author: ORFINGER, Judge.

text:
    MONCO OF ORLANDO, INC., Appellant, v. ITT INDUSTRIAL CREDIT CORPORATION, Appellee.
    No. 83-811.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 1984.
    Rehearing Denied Nov. 7, 1984.

      James E. Foster, and E. Givens Good-speed, of Fishback, Davis, Dominick, Bennett, Foster, Owens & Watts, of Orlando, for appellant.
    Douglas B. Beattie, of Colling & Beattie, P.A., Orlando, for appellee.
   ORFINGER, Judge.

The plaintiff below, Moneo of Orlando, Inc. (Moneo) appeals a final judgment entered in favor of defendant, ITT Industrial Credit Company (ITT) following a jury verdict on a count of civil theft and the denial of its motion for a new trial. We affirm in part and reverse in part.

The trial below revealed a complex, bizarre factual situation, so we will recite only what is necessary to an understanding of this opinion. Moneo is a closely held corporation which manufactures machinery for laminating printed paper on particle board. Because of a need to be able to fabricate replacement parts for its machines, Moneo purchased a Lagun vertical milling machine in 1979 from Mercury Machine Tool and Supply Corporation (Mercury) a distributor of new and used equipment. The Lagyn machine is the subject of this litigation.

On January 1, 1981, Moneo sent the La-gun back to Mercury for testing and repair of some intermittent technical problems. Later that month, one of Monco’s owners learned that Mercury was experiencing some “serious problems,” so he went there to retrieve the Lagun. Upon arriving at Mercury, he discovered that the machine was gone. During this same time period, various finance companies, including the defendant-appellee, had become increasingly concerned about the activities of Mercury. As was later revealed, Mercury was engaged in a scheme of “double financing” whereby Mercury would place multiple serial numbers on the same machine and finance it many times over.

In January 1981, ITT reclaimed from Mercury a vertical milling machine which it had financed, bearing an identification plate describing it as a Shizuoka, serial # 58326, and stored it in a warehouse. After Mercury filed for bankruptcy and the discovery that many machines had been double financed, Moneo officials began looking for the Lagun at warehouses where various finance companies had stored reclaimed machines. In mid-May, 1981, the Lagun was located in ITT’s warehouse, and was subsequently identified as a Lagun, and not a Shizuoka as ITT had been led to believe. When efforts to reclaim the machine from ITT failed, Moneo filed suit, ultimately seeking relief in re-plevin (Count I), conversion, (Count II) and civil theft (Count III).

At a pre-trial conference immediately pri- or to jury selection, the trial court, over the strenuous objection of plaintiff, required the plaintiff to elect the remedy it would pursue. Plaintiff argued that the remedies were not inconsistent, but even if they were, an election was not required prior to jury verdict. When the objections were overruled, plaintiff elected to proceed on the civil theft count. The jury returned a verdict for defendant, and the court entered judgment on the verdict. Plaintiff contends that it was error.to require it to elect prior to trial, and we agree.

Florida Rule of Civil Procedure 1.110(g) clearly permits the joinder of inconsistent causes of action. While appellant concedes that an action for replevin and an action seeking damages for conversion are legally inconsistent, it contends that the conversion action and civil theft action are not inconsistent. Further, appellant argues that even if all are inconsistent, the requirement that an election be made prior to trial was premature.

Here, all three causes of action arise out of the same facts. If the action for conversion and civil theft are consistent (a point we need not now decide) then requiring plaintiff to elect between them was error, because an election need only be made between inconsistent remedies. See' Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Klondike, Inc. v. Blair, 211 So.2d 41 (Fla. 4th DCA 1968); 1 Fla.Jur.2d, Actions, § 152. Appellant concedes that the action for replevin is inconsistent with the other remedies, and contends that even if the conversion and civil theft counts were also inconsistent, that it should not have been required to elect prior to trial. Appellant is correct in that assertion. We have held that an election between inconsistent remedies need only occur before judgment is entered. Wolfe v. Aetna Insurance Company, 436 So.2d 997 (Fla. 5th DCA 1983); General Electric Company v. Atlantic Shores, Inc., 436 So.2d 974 (Fla. 5th DCA 1983); Erwin v. Scholfield, 416 So.2d 478 (Fla. 5th DCA 1982).

Appellee relies on Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (Fla. 3d DCA), cert. denied, 298 So.2d 416 (Fla.1974), as authority for the proposition that the trial court did not err in requiring the election between inconsistent remedies before trial. That case involved one count for rescission of a contract and another count for damages. Finding that the remedies sought were mutually exclusive, the appellate court concluded that the trial court was correct in requiring the election prior to trial. As has been suggested, Deemer may be distinguishable on the basis that both the facts and the legal remedies were inconsistent, whereas here the facts are legally consistent but the remedies are inconsistent. We find it difficult to reconcile that decision with the principles announced by this court, and we cannot agree with its result, so we deem that case to be in conflict with this decision, as well as with Wolfe, General Electric and Erwin. Additionally, the same court has held that if the remedy selected proves illusory or unavailing, then the plaintiff is not precluded from seeking an alternative, inconsistent remedy in a later action. Rolfs Marina, Inc. v. Rescue Service and Repair, Inc., 398 So.2d 842 (Fla. 3d DCA 1981). We see no policy consideration in the requirement that multiple actions should be required to provide one remedy, if a plaintiff is entitled to one of several inconsistent remedies.

Although not specifically deciding the point, in Cordell v. World Insurance Company, 358 So.2d 223 (Fla. 1st DCA 1978), the First District appears to have taken the same view we subscribe to. There, the specific holding was that the trial court erred in requiring an election between inconsistent remedies prior to the defendant filing an answer. In that case too, the action was for rescission and damages. The court held, however, that the trial court erred in requiring the election “prior to defendant’s answer, prior to pre-trial conference and prior to the taking of evidence” (emphasis supplied).

The appellant has not demonstrated any other error with regard to the trial on the issue of civil theft, so no new trial is warranted on that issue. Therefore, the appellant is not entitled to any award of attorney’s fees under section 812.035(7), and the motion for such fees is denied.

Defendant is entitled to a judgment on the count for civil theft, but is not entitled to an award of costs pending final outcome of all remaining issues. The judgment entered on the verdict on the civil theft count is affirmed, but the cost award therein is set aside. The cause is remanded for a new trial on the issues of replevin and conversion, and for further proceedings consistent with the principles expressed herein.

AFFIRMED in part, REVERSED in part and REMANDED.

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

      . The civil theft count was based on section 812.035(7), Florida Statutes (1981), which says: Any person who is injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 shall have a cause of action for threefold the actual damages sustained and, when appropriate, punitive damages. Such person shall also recover attorney's fees in the trial and appellate courts and costs of investigation and litigation.


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    ASHBY DIVISION OF CONSOLIDATED ALUMINUM CORPORATION, a foreign corporation, Lindsley Lumber Company, a foreign corporation, Robert Silverman and Bankers Standard Insurance Co., a foreign insurance corporation, Appellants, v. Irving DOBKIN and Selma Dobkin, his wife, Appellees.
    Nos. 83-2458, 84-73.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Rehearing Denied Nov. 15, 1984.

      Beverly & Freeman and Michael J. Fer-rin, West Palm Beach, for appellants.
    Rentz & Rust, Daniels & Hicks and Patrice A. Talisman, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Defendants appeal a final judgment in favor of plaintiff, Irving Dobkin, and an order granting his wife a new trial on loss of consortium damages only.

Irving Dobkin, a plumber, was injured while making repairs at the residence of one Robert Silverman. The injuries occurred when Dobkin fell while descending from Silverman’s roof on a ladder manufactured by Consolidated Aluminum Corporation. Dobkin brought suit' against defendants on theories of negligence, strict liability, and express and implied warranty. After a trial, the jury returned a verdict in favor of Dobkin on the negligence count and against him on the other two counts. Dobkin was found 25% negligent and defendants 75% negligent. The jury awarded Dobkin $285,000 in damages but did not award any damages to his wife on her loss of consortium claim. The trial court entered final judgment for Dobkin, and granted his wife a new trial on damages.

By this appeal defendants raise as error numerous evidentiary rulings. Several of the points have merit, requiring reversal and remand for a new trial.

As their first point on appeal, defendants claim that the trial court erroneously permitted plaintiff’s counsel to bring to the jury’s attention the fact that Silver-man had previously been a defendant in the lawsuit for supplying a defective ladder. Silverman had settled with plaintiff before trial. Defendants maintain that Section 768.041(3), Florida Statutes (1983) prohibits such remarks. The statute provides:

The fact of ... a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

This section has been interpreted to apply whether the party was dismissed by the plaintiff as a result of release or settlement, or whether the party was dismissed by court order. See Jordan v. City of Coral Gables, 191 So.2d 38 (Fla.1966); Webb v. Priest, 413 So.2d 43 (Fla. 3d DCA 1982). It was error to bring to the jury’s attention the fact that Silverman was once a defendant in the lawsuit.

Plaintiff contends that it brought up this fact only to rebut defense counsel’s references to Silverman as an “independent eyewitness”. The same argument was rejected in City of Coral Gables v. Jordan, 186 So.2d 60 (Fla. 3d DCA), aff'd 191 So.2d 38 (Fla.1966). In response to the plaintiffs argument that defendant had opened the door to the issue of the witness’s credibility, this court found that public policy favored the rule that offers of compromise and settlement may not be introduced except under unusual circumstances. As in that case, no unusual circumstances are present here.

Defendants next maintain that it was error to admit evidence of other accidents caused by alleged defects in ladders manufactured by Consolidated without proof of substantial similarity of the conditions, causes, and circumstances surrounding the incidents. We agree.

