for this change were that he had not sought or received treatment for substance abuse and still had psychosexual problems. Among other things, Clark contends the Commission's actions violated Section 947.16(4), Florida Statutes (1983), providing that the presumptive parole release date may not be changed except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.

The trial court denied the petition stating, “Petitioner has failed to allege a factual basis that would entitle him to relief.”

On appeal, the Commission admits error in extending the presumptive parole release date and in failing to state the reasons for not authorizing an effective parole release date in a manner sufficient to permit judicial review. Because the Commission admits error, and the allegations of the petition would entitle Clark to immediate release if true, see, Wells v. Florida Parole and Probation Commission, 437 So.2d 767 (Fla. 1st DCA 1984), we reverse the order denying the habeas corpus petition and remand to the trial court with directions that it issue an order to show cause why the petition should not be granted.

Reversed and remanded with directions.

SHIVERS and WENTWORTH, JJ., concur.


text:
    TROPICANA PRODUCTS, INC., Appellant, v. Emma ANDREWS, Appellee.
    No. AZ-343.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.

      James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, Fort Pierce, for appellant.
    Vincent A. Lloyd, Fort Pierce, and Martha C. Warner, Stuart, for appellee.
   THOMPSON, Judge.

This is an appeal from a workers’ compensation order awarding, inter alia, temporary total disability (TTD) benefits for the period from July 15, 1982 through November 21, 1983, the date of maximum medical improvement, and wage loss benefits thereafter. We conclude that the order requires modification.

There was a complete absence of medical evidence that the claimant was totally disabled at any time between July 15, 1982 and August 11, 1983, or after November 21, 1983. Therefore, in order to demonstrate entitlement to TTD benefits and wage loss benefits for these respective periods, it was the responsibility of the claimant to prove, by competent and substantial evidence, that she had made a good faith effort during those times to obtain work commensurate with her post-accident abilities. Tallahassee Coca Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). In a deposition taken on November 24, 1982, the claimant admitted that she had made no effort whatsoever to obtain employment since being terminated by the employer in March of 1982. However, at a later deposition and at the final hearing, the claimant did adduce some evidence that she had been actively seeking work. This evidence was, to say the least, of only marginal sufficiency to demonstrate that a good faith work search had been conducted, and it certainly did not meet the minimum evidentiary standards for proof of an adequate and good faith work search established by the cases of Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), pet. for rev. den., 431 So.2d 989 (Fla.1983) and Conshor, Inc. v. Barnhart, 422 So.2d 946 (Fla. 1st DCA 1982). The appellant now contends that because of the insufficiency of the work search evidence the awards of TTD benefits and wage loss benefits must be reversed. We agree that the award of TTD benefits for the period from July 15, 1982 through November 24, 1982 cannot stand, since the claimant expressly admitted that she had made no attempt to find work during this period. However, we decline to review the sufficiency of the work search evidence for any period after November 24, 1982, because of the appellant’s failure to adequately develop and litigate that issue below. Here, as in City of Hialeah v. Cascardo, 443 So.2d 448 (Fla. 1st DCA 1984) and Chain Store Warehouses v. Picard, 431 So.2d 685 (Fla. 1st DCA 1983), the issue of the sufficiency of the work search evidence has not been preserved for review. Accordingly, we modify the order to delete the award of TTD benefits for the period from July 15, 1982 through November 24, 1982, and affirm the order as modified.

ERVIN, C.J., and BOOTH, J., concur.


text:
    Cecil B. STACEY, Appellant, v. STATE of Florida, Appellee.
    No. BA-115.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1984.

      Cecil B. Stacey, pro se.
    No Appearance for appellee.
   MILLS, Judge.

Stacey appeals from an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand for an evidentiary hearing.

The motion alleged the sentencing court retained jurisdiction over the first one-third of Stacey’s 99-year sentence for armed robbery although the crime was committed before the effective date of Section 947.-16(3), Florida Statutes (Supp.1978), the law allowing retention of jurisdiction. ■ The motion also alleged ineffective assistance of trial counsel.

The trial court found the allegation regarding retention of jurisdiction unreviewa-ble because (1) Stacey did not object to retention at sentencing, and (2) the issue was not raised on direct appeal. 421 So.2d 824. The trial court found the allegations regarding ineffective assistance of counsel conclusively refuted by the record and, even if true, not legally sufficient to allege ineffective assistance of counsel.

The motion alleges the crime for which Stacey was convicted occurred on 8 May 1978. Section 947.16(3) took effect on 19 June 1978. Thus, if this allegation is true, the sentencing court erred. State v. Williams, 397 So.2d 663 (Fla.1981).

Stacey’s failure to object to retention of jurisdiction at sentencing does not preclude review by way of a Rule 3.850 motion. Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984). Nor does his failure to raise the issue on direct appeal preclude review by way of a Rule 3.850 motion because, under Cofield and Fredricks v. State, 440 So.2d 433 (Fla. 1st DCA 1983), he was precluded from raising the issue on direct appeal absent objection at sentencing.

We agree with the trial court as to Stacey’s other allegations regarding ineffective assistance of counsel.

Reversed and remanded for an evidentia-ry hearing on the retention of jurisdiction issue.

SHIVERS and WENTWORTH, JJ„ concur.

      . In view of State v. Rhoden, 448 So.2d 1013 (Fla.1984), the Cofield court certified the preservation for direct appeal issue to the Florida Supreme Court as a question of great public importance.


author: ORFINGER, Judge.

text:
    Fadel ELBADRAMANY, Appellant, v. OCEANS SEVEN CONDOMINIUM ASSOCIATION, INC., etc., Appellee.
    No. 83-1502.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 1984.

      Edgar C. Booth and Paula L. Walborsky, P.A., Tallahassee, and Charles E. Booth, Daytona Beach, for appellant.
    Jeffrey C. Sweet, of Fink, Loucks, Sweet & Yoges, Daytona Beach, for appellee.
    Sandra P. Stockwell, Dept, of Business Regulation, Tallahassee, amicus curiae.
   ON MOTION FOR REHEARING

ORFINGER, Judge.

We withdraw the opinion previously filed in this case and substitute the following in its place.

