text:
    Roy SPARKMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1278-83-1282.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant, Roy Sparkman, challenges a judgment and sentence finding him guilty of violating his probation. We affirm.

Appellant was originally charged with three counts of burglary of a conveyance, two counts of grand theft, and one count of petit theft. He pled nolo contendere to all charges. On October 27, 1982, the trial court adjudged him guilty on all counts and placed him on probation for three years.

On the basis of an affidavit of his probation officer, warrants were issued charging Sparkman with ten violations of six conditions of his probation. On May 26, 1983, the trial court found Sparkman guilty of violating condition nine by failing to make restitution payments; and condition five by consuming alcohol on a beach in violation of a city ordinance and committing a battery. After revoking Sparkman’s probation, the court sentenced him to five years in prison on each count of burglary of a conveyance to be served consecutively and five years in prison on each count of grand theft to be served concurrently with two of the burglary counts. The court dismissed the petit theft charge.

Contrary to its oral pronouncement, the court’s written order revoking probation listed all probation violation charges as proved. In addition, this order, as well as the written judgment and sentence, erroneously provided that one of the concurrent sentences for grand theft was to be served consecutively to the sentence on one of the burglary counts. The trial court’s written orders of probation revocation and judgment and sentence must be corrected to conform to its oral pronouncement. Jackson v. State, 445 So.2d 407 (Fla. 2d DCA 1984); Langston v. State, 371 So.2d 202 (Fla. 2d DCA 1979).

Since substantial competent evidence exists to support the trial court’s findings that Sparkman failed to make restitution payments, consumed alcohol on a beach in violation of a city ordinance, and committed a battery, we affirm the order revoking defendant’s probation as modified.

We find no merit in Sparkman’s other contentions.

Accordingly, we remand this cause to the trial court to conform the written order revoking probation and the judgment and sentence to the oral pronouncement of the court. We affirm the judgment and sentence in all other respects.

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


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge.

license: Public Domain

text:
    Yone VALERO, Appellant, v. TRI-CITY TITLE COMPANY, a Florida corporation, Appellee.
    No. 83-1366.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.
    William H. Walker, St. Petersburg, for appellant.
    Mark Thomas Heidt of Stull & Heidt, P.A., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant, plaintiff below, seeks reversal of that portion of the lower court’s final judgment awarding nominal damages and finding a waiver by the plaintiff of her rights. We reverse.

This is an action brought by the plaintiff below to recover funds deposited under an escrow agreement with the defendant below, Tri-City Title Company. The plaintiff and her husband, owners as tenants by the entireties of a parcel of real property, entered into an agreement to sell the property to certain purchasers. The closing occurred on March 22, 1982.

At the closing, it was discovered that in 1978 the Landmark Union Trust National Bank (hereinafter “Bank”) obtained and recorded a final summary judgment against the husband. The title company refused to delete the Bank’s recorded final summary judgment as a lien against the property and the plaintiff and her husband were unwilling to pay the judgment from the proceeds of the sale. To resolve this problem, the plaintiff and her husband, together with the title company, entered into a written escrow agreement which provided that the plaintiff and her husband desired to contest the validity of the Bank’s judgment and that the title company would hold, in escrow, the judgment sum of $27,-916.98 plus $1,400 to cover per diem interest for a period of one year. The escrow agreement further provided in paragraphs 3 and 4:

3. If the summary final judgment is discharged and vacated within one year from the date hereof, Tri-City Title Company shall pay the entire escrowed sum to the order of Oswald A. Valero and Yone Valero.
4. If the summary final judgment is not discharged and vacated within one year from the date hereof, then Tri-City Title Company may pay and satisfy said summary final judgment, and in no event shall Tri-City Title Company be obligated to withhold payment thereof if the amount required to satisfy said final judgment shall become equal to the amount of funds held under this Escrow Agreement.

Upon execution of this agreement, the title company took the escrow funds, deleted the Bank’s judgment lien on the property from its title policy, and the closing proceeded to conclusion.

This cause arose shortly thereafter. Instead of holding the escrow funds for a period of one year from March 22, 1982, as required by the escrow agreement, the title company satisfied the Bank’s judgment on April 27, 1982, by delivering and paying from the escrow funds the sum of $24,000 to the Bank.

The trial court, based on the foregoing facts, entered its final judgment in favor of the plaintiff. In the final judgment, the court made the following findings of fact pertinent to this appeal:

1. The written agreement was in the nature of an escrow agreement and the requirements of escrow agreements applied.
2. The title company wrongfully paid the sum of $24,000 to the Bank, in breach of its written agreement with the wife.
3. The significance of the words “discharged and vacated within one year” were that the judgment itself was to be discharged and vacated. [Emphasis added.]
4. There were no conditions in either paragraph 3 or 4 relating to whether the lien of the final judgment was sufficiently attacked or declared to be invalid against the property in question. [Emphasis added.]
5. Therefore, the plaintiff did not reserve to herself the right to attack the lien of the final judgment against the property, but reserved to herself only the right to attack the validity of the judgment itself.
6. Because the plaintiff reserved to herself only the right to attack the validity of the judgment itself and did not reserve to herself the right to attack the lien of the final judgment, the plaintiff waived any right to seek declaratory or other relief against the Bank’s judgment, which right she had up to the date of the escrow agreement.

On appeal, appellant argues, inter alia, that because the trial court’s construction and interpretation of the escrow agreement to not include the right of the appellant to contest the validity of the lien itself but only the recorded judgment on which the lien was predicated was error, she did not waive her right to attack the judgment lien. We agree.

In support of her contention, appellant cites Gilpin v. Bower, 152 Fla. 733, 12 So.2d 884 (1943). In Gilpin, a judgment debtor died and more than three years later, with no letters testamentary or of administration issued, a creditor sought the foreclosure of the judgment lien against property which had descended to an heir. The chancellor dismissed the bill of complaint after which the appellant appealed, claiming that pursuant to section 4488, Compiled General Laws 1927 (providing that every judgment “shall create a lien ... upon the real estate of the defendant”) and section 4663, Compiled General Laws 1927, section 95.11, Florida Statutes (1941) (providing that actions on judgments can be commenced within twenty years), he was not required to seek administration of the debtor’s estate in order to collect the debt. The court found that pursuant to section 734.29, Florida Statutes (1941), an estate unadministered for three years was not liable for debts except liens of those in possession of personal property and recorded mortgages. Appellant contended that he was in the same posture as a “mortgagee” and therefore should be permitted to proceed with the foreclosure of the judgment lien. The appellant also argued that, although under section 734.29, Florida Statutes (1941), the estate was not liable for any obligation or upon any cause of action, and thus any right under the judgment was abandoned, “the lien of the judgment remained unimpaired and should be impressed on the property left by the deceased.” 12 So.2d at 885. In other words, appellant argued, there was a distinction between the judgment and the lien of the judgment.

In addressing appellant’s contentions, the court stated:

[W]e do not comprehend, in the light of the circumstances of this controversy, the similarity claimed by the appellant in the qualities and characteristics of a mortgage and a judgment. One encumbers specific property; the other is a lien upon all the property of the debtor subject to it. Although the debt secured by a mortgage exists independently of the instrument [,] a debt reduced to a judgment does not have this peculiarity as the former merges in the latter and loses its identity. More important, the lien created by a judgment is merely incidental and may not exist independently of the judgment.

Id. 12 So.2d at 885. (Emphasis added.) See also 32 Fla.Jur. Judgments and Decrees § 178 (1982).

In refusing to recognize the distinction between the judgment and the judgment lien, the court concluded that appellant, not having pursued the remedy for recovery of the judgment, could not enforce the lien of it upon property that had passed to the heir.

Applying this principle to the facts of the instant case, we find that the trial court’s interpretation of the escrow agreement was erroneous and thus there was no waiver by appellant of her right to attack the validity of the judgment lien. Finding in appellant’s favor on this point, we do not address her remaining points on appeal.

Accordingly, we reverse the trial court’s finding of a waiver by the appellant of her right to attack the validity of the judgment lien with directions to the trial court to vacate the award of nominal damages and reestablish the escrow account containing the initial sum of $27,916.98, together with $1,400 interest.

REVERSED.

RYDER and CAMPBELL, JJ., concur.

      . Section 734.29, Fla.Stat. (1941), provided in pertinent part:

        Limitation Against Unadministered Estates.—
      After three years from the death of any person, his estate shall not be liable for any obligation or upon any cause of action unless letters testamentary or of administration shall have been taken out within said three years; provided, however, that the lien of any duly recorded mortgage and the lien of any person in possession of any personal property and the right to foreclose and enforce such mortgage or lien shall not be impaired or affected by the limitation imposed hereby, but the same shall bar the right to enforce any personal liability against the estate of the decedent.

      . Specifically, that "the plaintiff did not reserve to herself the right to attack the lien of the final judgment against the property, but reserve[d] to herself only the right to attack the validity of the judgment itself.”


text:
    STATE of Florida, Appellant, v. Christina HRICIK, Appellee.
    No. 83-1925.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 1984.
    Jim Smith, Attorney General, Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellant.
    V. John Brook, Jr., St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

The state appeals a final order granting Christina Hricik’s motion to dismiss count I of an amended information. We reverse and remand.

The state charged in count I of an amended information that Hricik violated section 817.563(2), Florida Statutes (1981), in that she

did agree, consent or offer to sell to another person a certain controlled substance, to-wit: amphetamines, commonly known as speed, and did then and thereafter sell to said person another substance in lieu of said controlled substance ....