First, the plaintiff failed to show sufficient similarities between the two prior accidents and the plaintiffs accident, since different model ladders were involved, there were different conditions existing at the time of the accident, and the ladders were erected at different angles. See Railway Express Agency, Inc. v. Fulmer, 227 So.2d 870 (Fla.1969) (fact that conveyor system in question was chain propelled, that rectangular slats formed part of the conveyor, and that roller part of conveyor had one dead roller between two live rollers distinguished conveyor where plaintiff was injured from other conveyor systems on defendant’s premises and led to conclusion that plaintiff failed to establish substantial similarity between his and a prior accident); Short v. Allen, 254 So.2d 34 (Fla. 3d DCA 1971) (plaintiff who fell from lowered tailgate of station wagon could not introduce evidence of prior accident where a boy had fallen from tailgate of a station wagon because of “[t]he variables and differences inevitably existing in the circumstances of this and the prior accident”). Further, the jury might have been misled as to the weight to be given such evidence in the absence of the additional facts that in one case, a jury subsequently found no defect and ruled in favor of Consolidated, and in the other case, the jury found the plaintiff 80% negligent and Consolidated only 20% negligent. See Atlantic Coast Line R. Co. v. Campbell, 104 Fla. 274, 139 So. 886 (1932); I.B.L. Corp. v. Florida Power & Light Co., 400 So.2d 1288 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 466 (Fla.1982).

Defendants also raise as error the trial court's refusal to permit Silverman to testify about the accident-free history of the product. For the same reason that we find error in the introduction of evidence of prior accidents, because no showing of substantial similarity of conditions was made, we find that it was proper to exclude this evidence.

Finally, defendants correctly contend that the verdicts reached by the jury were inconsistent. The jury did not find defendants liable under the theory of strict liability, thus rejecting the claim that a defect existed in the ladder. Absent proof of a defect, there were no grounds upon which to find defendants negligent. See Husky Industries, Inc. v. Black, 434 So.2d 988 (Fla. 4th DCA 1983) (a defectively designed product is one that has been negligently designed). Although plaintiff insists that the jury could have determined that defendants were negligent in failing to warn or instruct, the undisputed evidence shows that plaintiff did not read the instructions on the ladder and therefore any failure to warn could not, as a matter of law, be the proximate cause of plaintiff’s injuries. The applicable rule was succinctly stated in Crawford v. DiMicco, 216 So.2d 769 (Fla. 4th DCA 1968):

Where the findings of a jury’s verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and therefore stand at the same time, they are in fatal conflict. In such circumstances, contradictory findings mutually destroy each other and result in no valid verdict, and a trial court’s judgment based thereupon is erroneous. 216 So.2d at 771.

The error was properly preserved for appeal where the inconsistency of the verdict was brought to the trial court’s attention prior to the jury being discharged. See Atlantic Coast Line R. Co. v. Price, 46 So.2d 481 (Fla.1950) (trial counsel must bring inconsistency of verdict to trial court’s attention before the jury is discharged); Keller Industries, Inc. v. Morgart, 412 So.2d 950 (Fla. 5th DCA 1982) (same).

Since the entire claim must be tried anew, it is unnecessary to address defendant’s final point on appeal, that the trial court erred in granting a new trial on the wife’s loss of consortium claim.

Reversed and remanded for a new trial.


text:
    Phillip WARNER, Appellant, v. CITY OF MIAMI, Appellee.
    No. 84-1230.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Rehearing Denied Nov. 15, 1984.
    Schwartz and Nash and Dale A. Hecker-ling, Miami, for appellant.
    Jose Garcia-Pedrosa, City Atty. and Gise-la Cardonne, Asst. City Atty., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

Appellant, plaintiff below, appeals from a non-final order denying his motion to permanently enjoin the City of Miami from demolishing his building.

Plaintiff, Phillip Warner, reacquired a group of apartment buildings through a foreclosure sale. After the sale plaintiff moved for a temporary restraining order to prevent the demolition of one of the buildings. The City of Miami had scheduled the demolition because the approximately fifty-year-old, fire-damaged building had been abandoned by the former owner and mortgagor. Plaintiff moved for a temporary restraining order to prevent the demolition. An order was entered by the trial court setting forth certain requirements to be met by plaintiff before renovation and reconstruction of the building could proceed. The order was extended several times so that the City could file a report on the structural integrity of the building and the plaintiff could- provide proof of insurance.

At the hearing on plaintiff’s motion for a permanent injunction, the City of Miami’s expert witness testified that the building was structurally sound. The trial court, nonetheless, denied the motion and ordered demolition based on its finding that the value of the building was approximately $113,000 and the cost of repairs and renovations would exceed $100,000. It reasoned that the cost of the proposed repair and rehabilitation exceeded 50 percent of value — the criteria set forth in Section 202.-2(b)(1), South Florida Building Code (1979) —and therefore demolition was mandated. The trial court stayed the demolition of the building pending this appeal.

Warner appeals the non-final order and contends that (1) when the trial court applied the “50 percent rule” contained in Section 202.2(b)(1), it incorrectly used the current real estate tax roll figure to determine the value of the building rather than the replacement value figure required by Section 104.5, and (2) since testimony presented by the City of Miami established, without contradiction, that the replacement. value was approximately $481,000, the cost of repairs does not exceed 50 percent of the value of the property. Appellee, City of Miami, asserts that plaintiff’s motion for a permanent injunction was correctly denied because the tax roll assessment was the correct basis for determining the building’s value.

Section 202.2(b)(1), (3), South Florida Building Code (1979), provides:

(b) VALUATION CRITERIA:
(1) If the cost of alteration, repair and/or replacement of an unsafe building or structure or part thereof exceeds 50 percent of its value, such building shall be demolished and removed from the premises. If the cost of alteration, repair and/or replacement of an unsafe building or structure or part thereof does not exceed 50 percent of such replacement cost, such building or structure may be repaired and made safe, as provided in Section 104 and in the applicable minimum housing code....
(3) In order to determine the value of a building or structure and the cost of alterations, repairs and replacement, the guides and Standards provided in Section 104 shall apply.

Section 104.5 is the code provision referred to in Section 202.2(b)(3) which sets forth the following standard for determining the value of a building:

[T]he value of a building or structure shall be the estimated cost of constructing a new building of like size, design and materials at the site of the original structure, assuming such site to be clear and deducting therefrom an amount for depreciation, deterioration and damage before such proposed new construction is started. For the purpose of this section, cost of additions, alterations and repairs shall be construed as the total cost of labor, materials and services, based on current prices for new materials.

The utilization of the Dade County tax rolls by the trial court in making its determination that the value of the building was approximately $113,000 constitutes plain error in view of the unambiguous language of Sections 104.5 and 202.2(b)(1) which instruct that value be based on replacement cost.

Reversed and remanded with instructions to enter a permanent injunction.

      . In fact, the building was vacant but not aban-doncd.


author: SHARP, Judge.

text:
    Frederick P. CHAPIN, III, Appellant, v. STATE of Florida, Appellee.
    No. 83-548.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearing Denied Nov. 7, 1984.

      C. Chobee Ebbets, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Chapin appeals from his convictions and sentences for third degree felony murder and trafficking in cannabis. The trial ’ court sentenced Chapin to ten years imprisonment for each offense, to be served concurrently. The issues on appeal are whether the trial court erred in denying Chapin’s motion to suppress evidence of contraband found in his locked bedroom, and whether Chapin’s sentences and convictions for both crimes are barred by double jeopardy, as trafficking is the underlying felony for the felony murder conviction.

We affirm the denial of Chapin’s motion to suppress because we find the record supports the trial judge’s determination that the inaccurate statements made in the search warrant affidavit were made by the police officers in good faith, and not with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1979). These issues were in dispute at the hearing on the motion to suppress and this court will not substitute its judgment for that of the trial court. DeConingh v. State, 433 So.2d 501 (Fla.1983), cert. denied, — U.S.-, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984).

We agree, however, with Chapin’s double jeopardy argument. In Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), review granted, Case No. 65,179 (Fla. August 24, 1984), we held that a trial court erred in convicting and sentencing a criminal defendant for grand theft in addition to third degree felony murder, which was based on the grand theft as the underlying felony. We continue to rely upon Bell v. State, 437 So.2d 1057 (Fla.1983) for the view that double jeopardy, U.S. CONST. amend. V; Art. I, § 9 Fla. Const., bars convictions as well as sentences for necessarily included lesser offenses and upon State v. Hegstrom, 401 So.2d 1343 (Fla.1981) for the view that the underlying felony is a necessarily included offense of a felony murder based on the same felony. See Gonzales v. State, 449 So.2d 882 (Fla. 3d DCA 1984); Wicker v. State, 445 So.2d 583 (Fla. 2d DCA 1983).

However, we acknowledge the uncertainty in the ease law and we certify the following to our Florida Supreme Court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) as a question of great public importance.

DOES THE DOUBLE JEOPARDY CLAUSE OF THE STATE CONSTITUTION OR THE UNITED STATES CONSTITUTION BAR CONVICTION AND SENTENCING FOR BOTH THE UNDERLYING FELONY AND A FELONY MURDER CHARGE BASED ON THE SAME FELONY IN THE CONTEXT OF A SINGLE (RATHER THAN SUCCESSIVE) CRIMINAL PROCEEDING?

Accordingly we vacate Chapin’s sentence and conviction for the underlying felony of trafficking and otherwise affirm.

AFFIRMED AS MODIFIED.

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

      . § 782.04(4), Fla.Stat. (1983).

      . § 893.135, Fla.Stat. (1983).

      . See Ohio v. Johnson, — U.S.-, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); State v. Gibson, 452 So.2d 553 (Fla.1984).


author: COBB, Chief Judge.

text:
    Juan Miguel MONTOYA, Appellant, v. STATE of Florida, Appellee.
    No. 83-1342.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearing Denied Nov. 9, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Chief Judge.