Oceans Seven Condominium Association (“Association”), contended that Elbadrama-ny was in violation of the Condominium Rules of Conduct in parking his boat and boat trailer in the condominium parking lot. After numerous letters between the Board of Directors and Elbadramany, a Review Committee, authorized by the By-Laws, imposed a fine of $5.00 per day for each day that Elbadramany failed to remove his boat and boat trailer from the parking lot. After the passage of nine and a half months, the Association filed a complaint against Elbadramany for foreclosure of a lien against his condominium unit alleging that Elbadramany had “failed and refused to pay the sum of Nine Hundred Thirty ($930.00) Dollars, representing the fine for improper use of common element property.” The trial court entered a judgment in foreclosure against Elbadramany’s condominium unit, ordering Elbadramany to pay the Association $3,295.00 in fines, plus attorney’s fees and court costs, for a total of $12,156.50. The trial court ordered that Elbadramany’s condominium unit be sold at public sale within three days if he failed to pay the amount due with interest. The order was stayed pending the disposition of the matter on appeal.

The Association assessed the fine against Elbadramany based on its finding that El-badramany was in violation of the Association’s rules and regulations regarding the parking of trailers and commercial vehicles on common property. The By-Laws of the Association provided that:

If the Committee concludes that a violation has taken place, it may have the following elections:
(I) Reprimand.
(II) Levying a fine in such amount as may be reasonable under the circumstances.
(III) Authorize the initiation of appropriate action.

The Association’s Declaration of Condominium provided that fines “shall be considered a common expense of the member, leviable by the Committee against the unit and collectible in the same manner as any other common expense of the Association.” In reliance on this language, the Association filed the claim of lien against Elbadra-many’s unit. The Association argues that because the condominium documents permit the Association to impose a lien against a unit for past due assessments owed by the unit owner, the Association was clearly within its rights when it placed a lien on appellant’s condominium unit for appellant’s failure to pay the fine.

The flaw in appellee’s argument is in appellee’s attempt to label a “fine” a “common expense.” The purpose of the fine was to punish Elbadramany or to induce him to curb his perceived errant ways; the fine, like all fines, was directed at the offending party. Thus, the fine was not collectible from all the unit owners. Section 718.115(2) of the Florida Statutes (1983) requires that funds for the payment of common expenses be collected by assessments against unit owners in proportion to their ownership interest in the common elements.. The fine is not collectible from all unit owners in proportion to their ownership interest, and therefore cannot be a common expense without violating section 718.115(2). Although the condominium documents purport to transform a fine into a common expense and thus make the fine enforceable under section 718.116, the condominium documents cannot lawfully provide procedures which are inconsistent with the Condominium Act. See, Fla.Stat. §§ 718.104(4)(Z), 718.112(3)(c) (1983). Thus, the lien was invalid and could not serve as a basis for a foreclosure judgment. In light of this determination, we do not reach any of the other issues raised on this appeal. The final judgment is reversed and the cause is remanded for such further proceedings as are not inconsistent herewith.

REVERSED and REMANDED.

COBB, C.J., and DAUKSCH, J., concur.

      . Although not applicable here, it is interesting to note that Chapter 84-368, Laws of Florida, 1984, creates section 718.303(3), Florida Statutes, effective October 1, 1984, which reads:
      (3) If the declaration or bylaws so provide, the association may levy reasonable fines against a unit for failure of the owner of the unit or its occupant, licensee or invitee to comply with any provision of the declaration, the association .bylaws, or reasonable rules of the association. No fine shall become a lien against a unit. No fine shall exceed $50 nor shall any fine be levied except after giving reasonable notice and opportunity for a hearing to the unit owner and, if applicable, its licensee or invitee. The provisions of this subsection shall not apply to unoccupied units.


text:
    Johnny Eugene DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. AX-47.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.
    Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant, pursuant to plea negotiations with the State, pled guilty to aggravated assault. Appellant’s sentencing guidelines scoresheet shows a recommended/presumptive sentence of any nonstate prison sanction. The trial court did not find any clear and convincing reasons to deviate from the recommended sentence and placed appellant in a community control program for five years with the condition, among others, that appellant spend twelve months in the Duval County jail. Appellant contends that his placement in community control for a five year period was error. We agree and reverse and remand.

Initially, contrary to appellant’s first contention, we find and hold that community control is a proper sanction to be imposed by a trial court under the sentencing guidelines category of any nonstate prison sanction for the reasons expressed in Mitchell v. State, No. AX-361, 463 So.2d 416 (Fla. 1st DCA 1985).

We agree, however, with appellant’s second contention that the trial court erred in placing appellant in a community control program for five years. RCrP 3.701(d)(13) provides that when community control is imposed, it shall not exceed the term provided by general law. Chapter 948, Florida Statutes (1983) sets forth pertinent provisions relating to community control and probation. Section 948.01(5), Florida Statutes (1983), provides in part:

The sanctions imposed by order of the court shall be commensurate with the seriousness of the offense. When supervision or a program of public service is ordered by the court, the duration of such supervision or program may not be longer than the sentence that could have been imposed if the offender had been committed for the offense or a period not to exceed 2 years, whichever is less.

We interpret the above provision as applying to both probation and community control, since both community control and probation involve supervision. See section 948.001(2) (probation means a form of community supervision); section 948.03(2) (the court shall require intensive supervision and surveillance for an offender placed into community control). In addition, community control may include mandatory public service. Section 948.03(2)(c), Florida Statutes (1983).

The placement of an offender on probation or into community control therefore is limited to a maximum of two years, unless an exception to this general provision exists. Such an exception is provided in section 948.04(1), Florida Statutes, for probation. However, we have been unable to find, and the parties have not informed us of, any such exception for the placement of an offender into community control. Accordingly, we find and hold that the placement of an offender into community control is limited to two -years.

The trial court’s order which placed appellant into community control for a five year period therefore is vacated and this cause is reversed and remanded for disposition in accord with the sentencing guidelines and this opinion.

REVERSED and REMANDED.

WENTWORTH and NIMMONS, JJ., concur.


author: ZEHMER, Judge.

text:
    Mary WILLIAMS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AZ-254.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.

      William E. Adams, Jr., Florida Rural Legal Services, Inc., West Palm Beach, for appellant.
    Joseph R. Boyd and Susan S. Thompson of Boyd, Thompson & Williams, P.A., and Chriss Walker, Dept, of Health and Rehabilitative Services, Tallahassee, for appel-lee.
   ZEHMER, Judge.

