author: ORFINGER, Chief Judge.

text:
    Dorothy W. ROGERS and Tammie Rogers, Appellants, v. L.K. RUNNELS, Appellee.
    No. 83-528.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    Rehearing Denied April 17, 1984.

      Hans G. Tanzler, Jr., of Boyer, Tanzler, Blackburn, Boyer & Nichols, Jacksonville, for appellants.
    Louis E. Stolba of Stolba & Lumley, P.A., St. Petersburg, for appellee.
   ORFINGER, Chief Judge.

Dorothy W. Rogers and Tammie Rogers filed an action on May 11, 1982, pursuant to Chapter 742, Florida Statutes (1981), for a determination that defendant Louis K. Runnells was the father of Tammie, born September 19, 1963. The complaint also requested that defendant be required to pay back child support or, alternatively, pay damages to Dorothy because of the cost to her of raising and supporting Tammie. The trial court dismissed the action upon motion of the defendant and plaintiffs appeal.

Since Tammie had already reached her majority before the suit was filed, the trial court was correct in dismissing the action insofar as support was requested. The obligation to support a child continues only through the child’s minority. In State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979), the supreme court said:

... An illegitimate’s right to obtain support is established by section 742.041, Florida Statutes (1975), and is a continuing right until the child reaches eighteen years of age. This right may be enforced by a paternity suit under section 742.10, Florida Statutes (1975), which is both an action to determine paternity and an action for child support.

Id. at 1222.

The support rights of illegitimate children are the same as those of legitimate children. West, supra. Parental obligation for support of a legitimate child terminates when the child reaches majority, except where such child is still dependent because of physical or mental infirmities. Keenan v. Keenan, 440 So.2d 642 (Fla. 5th DCA, 1983); Thomas v. Thomas, 427 So.2d 259 (Fla. 5th DCA 1983). Thus, the obligation to support a child born out of wedlock ends at majority unless the child continues to be dependent because of physical or mental infirmities. No such showing is made here.

The mother cites McQueen v. Stratton, 389 So.2d 1190 (Fla. 2d DCA 1980), as authority for the proposition that she is entitled to an award of back support, but that case is distinguishable. While McQueen does not state the age of the child, it is easily determined from the award that the child was slightly more than five years old at the time the back support was ordered. Whatever the right of a mother of a child born out of wedlock to recover for past support in a paternity action against the putative father where she has standing to claim future support, a point we are not called upon to decide here, the mother has no standing to bring an action or seek support for the child after the child attains majority.

Chapter 742, Florida Statutes (1981), is the exclusive means by which the mother may bring an action to determine paternity and seek support, but this section does not foreclose the rights of others to seek a determination of paternity where there is a legitimate interest in such determination. In Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), the supreme court held that the putative father had standing to seek a declaratory judgment under Chapter 86 of the Florida Statutes that he was the father of five minor children born out of wedlock. The court found that while Chapter 742 was intended as the natural mother’s exclusive legal remedy to establish paternity and enforce support rights of the child, the statute did not purport to preclude a declaratory judgment action by the putative father to adjudicate paternity where such adjudication was necessary to the determination of existing rights or duties between parties to an actual controversy. The court further reasoned that any other interpretation of Chapter 742 would permit the mother to negate the child’s rights by virtue of her failure, for whatever reason, to obtain an adjudication of paternity.

For the same reasons expressed in Kendrick, we hold that the child, upon reaching majority, has the right to bring an action for declaratory judgment to determine paternity. This right was at least tacitly recognized in Garris v. Cruce, 404 So.2d 785 (Fla. 1st DCA 1981), although the court there held that the statute of limitations barred the action because the plaintiff waited longer than four years after attaining majority to bring the action. We need not decide how the statute of limitations applies in such cases because it is clear that the action here was brought less than two years after Tammie attained her majority.

The judgment is affirmed insofar as it denies any monetary award, but is reversed insofar as it precludes Tammie from maintaining an action to determine paternity. The trial court shall permit Tammie to amend her pleadings to bring her claim within the declaratory judgment statute, if she is so advised.

AFFIRMED in part and REVERSED in part with directions.

DAUKSCH and COWART, JJ., concur.


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    Gail Louise APPELHOF, now known as Gail Louise Bednar, Appellant, v. John A. APPELHOF, Jr., Appellee.
    No. 83-967.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    Rehearing Denied April 10, 1984.
    N. David Korones, Clearwater, for appellant.
    Joseph R. Park of Park & Smith, Clear-water, for appellee.
   LEHAN, Judge.

The trial court denied the motion of a noncustodial ex-wife for a temporary restraining order to prevent the custodial ex-husband from removing children of the marriage from Florida to the ex-husband’s new residence in another state. Under the facts of this case we do not find an abuse of discretion by the trial court. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

AFFIRMED.