We find no merit in the issues raised by the defendant as to the trial proceedings, so the conviction and sentence are affirmed. The trial court erred, however, in retaining jurisdiction over one-half the defendant’s sentence, on the authority of the April 21, 1982, amendment to section 947.16(8), Florida Statutes (Supp.1982). It is irrelevant that this amendment was in effect at the time of the conviction. The law at the time of the offense applies, unless the law at the time of sentencing imposes a lesser penalty. Neal v. State, 451 So.2d 1058 (Fla. 5th DCA 1984); Brumley v. State, 455 So.2d 1096 (Fla. 5th DCA 1984). At the time the offense was committed, and at the time of sentencing, the law authorized the trial court to retain jurisdiction of only one-third of the defendant’s sentence.

This cause is remanded to the trial court with instructions to amend that portion of the sentence which retains jurisdiction over the defendant’s sentence, so as to limit such jurisdiction to not more than one-third of the sentence. This case is affirmed in all other respects.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

DAUKSCH and COWART, JJ., concur.


text:
    FLORIDA PATIENT’S COMPENSATION FUND, Petitioner, v. S.L.R., a minor, By and Through his next friend, natural guardian and parent, Elizabeth A. MOORE, and Elizabeth A. Moore, individually, Respondent.
    No. 84-37.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Howard R. Marsee of Pitts, Eubanks, Hannah, Hilyard & Marsee, P.A., Orlando, for petitioner.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for respondent.
   SHARP, Judge.

We deny the petition for writ of certiora-ri filed by the Florida Patient’s Compensation Fund because we find that the trial court did not err in applying the four year statute of limitations to a malpractice claim against the Fund.

This court recently held in a civil case if a statute of limitations bars the bringing of a lawsuit, this matter may be reviewed by petition for writ of prohibition. Had we determined that the two year statute applied here, we would have granted relief by treating the petition for certiorari as one for a writ of prohibition.

In Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3rd DCA 1984), the third district concluded that although the Fund does not act as an insurer for purposes of applying a statute of limitations, it is in privity with the health care provider. Accordingly, it applied the two year statute of limitations to the Fund, which was applicable to the health care provider in that case. The court reasoned that

there is a mutuality of interest which exists between a health care provider and the Fund which extends to the lawsuit itself, the alleged claims of medical malpractice and the damages claim. The very relationship which exists between the Fund member and the Fund is the underlying reason for the legislature’s mandate that the Fund must be joined as a defendant in the lawsuit. To conclude otherwise and require a two-year statute of limitations for the Fund member but a four-year statute of limitations for the Fund itself would create the possibility that the litigation would be nearly concluded before the statute of limitations would bar the Fund’s joinder. Burr v. Florida Patient’s Compensation Fund, 447 So.2d 349 (Fla. 2d DCA 1984). Such a result would seriously impair the Fund’s right to defend the case.

Taddiken at 958.

The hospital in Taddiken was a private hospital. However, the hospital involved in this case, Cape Canaveral Hospital Foundation, Inc., is a tax district hospital and, therefore, it is a state agency. The applicable statute of limitations for a hospital which is a state agency is four years. Whitney v. Marion County Hospital District, 416 So.2d 500 (Fla. 5th DCA 1982). It would be illogical to have different statutes of limitations applied to the Fund and to the health care provider, whether the Fund’s is shorter or longer. See Burr.

Therefore, because the applicable statute of limitations for the health care provider in this case is four years, we hold that the same statute applies to the Fund.

PETITION DENIED.

DAUKSCH, J., concurs.

FRANK D. UPCHURCH, Jr., J., concurs specially without opinion.

      . § 768.28(11), Fla.Stat. (1983).

      . Brogan v. Mullins, 452 So.2d 940 (Fla. 5th DCA 1984).

      . § 95.1 l(4)(b), Fla.Stat. (1983).

      . Fla.R.App.P. 9.040(c).

      . § 95.11(4)(b), Fla.Stat. (1981).


author: MILLS, Judge.

text:
    R.A.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. AW-409.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1984.

      Michael E. Allen, Public Defender; Kenneth L. Hosford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This appeal is from a judgment adjudicating R.A.S. to be delinquent, and placing the child in a community control program. We affirm.

The judgment followed a bench trial at which R.A.S. and the State each presented, through the testimony of various witnesses, completely conflicting versions of the events leading up to the theft and of the theft itself. R.A.S.’ version tended to be exonerating, while the State’s version tended to show the child’s culpability. At the conclusion of the proceeding, the court found the testimony of the State’s witnesses to be more believable than that of the defense witnesses.

R.A.S. sought rehearing via a motion pursuant to Rule 8.230, Fla.R.Juv.P., alleging that the verdict was against the weight of the evidence. The motion also sought a new trial because of newly discovered evidence. The motion was denied.

We do not agree with R.A.S.’ allegations that the verdict was against the weight of the evidence. The trial court observed the various witnesses and heard their testimony firsthand. Where evidence conflicts, as here, “it is within the province of the trier of fact to assess the credibility of witnesses and upon evaluating their testimony, rely upon the testimony found to be worthy of belief and reject such testimony found by it to be untrue.” I.R. v. State, 385 So.2d 686, 687 (Fla. 3d DCA 1980). The court found the State’s witnesses, particularly P.W., to be more believable than those for the defense. There is sufficient support in this record for this finding.

We must also agree that a new trial was not warranted on the basis of the “newly discovered evidence” presented by R.A.S. in his motion for rehearing. The standards for granting a new trial based on newly discovered evidence were established in Clark v. State, 379 So.2d 97 (Fla.1980). A new trial will not be granted

[ujnless the evidence was discovered after trial, unless due diligence was exercised to have such evidence at the former trial, unless the evidence goes to the merits of the cause and not merely to impeach a witness who testified, unless the evidence is not cumulative, and unless it is such that it probably would have changed the verdict.

Id. at 101. In this case, the evidence (school records indicating R.A.S.’ attendance for part of the day) was available to thd defense at all times during trial, but was not produced. This demonstrates a lack of due diligence. Further, the evidence is merely cumulative of other contradictions of the testimony of the State’s witnesses, and is not inconsistent with the testimony of P.W., relied on by the trial court. Therefore, we find that the evidence probably would not have changed the verdict.

Affirmed.

ERVIN, C.J., and ZEHMER, J., concur.


author: WENTWORTH, Judge.

text:
    Jose M. TURRO, M.D./Holiday General Hospital, Inc., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, & Tarpon Springs General Hospital, Appellees. COMMUNITY HOSPITAL OF NEW PORT RICHEY, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, & Tarpon Springs General Hospital, Appellees.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.
    Thomas M. Beason, of Moyle, Jones & Flanigan, West Palm Beach, for appellant Community Hospital of New Port Richey.
    Eric J. Haugdahl, Tallahassee, for appellant Holiday General Hosp.
    James M. Barclay, Dept, of Health and Rehabilitative Services, Tallahassee, for ap-pellee Dept, of Health and Rehabilitative Services.
    Robert D. Newell, Jr., and Kenneth Hoffman, of Oertel & Hoffman, Tallahassee, for appellee Tarpon Springs General Hosp.
   WENTWORTH, Judge.

The appellants in these consolidated appeals seek review of a final order of the Department of Health and Rehabilitative Services denying their applications for Certificates of Need. We affirm.

Appellant Community Hospital filed an application for a Certificate of Need seeking to add 100 beds to its existing facility, and appellant Holiday General Hospital, Inc., filed an application to build a new 120-bed hospital. HRS denied the applications and both hospitals filed requests for hearings pursuant to § 120.57, Florida Statutes. Both of the proposed facilities would be located in West Pasco County, Florida.

The cases were assigned to a Division of Administrative Hearings officer and were consolidated. The primary issue in controversy concerned the existence of the need for additional acute care beds in the area of the proposed new facilities. The hearing officer recommended that Holiday General’s application be denied, but that a Certificate of Need for 50 beds be issued to Community. The Department rejected the latter recommendation and entered an order denying both applications in their entirety.

In recommending that Community be granted a CON for 50 beds, the hearing officer found that the methodology established in Florida Administrative Code Rule 10-5.11(23) had not been utilized by Community, but found that some need had been shown by utilization of an alternative methodology. In the final order, the Department found that the criteria in Rule 10-5.-11(23) provided the only acceptable methodology for showing need.

In part because Rule 10-5.11(23) did not become formally effective until after commencement of the hearing on the applications, Community argues that it was improper to apply the standards stated in the rule to their application. However, the rule prescribes an evidentiary standard and is thus procedural in nature. As such it beeame applicable and controlling on its effective date. See Summerlin v. Tramill, 290 So.2d 53 (Fla.1973); Myers v. Carr Construction Co., 387 So.2d 417 (Fla. 1st DCA 1980). It is clear in any event, as noted infra, that the rule in this case was .merely a formal promulgation of the Department’s asserted position on proof of need throughout these proceedings. We recognize that application of a newly enacted rule to proceedings which have commenced prior to the rule’s effective date could raise due process issues if, for example, the rule stated a novel requirement with respect to which a party had not been given an opportunity to conform its proof. However, we find no basis for any such due process challenge here.

In this case, Community has informed the court that, as the hearing officer found, the methodology it used to demonstrate a need for beds in West Pasco County was the same as the method found in Rule 10-5.11(23) except that it was applied on a subdistrict basis instead of taking into account the needs of the entire district. Thus, it is clear that Community was aware of the impending amendment to the rule and had an opportunity to conform proofs to that methodology while preparing its case in support of the application. We note also that by this appeal Community does not seek an opportunity to bring its proof into compliance with the rule; it seeks only to have its application accepted on the basis of the evidence already presented.

For the foregoing reasons, we find that the Department of Health and Rehabilitative Services properly applied the standards stated in Rule 10-5.11(23) to these proceedings. We find no merit in the other arguments raised by appellants, and the order appealed is therefore affirmed.

SMITH and WIGGINTON, JJ., concur.