Hricik submitted a sworn motion to dismiss count I pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), stating in pertinent part therein:

2. That the facts of this case are as follows:
A. Detective K.M. Shelley and J.B. Dressback approached the Defendant in an attempt to purchase illegal drugs.
B. The meeting was set up through a confidential informant approximately November 19, 1982.
C. Detective Shelley purchased twenty (20) capsules at one dollar ($1.00) each from Defendant who said that said capsules were “speed.”
D. The capsules were analyzed and the lab reported that they contained no illegal drugs.
E. At no time did the Defendant indicate that said capsules were anything other than “speed” and at no time did she indicate that the capsules were amphetamines or did she offer to sell amphetamines or any other controlled substance to the detectives.
3. There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant.

The state filed a sworn traverse/demurrer under Rule 3.190(d), asserting therein in relevant part:

2. The State explains Paragraph 2A of Defendant’s Motion in that on a prior occasion Defendant approached the detectives and spoke of drugs. The meeting on the date of the offense was prearranged by the informant for the officers to buy drugs from the Defendant at the Defendant’s home.
ADDITIONAL FACTORS:
The undercover officers would testify that speed, in their experience with narcotics, refers only to amphetamines. Amphetamines are controlled substances.
3. The State admits that in Defendant’s Paragraph 2E of said Motion that Defendant indicated that she was selling “speed,” but denies that this term did not refer to amphetamines. The Defendant said that the speed was very good, and that the detectives should only take one because they last half a day.

The trial court subsequently conducted a hearing on Hricik’s motion to dismiss count I. Hricik and Hricik’s brother testified that, to them, “speed” is the term for a diet tablet or capsule composed of caffeine. However, police officers Dressback and Shelley, testifying as expert witnesses in undercover narcotics operations, stated that the word “speed” refers only to amphetamines. Accepting the unequivocal testimony of Hricik and Hricik’s brother that the word “speed” means a caffeine diet tablet or capsule, the court rendered a final order granting Hricik’s motion to dismiss count I.

A defendant’s intent is not an issue to be decided by the trial court on a Rule 3.190(c)(4) motion to dismiss. See, e.g., State v. Rogers, 386 So.2d 278 (Fla. 2d DCA 1980); State v. J.T.S., 373 So.2d 418 (Fla. 2d DCA 1979); State v. Alexander, 406 So.2d 1192 (Fla. 4th DCA 1981). Instead, it is for the trier of fact to determine the defendant’s state of mind by weighing the evidence and judging the credibility of the witnesses. See, e.g., Rogers; J.T.S.; Alexander. In the case at bar, the state’s traverse/demurrer raised a material factual question as to whether Hricik understood the term “speed” to mean amphetamines. The testimony adduced at the hearing only served to highlight this factual dispute as to Hricik’s intent. Hence, the trial court should have denied Hricik’s motion to dismiss count I.

Accordingly, we reverse the order granting Hricik’s motion to dismiss count I of the amended information and remand for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

RYDER and LEHAN, JJ., concur.


author: ORFINGER, Chief Judge. COWART, Judge,

text:
    Steven R. MATSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-652.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    Rehearing Denied March 1, 1984.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION FOR REHEARING

ORFINGER, Chief Judge.

The opinion previously issued on October 13, 1983, is withdrawn, and the following opinion is substituted in its stead.

Defendant appeals from what he contends is a discrepancy between the trial court’s oral pronouncement that his sentence would be concurrent to any other sentence being served, and the written judgment and sentence which provided that his sentence here be consecutive to any such sentence.

The State conceded the discrepancy in its brief and agreed that “[gjiven the fact that the sentence rendered does not conform to the announced intention of the trial court, remand appears necessary for correction of the discrepancy/clerical error.” Based on the transcript and the State’s concession that a discrepancy existed, we vacated the sentence and remanded the ease to the trial court for imposition of sentence consistent with what both the defendant and the State represented had been pronounced in open court. By petition for rehearing, the State belatedly advised us that the transcript was incorrect; that the court reporter had erroneously transcribed her notes to indicate the pronouncement of a concurrent sentence when in fact the trial court had announced in open court that the sentence would be consecutive to any other sentence being served. The State’s motion was supported by an affidavit from the court reporter. We were requested to correct the record on appeal and to withdraw our opinion.

After considering appellant’s response to the State’s motion, we relinquished jurisdiction to the trial court for the purpose of conducting a hearing and thereafter to rule on the State’s Motion to Correct Record on Appeal. The trial court has held such hearing and has entered an order finding that the original transcription of the reporter’s notes was erroneous, and that in fact the court imposed a consecutive sentence in open court. The transcript of the sentencing hearing has been corrected by substituting a corrected page to conform to the reporter’s affidavit and the trial court’s ruling.

It appears that there is no discrepancy between the oral pronouncement in open court and the written sentence and because no other error is demonstrated, the judgment and sentence are affirmed.

AFFIRMED.

COBB, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

This is a good example of a bad case. After pleading guilty to a felony, appellant was placed on probation. After pleading guilty to violating his probation, it was revoked and he was sentenced to five years in prison. There was no complaint made in the trial court as to any error there. There was no legal error made there. This ease should not have been appealed but, appeals being free, it was. Counsel appointed for the unnecessary appeal ordered a transcript of the probation revocation hearing and of the sentencing hearing and searched them for error. The only point presented on appeal was a “discrepancy” which appellate counsel had found between the transcript of the sentencing which read that the prison sentence “shall run concurrent from which is now being served” (sic) and the formal recorded final judgment and sentence which provided that the sentence was to run consecutive to any active sentence being served. The appeal should have then been dismissed or a PCA entered because the matter of the discrepancy had not been presented to the trial court for resolution and correction prior to the appeal. Obviously it was not, and could not have been presented to the trial court before the appeal because the “discrepancy” did not even exist before the appeal was filed. This is so because the discrepancy was between the formal written judgment and sentence entered and rendered April 8, 1982, and the later typed transcript of the sentencing hearing that was prepared on May 20, 1982, for purpose of this appeal. Furthermore, the sentence, whether it was consecutive or concurrent, was lawful and therefore not subject to being vacated on appeal in either event. However, based on a concession by the State this court assumed that judicial error had occurred, adjudicated that the formal written judgment and sentence was in error because it varied from the transcript of the sentencing hearing and, without reversing the judgment and without vacating the sentence or other definitive appellate action, remanded with directions to the trial court to correct the formal written sentence to conform to the transcript of the sentencing hearing.

After a relinquishment of jurisdiction to the trial court and extensive hearings there on a State’s motion to correct the record on appeal the State now makes another concession: the formal written judgment and sentence has been found to be correct and the transcript of the sentencing hearing has been found to be in error! The majority now affirms the judgment and sentence and withdraws the original majority opinion. The original opinion should not be withdrawn because the only precedential value of all of this unnecessary appellate and trial court labor is that the original opinion, the dissent to it, the majority opinion on the motion for rehearing and this dissent, serves well to illustrate the validity of the following propositions or principles:

(1) This case and Strickland v. State, 437 So.2d 150 (Fla.1983), demonstrate that a conclusory concession as to judicial error below, made by a party on appeal, is a most unsatisfactory and dangerous basis for appellate judicial action.

(2) There is wisdom in the rule of law that claims of clerical error or discrepancy and judicial inadvertance in the trial court should not be initially presented on appeal but should be first presented to the trial court for correction and trial court action on that claim reviewed on appeal.

(3) When a discrepancy or other matter exists that may have resulted from two or more causes, it should not be assumed that it resulted from one particular cause.

(4) Appellate courts should properly perform the function of reviewing for judicial error matters first presented to the trial court for consideration (particularly when that matter is the correction of claimed discrepancies or inconsistencies involving trial court proceedings or records) and should only take dispositive appellate action and should not administratively supervise the trial court and should not merely remand with direction to the trial judge to take specified judicial action based on an assumption of trial court error as to some matter not previously properly presented to the trial court for consideration and correction.

      . The reader can see for himself that the original opinion did not vacate the sentence because that opinion and the dissent to it is published in Matson v. State, No. 82-652 (Fla. 5th DCA October 13, 1983) [1983 FLW 2518]. One of the reasons for the dissent to the original majority opinion was that this court remanded without first vacating the sentence as being illegal or taking other definitive appellate action.


author: ORFINGER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Joe Haden JOHNSON, Appellee.
    No. 83-308.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Chief Judge.

The State correctly contends that the trial court should not have summarily and ex parte granted appellee’s motion for relief under Fla.R.Crim.P. 3.850 without first giving notice to the prosecuting attorney and granting a hearing, as required by said rule. We therefore reverse the order granting relief, and remand the cause to the trial court for further proceedings in accordance herewith. With respect to the substantive issues raised by defendant’s motion, see Ray v. State, 403 So.2d 956 (Fla.1981), and Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983) (en banc).

REVERSED and REMANDED.

COBB and COWART, JJ., concur.


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

text:
    John W. TURNER, Jr., as Property Appraiser of Volusia County, Florida, Appellant, v. The TRUST FOR PUBLIC LAND, a California non-profit corporation, Appellee.
    No. 83-351.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    William M. Barr of Raymond, Wilson, Conway, Barr, Burrows & Jester, Daytona Beach, for appellant.
    James Elliott Messer and Robert S. Goldman of Messer, Rhodes & Vickers, Tallahassee, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

John W. Turner, Jr., as property appraiser for Volusia County, appeals from a summary final judgment ruling that a tract of land located in Volusia County was entitled to an exemption from ad valorem taxation when owned by The Trust for Public Land (TPL).