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


author: PER CURIAM.

text:
    CITY OF MIAMI, Appellant, v. James P. SIGMAN, Appellee.
    No. 83-585.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Rehearing Denied April 30, 1984.
    Jose R. Garcia-Pedrosa, City Atty. and Ronald J. Cohen, and Gisela Cardone, Asst. City Attys., for appellant.
    Irving Weinsoff, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant, City of Miami, appeals from an order directing that a police officer, who was denied veterans’ preference points after successfully completing the 1979 promotional examination, be promoted to the rank of Police Sergeant with retroactive wages and other benefits.

The City’s Civil Service Rules, set forth in Ordinance No. 8977, Section 2, provide that veterans’ preference points shall be given in accordance with Florida Statutes. The ordinance also provides a method for employees to seek redress for any violation of the rules. The question of entitlement to the points was never presented to city officials or the Civil Service Board.

The controlling statutes, found in Chapter 295, Florida Statutes (1983), have been construed by this court in several cases. In every case the question of entitlement to the statutory preference points was first presented to the Civil Service Board pursuant to its rules. E.g., Yates v. Rezeau, 62 So.2d 726 (Fla.1952); City of Miami v. Farrington, 405 So.2d 1043 (Fla. 3d DCA), rev. dismissed, 411 So.2d 381 (Fla.1981).

Appellant challenges the jurisdiction of the court to entertain the action on grounds that the employee failed to exhaust administrative remedies, citing this court’s opinion in Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA), cert, denied, 284 So.2d 396 (1973). We agree that the filing of a lawsuit in the circuit court was premature. See also City of Miami v. Fraternal Order of Police, 378 So.2d 20, 25 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1113 (Fla.1980) (employee is not relieved of obligation to engage the administrative process in redressing a grievance by simply accepting as unchallengeable an adverse decision of the employer).

Reversed and remanded with directions to dismiss.

      . Section 40-58, Code of the City of Miami (1980), which codifies Ordinance No. 8977, Section 2, provides:

        Preferences in ranking candidates — Veterans’ preference.

      [I]n promotion, preference shall be given [to veterans] in accordance with the state statutes, as amended.

      . Section 40-103(b), Code of the City of Miami (1980) provides in pertinent part:

        Grievances and abuses generally.

      (b) Complaint by employee.

      Any employee who is aggrieved by reason of what he/she considers a violation of this article [Civil Service Rules] to his/her detriment, or who has a grievance concerning his/her employment under this article, and who desires redress, shall notify the executive secretary in writing, stating the nature of his/her grievance and requesting a hearing by the board [Civil Service Board],


text:
    Patrick Thomas LANGTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1471.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Rehearing Denied April 12, 1984.
    Joseph P. McNulty of McNulty, Moritz, Pecarek, Dickey & Herman, Largo, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant was convicted under section 806.01(1), Florida Statutes (1981), of arson in the first degree. He contends on appeal that the trial court erred in failing to suppress his confession. We agree with defendant and reverse the conviction because the confession was adduced under circumstances inconsistent with requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Following the fire, defendant was placed in custody pursuant to section 396.072, Florida Statutes (1981), which involves police custody of intoxicated and apparently incapacitated persons. At the police station, after having received a Miranda warning, defendant was interrogated by two police officers until he stated that he wished to remain silent. Then, after the officers told defendant that he was being charged with arson, there was further conversation between defendant and one of the officers. In that further conversation the officer surmised and commented to defendant as to the reasons why defendant started the fire. At that point defendant confessed.

Miranda requires that “when a suspect in police custody indicates that he wishes to remain silent, further interrogation at that time must cease.” Jones v. State, 346 So.2d 639, 640 (Fla. 2d DCA 1977). Miranda also is critical of the type of interrogation technique, used by the officer in this case, of suggesting the details of the crime to the defendant. Miranda, 384 U.S. at 451, 455, 86 S.Ct. at 1616, 1617, 16 L.Ed.2d at 711, 712. As this court pointed out in Bowen v. State, 404 So.2d 145, 146 (Fla. 2d DCA 1981),

Once a person in custody has asserted the right to remain silent, any statements obtained from that person are admissible only if the interrogating officer has scrupulously honored the accused’s right to remain silent.
In light of the relative positions of the police and the suspect in an interrogation situation, Florida cases have recognized that relatively little pressure by the police may overcome a suspect’s will to remain silent.

The following observation of this court in Jones is pertinent here.

No one can seriously doubt that [the officer] was attempting to obtain incriminating statements when he continued to converse with appellant about the incident after appellant had told him he did not want to talk.