      . The Department promulgated Florida Administrative Code Rule 10-5.11(23) to facilitate the implementation of §§ 381.493 and 381.494, Florida Statutes. We are not persuaded by appellant Community’s argument that the Rule as enacted is not authorized by the statute.

      . The hearing was held on May 31, June 1 and 2, and June 21, 1983. Rule 10-5.11(23) became effective on June 10, 1983.

      .Section 381.494(7)(b)l requires local health councils to develop district-wide plans, and § 381.494(8)(a) provides that department review of CON applications shall be in accordance with the district plans. See also § 381.494(6)(c)l. Appellants’ proposed facilities would be located in district 5 which consists of Pinellas and Pasco Counties. Section 20.19(4)(a), Florida Statutes.


author: PER CURIAM.

text:
    SHERATON BAL HARBOUR and INA/Aetna, Appellants, v. Ligia CARDOZA, Appellee.
    No. AY-24.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.
    Rehearing Denied Nov. 21, 1984.
    H. Jack Miller of Miller, Hodges & Ka-gan, Miami, for appellants.
    R. Cory Schnepper of Ser, De Cardenas, Levine, Busch & Schnepper, Miami, and Jay M. Levy of Hershoff & Levy, Miami, for appellee.
   PER CURIAM.

In this workers’ compensation case, the employer/carrier appeal an order awarding temporary partial and wage-loss benefits to claimant.

Claimant suffered a compensable accident and was subsequently able to return to work as a coffee shop waitress, but was unable to resume her second job as a banquet waitress because she was unable to lift the heavier banquet trays with her injured hand. Claimant was awarded wage-loss benefits for the loss of wages due to her inability to return to work as a banquet waitress. We affirm this award of benefits by the deputy commissioner with one correction. Contrary to his own findings, the deputy commissioner awarded wage-loss benefits for time lost at the coffee shop. Because the deputy commissioner found the claimant’s injury, subsequent to the date of release to return to work, did not affect her wage-earning capacity as a coffee shop waitress, after being reemployed as such, the wage-loss benefits must be adjusted to reflect losses due to the com-pensable injury only and not other unrelated conditions such as asthma and nerves. The benefits paid for the period including July 5 through 11, 1981 must be adjusted to properly reflect the benefits due .from the compensable injury alone.

The order is affirmed as modified but remanded for the recomputation prescribed herein.

BOOTH, SMITH and THOMPSON, JJ., concur.


author: DAUKSCH, Judge. COWART, Judge,

text:
    Jerry MACK, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1723, 83-1724.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 1984.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a sentence. Appellant contends, and we agree, that he was entitled to be sentenced in accordance with the sentencing guidelines because the sentencing occurred after October 1, 1983 and he elected to be sentenced under the guidelines. The fact that appellant was first put on probation and then returned for his sentence for violating the probation does not alter the fact that the guidelines must be followed. Lest the reader be confused by the dissenting opinion, this case does not involve a departure from the sentencing guidelines. This case only involves a judge’s refusal to follow Florida Rule of Criminal Procedure 3.701. The point on appeal as worded by appellant is “The trial court erred by failing to apply sentencing guidelines to appellant’s sentences upon revocation of probation.” The state, in its brief says, “Specifically, Appellant contends that the court below erred in finding the guidelines rule inapplicable to sentences imposed following the revocation of probation imposed prior to the effective date of that rule, and he asks the Court to reverse the instant sentence and direct the trial court to impose sentence in accordance with the guidelines.” The parties throughout this appeal address only the question as to whether the guidelines apply to a pre-guidelines probationer. At the sentencing hearing the trial judge was told by the defendant’s lawyer that the defendant elected to be sentenced under the guidelines. A more complete reading of the proceedings from the transcript follows:

THE COURT: Call your next case, Mr. State Attorney.
MR. DUNNING: Cases of the State of Florida versus Jerry Lee Mack, Cases Number 81-570 and 571.
THE COURT: State of Florida versus Jerry Lee Mack, Case Number 81-570 and in Case Number 81-571. This Defendant, Jerry Lee Mack, being personally before this Court, and having been represented by Assistant Public Defender, Jill Brown, and having entered pleas of guilty to the crimes set forth in Count I, Case Number 81-570, Burglary of a Dwelling, second degree felony; and as to Count II in Case Number 81-571, Grand Theft, I’ll give you an opportunity at this time to offer any matters which you may have either in legal bar or preclusion of sentence or in mitigation thereof.
MISS BROWN: Well, the Defendant does elect to be sentenced pursuant to the sentencing guidelines.
State has previously furnished me with a score sheet indicating a total score of 34, any non-state prison sanction. I agree with the score of the State.
And would say in the behalf of the Defendant, I believe that there was some — or there were, not believed, other charges filed against the defendant; those were nol-prossed. He’s done well, Judge Perry. He recognizes the error of his ways. And I would request that the Court continue his probation.
THE COURT: Well, let me ask you, Madam Public Defender, Mr. State Attorney, do you believe that when the charge is in effect a violation of the probationary conditions imposed in 1981, that this defendant has the right to elect to be sentenced under the guidelines?
MISS BROWN: I’d say that pursuant to the comment made under the sentencing guidelines, that violations of probation are to have the benefit of the sentencing guidelines. I’m not sure, Judge. You know, we don’t have any law on it. So I’m only going by the comment in the sentencing guidelines.
THE COURT: Mr. State Attorney?
MR. DUNNING: Of course, the comments themselves are not part of the guidelines, they are merely advisory. I know that Division J takes the position that violations of probation are not subject to the sentencing guidelines in the instance such as that which we have here, and that would be the position that the State will take in this case. The sentencing here, for all practical purposes, would relate back to 1981 when he was originally placed on probation. And the Court is doing nothing more now than imposing a sentence that it could have imposed back then.
THE COURT: Put him on a straight probation and asked him to get his GED, on the 18th of December, and he’s already in trouble by July of the next year.
What was the disposition of the burglary charges which he was arrested on in 1983?
MISS BROWN: They were nol-prossed.
THE COURT: Madam Public Defendant [sic], I think your record is made. Mr. Mack has not demonstrated, in my judgment, sufficient willingness to merit my consideration under the guidelines. I, too, believe that this is a sentence which I might have imposed in 1981, and which I told the defendant at that time that if he did not live up to the terms and conditions of his probation, I would in fact revoke his probation and adjudicate him guilty and impose any sentence which I might have imposed before. Therefore, I am not going to sentence him under the guidelines with regard to the scores indicating non-state prison sanctions.
. Anything else that you want to tell me?
MISS BROWN: No, sir.

The court then proceeded to sentence defendant to a sentence in disregard of the guidelines.

The dissent may choose to read the transcript differently but neither we, nor the trial judge, nor the lawyers have had any question about the issue to be decided. As the Committee Note (c) instructs “If a defendant is to be sentenced for a probation violation, and the sentencing judge elects to revoke probation, the new sentence must be in accordance with the guidelines.” See also O’Brien v. State, 454 So.2d 675 (Fla. 5th DCA 1984); Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984).

We agree with Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984) which is squarely on point.

Sentence vacated; remanded.

SHARP, J., concurs.

COWART, J., dissenting with opinion.

COWART, Judge,

dissenting:

Prior to October 1, 1983, appellant was placed on probation on a burglary offense and a grand theft offense and violated his probation. On October 1, 1983, the Florida sentencing guidelines became effective. See § 921.001, Fla.Stat. (1983), and Fla.R. Crim.P. 3.701. As permitted by the guidelines, by formal document dated November 16, 1983, appellant elected to be sentenced under the sentencing guidelines. The sen-fencing guideline scoresheet, showing a point total of 34 and a recommended guideline sentence of “any non-state prison sanction,” was prepared by the State, agreed to by the defense and filed with the court. At sentencing, after argument of counsel, the court observed that the court had previously put appellant “on a straight probation and asked him to get his GED, on the 18th of December, and he’s already in trouble by July of the next year.” The trial judge then said:

Mr. Mack has not demonstrated, in my judgment, sufficient willingness to merit my consideration under the guidelines. I, too, believe that this is a sentence which I might have imposed in 1981, and which I told the defendant at that time that if he did not live up to the terms and conditions of his probation, I would in fact revoke his probation and adjudicate him guilty and impose any sentence which I might have imposed before. Therefore, I am not going to sentence him under the guidelines with regard to the scores indicating non-state prison sanctions, (emphasis added)

The trial judge then imposed a prison sentence and the defendant appeals.

The majority opinion views this as a case where the trial judge refused to follow the sentencing guidelines. This dissent views this as a case where the trial judge departed from the recommended guideline sentence and stated an appropriate reason for doing so. Admittedly the trial judge’s statement is somewhat ambiguous. He did not unequivocally state, “The court is departing from the recommended guideline sentence because this defendant was previously placed on probation as to this offense and he has violated that probation and the court is now convinced that the defendant is not amenable to non-prison rehabilitation and that the ends of justice, and the protection of the public, now require that the defendant be punished by confinement in the state prison, etc.”

However, as a matter of law a violation of probation alone does constitute an adequate reason for departing from a guidelines recommended sentence, the defendant in this case did, in fact, violate probation as to the criminal offense for which he is being sentenced and the trial judge imposed a sentence that did, in fact, deviate or depart from the guideline recommended sentence and did clearly and adequately state on the record that he was doing so because of the probation violation. In addition, section 921.005(l)(a), Florida Statutes (1983), gives the judge in this case special sentencing discretion because of the elective applicability of the sentencing guidelines to this particular case. The general rule that trial court decisions are presumptively valid and should be affirmed if supported by the law and the facts, even when erroneous reasons are given, should be applied and this case should be affirmed.

        . Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984); Bodine v. State, 452 So.2d 957 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

      . A sentence that deviates or departs from that recommended by the guidelines does not follow the guidelines and is not a sentence in accordance with, or pursuant to, sentencing guidelines.