Mary Williams has appealed a final order of the Department of Health and Rehabilitative Services ordering the termination of a portion of her Aid to Families with Dependent Children benefits. The order finds that she has failed to cooperate with the Department in attempting to establish paternity with regard to one of her dependent children. An HLA blood test excluded the possibility of the person named by appellant being the father of the child.

We find the facts and arguments presented in this case are not materially different from those presented in Amos v. Dept. of Health & Rehabilitative Services, 444 So.2d 43 (Fla. 1st DCA 1984), and that our decision in that case is controlling here. Accordingly, the order terminating such benefits is reversed and the case is remanded with directions to reinstate appellant’s benefits retroactively.

REVERSED and REMANDED.

SMITH and BARFIELD, JJ., concur.


author: WENTWORTH, Judge.

text:
    William C. KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. BA-226.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.

      William C. Knight, pro se.
    Jim Smith, Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of the partial denial of his Fla.R.Crim.P. 3.850 motion for post-conviction relief. We affirm the order appealed.

Appellant’s motion asserts that sentences for his multiple offenses were erroneously imposed consecutively rather than concurrently. The court agreed and amended the sentences accordingly. Appellant’s motion also asserts that in imposing an enhanced sentence the court imper-missibly relied on a vacated conviction. However, the attached transcript indicates that the court merely noted the circumstance of a prior charge (which conviction had been vacated due to improper venue) among numerous other convictions. Furthermore, both this enhancement issue and an asserted suppression issue should have been presented by direct appeal rather than by a motion for post-conviction relief. See Suto v. State, 422 So.2d 924 (Fla. 2d DCA 1982); Lazarus v. State, 412 So.2d 54 (Fla. 5th DCA 1982).

The order appealed is affirmed.

MILLS and SHIVERS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Sharon M. PFORR, Appellee.
    No. BA-382.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1984.

      Jim Smith, Atty. Gen., Wallace E. Allbrit-ton, Asst. Atty. Gen., for appellant.
    C. Richard Parker, Public Defender, Karin L. Moore, Asst. Public Defender, for appellee.
   WENTWORTH, Judge.

The state appeals an order which grants appellee’s motion to dismiss a charge of first degree murder. We find that the court erred in granting the motion and reducing the charge to second degree murder, and we therefore reverse the order appealed.

Appellee was charged with first degree murder by an indictment which alleged that she “unlawfully and from a premeditated design to effect the death of [the victim] did kill the said [victim] by shooting her with a firearm_” The undisputed allegations of appellee’s motion to dismiss and the state’s demurrer thereto indicate that:

Appellee, the victim, and the victim’s spouse spent the evening having dinner and drinks at a local restaurant and lounge. A bartender who had observed appellee on previous occasions was of the opinion that she was ‘under the influence of alcohol.’ During the evening appellee instigated a physical altercation with the victim’s spouse, who then departed the premises. Appellee telephoned the sheriff’s office, and the bartender drove ap-pellee and the victim to appellee’s residence. A sheriff’s deputy arrived and appellee complained that the victim’s spouse had been mistreating the victim. The victim’s spouse then arrived at ap-pellee’s residence and became involved in an argument with appellee. The victim and her spouse then departed, as did the deputy sheriff. The deputy was of the opinion that appellee ‘was intoxicated’ but ‘was not staggering, made good sense in conversation.’
Appellee telephoned the victim’s mother and, complaining about the victim’s spouse, stated that ‘I’m going to kill [him].’ Indicating that she was ‘afraid’ for the victim, appellee, accompanied by .her two children, and carrying a handgun, proceeded to the victim’s residence. Appellee suggested that she took the gun because the victim’s spouse ‘had been violent’ in the past. Appellee discharged her firearm as she left her own residence, and upon arriving at the victim’s residence she observed the victim’s spouse standing on the porch with a shotgun. The spouse advised appellee that she was drunk and should depart, and then pointed the shotgun at appellee. Appellee and her children indicated that the spouse verbally threatened to shoot appellee. Nevertheless, appellee did not depart and continued to request to see the victim. The victim was called and appellee fired a shot which killed the victim.
Appellee returned home, sheriff’s deputies arrived, and appellee stated that T didn’t mean to shoot [the victim], I meant to kill [her spouse].’ Appellee further indicated that she never saw the victim.

In granting appellee’s motion the court expressly found an absence of any factual predicate which would support the charged offense of premeditated first degree murder.

The element of premeditation is generally á factual issue of intent properly determined by the jury. See Lee v. State, 141 So.2d 257 (Fla.1962); State v. Gonzalez, 433 So.2d 646 (Fla. 2d DCA 1983). And as the court recognized, the factual allegations of appellee’s motion are properly construed in a manner favorable to the state. See State v. Hires, 372 So.2d 183 (Fla.2d DCA 1979). While a controlling or dominating passion or fear may, in a particular context, preclude the existence of premeditation, see Clay v. State, 424 So.2d. 139 (Fla.3d DCA 1983), petition for review de nied, 434 So.2d 889 (Fla.1983), in the present case the factual allegations, when construed most favorably to the state, provide a sufficient predicate for a determination that appellee acted with reasoned premeditation intending to kill the victim’s spouse. Section 782.04(l)(a)l, Florida Stat- ■ utes, defines first degree murder as a homicide “perpetrated from a premeditated design to effect the death of ... any human being,” and an indictment need only charge a premeditated attempt to kill the victim, even if the proof establishes that the requisite intent was directed toward another human being. See Lee, supra. Appellee’s motion thus raises only a factual issue of premeditation, and the court erred in granting appellee’s motion to dismiss the charge of premeditated first degree murder.

The order appealed is reversed and the cause remanded for further proceedings.

MILLS and SHIVERS, JJ., concur.


text:
    Thomas HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1468.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.

      James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

This appeal is from an order revoking appellant’s probation. We reverse.

Appellant was placed on probation after pleading guilty to felony petit theft for . stealing an alcoholic beverage from a convenience store. He was charged with violating two conditions of his probation: 1) that he attend and successfully complete a designated 28-day alcohol rehabilitation program, and 2) that he consume no alcoholic beverages whatsoever. The trial court found that the evidence presented at the hearing was sufficient to show the violation of both conditions, and revoked appellant’s probation.