346 So.2d at 640.

We recognize that defendant’s lamentations, heard by the officer who was involved in the further conversation while completing defendant’s booking, preceded the officer’s further comments to defendant. The state argues, citing Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977), that defendant voluntarily decided not to remain silent and therefore Miranda is inapplicable. We disagree. In Witt the vol-untariness of a confession was shown by various circumstances which existed in that case and did not exist here. In Witt the defendant was readvised of his rights after he had changed his mind about remaining silent and had announced his desire to confess. Also, in this case, defendant’s change of mind which produced his confession occurred in response to the foregoing interrogation technique criticized in Miranda. Accordingly, the state’s “heavy burden demonstrating that the defendant knowingly and intelligently waived his privilege against self-incrimination ... and voluntarily confessed” was not met. Witt at 500.

REVERSED AND REMANDED FOR NEW TRIAL.

RYDER, A.C.J., and SCHOONOVER, J., concur.

      . The testimony of Detective William McVey established that the defendant, while sitting on the floor of the booking cell, was crying and intermittently repeating, "[Y]ou're going to have to prove that it was arson.”


author: GRIMES, Judge.

text:
    Barbara RENAULT, Personal Representative in the Estate of William J. Guggenheim, Appellant, v. Lois Guggenheim GREER, Appellee.
    No. 83-1726.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Rehearing Denied April 12, 1984.
    Guión T. DeLoach, Naples, for appellant.'
    G. Holdt Garver of Garver & Manz, Naples, for appellee.
   GRIMES, Judge.

Appellee made claims against her father-in-law’s estate totaling $60,528.53 and also sought the return of certain personal property. Apparently, the court sustained all of the claims with the exception of one seeking $21,600 reimbursement for room and board, because the $38,928.53 judgment in her favor was exactly $21,600 short of the total claim.

There was competent substantial evidence to support each of the successful claims. The main issue on appeal is whether the claims were barred by the statute of limitations. The burden to prove this affirmative defense rested upon the appellant. After reviewing the record, we cannot say the court erred in concluding that the cause of action for each monetary claim had accrued on a date from which the applicable limitations period had not yet run when suit was filed. We do find, however, that the claim for return of personal property was time-barred by section 95.-ll(3)(h), Florida Statutes (1979).

Appellee testified that the decedent took personal property items with him when he left her Georgia home in May of 1976 to move to Florida. She did not file suit to recover the property until July 16, 1980, which was more than four years from the taking. His interim oral promise to return the property did not suffice to extend the statute because, unlike claims in contract, a new promise does not extend the statute of limitations for actions grounded in tort. Mutual Trust & Deposit Co. v. Boone, 267 S.W.2d 751 (Ky.1954); Hughes v. City of Detroit, 336 Mich. 457, 58 N.W.2d 144 (1953); Nelson v. Peterson, 229 Ill. 240, 82 N.E. 229 (1907); 51 Am. Jur.2d Limitation of Actions § 324 (1970).

We reverse that portion of the judgment which directs the return of personal property to the appellee. We affirm the monetary judgment of $38,928.53 in all respects.

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


author: COBB, Judge. SHARP, Judge,

text:
    Carl E. FOUTZ and Anthony Crucet, Jr., Appellants, v. GREAT CENTRAL INSURANCE COMPANY and Crawford and Company, Appellees.
    No. 82-1057.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    Rehearing Denied April 17, 1984.
    John R. Overchuck and Herbert H. Hall, Jr., of Maher, Overchuck, Langa, Cate, Cobb & Webb, P.A., Orlando, for appellants.
    John B. Liebman and Linda F. Wells of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellee Crawford and Co.
    John W. Bussey, III, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Orlando, for appellee Great Cent. Ins. Co.
   COBB, Judge.

Foutz and Crucet, plaintiffs below, appeal from an adverse summary judgment in respect to their claim for damages against Great Central Insurance Company and Crawford and Company. They sued the defendants for abuse of process and malicious prosecution, and also sued Crawford for fraud.

The uncontroverted facts are that Foutz and Crucet submitted forged invoices in the amount of $2,319.00 to Terry McCamie, an insurance adjuster employed by Crawford, to support a loss claim against Great Central. McCamie did not tell Foutz and Cru-cet to forge the invoices, and they did not tell him they had done so. Based on these forged invoices, Great Central paid the claim.

Foutz and Crucet argue McCamie misrepresented to them that Great Central required invoices for merchandise stolen, else there would be no payment. Even if that were true, there is no admissible evidence that McCamie was told, or knew, that Foutz and Crucet had altered two invoices to reflect the claimed cash purchases. In their brief the appellants assert that when they gave the invoices to McCamie, “they implied to him that the invoices had been altered.” In support of this argument, they rely on the deposition of Carl Foutz. That testimony reads as follows:

Q. And you make that copy in such a way a person can’t see something has been pasted onto the original?
A. Yeah.
Q. What did you do with that copy as to which a person looking at it couldn’t tell that something had been pasted onto the original?
A. We gave it to Mr. McCamie.
Q. Did you tell him that you had changed it?
A. No, sir, not in so many words.
Q. Not in so many words?
A. Well, we told him — there was— something — there was, I can’t go back verbatim and remember what was said.
There were indications made to them that we were giving them the invoices, okay, and even, you know, there were invoices in there to cover everything that was taken, because I think from previous conversation we had when we were questioning him about equipment that we had paid cash for, that he had some idea that there were some things that we had paid cash for and more in—
Q. But you said you didn’t tell him that?
A. No, we didn’t tell him that.
******
Q. You said that you gave it to Mr. McCamie. That must have been some other time than the day on which you used paper and paste and copy machine and created it; is that correct?
A. Yes, correct.
Q. How many days later was that?
A. I think it was the next day they came back in and picked the — up all the invoices.
Q. Who came back in?
A. I think it was just Terry that time.
Q. Tell me everything you recall that was said between yourself and Mr. McCamie on that day.
A. Okay. We gave him the invoices. We had — there was reference made that there were invoices in there for everything because, as I started to say before, on the previous time that he was in there when we were asking him about having to have invoices for everything, without telling him, you know, I think that he had some idea we had some things we paid cash for and that he just said, listen, you just get invoices for everything that was gone, that was taken. So, you know, we — there was a little bit of humor involved when we said here are the invoices for everything.
Q. Did you tell him that one or more of the invoices had been changed by you?
A. No.

When the forgeries were finally discovered, after Great Central had paid the claim, Foutz and Crueet then, for the first time, asserted that the forgeries represented actual losses for cash purchases they made but for which they had no documentation. This explanation was conveyed by their attorney, Williams, to Great Central’s attorney, Fisher, who, finding the explanation unconvincing, went to the state attorney with it. At that point Fisher, as the attorney for Great Central, was fully informed and had all the information, prior to prosecution, that his client, Great Central, had access to. He was fully aware at that point of the explanation given by Foutz and Crueet, and it was his decision to turn the information over to the state attorney. The fact that Fisher knew of the explanations for the forgeries by Foutz and Crueet prior to his decision to turn the matter over to the state attorney is clearly shown by his letter to Attorney Williams dated February 23, 1977, which reads:

We were in fact amenable to hearing whatever explanation your clients might have. In your letter of February 9, you refer to my client’s goal as being reimbursement. Actually, as I understood it, the goal of the meeting which was held at your suggestion was to hear what explanations your client had prior to our proceeding further toward possible criminal actions. There has never been any question but that my client would seek reimbursement if warranted, but that would be through civil actions only. As to criminal prosecution, the decision there lies solely in the hands of the law enforcement agencies and the State’s attorney’s office whether they think there is probable cause that a crime has been committed. We will seek reimbursement in a civil action in any event.
Certainly my clients would be reluctant to turn the matter over for investigation by the Sheriff’s Department if somehow your clients could come forth with a believable explanation as to what appears to be an obvious forgery of invoices and an obvious submission of a fraudulent insurance claim. Since the only expía-nation you could give to us at the time of our meeting was that your clients admitted the forgery of the invoices, but that supposedly the fraudulent invoices were prepared to cover for goods-actually purchased from some unknown suppliers, it is our feeling now that we have no alternative but to let the Sheriff’s Department have the facts and to make whatever investigation they feel is appropriate. (Emphasis added.)

It was two days later, on February 25, 1977, that Fisher first met with Deputy Cavender to show him the altered invoices and obtain his advice as to whether there was cause to prosecute. Cavender also interviewed Foutz and Crueet in regard to the altered invoices. Thereafter, Cavender recommended prosecution. The defendants were arrested and brought before a judicial officer, Judge Conser, for a first appearance hearing. The state’s motion seeking pretrial detention pursuant to Florida Rule of Criminal Procedure 3.131 was heard and, based on “the affidavits and/or exhibits on file” Judge Conser found probable cause and ordered the issuance of a capias for each defendant, with a stipulated amount of bond.

A presumption arises from a magistrate’s finding of probable cause which is conclusive, absent fraud or other corrupt means employed by the person initiating prosecution, to bar a subsequent malicious prosecution action. Gallucci v. Milavic, 100 So.2d 375 (Fla.1958). The fraud or corruption relied upon by appellants here is the assertion that MeCamie and Cornell, as agents of Crawford, represented to Deputy Cavender that Foutz and Crueet did not suffer a loss equal to the claims they made under the forged invoices — a fact which may or may not have been true and, obviously, was known only for certain by Foutz and Crueet. The protestations of innocence by Foutz and Crueet are not negations of probable cause.

The issue of probable cause, where facts are not in dispute, is a question of law. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979). As a mattér of law, there was probable cause in this case, as determined by a magistrate. Moreover, the defendants herein acted on the advice of their counsel, who was fully informed, constituting a complete defense to this action. The undisputed evidence is that no one told or fraudulently induced Foutz and Crucet to forge the invoices, or even knew they had done so until after payment of the claims. The abuse of process claim was properly rejected by the trial court on authority of Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980). The trial court’s summary judgment is

AFFIRMED.