      . See Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984).


author: ZEHMER, Judge.

text:
    Herbert Lowell HUBLER, Appellant, v. STATE of Florida, Appellee.
    No. AS-485.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 13, 1984.

      Rhonda S. Martinec, of John F. Daniel, Chartered, Panama City, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Herbert Lowell Hubler, defendant below, appeals a four-year sentence imposed as a result of his conviction of aggravated battery with a deadly weapon. The issue presented is whether Hubler’s apparent lack of remorse, his failure to plead guilty, and the trial court’s belief that Hubler suborned perjury were impermissible aggravating factors considered by the trial court in sentencing.

Hubler was charged with aggravated battery with a deadly weapon in violation of section 784.045(l)(b), Florida Statutes. He pled not guilty and proceeded to trail by jury. The state’s witnesses testified that Hubler, while deer hunting with friends, got into a fight with an owner of property on which they were hunting, resulting in Hubler striking the landowner with a large tree root. In defense, Hubler’s counsel attempted to show that Hubler was not the individual involved and’ introduced testimony of four witnesses that Hubler was with them shopping and running errands at the time of the incident. Hubler did not testify on his own behalf. The jury returned a verdict of guilty, and a presentence investigation was ordered by the court. The pre-sentence investigation contained the following recommendation:

The defendant has no felony convictions, however has had minor problems with the law, of which the charges for both Trespassing and Battery [] are similar in nature to the instant offense, and consistent to the reported behavior of the defendant by victim, Waldo Evans. On the other hand, the defendant has provided numerous letters of reference from reputable citizens in Washington County, with the general opinion that Hubler is a good moral character, and not known to be a menace or threat to society. He is known to be a hard worker, always supporting his family, and has been supported throughout the court proceedings by his wife. It is felt by this officer that Hubler could benefit from probation supervision, has a bonafide (sic) residence, and employment, and felt to be able to live same without revocation or problem. However, on the other hand, the court also has to consider the amount of remorse, of which, there is none, due to the fact that the defendant maintains his innocence. Also, it is law enforcement’s contention that due to the defendant fighting the system all the way through, he is not worthy of probation consideration. (R.56) (Emphasis supplied)

At the sentencing hearing, Mr. Sapp, the defense counsel, urged probation based upon his belief that Hubler was “sorry for the things that happened.” In response, the prosecutor made the following statements:

Judge, one comment that Mr. Sapp made that I find hard to believe was that Mr. Hubler is contrite and sorry for what happened, considering that when the pre-sentence investigation was conducted he stuck to the same story that ‘he didn’t even do anything.’ And I find it hard to believe that someone could be sorry for something that they didn’t think ' that they had done. And I think that the thing that concerns the State most in this case is that Mr. Hubler, in effect, has suborned at least four, possibly five cases of perjury. He has had his father-in-law take the stand and lie. He has had his mother-in-law take the stand and lie. He has had his wife take the stand and lie. He has had Chip Coatney take the stand and lie. And he has had Mack Dixon take the stand and lie. And the State would respectfully request the Court to keep in mind those factors when passing sentence. We think that probation is definitely a privilege that the Court can bestow on someone who is worthy of it. But we find it hard to believe that anyone who would have someone else take the stand and lie for them would be worthy to be placed on probation to be administered by the State of Florida. (T.361) (Emphasis supplied)

The trial court then commented, prior to announcing Hubler’s sentence:

Mr. Hubler has placed himself in a quite untenable situation. He can’t really be too contrite. He can’t be too repentent at this time. If he does he will acknowledge that five people have gotten on the stand and perjured themselves.
Either there’s been a horrible miscarriage of justice: the State has produced a witness that has perjured himself, and has succeeded ... At least two, including the young Carter boy, as well as the victim. And they have lied and perjured themselves, and manufactured evidence for whatever reason I can’t conceive of, and a horrible miscarriage of justice has been done as far as that is concerned. Or either Mr. Hubler has suborned at least four — Mack Dixon tried to lie both ways, apparently ... I don’t know what Mack was trying to do. The other four as far as my belief is concerned obviously lied under oath, which actually I consider a great deal more serious charge than the charge that Mr. Hubler was charged with originally.
Perjury, as I have previously have said, is a great deal more serious charge than the assault. With the record that Mr. Hubler has had he come in and acknowledged the charge, shown some remorse, taken that approach, he would obviously have gotten probation, maybe a small fine, a few weekends in jail, a month or two in jail at the most.
I have difficulty recognizing his perspective in life because nothing I, no sentence facing me could have gotten me to do what I believe Mr. Hubler has done in this case. So if it is a miscarriage of justice as far as Mr. Hubler is concerned, and he has been ‘had’ by the system, I have no choice but to be a part of that system if it is error, and to accept the facts as I believe them to be, and as the jury believed them to be, and apparently as most everybody believes to be except the parties assembled here. (T. 363-366) (Emphasis supplied)

Hubler argues that the trial judge imper-missibly enhanced the sentence imposed due to (1) lack of remorse implied from his refusal to admit guilt; (2) his failure to plead guilty and thus avoid trial; and (3) his solicitation of perjured testimony.

Hubler cites Jackson v. Wainwright, 421 So.2d 1385 (Fla.1982), for the proposition that it is “improper to consider a defendant’s lack of remorse as an aggravating circumstance in imposing sentence” (appellant’s brief, p. 12). The state’s brief does not dispute the accuracy of this statement. We note, however, that Jackson was a capital punishment case which was necessarily decided in the context of statutorily mandated aggravating and mitigating circumstances. § 921.141, Fla.Stat. Whether the Jackson decision stands for the broad proposition cited above in every case, regardless of its factual context, is open to question. In the context of this case, however, where the defendant has at all times denied committing the battery charged and has persisted in maintaining his innocence, we conclude that it was improper for the trial court to aggravate the sentence imposed because the defendant failed to exhibit remorse for having committed the offense. This is but a corollary of the rule that a trial court may not impose a greater sentence because the defendant has availed himself of his constitutional right to a trial by jury. Gallucci v. State, 371 So.2d 148 (Fla. 4th DCA 1979); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979), quashed in part on other grounds, 390 So.2d 62 (Fla.1980).

In Gallucci, the appellate court vacated the defendant’s sentence, reasoning that where a defendant has pled guilty the trial court “may consider the plea itself as a step toward rehabilitation,” but that “it is not so easy to simply turn the coin over and conclude that a request for a trial is an indication that a defendant cannot be rehabilitated” because:

[0]ur system presumes innocence and rightfully holds in high esteem an individual’s right to trial by jury. And such right may be exercised freely by an individual, without fear that the choice to go to trial will be held against him.

371 So.2d at 150.

It is also evident that the trial judge, in sentencing Hubler, gave great weight to his belief that Hubler was guilty of subornation of perjury. The trial judge’s previously quoted comments, although apparently made in good faith, indicate that Hubler’s four-year sentence was imposed not so much as punishment for aggravated battery, but because appellant was deemed guilty of suborning perjury during trial. Hubler, however, had not been charged with or convicted of inducing witnesses to testify falsely in violation of section 918.14(l)(a), Florida Statutes. The fact that the jury convicted the defendant does not establish perjury by the defense witnesses or subornation of perjury by the defendant. Evidence of this jury’s decision to convict would not be admissible in a subsequent prosecution for perjury or subornation of perjury. Gordon v. State, 104 So.2d 524 (Fla.1958). If the trial court’s reasoning were allowed to stand, the defendant would be effectively sentenced for committing subornation of perjury without the state having filed a charge or obtained a conviction. It would follow from such reasoning that every accused person convicted of a crime should have his or her sentence enhanced if the testimony of witnesses supporting his or her defense was not accepted and believed by the jury. We do not believe the law should sanction this result.

The combination of sentencing errors discussed above requires that appellant’s sentence be vacated and set aside. As in Gallucci, supra, “in an abundance of caution” to insure completely fair proceedings, we also “think it best ... that the appellant be resentenced by another judge to be assigned by the chief judge of the circuit.” 371 So.2d at 150.

Accordingly, appellant’s sentence is VACATED and the case if REMANDED for further proceedings consistent with this opinion.

ERVIN, C.J., concurs.

BOOTH, J., dissents.

      . This sentence was not imposed pursuant to the new sentencing guidelines, rule 3.701, Florida Rules of Criminal Procedure.

      . Both of these offenses occurred five to eight years before the incident giving rise to the case. The trespassing charge resulted in a fine of $101. Hubler said he pled no contest to the battery charge because payment of $37.50 court costs, the only penalty imposed, was cheaper than fighting the case.

      . By way of analogy, we note that the sentencing guidelines in rule 3.701, Florida Rules of Criminal Procedure, although not applicable to this case, support the view that an offender's sentence on conviction of one crime should not be enhanced due to the alleged commission of another crime for which conviction has not been obtained.


author: WIGGINTON, Judge.

text:
    DEPARTMENT OF CORRECTIONS, Appellant/Cross Appellee, v. Douglas L. ADAMS, G. M. Piccirillo, and James Layfield, Appellees/Cross Appellants.
    Nos. AU-364, AU-401.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.

      Jim Smith, Atty. Gen., Kevin J. O’Donnell, Certified Legal Intern; and Arthur C. Wallberg, Asst. Atty. Gen., Tallahassee, for appellant/cross appellee.
    Douglas L. Adams, G. M. Piceirillo, and James Layfield, pro se.
   WIGGINTON, Judge.

Appellant, Department of Corrections (Department), appeals that portion of the DOAH final order finding that certain Union Correctional Institution (UCI) visiting regulations are an invalid exercise of delegated legislative authority. Appellees, cross appellants, inmates at UCI, appeal that portion of the final order finding that Department Policy and Procedure Directive number 3.04.12 is a valid exercise of delegated legislative authority. We reverse on both issues.