Appellant testified that he had not entered the rehabilitation program because an entrance fee of $120 had been instituted, and he did not have the money to pay that fee. A supervisor from the Metropolitan Alcoholism Council (MACO), the organization which ran the 28-day program, testified at the hearing that the reason appellant did not get into that program was because he did not have the up front money. Instead, appellant was placed in a halfway house operated by MACO for less intensive rehabilitation. There, he was expected to attend meetings of Alcoholics Anonymous, remain sober, and observe a curfew. There was evidence presented to support the trial court’s finding that appellant broke his curfew and was intoxicated.

On the issue of appellant’s failure to attend the 28-day program, the State offered no evidence that appellant had the ability to pay the entrance fee. The trial court instead placed on appellant the burden of showing that he did not have the ability to make that payment. This put the burden of proof on the wrong party. The burden is upon the State to show that the probationer had the ability to make a required payment in order to support a revocation of probation for failure to make such payment. Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980); Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980). Because the imposition of the entrance fee was undisputed, and because the State offered no evidence that appellant had the ability to pay that fee, the order of revocation cannot be supported on that ground.

The finding that appellant violated the probation order by consuming alcohol and becoming intoxicated is a substantial violation and would support the order of revocation. However, we note from the record that the trial court observed that appellant’s criminal conduct is alcohol related and that he is in critical need of alcohol counseling and treatment. Thus we are unable to determine if the trial court would have revoked appellant’s probation on the sole ground that he had been intoxicated. For this reason, we set aside the order of revocation and the sentence, and remand the cause to the trial court for a reconsideration of the issues, and for such further proceedings as are appropriate. See, Orr v. State, 453 So.2d 222 (Fla. 5th DCA 1984). The trial court may take such additional testimony as it may deem necessary to a proper determination of the charges against appellant.

REVERSED and REMANDED.

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


author: SHARP, Judge.

text:
    Richard WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 84-218.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Williams appeals from convictions and sentences for burglary of a conveyance, and petit theft. He argues that his petit theft conviction should not have been aggravated pursuant to section 812.014(2)(c), Florida Statutes (1983) by a conviction obtained prior to sentencing in this case because the criminal acts took place .after those involved in this case. He also argues that the trial court erred in refusing to give a requested instruction on trespass to a conveyance.

We think the trial judge properly aggravated Williams’ petit theft sentence under section 812.014(2)(c). Williams committed the theft involved in-this case on May 21, 1983. He had been convicted of petit theft on December 27, 1982, which he agrees was properly considered. However, the second “prior” petit theft conviction was obtained on September 21, 1983, for criminal acts Williams performed after those involved in this case. We do not think the respective dates when the thefts occurred are controlling in this context, so long as a conviction was obtained for the later theft before sentencing in this case. See Daugherty v. State, 419 So.2d 1067 (Fla.1982); Ruffin v. State, 397 So.2d 277 (Fla.1981). Therefore, we affirm his conviction and sentence for petit theft.

However, Williams’ second point on appeal mandates reversal. The defense requested the giving of an instruction on trespass as a necessarily lesser included offense of burglary of a conveyance. Trespass is a necessarily included offense of burglary. As it is but one step removed from the burglary offense, failure to give it is reversible error. State v. Abreau, 363 So.2d 1063 (Fla.1978); Brown v. State, 206 So.2d 377 (Fla.1968); Foster v. State, 448 So.2d 1239 (Fla. 5th DCA 1984). The rationale is apparently to preserve the jury’s inherent pardon power, and therefore the harmless error rule does not apply. State v. Bruns, 429 So.2d 307 (Fla.1983). Consequently, we have no choice in this case but to reverse Williams’ conviction for burglary- and remand for a new trial.

AFFIRMED IN PART; REVERSED IN PART.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . §§ 810.02(1); 810.02(3) & 810.07, Fla.Stat. (1983).

      . § 812.014(l)(a)(b), Fla.Stat. (1983).

      . Section 812.014(2)(c) provides:
      Theft of any property not specified in paragraph (a) or paragraph (b) is petit theft and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084.

      . § 810.08, Fla.Stat. (1983).

      . Williams does not contest that a prior petit theft conviction obtained on December 27, 1982 was properly used to aggravate the sentence.

      . We do not think that Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984) and Shead v. State, 367 So.2d 264 (Fla. 3rd DCA 1979), are on point because those cases involved interpretations of the habitual offender statute. § 775.-084, Fla.Stat. (1983). The language of that statute makes the timing of the commission of a criminal act, as well as the date of conviction for it, significant factors. Section 812.014 simply speaks in terms of prior convictions.

        . Macek v. State, 409 So.2d 107 (Fla. 4th DCA 1982); R.R. v. State, 397 So.2d 1051 (Fla. 4th DCA 1981). In the present Schedule of Lesser Included Offenses attached to the Florida Standard Jury Instructions trespass is a Category I or necessarily lesser included offense of burglary. Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Florida Standard Jury Instructions in Criminal Cases (1981 ed.) at 264.


author: HERSEY, Judge.

text:
    GRAPHIC ASSOCIATES, INC., a Florida corporation, Petitioner, v. RIVIANA RESTAURANT CORPORATION, a Florida corporation, Respondent.
    No. 83-2655.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.

      Harry G. Carratt, Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for petitioner.
    Edmund T. Henry and Susan E. Cook, Shutts & Bowen, Miami, for respondent.
   HERSEY, Judge.

The petition for writ of certiorari under consideration seeks to limit discovery in an action for breach of contract.

Graphic Associates, Inc., brought an action against Riviana Restaurant Corporation based upon the breach of three contracts. In the course of discovery Riviana promulgated a request to produce in reply to which Graphic filed a response objecting to the production of certain records. Rivia-na filed a motion to compel which, after hearing, was granted by the trial court without limitation and without stating the grounds for granting the motion.

The request to produce delineated the following records:

1. All income tax returns and attachments filed from 1971 through 1976.
2. All cash books from 1971 through 1976.
3. All invoices reflecting business dealings with plaintiff from 1971 through 1976.
4.All invoices reflecting business dealings with any entity from 1971 through 1976.
5. All summaries, schedules, compilations, which reflect business dealings with plaintiff, from 1971 through 1976.
6. All records reflecting costs incurred by plaintiff, from 1971 through 1976.