DAUKSCH, J., concurs.

SHARP, J., concurs specially in part, dissents in part with opinion.

SHARP, Judge,

concurring specially in part and dissenting in part.

I am unable to read this controverted record as favorably to the appellees as the majority. There is a factual dispute in this record concerning the misrepresentation and fraud count against Crawford: whether Crawford’s investigator, McCamie, falsely told Crucet and Foutz that they had to have invoices for all goods lost, and that the insurance company would not pay for lost goods purchased with cash. This was apparently not a requirement of Great Central. Relying on this false information, Crucet and Foutz prepared and submitted invoices for items they purchased for cash, and they allegedly suffered damages. This count should not have been disposed of by summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Haendel v. Paterno, 388 So.2d 235 (Fla. 5th DCA 1980).

However, I agree that summary judgment on the malicious prosecution and the abuse of process counts was properly entered on the authority of Gallucci v. Milavic, 100 So.2d 375 (Fla.1958), and Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980). The record establishes that a committing magistrate entered orders, based on affidavits and exhibits, that there was probable cause to bind over Crucet and Foutz for trial on the criminal charges. There are no counter-proofs that Crawford or Great Central resorted to fraud, concealment or other improper measures to induce the state to prosecute the criminal cases, or that the orders binding Crucet and Foutz over for trial were not in fact findings of probable cause. Once the presumption of probable cause to file the criminal suits arose by virtue of the entry of the probable cause orders, under Gallucci the appellants were obligated to overcome its effect with proofs sufficient to bar the summary judgment. Failing to do so, summary judgment was properly entered as a matter of law. See Glass v. Parrish, 51 So.2d 717 (Fla.1951).

      . See Smyrna Developers, Inc. v. Bornstein, 177 So.2d 16 (Fla. 2d DCA 1965).

      . Compare Pinkerton v. Edwards, 425 So.2d 147 (Fla. 1st DCA 1983), and K-Mart Corp. v. Sellars, 387 So.2d 552 (Fla. 1st DCA 1980).

      . See Rodgers v. W.T. Grant Co., 341 So.2d 511 (Fla.1977).


author: DAUKSCH, Judge. COWART, Judge,

text:
    Kenneth COLWELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1255.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.

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

This is an appeal from convictions for burglary of an occupied dwelling and sexual battery. The appellant was charged in four counts with the burglary, two sexual batteries and battery. The appellant was convicted after a jury verdict básed upon evidence that he illegally entered an apartment and twice committed sexual battery and once committed battery upon one woman.

The first point on appeal asserts that the information charging the burglary was insufficiently alleged to support a life sentence as a felony of the first degree. § 810.02, Fla.Stat. (1978); § 775.082, Fla. Stat. (1978). We agree the information is deficient; it merely alleges burglary of an occupied dwelling, which is a felony of the second degree punishable by no more than fifteen years. It does not allege an assault was made in the course of committing the burglary. The fact that no objection was made below is to no avail, nor is it of any importance that appellant was charged in other counts of the information with making an assault upon the occupant of the building. Each count of an information stands on its own, is the only vehicle by which the court obtains its jurisdiction and is a limit upon that jurisdiction. To sentence for a crime more serious than the statute under which the crime is charged is fundamental error. Cochenet v. State, 445 So.2d 398 (Fla. 5th DCA 1984). The sentence is reversed and this cause remanded for resentencing.

For his second point on appeal appellant urges the court erred in admitting similar fact evidence under the Williams Rule. Williams v. State, 110 So.2d 654 (Fla.1959). The admission of the evidence was quite tenuous and were it not for the overwhelming proof of guilt from the other evidence and the lack of a sufficient objection at trial we would order a new trial. State v. Murray, 443 So.2d 461 (Fla. 4th DCA 1984).

Convictions affirmed; sentence reversed, remanded.

COBB, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I concur with the qualification contained in the special concurring opinion in Cochenet v. State, 445 So.2d 398 (Pla. 5th DCA 1984). See Averheart v. State, 358 So.2d 609 (Pla. 1st DCA 1978).


text:
    Edward J. SEGUNA, Appellant, v. Cynthia A. SEGUNA, Appellee.
    No. 83-646.
    District Court of Appeal of Florida, Fifth District.
    March 15, 1984.
    Rehearing Denied April 12, 1984.
    Henry J. Martocci, Merritt Island, for appellant.
    Kenneth N. Jacoby of Kenneth N. Jaco-by, P.A., Satellite Beach, for appellee.
   PER CURIAM.

This is an appeal from an order in a marriage dissolution case. As follows is the point on appeal taken verbatim from the appellant’s brief.