TPL was established in 1972 as a California non-profit corporation with the specific and primary purpose of acquiring on behalf of the general public open lands for the preservation of native plants or animals, biotic communities, geological or geographical formations of scientific interest, or for recreation and scenic beauty. The articles of incorporation prohibit any director, officer or member of TPL from receiving any benefit arising from the net income or assets of TPL.

The land whose tax status is challenged by the appraiser is called “Turnbull Hammock.” It contains 1,168 acres consisting of wetlands and lowlands, with some areas seasonally covered by water. As a “hydric hammock” or “cypress swamp” the property is environmentally significant, serving as a buffer and filtration system for waters flowing into the Indian River. TPL acquired the land from the Crane family by gift in 1974. The Crane family had owned adjoining lands which they sold to a developer but Turnbull Hammock was unsuitable for development. The property had an appraised value of $292,000 in 1977 and was sold by TPL to the St. Johns River Water Management District in 1980 for $116,000.

Both parties moved for summary judgment agreeing there was no issue of material fact and the trial court, in considering the tax exempt status of the land, distilled the arguments into three basic issues: 1) the non-profit status of TPL; 2) the charitable nature of TPL’s purposes and activities; and 3) whether TPL used the property for charitable purposes.

As to non-profit status and TPL’s purposes and activities, section 196.195(4), Florida Statutes (1981), provides that:

No application for exemption may be granted for religious, literary, scientific or charitable use of property until the applicant has been found ... to be nonprofit.

There is no evidence in the record to counter TPL’s status as a non-profit corporation. The salaries of its officers are reasonable, and money received from the sale of property is used to purchase other property to further the corporation’s environmental objectives. It is authorized as a non-profit corporation in twenty-six states and the District of Columbia. It is classified as a charitable organization by the Internal Revenue Service and is eligible to receive tax deductible contributions.

Turner contends that “TPL is not engaged in the business of preserving and protecting environmentally endangered lands, but that it is in the business of acquiring and marketing lands at a profit and the quicker the turnover the better.” Turner argues that because TPL acquired the instant property by gift and then sold it there has been a profit and this makes TPL a for profit corporation. We believe, however, that the trial court correctly stated the key question for the purposes of nonprofit inquiry to be, what is the disposition of such gain? The trial court found that “use of such funds to maintain the Trust’s existence and advance its charitable objectives is entirely consistent with its nonprofit status.” This conclusion is in harmony with Miami Battlecreek v. Lummus, 140 Fla. 718, 192 So. 211 (1939), wherein the supreme court indicated that the fact that an organization receives income will not defeat a charitable property tax exemption where such funds are devoted to charitable purposes of the institution.

The remaining question is whether TPL established that it “used” Turnbull Hammock for a “charitable purpose” within the meaning of Florida’s ad valorem tax exemption laws.

The charitable purpose exemption is authorized in Article VII, section 3(a), Florida Constitution, which provides in part:

Such portions of property as are used predominantly for educational, literary, scientific, religious or charitable purposes may be exempted by general law from taxation.

A “charitable purpose” is defined in section 196.012(6), Florida Statutes (1981), as follows:

“Charitable purpose” means a function or service which is of such a community service that its discontinuance could legally result in the allocation of public funds for the continuance of the function or service.

There can be little question that conservation serves a public purpose. Article II, section 7 of the Florida Constitution provides, “It shall be the policy of the state .to conserve and protect its natural resources and scenic beauty_” The Florida legislature has implemented this policy through a number of statutory programs including chapter 373, Florida Statutes (The Florida Water Resources Act of 1972) and chapter 403, Florida Statutes (The Florida Air and Water Pollution Control Act). As the trial court noted:

These statutes contain comprehensive regulatory schemes to promote conservation; they commit public funds to that objective; and they specifically contemplate public acquisition of real property as a means of achieving it. In sum, they demonstrate that public funds ‘could’ legally be allocated to advance the Trust’s objectives. Indeed, the record establishes that Turnbull Hammock was ultimately purchased and is maintained with public funds by the St. Johns River Water Management District, pursuant to Section 373.139, Florida Statutes.

Turner argues that the trust made no actual use of the property before it was sold in that there were no expenditures for management or protection of the parcel, no construction of native trails, walkways, educational facilities or anything else to enhance the tract for educational, recreational or environmental purposes. However, without question this land serves the greatest public good if left in its natural state. While Turner refers to the land as “marginal” and useful only to “hold the world together”, it is an important element in the ecological balance of east-central Florida. If the filtration function alone of this land was lost, the cost to the state both ecologically and financially would be substantial. By holding the land in its natural state, the greatest public good was achieved. In this regard, we agreed with the New York court in Wildlife Preserves, Inc. v. Scopelliti, 66 Misc.2d 611, 321 N.Y.S.2d 1004 (Sup.Ct.1971). In that case, a non-profit corporation whose objects were to preserve and hold land for the study of flora and fauna sought a tax exemption. The court held that use for such purpose does not require constant or vigorous activity, only a devotion to the exempt purpose:

It would seem apparent that the principal elements in a wildlife sanctuary are the natural habitat and the wildlife that it attracts, and that the principal activities which make these features available for maximum use are those which preserve the habitat as nearly as possible in its natural state and protect the wildlife from the depreciation of the indiscriminate hunter and the vandal, (emphasis supplied)

321 N.Y.S.2d at 1007. See also City of Sarasota v. Mikos, 374 So.2d 458 (Fla.1979) (involving “municipal purpose” ad valorem tax exemption for cities and holding that there is no requirement of an active use of such property).

AFFIRMED.

SHARP and COWART, JJ., concur.

      .The importance of such wetland property cannot be overstated. The natural mixing of fresh and salt water in wetlands creates a rich region for the growth of a wide variety of living organisms, including microscopic species, fish, shellfish, birds and mammals, many of them indigenous to the wetlands, while others depend on the wetlands for a significant part of their life cycle. At least two-thirds of all animal species in the oceans spend part of their life cycle in estuarine waters or depend on other species that do. See 2 Grad, Treatise on Environmental Law § 10.04. Biologically, wetlands are highly productive. The amount of energy converted from light, nutrients and carbon dioxide to plant tissue per unit of area exceeds such primary productivity in the oceans or deep lakes and in value, this process may in coastal wetlands exceed that of the richest continental wheat fields. Id. See Environmental Protection Agency, Water Quality Office, Technical Support Division, The Economic and Social Importance of Estuaries, at 3 (Estuarine Pollution Study Series-2), cited by Grad, supra.

        . Upon dissolution, all trust assets of TPL must be distributed only to another charitable corporation.

      . Turner’s claim that TPL served no function because the Crane family could have received the same income tax benefits had the gift been made directly to the St. Johns River Water Management District requires little discussion. What motivated the Crane family has no relevance here. Whether they were persuaded to make the gift purely for their income tax advantage or because of their interest in conservation has no bearing on whether the land qualified as exempt property for ad valorem tax purposes when owned by TPL. They may very well have preferred to make their gift through TPL because they could avail themselves of the income tax benefits and, if they foresaw the sale to the state, assure retention of this ecologically significant land for the public good, as well as providing funds for TPL to further serve the cause of conservation within Florida or other areas, thereby multiplying the effect of their generosity in the cause of conservation.


author: PER CURIAM.

text:
    Melvin Joseph TYLER, Appellant, v. STATE of Florida, Appellee.
    No. AR-67.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., John Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We have reviewed the record in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

MILLS, WENTWORTH and BAR-FIELD, JJ., concur.


author: MILLS, Judge.

text:
    Glennelle GIVINS, a/k/a Gary Blue, Appellant, v. STATE of Florida, Appellee.
    No. AT-236.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record in this ease which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


text:
    James POOLEY, Appellant, v. STATE of Florida, Appellee.
    No. AT-239.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We have reviewed the record in this ease which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

MILLS, WENTWORTH and BAR-FIELD, JJ., concur.


text:
    CITY OF LAKELAND and Home Insurance Company, Appellant, v. Carl H. CUSHMAN, Appellee.
    No. AU-269.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    J. Michael McCarthy, Lakeland, for appellant.
    Eugene W. Harris of Smith, Cassidy, Platt & Harris, P.A., Lakeland, for appel-lee.
   MILLS, Judge.

The employer and carrier (E/C) contend in this appeal that the deputy commissioner’s finding that Cushman’s heart attack was causally related to a prior compensable injury is not supported by competent substantial evidence. We affirm.

Cushman was employed as a police officer with the City of Lakeland when, on 5 July 1980, he suffered a compensable injury. On that date, Cushman was pursuing a criminal suspect when the suspect shot him and beat him several times with the butt of his gun. In addition, while lying on the ground from the beating and the gunshot wound, he was run over by a police vehicle. He sustained a fractured left femur, internal injuries to the lower bowel area, and various abrasions and contusions.

Cushman returned to work on 1 October 1980 but did not resume his regular patrol duties. Instead, he was assigned to various other jobs within the department. He underwent surgery seven times due to his injuries. The last of these operations was performed approximately six to seven weeks before 30 October 1981. In addition to the stress of these surgeries, Cushman was in constant pain and was having frequent nightmares about the shooting which caused him to sleep fitfully.

On 30 October 1981, he suffered a heart attack while on the job. Thereafter, he filed a claim requesting medical and temporary total disability (TTD) and/or temporary partial disability (TPD) benefits.

Dr. McIntosh, the treating physician, testified at the hearing that he did not believe that Cushman’s heart attack was the direct and natural result of his 5 July 1980 accident. He also testified that he did not feel that Cushman’s job was particularly stressful and that Cushman had a coronary heart disease which pre-existed the 5 July 1980 accident.