Graphic, in its response, agreed to produce many of the records but declined to produce the balance, based upon various objections including relevancy, burden-someness, and trade secrets.

In defense of the order compelling production Riviana propounds several theories in its response to the petition for writ of certiorari. We here deal with two of those theories, resolution of which in our view disposes of the primary differences between the parties’ views as to records and documents appropriate for production in litigation where the cause of action is breach of contract.

Preliminarily, we note that certiora-ri is the appropriate device for seeking review of an order compelling discovery. Yohanan v. deClaire, 435 So.2d 913 (Fla. 4th DCA 1983).

Also, by way of framing the issue to be subsequently discussed, we remind that only matters relevant to the subject matter of the litigation are discoverable. Hoogland v. Dollar Land Corp., 330 So.2d 509 (Fla. 4th DCA 1976); Begel v. Hirsch, 350 So.2d 514 (Fla. 4th DCA 1977), cert. denied, 361 So.2d 830 (Fla.1978). Additionally, Rule 1.280(b)(1) of the Florida Rules of Civil Procedure requires that matters sought to be discovered be relevant to the subject matter of the action. We defined relevancy in Zabner v. Howard Johnson’s Inc. of Florida, 227 So.2d 543, 545 (Fla. 4th DCA 1969), as follows:

Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings.... [It] has been defined as a tendency to establish a fact in controversy or to render a proposition in issue more or less probable.

(Citation omitted.)

The subject matter of the instant litigation is breach of contract. The rule of damages applicable in a breach of contract action is loss of profit, which may be established by showing the cost of expenses, labor and materials necessary to perform the contract, which total is then deducted from the contract price to establish plaintiff’s loss. Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). Paraphrased, damages for breach of contract are measured by deducting from the balance of the contract price the costs of completing performance of the contract.

Riviana has taken the position that many of the records in dispute are relevant to the issue of lost profits. The following statement of this principle appears in the response of Riviana filed in this court:

Petitioner Graphics maintains that these documents are irrelevant because they are not necessary for computation of lost profits under its theory of computation. That theory of computation is supposedly enunciated in two cases, one from 1966 and the other from 1971. Not only is Graphics’ method simplistic and outdated, but Graphics’ choice of this method can in no way be construed to prohibit Riviana from asking for documents which will support another, more enlightened method of calculating lost profits.

The foregoing quotation summarizes several pages of argument and citation of authority. While persuasively presented, this position of respondent Rivi-ana is incorrect. The authorities relied upon by Riviana in support of its “more enlightened method of calculating lost profits” refer to lost profits of a business where the action of the defendant alleged to have caused a loss of profits is in addition to or distinct from any alleged breach of contract. For instance, in New Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718, 166 So. 856 (1935), loss of profits was claimed because of the appointment of a receiver for a corporation and his allegedly detrimental actions. In an action for breach of contract the concept of lost profits is much narrower, referring rather to the loss of profits which would have been made had the contract not been breached; that is, a loss of the profit that would have been earned on that particular contract. See, e.g., First Atl. Bldg. Corp. v. Neubauer Constr. Co., 352 So.2d 103 (Fla. 4th DCA 1977). See generally 22 Am.Jur.2d Damages §§ 171-174; 25 C.J.S. Damages § 90.

The trial court obviously adopted Rivia-na’s view on this issue, which constituted a departure from the essential requirements of law.

A second theory espoused by Riviana is expressed by its response as follows:

As to all other documents reflecting business dealings with entities other than Riviana, these records are patently relevant to the determination of whether Graphics mitigated its damages by substitution for the years in question. Mitigation of damages is contained in Rivia-na’s affirmative defenses and is therefore an issue in the pleadings.

As we understand this argument, Graphic, not being required to perform the contract with Riviana (due to Riviana’s breach), thus had time to perform contracts with others, the profit from which inures to Riviana’s benefit under the theory that Graphic had a duty to minimize its losses. The doctrine of avoidable consequences, commonly referred to as a duty to mitigate damages, prevents a party from recovering those damages inflicted by a wrongdoer which the injured party “could have avoided without undue risk, burden, or humiliation.” Restatement (Second) of Contracts § 305(1) (1979). Whether the doctrine applies in a given case depends upon the facts. “If the relation between the parties is such that the wronged party was legally free to enter into similar contracts with others, the fact that subsequent to the breach the wronged party could have or actually has made similar contracts in no way reduces the damages to which he is entitled.” J.D. Calamari and J.M. Perillo, The Law of Contracts § 14-16 (1977). For example, an employee fired improperly cannot sit idly by and then recover his entire salary. He is required to use reasonable efforts to obtain other suitable employment in order to reduce his damages. Conversely, a new car dealership theoretically has an unlimited number of cars to sell. A purchaser who breaches his contract to buy an automobile is not entitled to credit against claimed damages for other sales of automobiles made by the dealer. This latter situation falls into the category of nonexclusive contracts, an area generally considered as an exception to the requirement of avoiding foreseeable consequences. Id. Applying the foregoing to the present case, if Graphic could have performed the Rivia-na contract in addition to all of the contracts which it actually did perform then Riviana is not entitled to claim that some or all of those contracts were substitutes for its contract. In other words there will be no diminution of damages. If performance of the Riviana contract would have precluded Graphic from accepting some or all additional contracts then such potentially excluded contracts are properly considered as substitutes for the Riviana contract and profits therefrom mitigate the damages owed by Riviana to Graphic. Whether discovery of documents reflecting business dealings with entities other than Riviana is appropriate will depend upon a preliminary finding that the contract was, under all the circumstances, either exclusive or non-exclusive. No such finding has been made. Thus it remains a viable issue. The discovery, to this extent, involves facts relevant or potentially relevant to the issue of damages and is therefore appropriate.

Having found that the order compelling the production of some of the documents constitutes a departure from the essential requirements of law, we quash that order. We do not attempt to distinguish at this level between those documents which may be relevant to the issue of damages where the correct measure of damages for breach of contract is applied as opposed to those documents deemed relevant by virtue of the erroneous principles put forward by Riviana, nor do we pass upon the issue of trade secrets. We remand the matter to the trial court for further hearing upon notice by either party for reconsideration of the motion to compel, utilizing the guidelines that we have here established.