The Department’s function is to administer the state prison system comprising seventy-nine separate correctional institutions ranging in size from specialized facilities housing less than twelve female inmates to large prisons confining approximately 2600 male inmates. Pursuant to the authority vested in it by section 944.23, Florida Statutes, the Department has enacted a series of rules governing visitation within the state prisons. Chapter 33-5, Florida Administrative Code. Those rules, adopted in accordance with the rulemaking procedures of section 120.54, Florida Statutes, direct the secretary of the Department to authorize the superintendents of the various prisons in the state to adopt visitation policies within the individual prisons. The superintendents are directed to “see that a reasonable number of days and hours are designated for inmate visiting” and to “provide an adequate area where inmates may receive regular or special visitors ....”

Department Policy and Procedure Directive 3.04.12, issued by the secretary of the Department, sets forth visiting guidelines with greater specificity than does chapter 33-5, and was intended to be a detailed guide for the seventy-nine or so superintendents in drafting and tailoring visitation regulations for each facility. However, it was not enacted as a rule pursuant to section 120.54, Florida Statutes.

Contrary to the statement of the hearing officer in his final order, some provisions of that directive are not merely restatements of chapter 33-5. Those additional provisions of the directive affect the substantial interests of the inmates. To some extent, the additional provisions of the directive are self-executing and do not grant unlimited discretion in the superintendents. Thus, in our view, the directive constitutes a rule and should have been subjected to section 120.54, Florida Statutes, rulemaking procedures. Since it was not enacted pursuant to those procedures, the directive is an invalid rule. State, Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977); McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); State, Dept. of Com., Etc. v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978); Florida State University v. Dann, 400 So.2d 1304 (Fla. 1st DCA 1981).

On the other hand, the visiting regulations promulgated by the superintendent at UCI do not constitute agency rules subject to chapter 120, Florida Statutes, requirements. Under our reading of sections 120.52, 20.04, and 20.315, Florida Statutes, individual prisons are not “agencies” within the meaning of the Administrative Procedure Act and therefore prison superintendents do not have the power to enact agency rules although they do have the power to implement Department rules. In this case, the visitation regulations of each prison are subject to approval by the secretary of the Department. Chapter 33-5.01, Florida Administrative Code.

We are persuaded that as a practical approach to administering the prison system and maintaining uniformity and consistency, it is the agency that must establish all Department policy through the rule-making procedure.

No one seriously questions subjecting the proposed agency policy to comment, debate and scrutiny pursuant to proper notice and the other section 120.54 requirements. The dilemma is how many times must the same subject be addressed and by whom. We have found that the individual prisons are not agencies and although the superintendents are called upon to reduce their policies and regulations to writing, they must confine their enactments to rules promulgated by the Department pursuant to legislatively delegated authority. Thus, the enactments at the prison level are not subject to attack pursuant to chapter 120, Florida Statutes.

Appellees are not without challenge and recourse. The Department must meet the statutory requirements for rulemaking in converting its directive 3.04.12 into a rule applicable to and affecting the several superintendents and prisons. Any disagreement, hardship or dispute appellees or other inmates may have with the tailoring and implementation of the particular procedures of the prison will be reviewed through the normal grievance procedures already available. Chapter 33-3.07, Florida Administrative Code.

The UCI visitation regulations in question here were intended to be merely an implementation of the rules promulgated by chapter 33-5 and department directive 3.04.12. Since we found the directive to be an invalid rule and since chapter 33-5 lacks the specificity required to constitute a sufficiently narrow basis for the UCI visitation regulations, we find and conclude that the UCI visitation regulations are without legal basis and authorization and must be vacated until such time as the Department fully establishes its policy through rulemaking procedures.

JOANOS and BARFIELD, JJ., concur.

      . Policy and Procedure Directive 3.04.12 provides at paragraph V.A. 1:
      Visiting days shall normally be designated as Saturday and Sunday between the hours of 9:00 a.m. and 3:00 p.m. Where unusual circumstances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or when facilities permit, visiting may be permitted more than one day.
      The Directive provides at paragraph V.B.:

        There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation when physical facilities are restrictive. However, reasonableness should be exercised when possible in regard to the number of visitors that would be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant distance, especially when such visits are on an infrequent basis.
      Paragraph V.E. 1. provides:
      Regular and special visitors are restricted from visiting more than one inmate within an institution unless they are on the approved visiting list of more than one inmate so incarcerated. A visitor may not visit one inmate and then decide to visit further with friends of that inmate.


text:
    Norvel Lee DORCH, Appellant, v. STATE of Florida, Appellee.
    No. AX-254.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 28, 1984.
    Paul L. Cummings, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Thomas H. Bate-man, III, Asst. Atty. Gen., Tallahassee, for appellee.
   MILLS, Judge.

Norvel Lee Dorch appeals from an order denying his motion for a new trial following his conviction of sexual battery, Section 794.011(2), Florida Statutes, and lewd, lascivious, or indecent assault or act upon or in the presence of a child, Section 800.04, Florida Statutes. We affirm.

On 1 July 1983, Dorch had been left in charge of two young girls, C.G. (age 6, the victim) and A.B. (age 7). Dorch, the live-in boyfriend of A.B.’s mother, was watching the children while A.B.’s mother worked. C.G., A.B.’s neighborhood friend, had spent the night with her. The two girls occupied one bedroom and Dorch another. Dorch, nude, went into the bedroom where C.G. and A.B. slept. He had the girls return with him to his bedroom, then remove their clothes. He then rubbed vaseline between the girls’ legs and on himself. He referred to the vaseline as “love jelly” or “love cream.” Then as Dorch lay on his back, he had the girls sit on top of him “in the middle” where they could feel his penis. Additionally, C.G. testified that Dorch took her hand and made her “go up and down on his thing.” Dorch also had both girls put their mouths on his penis and he kissed C.G. between her legs.

Dorch proceeded to trial on 22 November 1983. During jury deliberations, the jury posed two questions to the trial judge. At issue is the second by which the jury requested a definition of “union” within the context of Section 794.011(l)(f), Florida Statutes, which states:

(f) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.

The trial judge defined “union” to the jury as:

... an alternative to penetration. The offense charged against Mr. Dorch is that of sexual battery by penetrating or having union with the mouth or vagina of [C.G.] with his sexual organ. Union is included within the definition of sexual battery as an alternative to penetration because the coming in contact with the mouth or vagina by the sexual organ of an aggressor is sufficient and does not require penetration.
Union means an act or instance of uniting or joining two or more separate and independent parts or unit, a coming together, combination or a junction.
It is not charged this Defendant orally had union with the sexual organ of [C.G.]. It is charged that by his sexual organ he had penetration or union with the sexual organ of [C.G.]. That is the charge and the only charge you may consider. Union is an alternative to penetration under this Statute, and includes a coming in contact with, a combination with, and does not require penetration.

Dorch now asserts two points of error. First, he urges that the trial court erred by providing any additional instruction as to the meaning of the word “union” outside of the statute itself, inasmuch as this should be left to the common sense interpretation of the jury. He argues that Section 794.011 sets forth definitions of those terms the Legislature felt might need or require specific definitions. We disagree. The Florida Supreme Court has said, “Trial judges must have the discretionary power to further explain or define their instructions if the jury is confused or desires further guidance,” Campbell v. State, 306 So.2d 482, at 483 (Fla.1975).

Dorch then asserts that the definition given was misleading inasmuch as it suggested that a mere “touching” or “coming in contact with” was sufficient to meet the requirements of the statute. He argues that this interpretation is inconsistent with legislative intent and would open the door to convictions for acts falling far short of those contemplated by the Legislature. We disagree. We agree with the trial court that the statute may be violated by means other than penetration.

An analysis of the statute reveals that three distinct classes of behavior are specifically proscribed: firstly, oral, anal, or vaginal penetration by the sexual organ of another; secondly, oral or vaginal penetration of another by any other object; thirdly, and the class to which Dorch’s acts attach, oral, anal, or vaginal union with the sexual organ of another.

In this context it is clear that the Legislature intended that “union” mean something other than penetration. We agree with the trial court that contact alone, between the sexual organ of the offender and the mouth, anus, or vagina of the victim, is sufficient to convict.

We agree with Dorch that if the statute were ambiguous the rules of statutory construction would require that the statute be construed against the State and in favor of the accused. However, the statute here is clear and unambiguous, and its application to the facts in this case is precisely that contemplated by the Legislature when adding the term “union with” to the statutory language.

AFFIRMED.

ERVIN, C.J., and ZEHMER, J., concur.


author: BARFIELD, Judge. JOANOS, Judge,

text:
    Michael Maurice BURNS, et al., Appellants, v. J.C. SAMS and Cornelia Sams, Appellees.
    No. AX-274.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 28, 1984.
    Gerald Sohn, Jacksonville, for appellants.
    Jennings Best and Henry E. Davis of Washington, Monroe, Davis & Buggs, Jacksonville, for appellees.
   BARFIELD, Judge.

Michael Burns, a minor, through his mother, Marjorie Johnson, and Marjorie Johnson, individually, appeal from a directed verdict for J.C. Sams and his wife, Cornelia Sams, in a personal injury action.

Michael Burns, a six year-old, was playing on the sidewalk adjacent to a rental house owned by J.C. Sams and his wife when he was struck in the eye by a projectile thrown from a lawnmower being used by Calhoun to mow the lawn on Sams’ property. It was Sams’ usual custom to have vacant rental houses (including the property in question here) repaired and the lawn mowed before new tenants moved in. Sams and his wife own approximately twenty such rental units.

Sams was the pastor of a church. Calhoun, an elderly church member, often mowed the lawns of Sams’ rental properties without charge, as a favor to his pastor. Pray, another member of Sams’ church, was hired to repair the rental houses in question. While Pray was repairing the house, Calhoun came by and asked if he should cut the grass. Although Pray stated in deposition that he told Calhoun to go ahead, Pray testified at trial that he did not tell Calhoun to cut the grass, but instead told him to contact Sams to get authority.