Dr. Naiman testified that he too found evidence of atherosclerotic cardiovascular disease which predated the 5 July 1980 accident. However, he testified:

I don’t think you can look — I think it’s unreasonable to look at it as isolated events. I think that there was a cascade effect from the point — from the time that this man was shot, beat, run over, and then all of the things that happened to him in the next year, including the operations on his bowels and the removing of the bullets and the pinning of the hips and the time in the hospital and the worrying about whether he was going to go back to his job and his wife and his kids and all of the things that go along with this much disruption of one’s normal life course over that period of time, in — particularly in a man as intense as Officer Cushman. I mean, this isn’t your average laid-back man. This is a pretty intense, job-oriented, Victorian ethic individual.
All of this uncertainty, plus all of the physical pain and stress, plus all of the immobility and anxiety must have accelerated any stress-related factor. And I think it’s entirely reasonable to believe that it accelerated the process which finally culminated in this myocardial infarction on that day.

Dr. Naiman based his opinion on reasonable medical probability.

The deputy commissioner accepted the testimony of Dr. Naiman, rejected the testimony of Dr. McIntosh, and awarded medical and TTD and/or TPD benefits. In so doing, he expressly found that the heart attack was the result of the pain, discomfort, surgeries, and other activities related to the 5 July 1980 accident.

Generally, heart attacks are com-pensable only when they are the result of some unusual strain or over-exertion not routine to the type of work that the claimant was accustomed to performing. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961); Tintera v. Armour & Company, 362 So.2d 1344 (Fla.1978). However, in situations such as the one presented in the instant case, where a heart attack follows a prior compensable injury, the test for compensability is whether the heart attack is the direct and natural result of the compensable injury. Sosenko v. American Airmotive Corporation, 156 So.2d 489 (Fla.1963); Reynolds v. Whitney Tank Lines, 279 So.2d 293 (Fla.1973); Lone Star of Florida v. Rodriguez, 416 So.2d 859 (Fla. 1st DCA 1982).

We held in Wallen v. Salon of Music, Inc., 418 So.2d 421 (Fla. 1st DCA 1982), that medical testimony based on a reasonable degree of medical certainty that a claimant’s myocardial infarction could have been related to a prior compensable injury is sufficient to establish causation. Likewise, we find that Dr. Naiman’s testimony in this ease constitutes competent substantial evidence in support of the deputy commissioner’s finding of causation.

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


text:
    Carl E. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AW-128.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    Carl E. Smith, pro se.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Having reviewed the pleadings and pertinent portions of the record, we find no reversible error.

AFFIRMED.

MILLS, WENTWORTH and BAR-FIELD, JJ., concur.


text:
    Cleophus ARCHIE, Appellant, v. STATE of Florida, Appellee.
    No. AW-460.
    District Court of Appeal of Florida, First District.
    March 1, 1984.
    Cleophus Archie, Zephyrhills, Pro Se, for appellant.
    No appearance for appellee.
   PER CURIAM.

Having reviewed the pleadings and pertinent portions of the record, we find no reversible error.

AFFIRMED.

MILLS, WENTWORTH and BAR-FIELD, JJ., concur.


text:
    PLYMOUTH CITRUS PRODUCTS, a self-insured, and Corporate Group Service, a servicing agent, Appellants, v. Sarah WOODARD and Department of Labor and Employment Security, Division of Workers’ Compensation, Appellee.
    No. AU-24.
    District Court of Appeal of Florida, First District.
    March 2, 1984.

      James B. Cantrell of Miller & Cooper, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeal a compensation order awarding wage loss benefits, contending that the claimant’s wage loss was not a result of her compensable injury. We affirm in part and reverse in part.

There was competent substantial evidence that the claimant’s inability to perform the work offered her from October 22, 1982, through December 12, 1982, was the result of her industrial injury. Accordingly, the award of wage loss benefits for the period October 22, 1982, through December 12, 1982, less credit for unemployment compensation benefits paid during this period, is affirmed.

There is no competent substantial evidence that the wage loss benefits awarded from May 28, 1982, through September 27, 1982, and January 1, 1983, through April 7, 1983, were a result of the claimant’s industrial accident. On the contrary, all of the evidence shows that claimant’s loss of wages during these periods was solely a result of economic conditions. Accordingly, the award of wage loss benefits from May 28, 1982, through September 27, 1982, and January 1, 1983, through April 7, 1983, is reversed. See D.L. Amici Company v. Jackson, 444 So.2d 978 (Fla. 1st DCA 1983); Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982).

AFFIRMED in part and REVERSED in part.

SHIVERS, JOANOS and THOMPSON, JJ., concur.


text:
    FLORIDA STATE HOSPITAL, et al., Appellants, v. SPECIAL DISABILITY TRUST FUND, Appellee.
    No. AU-93.
    District Court of Appeal of Florida, First District.
    March 2, 1984.
    Thomas J. Maida, McConnaughhay, Roland & Maida, Tallahassee, for appellants.
    Robert M. Mack, Sp. Disability Trust Fund, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Special Disability Trust Fund, et al. v. First National Ins. Co., et al., 444 So.2d 1147 (Fla. 1st DCA 1984).

MILLS, WENTWORTH and BAR-FIELD, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    James ADAMS, Appellant, v. STATE of Florida, Appellee. Nicholas PASSARELLA, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-1643, 82-2258.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant Adams.
    A.R. Mander, III, of Greenfelder & Man-der, P.A., Dade City, for appellant Passar-ella.
    Jim Smith, Atty. Gen., Tallahassee, Davis G. Anderson, Jr., and William I. Munsey, Jr., Asst. Attys. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This appeal highlights problems which are often encountered when confessions are introduced into evidence in a joint criminal trial.

Appellants Adams and Passarella were charged with the first degree murder of James Wylie. The appellants unsuccessfully sought to sever their trials on the premise that the state intended to introduce confessions of each of them which implicated the other in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). At their trial both the confessions were admitted into evidence over objection but the jury was admonished to disregard each defendant’s confession as it tended to implicate the other. The jury found Adams guilty of first degree murder and Passarella guilty of second degree murder. The court sentenced Adams to life imprisonment and imposed a sixty year prison term upon Passarella.

Adams had confessed to the police in writing. He recited that on the night of November 11, 1981, he and Passarella had been drinking in the Crown Lounge where they made the acquaintance of James Wylie. Passarella told Adams that they ought to steal Wylie’s money. Sometime after midnight, the three of them drove to Mal-vern Court, an uninhabited construction site, and continued to drink. Passarella said that he wanted Wylie’s money and Wylie began to put up a fight. Passarella picked up a club which he swung at Wylie. This forced Wylie into Adams and Adams stabbed him. Wylie tried to get away but Passarella chased him and clubbed him as he ran. Adams caught up with the two of them and stabbed Wylie several times before he fell. Adams cut the wallet from Wylie’s belt and Passarella put it in his pocket. Passarella hit Wylie a couple more times. Passarella then said that Wylie was still alive and they would have to kill him. Adams stabbed him in the throat and in the chest.

Passarella gave an oral confession to the police. He confirmed that he and Adams met Wylie for the first time at the Crown Lounge on the night of November 11, 1981. When Passarella and Adams left the bar, Wylie insisted upon coming along although he was uninvited. They drove to Malvern Court where they sat on the tailgate of the truck drinking and talking. Suddenly, Adams pulled out a knife and said to Passarel-la, “I ought to stick him.” Passarella said he first thought that Adams was kidding and responded, “Go for it.” Adams then started stabbing Wylie. Passarella picked up a stick because he was scared. He hit Wylie with the stick after Adams told him to do so. Passarella ran after Wylie and hit him again. Adams again stabbed Wylie. Passarella said, “He is still breathing, we can’t leave him like this, he'll tell.” Adams then stabbed Wylie three more times. They searched the body in order to remove Wylie’s identification and took the money as an afterthought. Adams cut the wallet from Wylie’s body and gave it to Passarella.

Apparently the court denied the motion for severance on the ground that the two confessions were interlocking and therefore admissible under the rationale of Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). However, during the trial the court only permitted the introduction of Adams’ written confession after deleting the reference to Passarella’s suggestion at the outset that they ought to rob Wylie. Whether to grant a severance lies within the discretion of the trial court. Crum v. State, 398 So.2d 810 (Fla.1981). We cannot say that the court abused its discretion in denying the motions for severance although Adams’ statements should have been edited at the severance hearing. See Mathews v. State, 353 So.2d 1274 (Fla. 2d DCA 1978). The court’s delay in editing may have precipitated the controversy over the prosecutor’s opening statement hereafter discussed but the delay did not constitute reversible error.

In Bruton v. United States, the court had admitted the confession of defendant, Evans, which implicated his co-defendant, Bruton. The United States Supreme Court held this to be a violation of Bruton’s sixth amendment right of confrontation which could not be avoided by a jury instruction to disregard the confession as to Bruton. In Parker v. Randolph, each of the code-fendants made confessions implicating the other. Four of the justices held that the admission of the interlocking confessions with proper limiting instructions did not infringe upon the defendants’ rights of confrontation because their respective confessions supplied the most persuasive evidence against them. In a concurring opinion, Justice Blackmun reasoned that a Bruton error had occurred but concluded that the error was harmless. The distinction between the two theories has been described as a “legal nicety.” United States v. Roux Laboratories, Inc., 437 F.2d 209 (9th Cir.1971).