The trial court erred in its order of April 5, 1983, in awarding the wife temporary alimony pending the outcome of this action and in awarding the wife the sole and exclusive use and possession of the marital residence and in enjoining and restraining the husband from coming to or otherwise putting foot to the marital residence and in awarding temporary attorney’s fees or suit money to the wife, the parties having executed a valid property settlement agreement on September 28, 1982, and there having been no finding by the court and no allegation by either of the parties to this action that there had been any fraud, durress, coercion, undue influence, overreaching or any other type of conduct which would have affected the validity of the property settlement agreement between the parties and the court having failed to find and the parties having failed to have alleged that there had been any reconciliation between these parties at any time after September 28,1982, and each of the parties having testified that no such reconciliation took place and that no such reconciliation was intended but either of the parties of this action and the court having specifically failed and refused to either find that there had been a reconciliation between the parties to this action and the court having specifically failed and refused to set aside the property settlement agreement between these parties which was executed on September 28, 1982, and the court furthermore erred in refusing and failing to enforce the terms and conditions of the property settlement agreement between these parties, each of the parties to this action having specifically prayed for the enforcement of the said agreement by the court.

We AFFIRM.

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


author: NESBITT, Judge.

text:
    Pamela MARRERO, Appellant, v. Malcolm G. GOLDSMITH, M.D., William Brewster, M.D. and Constantine Kitsos, M.D., Appellants. Constantine KITSOS, M.D., Appellant, v. Pamela MARRERO, Appellee.
    Nos. 82-1324, 82-1435.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied May 2, 1984.
    Horton, Perse & Ginsberg and Edward Perse, Alldredge & Gray, Miami, for Pamela Marrero.
    Stephens, Lynn, Chernay, Klein & Zuck-erman and Robert M. Klein, Miami, for Malcolm G. Goldsmith, M.D.
    Thornton & Herndon and John Edward Herndon, Jr., Miami, for William Brewster, M.D.
    Dubbin, Berkman, Dubbin & Greenfield and Evan Langbein, Miami, for Constantine Kitsos, M.D.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Plaintiff in a medical malpractice action appeals from a judgment entered in favor of three physicians.

Mrs. Marrero underwent surgery with Dr. Brewster administering a general anesthetic; Dr. Goldsmith performing a hemor-rhoidectomy; and Dr. Kitsos performing a “tummy tuck” and cyst removal. It was established at trial that before surgery Mrs. Marrero had full use of her left arm and that after the operation she complained of numbness and pain in her left arm which was diagnosed as bracial plexapathy. The plaintiff presented several expert witnesses to testify as to the cause of her injury. At least one expert testified that the injury was caused by the defendants’ incorrect positioning of the plaintiff’s arms during surgery or by the failure to change the arm position during the course of the operations.

The first issue raised by Mrs. Marrero is that the trial court erred in denying her request to instruct the jury on res ipsa loquitur. The doctrine is one of extremely limited application. “It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present.” Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978). We need not even' consider these elements because we find that direct proof of negligence is not wanting in this case. To the contrary, plaintiff presented expert testimony regarding the alleged negligence of the defendants. Metropolitan Dade County v. St. Claire, 445 So.2d 614 (Fla. 3d DCA 1984); Benigno v. Cypress Community Hospital, Inc., 386 So.2d 1303 (Fla. 4th DCA 1980). Accordingly, the trial court was correct in denying the requested instruction.

Plaintiff next contends that the court incorrectly allowed the court-appointed expert witness to testify as to causation when he was appointed for the exclusive purpose of ascertaining the physical condition of the plaintiff and the nature and extent of the claimed injuries. Since the doctor was competent to give an opinion as to causation and the plaintiff has been unable to show that she was surprised by the doctor’s testimony (in fact, she was aware of the testimony from the doctor’s written report before trial), we find no error in the admission of this testimony.

Additionally, with respect to the court-appointed physician, the plaintiff argues that the trial court improperly allowed defense counsel to refer to the expert as the court-appointed physician. No one can dispute the fact that the doctor was appointed by the court. Therefore, the plaintiff’s objection to this appellation must be that the court was placing its imprimatur on a witness who was not impartial. Mrs. Marrero did not challenge the doctor’s appointment previously and, of course, may not now be heard to complain.

By way of cross-appeal, Drs. Kitsos and Goldsmith challenge the adequacy of the attorneys’ fees award. Because there was no transcript of the proceeding, it is impossible for us to determine whether the trial court improperly rejected the affidavits in support of a higher award, or properly reduced the fees because the defendant was “insolvent or poverty stricken.” § 768.56(1), Fla.Stat. (1983). Accordingly, we must affirm the awards.

Affirmed.


text:
    GOLD COAST GRAPHICS, INC., Appellant, v. Leslie RACHLINE and Dodi Publishing Corporation, Inc., Appellees.
    No. 83-2024.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied May 2, 1984.
    Justin Edward Beals, Miami, for appellant.
    Kreeger & Kreeger and Julian Kreeger, Miami, for appellees.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   PER CURIAM.