CERTIORARI GRANTED, ORDER QUASHED, CASE REMANDED.

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


author: DELL, Judge.

text:
    David Allen PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 84-211.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Motion for Rehearing and Request for Certification Denied Jan. 23, 1985.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

David Allen Prince challenges the trial judge’s departure from the sentencing guidelines when he sentenced appellant on two counts of burglary.

In 1983 Prince appealed from his conviction of the underlying burglaries. This court reversed and remanded for a new trial. Prince v. State, 438 So.2d 1014 (Fla. 4th DCA 1983). Between reversal and retrial, appellant committed and was convicted of two other offenses. On retrial the jury again found him guilty of the initial burglary charges. Appellant elected sentencing according to the new guidelines, under which he would have received a non-prison sanction. Instead, the trial judge departed from the guidelines and stated on the record:

I cannot believe that the court cannot consider this gentleman’s background in the light of these other offenses and other sentences that he has already received. I will deviate, and having been found guilty by the jury and adjudicated guilty by the court, it is the sentence of the court that you be committed to the custody of the Division of Corrections to be imprisoned for a term of five years. Also, on Count II, five years to run concurrent.

The judge did not state his reasons for departing from the guidelines in writing.

Appellant contends that the trial judge erred in departing from the guidelines based on offenses and convictions occurring after the burglary for which he was being sentenced, and in failing to provide a written statement delineating the reasons for his departure.

The Fifth District Court of Appeal in Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984), approved a departure from the guidelines based upon a subsequent conviction:

Sub judice, on April 3, 1980, Davis committed the. offenses for which he was being sentenced below. He committed the Missouri offenses on September 1 and 13, 1981, subsequent to the offenses which were the subject of the sentencing. Therefore, the Missouri offenses are not within the definition of “prior record.” This does not mean, however, that the trial court could not depart from the guidelines recommendation based upon the Missouri' convictions. Florida Rule of Criminal Procedure 3.701(d)(ll) provides:
Departures from the guidelines sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrest for which convictions have not been obtained.
Nothing in the rule precludes departure based upon Davis’ Missouri convictions subsequent to his having been placed on probation, and certainly such serious misconduct is a clear and convincing reason for departure.

Id. at 603 (emphasis and footnote omitted). Davis provides clear support for the sentence which the trial judge imposed sub judice and we hold that the trial judge properly considered appellant’s subsequent convictions.

We do not believe this decision conflicts with Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984), wherein the court stated:

We hold that past criminal conduct which cannot be considered in computing the scoresheet cannot be relied upon as justification for departure from the guidelines. Indeed, reliance on the first four items cited by the trial court as a basis for departure is clearly proscribed by Rule 3.701(11), which provides in pertinent part that “Reasons for departing from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.”

Id. at 928 (emphasis omitted).

The holding in Harvey relates to prior criminal conduct for which convictions have not been obtained. The Committee Notes state that Rule 3.701(d)(ll) prohibits a trial judge from relying on such conduct as a basis for departing from the guidelines. However, this case does not concern past criminal conduct or prior arrests for which convictions have not been obtained. Instead, it involves subsequent offenses for which convictions have been obtained. Appellant’s subsequent convictions demonstrate an escalating pattern of criminal activity similar to that which the Fifth District found to constitute a clear and convincing reason to warrant aggravating the sentence. See Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984).

Although we affirm the sentence imposed by the trial court, we do not find the trial judge’s comments on the record sufficient to satisfy the requirements of Florida Rule of Criminal Procedure 3.701(d)(ll). See Williams v. State, 462 So.2d 23 (Fla. 4th DCA 1984). Therefore, we remand this cause to the trial court with directions to set forth in writing his reasons for departing from the guidelines.

AFFIRMED but REMANDED WITH DIRECTIONS.

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


author: BARKETT, Judge.

text:
    SWIFT INDEPENDENT PACKING COMPANY, Appellant, v. BASIC FOOD INTERNATIONAL, INC., a Florida corporation, Appellee.
    No. 84-1308.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing Denied Jan. 11, 1985.
    Steven E. Siff of McDermott, Will & Emery, Miami, for appellant.
    Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, for appellee.
   BARKETT, Judge.

Appellant challenges the propriety of an adverse summary judgment. The issue argued before the trial court at the hearing on the motion was whether the independent broker who negotiated with the parties for the sale of beef from the prospective seller, Swift, to the prospective buyer, Basic, was Swift’s agent, capable of binding Swift. The trial court determined that an agency relationship had not been established precluding Swift’s recovery and granted appel-lee/defendant Basic’s motion for summary judgment.

The record reflects that prior to this hearing, the issue of agency had never been raised by the parties. In the pleadings both parties treated the broker as Swift’s agent. Basic’s motion for summary judgment not only failed to allege the failure of the agency relationship, but described the broker as Swift’s agent.

Rule 1.510(c), Florida Rules of Civil Procedure, provides in part:

The motion [for summary judgment] shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least twenty days before the time fixed for the hearing. The adverse party may serve opposing affidavits pri- or to the day of hearing.

Basic’s motion for summary judgment was based on allegations that no genuine issue existed “with respect to the underlying verbal contract being devoid of any agreement as to the terms of credit _” At the hearing on the motion, however, Basic’s counsel argued that the broker was not Swift’s agent. He conceded that he had described the broker in his motion and in prior pleadings as Swift’s agent, but had decided to change his position. The court granted Basic’s motion for summary judgment. Swift, unprepared for the issue of agency at the hearing, subsequently attempted to provide an affidavit to the court on the agency issue by way of a motion for rehearing. This motion was denied. Such an ambush is exactly what Rule 1.510(c), Florida Rules of Civil Procedure, was designed to prevent. Cf. Spinner v. Wainer, 430 So.2d 595 (Fla. 4th DCA 1983). Moreover, granting Basic’s motion for summary judgment on these facts not only violated Rule 1.510(c), but also the principle that when considering such a motion, the court should take a strict reading of the papers filed by the moving party and a liberal reading and construction of the paper filed by the opposing party. See, e.g., Holl v. Talcott, 191 So.2d 40, 46 (Fla.1966); National Properties, Inc. v. Ballenger Corporation, 277 So.2d 29, 30 (Fla. 3d DCA 1973); Fernandez v. Cunningham, 268 So.2d 166, 169 (Fla. 3d DCA 1972).