In the case before us, Passarella complains that the confessions were not interlocking and that the court was not entitled to edit Adams’ statement to try to make them interlock. He further contends that even after the editing, the two confessions did not interlock because each defendant tended to place more culpability upon the other. We cannot see how Passarella can complain that the court deleted from Adams’ statement all references to Passar-ella having preplanned the robbery. After all, the deletion of incriminating references from a codefendant’s confession is one of the alternatives to severance contemplated by Florida Rule of Criminal Procedure 3.152(b)(2). After the deletion the confessions were substantially interlocking. The fact that a codefendant’s confession is predictably exculpatory concerning some details does not render its admission harmful when the defendant’s own confession shows him to be guilty of the crime with which he is charged. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir.), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973); Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981).

Passarella also argues that the court erred in permitting the prosecutor to refer in his opening statement to the portion of Adams’ confession which stated that Passarella suggested that they rob Wylie before they left the Crown Lounge. Apparently Passarella’s objection to these comments was denied because it was not until later that the court decided to edit Adams’ confession. The prosecutor compounded the problem in closing argument by improperly referring to Adams’ confession, as introduced, in support of his contentions against Passarella. Because of these errors we would be inclined to reverse Passarella’s conviction were it not for the overwhelming evidence against him.

By his own confession, Passarella could have been convicted of first degree murder as an aider and abetter. § 777.011, Fla. Stat. (1981). He already received something of a jury pardon by being convicted of only second degree murder. He cannot reasonably argue that his confession indicates culpability of a lesser degree of homicide. In addition, he told a girl named Terry Pelczynski how he and Adams had killed Wylie. If this were not enough, he and Adams also took James Clark back to the scene of the crime where they showed him Wylie’s body and explained how they had killed him. The evidence against Pas-sarella was so great that the Bruton violations committed by the prosecutor constituted no more than harmless error. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

Adams makes what could be characterized as a “reverse Bruton ” argument. He says that he was unfairly prejudiced when the court deleted from his confession the statement that Passarella had planned the robbery. Certainly, a defendant is entitled to bring out any exculpatory portions of a confession which has been introduced against him. Mathews v. State, 353 So.2d 1274 (Fla. 2d DCA 1978). Here, however, the deleted statement only had the effect of further implicating Passarella. The deletion did not tend to show that Adams was any less guilty of first degree murder.

In any event, aside from having accompanied Passarella when they took James Clark to see the body, Adams also told Terry Pelczynski how he and Passarella had killed Wylie. Not content with these admissions, Adams also bragged to three others about the killing. If there was any trial error with respect to Adams, it too was indisputably harmless.

AFFIRMED.

SCHEB and RYDER, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Flolirla M. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1043.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    Frank T. Johnson, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant Flolirla M. Robinson contends that the trial court erred in revoking her probation solely on the basis of hearsay evidence. We agree and reverse.

Appellant, who was on four years probation for aggravated child abuse, was charged with violating condition five of her probation by physically abusing her daughter, Sharika McSwain. The state presented the following evidence at appellant’s ensuing revocation hearing.

Deputy Michael Marino testified that he observed bruises on Sharika MeSwain’s chin, chest, and left leg after he was dispatched to appellant’s apartment to investigate an anonymous tip concerning child abuse. The officer also identified photographs depicting the extent of the child’s injuries. According to Marino, both appellant and Sharika independently advised him that these injuries had. been sustained during a fall down a flight of stairs.

Seven-year-old Sharika McSwain, who was called as the state’s second witness, was unable to recall any aspect of either the incident or its investigation.

Detective Terry Ann Bacon, the state’s third witness, testified that she interviewed Sharika at a shelter for abused children five days after the incident. At that time, Sharika told Bacon that appellant had struck her with a belt several times on the day before Marino’s visit as a sanction for misbehavior. According to the detective, Sharika also revealed that appellant had instructed her to tell Deputy Marino that she had fallen down the stairs.

At the hearing, appellant again stated that her daughter had been injured during a fall.

It is well-established that while hearsay evidence is admissible in a probation revocation proceeding, a defendant’s probation cannot be revoked solely on the basis of such evidence. Clemons v. State, 388 So.2d 639 (Fla. 2d DCA 1980); Reeves v. State, 366 So.2d 1229 (Fla. 2d DCA 1980); Combs v. State, 361 So.2d 1103 (Fla. 4th DCA 1977). As the Fourth District stated in Combs, “The rule requiring more than hearsay to establish a violation of probation requires other evidence of the defendant’s misconduct, not just other evidence.” 351 So.2d at 1103.

In the instant case, only the hearsay testimony of Terry Ann Bacon connected appellant with the alleged probation violation. Neither Deputy Marino’s testimony nor the photographic evidence of Sharika’s injuries established appellant’s guilt of any misconduct. Accordingly, we reverse the order of revocation and subsequent adjudication and sentence and remand with instructions to reinstate appellant’s probation.

REVERSED and REMANDED.

GRIMES and DANAHY, JJ„ concur.


author: SCHOONOVER, Judge.

text:
    Glenn R. SCHABERT and L.C. Crews, Appellants/Cross-Appellees, v. William MONTALTOS and Genevieve L. Montaltos, Appellees/Cross-Appellants.
    No. 83-1058.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    John F. Howard, Sebring, for appellants/cross-appellees.
    James V. Lobozzo, Jr., Sebring, for ap-pellees/cross-appellants.
   SCHOONOVER, Judge.

The appellants, Glenn R. Schabert and L.C. Crews, have appealed a final judgment awarding them damages for breach of a construction contract. We find that the trial court erred in awarding attorney’s fees to the appellees and not the appellants but affirm in all other respects.

On July 28, 1979, appellants entered into a contract with appellees, William Montal-tos and Genevieve L. Montaltos, for the construction of a home on property owned by the appellees in Highlands County, Florida. The contract provided that the home was to be built for $63,000 and included a provision that any changes therein had to be in writing. The contract also contained a clause providing that if either party brought an action to enforce the terms of the contract, the prevailing party would receive reasonable attorney’s fees.

On October 17, 1980, the appellants filed a claim of lien alleging that they had furnished $83,999.87 in labor and materials to the appellees’ property and that $25,928.74 remained unpaid. The appellees then filed a complaint seeking damages for appellants’ filing of a fraudulent lien and for slander of title. The appellants answered the complaint and a counterclaim was filed. The counterclaim sought to foreclose a mechanics’ lien in count I and sought judgment for damages for breach of contract in count II.

At the conclusion of a nonjury trial, a judgment in the amount of $7,803.90 was entered for the appellants on the breach of contract action. The trial court held that the appellants’ claim of lien was not timely filed and set it aside. The trial court also denied relief on the appellants’ mechanics’ lien claim and on the claim that appellants’ lien was fraudulent. The appellees were then awarded attorney’s fees in the amount of $3,500 as prevailing parties in the mechanics’ lien foreclosure aspect of the case. This appeal timely followed.

The appellants contend that the trial court erred in holding untimely the filing of their claim of lien, in denying them compensation for extras and cost overruns, which they maintain appellees had orally approved, and in awarding attorney’s fees to the appellees. The appellees in their cross-appeal allege that the trial court erred in finding that the appellants’ claim of lien was not fraudulent.

We find that there was sufficient evidence in the record to support the trial court’s findings that appellants’ claim of lien was untimely filed and was not fraudulent. Further, the appellees did not waive their rights under the contract requiring that any changes therein be in writing. However, we agree with the appellants’ contention that the trial court erred in awarding attorney’s fees to the appellees on the basis that they were the prevailing party in the mechanics’ lien proceeding. When a contractor fails to establish a mechanics’ lien, but obtains a money judgment in the same case, for labor or materials, or both, furnished for the landowner’s benefit, the landowner is not entitled to an award of attorney’s fees under section 713.29, Florida Statutes (1979). General Development, Corp. v. John H. Gossett Construction Co., 370 So.2d 380 (Fla. 2d DCA 1979); Emery v. International Glass and Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971).

Furthermore, the appellants are not entitled to attorney’s fees under the mechanics' lien law because they did not prevail under said statute. Emery. However, since the terms of the contract provided for reasonable attorney’s fees to be awarded to the prevailing party in an action enforcing the contract, the appellants should have been awarded such a fee under the contract.

We accordingly reverse and remand for the award of reasonable attorney’s fees to the appellants.

Affirmed in part, reversed in part, and remanded for proceedings consistent herewith.

GRIMES, A.C.J., and SCHEB, J„ concur.


text:
    MANDALAY SHORES COOPERATIVE HOUSING ASSOCIATION, INC., Appellant, v. Arnold EICHHORST and Anna Eichhorst, individually and as Trustees, Appellees.
    No. 83-1087.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    Thomas G. Hersem of Hersem, Glenn and Cudone, Belleair Bluffs, for appellant.
    John E. Swisher, St. Petersburg, for ap-pellees.
   PER CURIAM.

The nonfinal order brought here for review is not reviewable by direct interlocutory appeal under Rule 9.130, Florida Rules of Appellate Procedure. We choose to treat the appeal as a petition for writ of certiorari and we deny the same.

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


text:
    Max Randy Ian WARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1101.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We dismiss this appeal without prejudice to appellant’s filing a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

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


text:
    Harry Nelson CORBIN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1747.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Harry Nelson Corbin appeals his convictions for burglary of a dwelling and grand theft and his enhanced sentences of twenty years and ten years as an habitual felony offender under section 775.084, Florida Statutes (1981).

Corbin contends that the trial court erred in sentencing him as an habitual offender without first finding that his sentences were “necessary for the protection of the public from further criminal activity by the defendant” as required by section 775.-084(4)(a). Corbin does not dispute the facts and circumstances underlying his enhanced sentences. He merely asserts that the court must repeat the exact statutory language prior to imposing sentence.