Sams testified that he knew the grass would need to be cut, that he knew that Pray would get someone to cut it, that Calhoun usually cut it for Sams as a volunteer, that it was within his authority to tell Calhoun not to do it if he had seen Calhoun using a lawnmower without a protective guard, and that he would have stopped Calhoun if had he known that the proper protection was not part of the mower, but that he had never bothered to look or to know.

Appellees moved for a directed verdict at the close of appellants’ case, on the theory that Pray was an independent contractor and that the Sams were not liable for the actions of anyone he employed or any work that was done. Appellants argued that Calhoun was a volunteer who became, in effect, a servant of Sams, since he was doing the work with Sams' knowledge and consent, either implied or expressed. The motion was denied. At the conclusion of Sams’ testimony, appellees’ renewed motion for directed verdict was granted, based upon the court’s finding that an indepem dent contractor (Pray), not the appellees, obtained the services of Calhoun. We reverse.

The issues are (1) whether the jury could have inferred from the evidence that Calhoun was a volunteer for the appellees with their expressed or implied consent and (2) whether the jury could have inferred from the evidence that the appellees, if reasonably prudent, should have known of the defective condition of Calhoun’s lawnmower.

The trial court’s directed verdict for the appellees was improper because the jury could have inferred from the evidence that Calhoun was a volunteer for appellees, with their expressed or implied consent or authority. A person who voluntarily assists in the work of another with his consent may become a servant of the latter and that consent need not be expressed, but may be implied. Goldie v. Dillon, 140 So.2d 81 (Fla. 2d DCA 1962).

A jury could infer from the evidence that the understanding between Pray and Sams was that Pray would contact Calhoun and advise him that Sams wanted the lawn mowed. If Calhoun was physically able to mow the lawn, he would do so and Pray would have no further involvement. If Calhoun was unable to mow the lawn, Pray would then secure another party to mow it, pay the other party, and seek reimbursement from Sams. A jury could reasonably find that, insofar as Calhoun’s mowing was concerned, Pray was not an independent contractor, but was merely communicating Sams’ request for Calhoun’s volunteer work. The issue is not the relationship between appellees and Pray concerning the repairs to the house, but the relationship between appellees and Calhoun concerning mowing the lawn. A jury could reasonably infer from all of the evidence that at the time of the accident Calhoun was acting as a volunteer for appellees, with their expressed or implied consent.

Given the circumstances, that Calhoun had been regularly cutting lawns on the rental properties owned by the appellees during the two or three years prior to the accident, and that observation of the lawnmower in use would have revealed the dangerous situation Calhoun was creating, a jury question was presented whether a reasonably prudent owner would have made some inquiry into the manner that this elderly volunteer was performing the mowing.

This case is REVERSED and REMANDED to the trial court for a new trial.

WIGGINTON, J., concurs.

JOANOS, J., dissents with written opinion.

JOANOS, Judge,

dissenting.

I respectfully dissent from the majority opinion. The terms “volunteer” and “independent contractor” are not in my opinion mutually exclusive. A volunteer can perform tasks as a “servant” or serve as an “independent contractor.” The right of control over the worker is the determining factor as to whether or not someone is an independent contractor or a servant. DeBolt v. Dept. of Health & Rehab. Services, 427 So.2d 221, 226 (Fla. 1st DCA 1983). The facts of the case show conclusively that Calhoun was either an independent contractor or the servant of an independent contractor, Pray. In either event, appel-lees were entitled to the directed verdict awarded them by the trial judge.


text:
    The STATE of Florida, Appellant, v. Bernard H. BUTTS, Jr., Appellee.
    No. 83-2943.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1984.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellant.
    Joseph Beeler, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The State of Florida appeals an order which dismissed an information charging an attorney with allegedly violating Section 440.37(2)(b)2, Florida Statutes (1983). We agree with the trial court and affirm.

The information filed below alleges that the defendant Bernard H. Butts, Jr., an attorney, knowingly and willfully urged a gertain person to stage a fake work accident with the City of Hialeah and to thereafter file a worker’s compensation claim containing false and misleading information. It is therefore clear, according to the information, that the person urged to file this false claim was not at the time a worker’s compensation claimant, although he was potentially such a claimant.

Section 440.37(2)(b)2, Florida Statutes (1983), provides in relevant part as follows:

“Any attorney who knowingly and willfully ... urges any claimant to fraudulently violate any of the provisions of this chapter ... is guilty of a felony of the third degree, punishable as provided in s. 775.082, .s. 775.083, or s. 775.084.” (emphasis added).

An essential element of the crime under this statute is that the person whom the attorney urges to violate a provision of the workers’ compensation chapter must be, unlike this case, a worker’s compensation claimant. The trial court was, therefore, eminently correct in dismissing the information on the basis that the information failed to allege this essential element of the crime charged and, indeed, alleged facts which, even if true, would not constitute a violation of Section 440.37(2)(b)2, Florida Statutes (1983). See State v. Dye, 346 So.2d 538, 541 (Fla.1977).

Affirmed.


author: BARKETT, Judge.

text:
    Carolyn Brimberry ORR, Appellant, v. George Eadie ORR, Appellee.
    No. 84-407.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1984.
    Rehearing Denied Dec. 5, 1984.
    Robert C. Lane, Jr., Coral Gables, for appellant.
    Frederick E. Graves of Frederick E. Graves, P.A., Fort Lauderdale, for appel-lee.
   BARKETT, Judge.

The wife appeals from a final judgment dissolving a 36-year marriage. When the parties married in 1947, neither party had any assets. The wife had a B.S. degree in history and the husband had just terminated his army service. The wife worked full time as a secretary during the first four years of the marriage while the husband went to law school. The couple then settled into the roles expected of them in a marriage of the 1940’s and 1950’s. The husband was the breadwinner as a lawyer, state's attorney, and then a judge. The wife was the housewife, homemaker, and mother to their four children. The parties over the years accumulated assets, abilities, and liabilities.

After 36 years the marriage has been dissolved and the parties exit the partnership in a most disparate fashion. The division of personal and real property gives the appearance of fairness and evenhandedness. The parties equally divided their personal property. - The trial court ordered the marital home sold in October, 1984, when the remaining minor child reaches majority, and ordered the proceeds of the sale also divided equally. Thereafter, as both parties reach their 60’s (the husband is 59; the wife is 58), any semblance of parity ends.

The husband on one hand faces life financially and socially secure. He is assured of a substantial income with substantial fringe benefits, and when he so chooses, a substantial retirement. He was a lawyer with a prestigious Miami law firm, a member of the state’s attorney’s office, and since 1974, a circuit court judge. He earns approximately $60,000 per year, along with the medical, educational, and social benefits of that prestigious office. When he chooses to retire he will benefit from two annuities purchased during his years in private practice, a private deferred compensation retirement fund, and the retirement benefits provided from his service in the army, as a state’s attorney, and as a judge. Additionally, he will be free to practice law to whatever extent he chooses.

The wife on the other hand faces a future of insecurity. When the husband left the marital home in 1982, the wife, at age 58, sought her first full-time job in 32 years. She has no profession and is unskilled. Her degree in history is useless at her age in terms of earning ability. As the trial court acknowledges, “I can’t imagine what I’d do with a history degree.” She obtained a job with the bookkeeping department of a small neighborhood newspaper. She is paid on the basis of $5.15 per hour for the hours that she works (32 to 38 hours a week). She has no job security, no seniority, no assurances of substantial future increases in pay, and must compete in the marketplace with much younger and more energetic job seekers. She has no retirement benefits whatsoever nor the time to accumulate any.

The trial judge awarded her permanent alimony (which is tax deductible to the husband and taxable to the wife) in the amount of $800 per month, and ordered the husband to make the wife’s monthly car payment. The judgment also makes her the beneficiary of the husband’s life insurance policies. However, since they are encumbered by loans which the husband was not ordered to repay and the wife cannot afford to do so, they are virtually useless to her.

The husband, after the minor adjustment to his income required by the final judgment, can still maintain the life style he has enjoyed for 36 years. The wife cannot. As our supreme court said in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980):

[A] dissolution award should be sufficient to compensate the wife for her contribution to the marriage.
We recognize that a trial court need not equalize the financial positions of the parties. However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances one should not be “shortchanged.” [citation omitted].

382 So.2d at 1204.

It is clear that the wife in this case has passed from prosperity to misfortune. The paltry amount of alimony and assets awarded to the wife in this case constitutes an abuse of discretion in light of the following:

1. A thirty six year marriage;
2. The vast discrepancy between the present earning abilities of the parties;
3. The wife’s age of 58 years;
4. The total lack of retirement benefits or other financial security for the wife;
5. The wife’s inability to provide any financial security for herself;
6. The wife’s abandonment of career opportunities which might have placed her in financial parity with the husband;
7. Having and raising four children;
8. The wife’s contributions to the marriage including but not limited to ■ homemaking and assistance in building the husband’s career;
9. The wife’s needs and necessities of life as they have been established by the marriage of the parties; and
10.The husband’s ability to comply with the wife’s needs.

In our judgment, after considering the foregoing, reasonable men could not differ in finding that the wife did not receive a fair share of the assets of the marital partnership. This is the appropriate test of review as again recently reiterated by our supreme court in Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984):

First, as Canakaris makes clear, the standard of review is whether the trial judge abused his discretion and the test is whether any reasonable person would take the view adopted by the trial judge.

Id. at 466.

In reversing the final judgment, we note that the trial court has broad discretion in fashioning new relief. Although an insufficient amount of alimony may, in extreme circumstances such as we have here, constitute an abuse of discretion, the trial court may choose to increase the award of permanent periodic alimony or to award the home as lump sum alimony. In the event that the trial court again orders the sale of the marital residence, however, the wife is entitled to compensation in accordance with Landay v. Landay, 429 So.2d 1197 (Fla.1983), for her share of the mortgage payments made by her until the home is sold.