Furthermore, it is not clear from the record in this case that Basic negated the existence of genuine issues of material fact. See Landers v. Milton, 370 So.2d 368 (Fla.1979); McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

The summary judgment is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

HERSEY and HURLEY, JJ., concur.


author: LETTS, Judge.

text:
    John RIDGE, Appellant, v. Diane FARINA, Appellee.
    No. 84-1532.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.

      Jeffrey M. Kirsch, Scott & Fogt, Stuart, for appellant.
    Scott Kramer, North Palm Beach, for appellee.
   LETTS, Judge.

A former husband appeals the denial of his motion to dismiss a suit by his former wife for lack of in personam jurisdiction. We reverse.

The wife sued the husband, a New Jersey resident, for breach of contract based on a settlement agreement entered into in New Jersey. The husband had paid the child support as specified in the agreement until the wife took the child and moved to Florida. We agree with the husband that the action should be dismissed.

The wife relies on Section 48.193(l)(g), Florida Statutes (1983), in order to invoke the jurisdiction of the Florida court. However, the husband has insufficient contacts with this state to satisfy due process standards. The case of Scordilis v. Drobnicki, 443 So.2d 411 (Fla. 4th DCA 1984), is relevant. There the defendant son-in-law’s only connection with Florida was his borrowing money from his mother-in-law, a New York resident who later moved to Florida and demanded repayment. She too, relied on Section 48.'193(l)(g) arguing that jurisdiction resulted from the contract being breached in Florida. However, this court held that that circumstance alone was insufficient to satisfy due process. As here, the parties in Scordilis did not expressly agree that payment would be made in Florida nor were there any allegations that the son-in-law, (or the husband in the instant case) had availed himself of any privileges and benefits of Florida law. The mother-in-law’s selection of Florida as her eventual place of residence was found to be an isolated, fortuitous circumstance. Similarly, in Boyer v. Boyer, 73 Ill.2d 331, 22 Ill.Dec. 747, 383 N.E.2d 223 (1978), the Illinois court found no jurisdiction over a Georgia resident, noting:

[T]he defendant in our case derived no commercial or personal benefits from the presence of his children or ex-wife in Illinois; thus, the facts of our case support neither the reasonableness-and-fairness test nor the minimum-contact criterion of due process.

Id. 22 Ill.Dec. at 750, 383 N.E.2d at 226.

The wife also asserts that the husband gave her a choice of forum because of paragraph 17 of the property settlement agreement:

17. Husband’s obligations hereunder shall survive any decree of any Court granting a divorce to either of the parties for past or future fault of either party (or granting separate maintenance or alimony, temporary as well as permanent). Similarly, it is agreed that if consistent with the rules of practice of a Court granting such decree or judgment of absolute divorce, the provisions of this Agreement may be incorporated in such decree or judgment, but notwithstanding such incorporation this Agreement shall not be merged therein but shall in all respects survive same. Nothing herein contained shall be construed to prevent either of the parties from maintaining suit for absolute divorce against the other in any jurisdiction based upon any past or future conduct of the other, nor bar the other from defending any such suit.

We decline to so interpret this paragraph. The record contains no Florida Final Judgment of Dissolution and it appears that the divorce was actually obtained m Haiti.

REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS THE ACTION.

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


author: PER CURIAM. WALDEN, Judge,

text:
    Sharon SCHATTIE, as next friend and guardian of Christopher Wayne Frisbie, Appellant, v. Clifford TAYLOR and Palm Beach County School Board, Appellee.
    No. 84-513.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Paul A. Sack of Vassallo, Pheterson & Sack, P.A., Lake Worth, for appellant.
    Robert E. Geisler of Peterson & Fogarty, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS and DELL, JJ., concur.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

I respectfully dissent because of my conviction that there are manifest material issues of fact which stand in the way of a summary disposition as a matter of law under Florida Rule of Civil Procedure 1.510(c).


text:
    George PAPPADAKOS and Demetra Pappadakos, his wife, Appellants, v. Catherine SIMMON, f/k/a Catherine Pappadakos, Appellee.
    No. 84-1080.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    George C. Vogelsang, Miami, for appellants.
    Markus & Winter and Sheldon I. Pivnik and Stuart Markus, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The order under appeal dismissing with prejudice appellants’ petition for grandpa-rental visitation is reversed and the cause remanded to the trial court for consideration of the petition in light of Chapter 84-64, Laws of Florida [§ 61.1301, Fla.Stat. (Supp.1984) ], effective October 1, 1984 (some five months subsequent to the entry of the order appealed). See Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978); Florida East Coast Ry. v. Rouse, 194 So.2d 260 (Fla.1966); Melick v. Melick, 393 So.2d 1186 (Fla. 1st DCA 1981); Zobac v. Southeastern Hospital District of Palm Beach County, 382 So.2d 829 (Fla. 4th DCA 1980).

Reversed and remanded.


author: HENDRY, Judge.

text:
    Mary P. BLACKSTOCK, Petitioner, v. The Honorable Robert H. NEWMAN, as Judge of the Circuit Court of the 11th, Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 84-1475.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Rehearing Denied Jan. 30, 1985.
    R. Stuart Huff and Patricia A. Peoples, Coral Gables, for petitioner.
    Jim Smith, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for respondent.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Petitioner seeks a writ of prohibition to prevent the Circuit Court for Dade County from bringing her to trial beyond the speedy trial time period.

Petitioner was arrested, taken into custody and released on bail on December 20, 1983. She appeared for arraignment on January 9, 1984 without counsel, although she was not indigent. She requested that she be permitted to obtain counsel; the request was granted with instructions that she report back to the court on her efforts to obtain counsel. No trial date was set at that time. On January 12, 18, 20 and 25 petitioner appeared before the trial court upon continuing instructions to report on her efforts to obtain counsel. No trial date was set. On February 1 petitioner appeared before the court, with counsel; she was arraigned, pled not guilty and for the first time a trial date was set, which was April 9, 1984. A total of 23 days elapsed between petitioner’s first required appearance and her arraignment, during which time she sought and obtained counsel.