Before announcing the sentence the court carefully followed the procedure set forth in section 775.084(3) and made the findings contemplated by section 775.-084(1). At the conclusion of sentencing, when the state attorney requested a finding that the enhanced sentences were necessary for the protection of the public, the court responded by reiterating its previous findings. The court had obviously focused upon the requisite statutory provisions and intended that Corbin be treated as an habitual offender. We hold that these findings of fact were an adequate basis to satisfy the requirements of section 775.084(3)(d). Eutsey v. State, 383 So.2d 219 (Fla.1980); Cavallaro v. State, 420 So.2d 927 (Fla. 2d DCA 1982); Lee v. State, 410 So.2d 182 (Fla. 2d DCA 1982). The findings show on their face that an extended term was necessary for the protection of the public from further criminal activity by the defendant. § 775.084(4)(a). We do not read Little v. State, 440 So.2d 603 (Fla. 3d DCA 1983) as mandating reversal solely because of a failure to recite the “magic words.” Our review of the record leads us to conclude that the court properly complied with the statutory requirements.

We have considered Corbin’s remaining two points and find them to be without merit.

AFFIRMED.

SCHEB and CAMPBELL, JJ., concur.


text:
    Curtis Roy HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2383.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
   PER CURIAM.

This appeal is from the summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant was charged with grand theft. He entered a plea of nolo conten-dere and was sentenced to five years imprisonment with credit for time served of 139 days. This sentence was to run concurrently with the sentence imposed as the result of a previous charge (failure to return a hired vehicle) for which the defendant was to serve five years with credit for time served of 459 days.

The appellant argues that the trial court indicated that he would receive credit for 459 days on both the charge of failure to return a hired vehicle and the charge of grand theft. Not receiving 459 days jail time credit on the grand theft charge, appellant claims that his plea was involuntarily given. If these allegations are true, appellant might be entitled to relief. The trial court, however, failed to attach to its order portions of the record which conclusively refute appellant’s assertions.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegations and attach to its order those portions of the record which conclusively show that appellant is entitled to no relief or hold an evi-dentiary hearing and then rule on the allegations in the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review in this cause, any aggrieved party must appeal the new ruling of the trial court.

REVERSED and REMANDED.

HOBSON, A.C.J., and SCHEB and RYDER, JJ., concur.


text:
    Miriam CARAMES and Eduardo Carames, her husband, Appellants, v. Edward GOLDEN, as Personal Representative of the Estate of Armando P. Bujosa and Bankers Insurance Company, a Florida corporation, Appellees.
    No. 83-1259.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Friedman & Lipcon and Gary Friedman, for appellants.
    Richard M. Gale; Weinstein & Bavly, Miami, for appellees.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Although we agree that a trial court has broad discretion to control the manner in which peremptory challenges are to be exercised, see Eastern Air Lines, Inc. v. Gellert, 438 So.2d 923 (Fla. 3d DCA 1983), and the cases cited therein, the trial court’s refusal to permit the plaintiff an opportunity to exercise his last remaining peremptory challenge prior to the jury’s being sworn is reversible error, see O’Connor v. State, 9 Fla. 215 (1860); Saborit v. Deliford, 312 So.2d 795 (Fla. 3d DCA), cert. denied, 327 So.2d 32 (Fla.1976). Accordingly, the final judgment under review is reversed and the action is remanded for a new trial.

Reversed and remanded.


author: SMITH, Judge.

text:
    GULF POWER COMPANY, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. AT-272.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    G. Miles Davis of Beggs & Lane, Pensacola, for appellant.
    Roger W. Rizk, Howell, Liles, Braddoek, & Milton, Jacksonville, for appellee.
   SMITH, Judge.

Gulf Power Company appeals from a final summary judgment fixing liability of Insurance Company of North America on a payment bond in the amount of only $5,543.25. It urges that the trial court erred in rejecting its claim that the surety agreement, as specifically modified by a subsequent rider, obligated INA to pay instead $10,000.00. We agree and reverse.

On April 30, 1982, Gulf Power entered into a contract to provide electrical services to a third party, Willie James Brantley, d/b/a Westwood Bazaar. On that same date, INA issued a $5,000.00 payment bond in favor of Gulf Power for payment of any charges for electrical services incurred by Brantley, subject only to the conditions that the term of the bond was to be indefinite and that INA reserved the right to cancel the bond by giving thirty days notice.

Several months later, on September 9, 1982, INA and Brantley modified the surety agreement by attaching a rider changing the bond number and increasing the penal sum to $10,000.00. Four days later, however, Brantley filed for bankruptcy, at which time he was indebted to Gulf Power for $13,573.74. Of this total debt, $13,-030.49 was due for services rendered prior to the modification of the surety agreement on September 9, and $543.25 for electrical services provided from September 9, 1982, through September 18,1982. Gulf Power’s demand for full payment of the sum of $10,000.00 was rejected by INA, and this litigation ensued.

INA contends, as it did before the trial court, that it is responsible only for that portion of the indebtedness owing from Brantley to Gulf Power prior to September 9, 1982, not exceeding the $5,000.00 penal sum provided by the original surety agreement, and for the electrical charges incurred by Brantley on or after September 9,1982, to the extent that those charges do not exceed the sum of $10,000.00. The trial court agreed, finding that the rider served to increase the coverage of the bond from the penal sum of $5,000.00 to the sum of $10,000.00 effective only as to charges incurred by Brantley on or after September 9, 1982.

There seems to be no question that INA could expressly provide that the $5,000.00 in increased coverage afforded by its rider should apply only to those debts incurred after September 9, 1982. The issue, then, is whether the original policy and rider, when construed together, so limit its coverage. In this regard we must observe that contracts of surety are regarded as analogous to contracts of insurance, and are to be strictly construed against the surety and in favor of the obligee. See, Travelers Indemnity Company v. Mercer, 250 So.2d 283 (Fla. 4th DCA 1971); Phoenix Indemnity Company v. Board of Public Instruction, 114 So.2d 478 (Fla. 1st DCA 1959).

While we can find no direct authority regarding a rider to a surety contract, it seems well settled that language contained in a rider to an insurance policy will not be extended to affect other provisions of that policy that are not expressly mentioned in the rider. National Auto Insurance Association v. Brumit, 98 So.2d 330 (Fla.1957).

In the absence of an express intent that provisions of the rider or slip should supersede similar provisions of the policy, the terms of the rider or slip will be regarded as original terms which do not affect any of the existing terms of the contract.

Couch on Insurance 2d, § 4:28 (1959). Here, the rider specifically notes that “[n]othing contained herein shall vary, alter or extend any provision of the bond other than as above stated,” and the only material change or conflict between the original contract and the rider is the amount of coverage. And while it may be that INA intended the rider to be effective in the increased amount only for those charges incurred after the date it was signed, there is nothing in the rider so limiting it. Faced with this ambiguity, and in light of the above principles, we can but conclude that the law regards the effective date of the original contract as the effective date of the rider. Therefore, the increased coverage afforded by the rider is to be applied to those charges incurred by Brantley prior to September 9, 1982. To find otherwise would be treating the original contract and rider as two separate and divisible contracts, a result not countenanced by the law or the very terms of the rider itself.

REVERSED and REMANDED for further proceedings consistent with this opinion.

WIGGINTON and NIMMONS, JJ., concur.


text:
    Peter NOEL and Legeia Noel, his wife, Appellants, v. M. ECKER & COMPANY and Carpentry Collaborative, Inc., Appellees.
    No. 82-1276.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.

      David L. Kahn of David L. Kahn, P.A., Fort Lauderdale, for appellants.
    Steven Kronenberg of Adams, Kelley, Kronenberg & Rutledge, Miami, for appel-lees.
   PER CURIAM.

Appellant Peter Noel was operating a Bostitch T-Nailer during the course of his employment as a construction carpenter when he suffered sudden severe head pain. A subsequent visit to a hospital resulted in a diagnosis of bilateral hearing impairment. Noel thereafter sued appellees, M. Ecker & Company and Carpentry Collaborative, Inc., for damages resulting from his partial loss of hearing. The stated cause of action relevant to this appeal was that Ecker and/or Carpentry negligently assigned a T-Nailer to Noel where it was known or should have been known that the continued and regular use of the T-Nailer without some protection for the user’s ears could or would result in hearing impairment.

The T-Nailer is a device used to put nails or staples in concrete and cement. It has a loud functional noise level. Noel had been regularly operating this device over a period of several months. Ecker and Carpentry are two companies that are almost indistinguishable on an operational level. Ecker owns Carpentry, and functions as a subcontractor to provide construction related equipment and management. Carpentry provides labor for construction projects.

Appellant Noel contends that the trial court erred in directing verdicts in favor of Ecker and Carpentry. We affirm the directing of a verdict in favor of Carpentry, based on its statutory immunity from suit under § 440.11, Florida Statutes (1981). However, we reverse the directing of a verdict in favor of Ecker.

Appellant did not allege that the T-Nailer was defective or unreasonably dangerous; liability is premised upon Ecker’s negligence in supplying a dangerous instrumentality to Noel without also supplying adequate safety equipment.

In Green v. Sanson, 41 Fla. 94, 25 So. 332 (Fla.1899), the plaintiff, an employee of an independent contractor hired to perform plumbing inspections and repairs, selected certain ropes from those owned and used by the defendants/contractees in their work to hoist himself up in order to seal a pipe with molten lead. The rope broke; plaintiff fell and was burned by the lead.