Reversed and remanded for a determination of the amount and nature of the wife’s entitlement based upon her contribution to the marital partnership.

HERSEY and GLICKSTEIN, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    51 ISLAND WAY CONDOMINIUM ASSOCIATION, INC., a non-profit Florida corporation, Appellant, v. Donald J. WILLIAMS and Sharon E. Williams, his wife, and Glenn Cowell and Mary Cowell, his wife, Appellees.
    No. 84-247.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1984.

      Peter T. Roman and Peter M. Dunbar of Dunbar, Dunbar, Roman, Anderson & Schafer, P.A., Dunedin, for appellant.
    James R. Case and Martha Kimball of Case, Kimpton & Burke, P.A., Clearwater Beach, for appellees.
   GRIMES, Acting Chief Judge.

The appellant, 51 Island Way Condominium Association, Inc., seeks review of a final order dismissing its complaint on the ground of mootness and denying its request for attorney’s fees and costs.

Appellees Donald J. and Sharon E. Williams owned unit 1010 of 51 Island Way Condominium. In October 1981, they entered into negotiations to sell a one-third interest in their unit to appellees Glenn and Mary Cowell. The association objected to this sale as violative of various provisions of the declaration of condominium. Despite its protest, the sale was completed by December 1981.

On January 11,1982, the association filed suit against appellees seeking declaratory and injunctive relief and requesting monetary damages and attorney’s fees. The complaint alleged that the appellees had not complied with the declaration provisions in that they had not provided the mandatory thirty-day written notice to the association prior to the transfer; that they had not furnished adequate information concerning the transfer to the association; and they had not given the association sufficient time to act under the notice provision. The association also asserted that the conveyance of a one-third interest constituted an attempt to create a time-sharing unit contrary to the declaration and state law. Appellees filed an answer and counterclaim, contending that certain regulations of the association were unreasonable and that they had been denied full access to their unit.

On November 21, 1982, immediately before the non-jury trial was to commence, appellees’ attorney orally moved to dismiss the cause for mootness. He explained that because the Cowells had reconveyed their interest by quitclaim deed to the Williams’, the issues of the case were rendered moot. The court ordered that when appellees submitted their written motion, they were to attach a copy of the deed to verify the transfer. Soon after, the court entered an order dismissing the case on the ground that the action and relief sought in the association’s original complaint were rendered moot by appellees’ voluntary actions. The court also directed that each party bear the expense of its own costs and attorney’s fees. On rehearing, the association pointed out that the warranty deed finalizing the reconveyance was not dated until November 30, 1982, nine days after the court hearing. Thus, the deed was not in existence at the trial date, and as a result the issues were not moot at that time. Unpersuaded by this argument, the lower court denied the motion, after which the association appealed.

Upon considering the record and the oral arguments of counsel, we accept the lower court’s determination of the mootness of the issues at the time of trial. The fact that the deed was not executed until several days later does not mandate a contrary result. Therefore, we do not address this matter further. We are concerned, however, about the denial of the association’s motion for attorney’s fees and costs.

On appeal, the association asserts that it is entitled to attorney’s fees as the prevailing party pursuant to sections 57.105 and 718.303, Florida Statutes (1981), and a provision of the declaration of condominium. The association argues that appellees’ conduct necessitated the suit, and that their last minute voluntary agreement of recon-veyance was a tacit acknowledgment that the association’s position would have prevailed at trial. In response, appellees dispute the fact that their transfer of the interest was an admission that the association was right. Absent a disposition of the case, neither side could emerge as the “prevailing party.” Thus, the association was not entitled to an award of fees under statute or the declaration.

We begin by noting that there need not be a determination on the merits in a lawsuit for purposes of a fee award if the applicable statutory provision provides for fees to a “prevailing party.” State, Department of Health & Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982). After entry of a voluntary dismissal, attorney’s fees can be awarded to the so-called prevailing party under statutory provision where the case was not resolved on the merits. Dolphin Towers Condominium Association, Inc. v. Del Bene, 388 So.2d 1268 (Fla. 2d DCA 1980); MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974).

In Dolphin Towers we examined the term “prevailing party” in the context of section 718.303(1), Florida Statutes (1979), the Condominium Act, a provision also relied upon by the association herein. There we held that in an action filed pursuant to the act, a prevailing party includes a defendant against whom a voluntary dismissal is taken for the purpose of recovery of fees. In that case the defendant association had had to incur fees in asserting its meritorious defense, in preparing for trial, and in participating in trial before the suit was voluntarily dismissed by the plaintiff unit owners. We indicated our belief that the legislature had that type of situation in mind, as well as the case in which a defendant would prevail on the merits, when it provided for the statutory award of fees to the prevailing party. We directed that attorney’s fees be awarded to the condominium association.

The association herein was compelled to bring suit for relief, prepare for trial, and had to participate up to the point of engaging in litigation. Appellees had maintained certain affirmative defenses and a counterclaim for a period of almost a year. Rather than act on an earlier date, they made their oral motion of dismissal on the.day of trial, evincing their deliberate choice not to contest the association’s position. One clear result of their timing was to seek to avoid the possible imposition of the association’s costs and attorney’s fees. Yet, in essence, the association had prevailed because the effect of appellees’ re-conveyance was to accede to the association’s request for relief. Thus, we hold that the association was entitled to attorney’s fees under the applicable statute and declaration provision.

We find Del Valle v. Biltmore II Condominium Association, 411 So.2d 1356 (Fla. 3d DCA 1982), relied upon by the trial court, to be distinguishable. That case concerned a lawsuit filed by a condominium association against a unit owner for violation of a condominium declaration provision that a child under twelve years of age could not permanently reside in the condominium. In the midst of trial, the owner moved to dismiss the case for mootness since the child had already moved from the unit. Granting dismissal, the trial judge then awarded fees to the association. Our sister court reversed on the premise that neither party had prevailed in the cause. As the predicate for its decision, the court pointed to evidence before the trial court that the child had moved from the condominium because of a separation of his parents rather than because of the lawsuit. The unit owner’s attorney tried to withdraw his motion to dismiss for mootness and have the ease tried when faced with the prospect of an award of attorney’s fees against his client. Thus, the appellate court reasoned that the dismissal for mootness had been “unrelated to the merits of the case,” and that given the opportunity to litigate his affirmative defense, the unit owner might well have prevailed over the association.

Unlike' Del Valle, there is nothing in this record which suggests that appellees’ motion to dismiss was not related to the merits of this case. The ease was rendered moot by a volitional act of the appellees, rather than a circumstance beyond their control. By transferring their condominium interest, appellees avoided challenging the association’s position but provided the relief it sought. The association should be reimbursed for its attorney’s fees under section 718.303 and the declaration of condominium as well as for its costs.

We affirm the order of dismissal but remand the case for the award of reasonable attorney’s fees and costs to the appellant.

SCHEB and CAMPBELL, JJ., concur.

      . Appellees cite Steinhardt v. Eastern Shores White House Association, Inc., 413 So.2d 785 (Fla. 3d DCA 1982), for the proposition that in order for a party to prevail for the purpose of assessing fees under section 57.105, there must be a final disposition of the action. We note, however, that this position has not been uniformly adopted even within the third district itself. See McKelvey v. Kismet, Inc., 430 So.2d 919 (Fla. 3d DCA 1983) (Ferguson, J., dissenting).

      . In dissent, Judge Nesbitt pointed out that the owner had “tacitly conceded” the association’s position since the child had not returned to live in the unit. Judge Nesbitt would have affirmed the award, concluding that the owner's actual concern for his pocketbook outweighed his apparent concern for his due process rights.


author: BOARDMAN, Acting Chief Judge.

text:
    Joseph TUCKER, Appellant, v. Vaughn C. BRENNAN, Appellee.
    No. 84-505.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1984.
    Joseph Tucker, pro se.
    Vaughn C. Brennan, Lakeland, pro se.
   BOARDMAN, Acting Chief Judge.

We reverse the trial court’s order dismissing with prejudice appellant’s initial complaint, which attempted to state a cause of action in legal malpractice. Although the trial court correctly ‘dismissed appellant’s complaint for its failure to state a cause of action, we believe the court erred in denying appellant an opportunity to amend. As this court observed in Vermont Mutual Insurance Co. v. Cummings, 372 So.2d 990, 991 (Fla. 2d DCA 1979), “[T]he law encourages liberality in permitting amendments to pleadings unless it is clearly made to appear that the deficiencies of the pleading cannot be cured.” See Delia & Wilson, Inc. v. Wilson, 448 So.2d 621 (Fla. 4th DCA 1984); Hansen v. Central Adjustment Bureau, 348 So.2d 608 (Fla. 4th DCA 1977).

Because no such showing was made in the instant case, we reverse and remand with instructions to grant appellant a reasonable opportunity to amend his complaint.

DANAHY and LEHAN, JJ„ concur.


text:
    Gary Dean TACKETT, Appellant, v. STATE of Florida, Appellee.
    No. 84-558.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden and David Dwiggins, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant raises various contentions concerning his sentence of thirty months for battery on a law enforcement officer. We find merit in one of those contentions.

The trial court departed from the presumptive sentence under the sentencing guidelines apparently due to the revocation of appellant’s probation. However, no reasons therefor were given either in writing or in the transcript of the hearing. Rule 3.701 Fla.R.Crim.P. was amended to provide that no reason need be given for increasing the presumptive sentence under the guidelines to the next higher cell by reason of revocation of probation. However, the amendment was not adopted until after the sentencing of appellant here. See Carter v. State, 452 So.2d 953, 954 n.3 (Fla. 5th DCA 1984). Accordingly, there was a failure to comply with rule 3.701(d)(ll) requiring written reasons for departures from the guidelines.

Therefore, we remand for resentencing not inconsistent with this opinion.

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