On April 3, 1984 petitioner made a motion to continue the trial set for April 9. The motion was granted on the ground that the state attorney’s office was not available to attend petitioner’s scheduled deposition prior to trial. The continuance was charged to the state. The trial was reset for May 21, 1984. On May 21 the trial was continued, on the state’s motion, to May 23. On May 23 trial was continued to May 29. On May 29 the trial was continued indefinitely from day to day, either at the state’s request or on the court’s own motion due to a congested docket, or both.

On June 7, 1984 a conference was held in the court’s chambers to discuss the setting of a trial date. Petitioner’s counsel again announced a readiness for trial at anytime up to and including June 17, 1984. On June 7 the court reset the trial date to July 10, 1984, over objections of petitioner’s counsel. The trial court took the position that petitioner had waived her rights under the speedy trial rule when she requested time to find an attorney prior to arraignment.

We agree with the state’s contention that the request of petitioner for time to employ an attorney constituted a motion for continuance waiving her speedy trial rule rights under Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980). Any defense request to postpone a case for any period of time, whatever called, constitutes a motion for a continuance waiving speedy trial rule rights under Butterworth. State v. Brown, 412 So.2d 448 (Fla. 5th DCA 1982) (delay of one day still constituted “continuance” waiving speedy trial rule rights.)

By this decision, we do not force appellant to choose between two sixth amendment rights, the right to a speedy trial and the right to counsel, as she asserts. The speedy trial rule is a procedural device only and not a constitutional right. Once the speedy trial rule has been waived, it is supplanted by the constitutional speedy trial period which is measured by tests of reasonableness and prejudice, not specific numbers of days. Brownlee v. State, 427 So.2d 1106 (Fla. 3d DCA 1983); Gallego v. Purdy, 415 So.2d 166 (Fla. 4th DCA 1982).

The writ of prohibition is denied and this cause is remanded to the trial court for further proceedings.

      . Rule 3.191(a)(1) and (4), Fla.R.Crim.P.


text:
    Robert LAZARUS, M.D., License No. 11744, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 84-1532.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    George S. Reynolds, III, Tallahassee, for appellant.
    William M. Furlow, Tallahassee, for ap-pellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a final administrative order of the Florida Board of Medical Examiners which suspends the appellant Dr. Robert Lazarus’ medical license for two years. We affirm the order appealed from based on the controlling authority of Rush v. Department of Professional Regulation, 448 So.2d 26 (Fla. 1st DCA 1984), except as to one particular. The order under review fails to give any reasons, as required by Section 120.57(l)(b)9, Florida Statutes (1983), for increasing the penalty recommended by the hearing examiner in this case. We therefore reverse the order under review and remand the cause to the Florida Board of Medical Examiners with directions to enter a new final order in this cause which either (a) accepts the penalty recommendation of the hearing examiner, or (b) reimposes the penalty under review stating, with particularity, the reasons for increasing the penalty recommended by the hearing examiner.

Affirmed in part; reversed and remanded in part.


text:
    MARTELL & SONS, INC., a Florida corporation, Petitioner, v. The Honorable Milton A. FRIEDMAN, as Judge of the Circuit Court of the 11th Judicial Circuit, Dade County, Florida, and Sidney Lefcourt, as Special Master, Respondents.
    No. 84-2200.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1985.
    Rehearing Denied Jan. 30, 1985.
    Gilbride, Heller & Brown and Scott A. Silver, Miami, for petitioner.
    Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., for respondents.
    Lapidus & Stettin and Richard Lapidus, Miami, for Bravo Elec, as amicus curiae.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Petitioner (plaintiff) commenced this action in the trial court as an action at law on a complaint for breach of a series of construction contracts, demanding trial by jury. After several amendments to the complaint and a request by plaintiff to alter the amounts allegedly due and owing, the trial court, on defendant’s motion, struck the demand for jury trial, and assigned the case to a special master. The reason advanced here by respondents as justification for denying plaintiff a jury trial is that the issues raised were sufficiently complex to warrant an equity accounting.

Respondents agree that plaintiff is entitled to a trial by jury as to those issues which are triable by jury, i.e., what were the terms of the agreement and whether there was a breach, but contend that the accounting aspects of the action are separable and equitable in nature, as to which there is no right to a trial by jury.

The controlling principle of law was stated succinctly in Rizzo v. Euclid Urbana Company, 118 So.2d 553, 554-555 (Fla. 2d DCA 1960):

It is not sufficient to deny to the parties the constitutional right to a trial by jury merely because a case is complicated or because questions of addition, subtraction and other mathematical problems arise which require elementary accounting on the part of the jury to arrive at a verdict.

Rizzo relied upon two earlier Florida Supreme Court cases. In Massengale v. O’Hara, 63 Fla. 521, 58 So. 42 (1912) it was held that where the complaint did not allege complicated accounts for adjustment that could not be readily determined in an action at law, an accounting in equity could not be maintained. Similarly, in Frierson v. Frierson, 110 Fla. 416, 149 So. 18 (1933), the supreme court held that where a claim was made by complaint for an amount fixed and certain, the action was to be maintained at law and not in equity.

The amended complaint filed in this cause is in twelve counts, claiming amounts fixed and certain as due and owing on six separate contracts. The action is one at law as to which there is a right to trial by jury.

We treat the petition as certiorari, grant same, quash the order on review and remand for further consistent proceedings.

      . Approximately three months prior to entry of the order which is the subject of this appeal, defendant filed its first motion to strike plaintiffs demand for jury trial on the ground that the case involved extensive, complicated accounting and should be heard in equity. That motion was denied.


text:
    Kenneth SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-1821.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1985.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Kenneth Smith was charged by Information with trafficking in cocaine (Count I) and possession of cocaine (Count III). He appeals his conviction of delivery of cocaine (as a lesser included offense of the Count I trafficking charge) and possession as charged (Count III).

Appellant Smith was a co-defendant of Carlos Di Paola in the trial court. We affirm the conviction and sentence on Count III, having determined that all points on appeal save one represent no error or harmless error. We reverse the conviction and sentence on Count I for the reasons expressed in our opinion in Di Paola v. State, 461 So.2d 284 released simultaneously with our opinion in this case.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED FOR NEW TRIAL.

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