The court stated the evidence supported the view that the plaintiff was a servant of the defendant at the time of the accident, but it also noted that, even if he is considered instead as an employee of an independent contractor, the “defendants had assumed certain duties towards [sic] them which would give plaintiff a right of action for negligence in the discharge of those duties.” Green, supra, 25 So. at 335.

[I]t is evident that defendants knew the dangerous purpose for which a hoista-way was needed; that they gave permission to select from their appliances such ropes as might be needed; or, in other words, undertook to furnish the ropes, to be used for this specific purpose, leaving the selection to be made by plaintiff. Where the employer undertakes to furnish his own employe’, or those of an independent contractor, some of the implements or instrumentalities for executing the required work, he thereby assumes a duty to exercise ordinary and reasonable care, measured by the surrounding circumstances, to provide such instrumentalities as will be reasonably safe and suitable, (citations omitted) Green, supra, 25 So. at 335.

Conversely, the servant must exercise ordinary care for his own safety and notice all patent and obvious defects. Green, supra, 25 So. at 335. The court concluded that the defendants did not breach the duty owed, and reversed a jury verdict in favor of the plaintiff. Green, supra, 25 So. at 336.

In Tillery v. Standard Sand and Silica Company, 226 So.2d 842 (Fla. 2d DCA 1969), an independent contractor was killed while operating a welding machine supplied by the defendant/contractee on defendant’s premises. The cause of death was either electrocution due to an alleged defect in the welding machine or a fall to the ground from the perch where decedent was operating the machine. The trial court had directed a verdict in favor of the defendant.

The district court first considered whether the defendant owed any duty to plaintiff which, if breached, would give rise to liability. The court looked to Green in defining the duty owed, and held that the defendant, by hiring the decedent to do work on its premises, owed him a duty either to warn of or use ordinary care to furnish protection against latent or potential dangers of which the defendant had actual or constructive knowledge, where the decedent lacked such knowledge. Tillery, supra, at 846, citing Florida Power & Light Co. v. Robinson, 68 So.2d 406 (Fla.1953).

We find that, since Ecker undertook to supply construction equipment to be used by Noel, it assumed a duty to exercise ordinary and reasonable care under the circumstances to supply such in-strumentalities as will be reasonably safe and suitable. If Ecker had actual or constructive knowledge that the T-Nailer was likely to be dangerous for the use supplied, it similarly owed a duty either to give an adequate warning or use ordinary care to provide adequate safety protection under the circumstances. Of course, any knowledge on the part of Noel concerning the dangerous condition raises an issue of comparative negligence. Green, supra; Tillery, supra; Restatement (Second) of Torts, §§ 388, 392 (1965). See also Billiar v. Minnesota Mining and Mfg. Co., 623 F.2d 240, 247 (2d Cir.1980); Ellis v. Caristi, 117 Ariz. 279, 572 P.2d 107 (1977); Everett v. Bucky Warren, Inc., 376 Mass. 280, 380 N.E.2d 653 (1978).

Our study of the record convinces us that there was sufficient evidence to require submission of the question of Eek-er’s liability to the jury.

In view of the foregoing, the judgment in favor of Carpentry Collaborative, Inc., is affirmed and the judgment in favor of M. Ecker & Company is reversed and the cause is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

DOWNEY, HERSEY and DELL, JJ., concur.


author: BERANEK, Judge.

text:
    In re ESTATE OF Chester BLAND, Deceased. HARTFORD NATIONAL BANK & TRUST COMPANY, Appellant, v. Shirley BLAND, Linda B. Sonnenblick and Deborah B. Albert, as Personal Representatives of the Estate of Chester Bland, Deceased, Appellees. Shirley BLAND, Linda Sonnenblick and Deborah B. Albert, as Personal Representatives of the Estate of Chester Bland, Deceased, Appellants, v. HARTFORD NATIONAL BANK & TRUST COMPANY, Appellees.
    Nos. 82-1944, 83-1802.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    D. Culver Smith, III, and Robert W. Goldman of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for appellants, Shirley Bland, Linda B. Sonnenblick, and Deborah B. Albert.
    James G. Pressly, Jr., of Gunster, Yoak-ley, Criser & Stewart, Palm Beach, for appellees, Hartford Nat. Bank & Trust Co.
   BERANEK, Judge.

These consolidated appeals arise from two court orders, one in favor of the estate, and one in favor of the bank.

CASE NO. 82-1944

The bank filed a claim against the estate in the amount of $2,243,730.64, based upon a judgment that it had obtained in Connecticut against the decedent and five other joint and several debtors on a series of promissory notes. The estate filed an objection to the claim and the bank sued the estate in the circuit court civil division. It obtained an amended final judgment in the amount of $2,801,066.66, the increase being due to interest that had accrued. The value of the estate was $1,488,205.00 at the time of the decedent’s death.

After obtaining its judgment in the civil division for $2.8 million, the bank petitioned in the probate division for payment of the judgment. The estate did not dispute that it owed the amount of the judgment, but argued that the estate should be required to pay only a proportionate share of the debt at first and then pay the balance only after the bank had attempted to collect from the other joint and several debtors. The decedent was a 6%% partner in the partnership that had executed the notes. On August 18, 1982, the probate court entered its order requiring the estate to pay only an amount equal to approximately 6⅜% of the judgment and forcing the bank to attempt reasonable collection efforts from the other co-debtors before further pursuing the estate. The bank appeals this order.

CASE NO. 83-1802

While the above order was on appeal, the bank attempted to comply with the court’s order by pursuing the other co-debtors in Connecticut. It collected approximately $1.2 million from these co-debtors. The bank then requested this court to relinquish jurisdiction to allow the lower court to hear evidence on the bank’s collection efforts. After hearing this evidence, the trial court issued an order dated July 25, 1983, requiring the estate to pay over its assets to the bank reserving sufficient money for payment of other debts and all the administration expenses of the estate. The estate is appealing this order.

In Case No. 82-1944, the appellant bank argues that the trial court erred in requiring the creditor/bank to attempt collection efforts against the other joint and several debtors before collecting from the estate. We agree. It is axiomatic that the holder of a joint and several judgment is entitled to satisfy his judgment against any one of the judgment debtors. Forbes v. The National Rating Bureau, Inc., 223 So.2d 764, 765 (Fla. 2d DCA 1969). The estate concedes that it has a cause of action against the other joint and several debtors for any overpayment, but it submits that it is unfair to require it to pay the judgment and then seek contribution from the Other debtors. Although it is unfortunate that the estate must initially bear the brunt of the judgment, it was error for the trial court to grant relief to the estate of a joint and several debtor. The law does not bestow any special rights or privileges on an estate; it treats the éstate exactly as it would the debtor. Based on our ruling in the later case and at the bank’s request, we dismiss this case as moot.

In Case No. 83-1802, the estate appeals claiming there was no competent, substantial evidence to support the probate division’s ruling that the bank had shown reasonable collection efforts against the other joint and several debtors. We could affirm this case by holding that there was competent, substantial evidence presented to the probate division. However, whether the bank made reasonable collection efforts against the other debtors is immaterial as it should not have been required to do so. We affirm simply because the court has rectified its initial order by enforcing the judgment against the estate.

AFFIRMED AS TO CASE NO. 83-1802; DISMISSED AS TO CASE NO. 82-1944.

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


text:
    In re ESTATE OF Lillian P. KOLL, Deceased.
    No. 82-2444.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Marshall B. Wood, Jr., of Wood, Cobb, Murphy & Craig, West Palm Beach, for appellant.
    Zell H. Altman of Altman, Colin & Fried-land, Lake Worth, for appellee MacLellan.
    Gary J. Nagle, West Palm Beach, for appellee DeMarco.
   PER CURIAM.

The question presented is whether the trial court properly granted a directed verdict in a proceeding to set aside homestead. Recalling that the standard to be applied “[i]n considering the propriety of a directed verdict for a defendant [is that] the trial court is required to evaluate the testimony in the light most favorable to the plaintiff and every reasonable intendment deducible from the evidence must be indulged in the plaintiffs favor,” McDaniel v. Great Atlantic & Pacific Tea Co., 327 So.2d 893, 895 (Fla. 3d DCA 1976), we find that the directed verdict cannot be sustained. Accordingly, the order on appeal is reversed and the cause is remanded for a new trial consistent with the principles set forth in Holden v. Estate of Gardner, 420 So.2d 1082 (Fla.1982).

REVERSED AND REMANDED.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    Elaine SHERBAN, Appellant, v. Audrey RICHARDSON, Appellee.
    No. 83-622.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.

      William R. Hussey, Fort Lauderdale, for appellant.
    Bruce Zeidel of Cohen, Scherer & Cohn, P.A., North Palm Beach, for appellee.
   HERSEY, Judge.

This is an appeal from a final judgment based upon a jury verdict assessing damages for fraudulent misrepresentation as to ownership in a transaction involving the sale of corporate stock.

The purchase and sale agreement provided, inter alia:

1. Sherban owns all of the outstanding stock of SAFARI PRODUCTIONS, INC. Safari Productions, Inc. owns all of the outstanding stock of THE PRINCE OF WALES, INC. Prior to the closing of this transaction, Seller’s attorney shall show satisfactory proof of this representation to Buyer.

As a matter of fact Sherban had an entitlement to the Safari Productions, Inc. stock under an arrangement which, while titled an option, more closely resembled a security agreement with Sherban holding equitable title (beneficial ownership) of the stock.

The issue is whether misidentification of the nature of Sherban’s interest constituted actionable fraud.