The order dismissing the complaint for lack of prosecution with prejudice is reversed upon a holding that: (a) the notice of taking a deposition constituted activity sufficient to preclude dismissal, Silverman v. Equifax Services, Inc., 420 So.2d 928 (Fla. 3d DCA 1982); (b) a dismissal for failure to prosecute may not be “with prejudice,” McDaniel v. Onkey, 422 So.2d 70 (Fla. 2d DCA 1982).

Reversed.


author: SHARP, Judge.

text:
    WAUSAU UNDERWRITERS INSURANCE COMPANY, Appellant, v. Raymond Stanley TAUBLER, Appellee.
    No. 83-859.
    District Court of Appeal of Florida, Fifth District.
    March 22, 1984.
    Rehearing Denied April 13, 1984.
    Charles P. Schropp and Raymond T. Elli-gett, Jr., of Shackelford, Farrior, Stallings & Evans, Professional Ass’n, Tampa, for appellant.
    Frank McClung, of Law Offices of Frank MeClung, Brooksville, for appellee.
   SHARP, Judge.

Wausau Underwriters Insurance Company has filed a timely appeal from a summary judgment entered in favor of Raymond Taubler. We reverse the summary judgment because Taubler recovered an amount equal to his uninsured motorist coverage through a settlement with the tortfeasor’s liability carrier.

Taubler was injured in a two-automobile accident involving himself and William Strauch. Strauch was driving his parents’ automobile without permission at the time of the accident. The Strauehs’ automobile liability policy with Aetna Casualty and Surety Company provided coverage in the amount of $50,000.00 per person. Taubler was covered by his stepfather’s uninsured/underinsured motorist coverage with Wausau, which totalled $20,000.00. Tau-bler eventually released the Strauehs and Aetna Casualty and Surety Company for $20,000.00. Taubler then brought suit against Wausau to recover the total amount of underinsured motorist coverage. The trial court entered a summary judgment in favor of Taubler for $20,000.00.

When a tortfeasor has liability insurance with policy limits equal to or greater than those contained in uninsured/underinsured motorist coverage possessed by an injured party, the injured party cannot recover under his or her own uninsured/underinsured motorist policy. Scharfschwerdt v. Allstate Insurance Company, 430 So.2d 578 (Fla. 5th DCA 1983); see Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla. 1978). Because the Strauchs’ liability insurance policy limits were greater than those contained in Taubler’s underinsured motorist policy, Taubler was not entitled to recover under that policy. Therefore, we must reverse.

REVERSED.

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


author: BASKIN, Judge.

text:
    VARIETY CHILDREN’S HOSPITAL, a Florida corporation, f/u/b/o Continental Insurance Company, a foreign corporation, Lexington Insurance Company, a foreign corporation, and United States Fire Insurance Company, a foreign corporation, Appellants, v. MT. SINAI HOSPITAL OF GREATER MIAMI, INC., and Travelers Indemnity Company, Appellees.
    No. 83-1322.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Rehearing Denied May 2, 1984.
    Gerald E. Rosser, Miami, for appellants.
    Adams, Hunter, Angones & Adams and Christopher Lynch, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

The issue presented in this appeal is whether the voluntary dismissals of two prior actions, one seeking indemnity and contribution and the other seeking declaratory relief to establish insurance coverage, bar a third lawsuit arising out of the same factual background. We hold that the two-dismissal rule of Florida Rule of Civil Procedure 1.420 authorized the trial court to enter final summary judgment for appel-lees. We therefore affirm.

In 1978, Variety Children’s Hospital filed suit against Mt. Sinai, Travelers Insurance Company and others, seeking contribution and indemnity for liability resulting from the alleged negligence of Dr. Mario Nanes. Variety’s action was the result of a lawsuit instituted against Variety by Thomas and Sharon Perkins seeking damages for Dr. Nanes’s negligence. See Variety Children’s Hospital, Inc. v. Perkins, 382 So.2d 331 (Fla. 3d DCA 1980). Variety voluntarily dismissed its action.

In 1979, Variety, joined by its insurer, Continental Insurance Company, filed a petition for declaratory relief. The declaratory action repeated the allegations that Dr. Nanes was negligent while serving at Variety pursuant to a contract between Variety and Mt. Sinai. Variety sought a declaration of the extent of insurance coverage under the Travelers’ policy. Again, Variety voluntarily dismissed its action.

In 1981, Variety and other appellants sought indemnity and contribution from Mt. Sinai and Travelers based on Dr. Nanes’s negligence. This action terminated when the trial court granted summary judgment in favor of appellees. The court ruled that the second dismissal operated as an adjudication on the merits, barring the third lawsuit. Disagreeing with the trial court’s decision, Variety and its insurers appealed. They contend that the first two lawsuits were not based upon the same claim and therefore did not operate to bar the third action.