As we said in Alexander/Davis Properties, Inc. v. Graham, 397 So.2d 699, 706 (Fla. 4th DCA) pet. for rev. denied, 408 So.2d 1093 (Fla.1981):

For fraud to be actionable, the following elements must be made to appear:
(1) a misrepresentation of material fact;
(2) [a] a knowledge of the representor of the misrepresentation, or
[b] representations made by the re-presentor without knowledge as to either truth or falsity, or
[c] representations made under circumstances in which the representor ought to have known, if he did not know, of the falsity thereof;
(3) an intention that the representor induce another to act on it; and
(4) resulting injury to the party acting in justifiable reliance on the representation.

Sometime after closing of the sale from Sherban to Richardson the business operated by the Prince of Wales, Inc. failed, resulting in the damages to Richardson, the purchaser, complained of below. The initial difficulty with Richardson’s position, as we perceive the record and understand the facts and claims, is that none of the damages claimed by Richardson can be said to have been proximately caused by the nature of the stock’s ownership, whether title was defective or not.

In addition, all of the documents defining the precise status of title were reviewed by Richardson’s attorney (1) before he drew the purchase and sale agreement which was ultimately executed by the parties and (2) again by Richardson and her attorney at the time of closing. How then can it be said that the purchaser, having a right to rely, did rely, to her damage?

Finding that appellee suffered no damages proximately caused by the representation as to ownership and that in any event there was no reliance to her detriment, we reverse the final judgment. The additional points on appeal either have no merit or have been rendered moot by our resolution of the point on fraud.

We remand this cause with directions to enter an order granting appellant’s motion for judgment in accordance with motion for directed verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

DOWNEY, J., concurs.

LETTS, J., dissents without opinion.


text:
    STEEL FABRICATORS, INC., Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 83-1421.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Russell E. Carlisle of Carlisle & LeCates, Fort Lauderdale, for appellant.
    Marcia E. Levine of Fazio Dawson & DiSalvo, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. We do not believe the appellant has demonstrated error in the trial court’s entry of summary judgment essentially predicated upon a previously entered arbitration award and judgment entered thereon which specifically denied a claim that appellant now contends was really granted by the arbitrators but used as a setoff against claims made against the appellant in the arbitration proceedings. We have been cited no authority that would allow a trial court in a collateral proceeding to impeach findings of an arbitration panel that have been subsequently judicially approved.

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


text:
    Margaret MEYER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1830.
    District Court of Appeal of Florida, Second District.
    March 7, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Margaret Meyer appeals a final judgment and sentence imposed upon her after entry of an order revoking her probation. We affirm and remand.

Meyer, who was insolvent below, initially contends on appeal that the state failed to prove at her probation revocation hearing that she had the financial ability to satisfy conditions (2) and (9) of her probation which required, respectively, that she pay the state $10 per month toward the costs of supervision and $34.80 for the costs of prosecution. In particular, she asserts that the only evidence which the state produced at the hearing in this regard came in the form of hearsay evidence.

We recognize that a probation revocation order may not be based solely upon hearsay evidence. See, e.g., Terry v. State, 406 So.2d 121 (Fla. 2d DCA 1981); Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976); Brown v. State, 338 So.2d 573 (Fla. 2d DCA 1976); Franklin v. State, 226 So.2d 461 (Fla. 2d DCA 1969); Scott v. State, 406 So.2d 100 (Fla. 3d DCA 1981). However, a review of the hearing transcript shows that, although Meyer objected to the majority of hearsay evidence adduced at the hearing by the state, she did not object to her probation officer’s hearsay testimony that she had “interest checks coming from up North.” Regardless, it cannot be said that the court below relied solely upon hearsay evidence in revoking Meyer’s probation because Meyer testified herself at the hearing that she owned stock in a corporation.

Meyer’s other argument on appeal, one with which the state does not quarrel, concerns the trial court’s failure to list on the written probation revocation order the conditions of probation which it found that she violated. A study of the hearing transcript shows that the court apparently determined that she violated not only conditions (2) and (9), but also condition (8), which required that she comply with all instructions given to her by her probation officer. The court expressly declined to find that she violated condition (5), which mandated that she live and remain at liberty without violating any law.

Accordingly, we remand with directions that the trial court inscribe upon the written probation revocation order the conditions which it found that Meyer violated. We affirm the judgment and sentence because the court properly revoked her probation.

AFFIRMED and REMANDED.

RYDER and LEHAN, JJ., concur.


text:
    Kenneth V. HEMMERLE, Appellant, v. Michael MICELI, individually, and Michael Miceli as beneficiary of Land Trust No. 5248 of National Trust Company of Naples, Appellees.
    No. 83-2298.
    District Court of Appeal of Florida, Second District.
    March 7, 1984.
    Kenneth V. Hemmerle, pro se.
    Thomas F. Kiesel and Barry R. Hillmyer of Waldorf & Kiesel, Fort Myers, for appel-lees.
   HOBSON, Acting Chief Judge.

Kenneth Hemmerle, plaintiff below, appeals a nonfinal order which granted a motion by Michael Miceli, individually and as beneficiary of Land Trust No. 5248 of National Trust Company of Naples, defendants below, to set aside a clerk’s default. It appears that this nonfinal order did not also set aside a final judgment of default. In fact, it seems that a final default judgment had never been rendered. We therefore dismiss this interlocutory appeal for lack of jurisdiction. Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979); Broward Employment & Training Administration v. Community Partnership Program, Inc., 422 So.2d 1101 (Fla. 4th DCA 1982). Compare Howard v. McAuley, 436 So.2d 392 (Fla. 2d DCA 1983).

DISMISSED.

SCHEB and LEHAN, JJ„ concur.


author: JOANOS, Judge.

text:
    Opal F. HUDSON, as personal representative of the estate Ela Hudson, deceased, Appellant, v. KEENE CORPORATION: the Celotex Corporation; Johns-Manville Corporation; Johns-Manville Amiante Canada, Inc.; H.K. Porter Company, Inc.; Armstrong Cork Company and Raybestos-Manhattan, Inc., Appellees.
    No. AN-453.
    District Court of Appeal of Florida, First District.
    March 8, 1984.

      Wayne Hogan of Brown, Terrell & Hogan, Jacksonville, for appellant.
    H. Franklin Perritt, Jr., Jacksonville, for appellee Johns-Manville.
    Gilbert Haddad, Coral Gables, for appel-lee Raybestos-Manhattan.
    Norwood S. Wilner, Jacksonville, for ap-pellee Keene Corporation.
    Floyd Matthews, Jacksonville, for appel-lee H.K. Porter Company.
    Clark Jordan-Holmes, Charles P. Schropp & Raymond T. Elligett, Jr., Tampa, for appellee Celotex.
    John C. Taylor, Jr., Jacksonville, for ap-pellee Armstrong Cork Company.
   ON MOTIONS FOR REHEARING, CLARIFICATION, AND CERTIFICATION

JOANOS, Judge.

Having considered appellant’s motions for rehearing, clarification, or certification, we grant the motion for clarification and deny the motions for rehearing and certification. The decision and opinion filed January 24, 1984 is withdrawn and the following decision and opinion is substituted in lieu thereof.

Ela Hudson was diagnosed as having asbestosis in March, 1977. On November 12, 1980, an action for personal injuries was filed against Johns-Manville Sales Corporation only. Ela Hudson died on July 14, 1981. On November 2, 1981, a wrongful death claim was filed against appellees. This claim was filed within two years of Mr. Hudson’s death, but more than four years after the diagnosis of asbestosis. As this state of the facts indicates, there had been no claim for personal injuries against appellees within four years of the diagnosis. Appellees’ motion for summary judgment was granted on the basis that the death did not revive an extinguished cause of action. In other words, since the four year personal injury limitations period had run before the suit for wrongful death was filed, appellant could not recover from ap-pellees on the wrongful death claim.

The question presented in this case boils down to whether, based on the language found in the wrongful death statute, specifically Section 768.19, Florida Statutes, the wrongful death claim is barred by the running of the limitations period with regard to Ela Hudson’s personal injury suit, even though ordinarily the limitations period for a wrongful death action is two years, Section 95.11(4)(d), Florida Statutes. Section 768.19 provides:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. (e.s.)

Appellant argues that even though the death would not revive the cause of action for personal injuries, it did create a new, independent cause of action for wrongful death. Appellant contends the implication of the lower court’s ruling with regard to the statute of limitations is contrary to the declared public policy of this state that wrongful death legislation is to be liberally construed in order to give it effect.

Appellant relied on Perkins v. Variety Children’s Hospital, 413 So.2d 760 (Fla. 3d DCA 1982), in which the Third District held, among other things, that the pertinent language, underscored above, refers to the qualifying nature of the event rather than whether the decedent sued in his lifetime, and that the two year wrongful death limitations period began to run at the time of death. The Florida Supreme Court recently rejected in its entirety the approach taken by the Third District, see Variety Children’s Hospital v. Perkins, 445 So.2d 1010 (Fla.1983). Both the defense of res judicata, discussed at length by the supreme court in the Perkins opinion, and that of the running of the statute of limitations are waivable affirmative defenses. Because of that decision we are bound to conclude the circuit judge in the present case properly granted appellees’ motion for summary judgment, because under the supreme court interpretation of the statutory language in Perkins, Ela Hudson would not have been able to maintain an action against appellees if death had not ensued due to the running of the limitations period with regard to the personal injury suit. Therefore the summary judgment appealed is AFFIRMED.

LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Pursuant to a motion filed in this court this case has been stayed with regard to Johns-Man-ville Corp. and Johns-Manville Amiante Canada, Inc., thus this opinion does not affect their interests.