The effect of multiple voluntary dismissals appears in Florida Rule of Civil Procedure 1.420 which provides:

(a) Voluntary Dismissal; Effect thereof.
(1) By Parties. Except in actions wherein property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (i) by serving or during trial, by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if such motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. If a lis pendens has been filed in the action, a notice or stipulation of dismissal under this paragraph shall be recorded and cancels the lis pen-dens without the necessity of an order of court, (emphasis supplied)

To apply the rule to the case before us, we must review the prior pleadings and determine whether the dismissed actions are based on or include the same claim. We turn for guidance to Crump v. Gold House Restaurants, 96 So.2d 215 (Fla.1957). In Crump the court explained that the word “action” denotes an entire controversy whereas “claim” describes a “cause of action.” See Wright & Miller Federal Practice and Procedure-Civil, § 2368. Citing Gordon v. Gordon, 59 So.2d 40 (Fla.1952), the Crump court found that fraud and mismanagement, accounting and injunction claims were sufficiently different to preclude invocation of the two-dismissal rule.

Gordon examines the issue in the context of res judicata. Res judicata applies when four factors are present: (1) identity in the thing sued for, (2) identity of the causes of action, (3) identity of persons and parties to the actions, and (4) identity of quality or capacity of person against whom the claim is made. See Matthews v. Matthews, 133 So.2d 91 (Fla. 2d DCA 1961). In Crump the primary focus of the two-dismissal rule is on identity of the causes of action.

In Florida, the test for deciding whether there is identity of causes of action rests upon a comparison of the facts constituting the underlying transaction. See Gordon; Betts v. Betts, 63 So.2d 302 (Fla.1953); Restatement of Judgments § 61 comment b (1942); Restatement (Second) of Judgments §§ 24, 25 (1982).

The Restatement (Second) of Judgments section 24 comment a (1982) provides in part:

The present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to’ support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.

Similarly, section 25 comment f provides in part:

Successive actions for different remedies. As the result of a single transaction or a connected series of transactions giving rise to a unitary claim, the plaintiff may be entitled to a number of alternative or cumulative remedies or forms of relief against the defendant. In a modern system of procedure it is ordinarily open to the plaintiff to pursue in one action all the possible remedies whether or not consistent, whether alternative or cumulative, and whether of the types historically called legal or equitable.

Examining the claims in the case before us, we find that both actions raised issues of contribution, indemnity and sub-rogation arising from liability incurred in the Perkins action. Although the remedies requested differed, the underlying transaction was the same. The first complaint alleged that Dr. Nanes was an employee of Mt. Sinai Hospital, that hé had been negligent, and that Mt. Sinai and Travelers were subject to liability for his negligence. The declaratory relief sought in the second action pertained to the extent of the insurance coverage available under Travelers’ policy for Dr. Nanes’s negligence. In both actions, the same evidence would serve as the basis for proving the transaction and Mt. Sinai’s liability. Thus, despite the pleading of different remedies, contribution, indemnity and declaratory relief, it is evident that the claims represent the same cause of action under Crump. Accordingly, the dismissal of the first two actions operates as a bar to the filing of a third complaint by Variety and by those in privity with Variety, including its insurers.

For these reasons, we affirm the Final Summary Judgment.


text:
    ELI ROSS DISTRIBUTORS, INC., a Florida corporation, Appellant, v. AMUSEMENT GAMES, INC., a Florida corporation, and R.W. Cooper and Lloyd Straw, Appellees.
    No. 83-2312.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Rehearing Denied May 1, 1984.
    Friedman & Miller and Robert Miller, North Miami Beach, for appellant.
    Richard L. Seidel and Robert L. Bloom-berg, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the trial court’s denial of the plaintiff’s motion to correct a clerical mistake in a judgment upon a holding that Florida Rule of Civil Procedure 1.540(a) contemplates the amendment sought herein. See Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla.1979); R.R. Ricou & Sons Co. v. Merwin, 94 Fla. 86, 113 So. 745 (1927); Becker v. King, 307 So.2d 855 (Fla. 4th DCA), cert. dismissed, 317 So.2d 76 (Fla.1975).

Reversed and remanded for further proceedings.


text:
    James FERGUSON, Appellant, v. The STATE of Florida, Appellee.
    No. 84-147.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    James Ferguson, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   On Motion for Rehearing Granted

PER CURIAM.

The state’s motion for rehearing is granted. The opinion of this court previously filed February 28,1984 is vacated and withdrawn.

The order appealed from is affirmed.


author: FERGUSON, Judge.

text:
    Sandor SZABO and Joan Szabo, his wife, Appellants, v. ASHLAND OIL COMPANY, Exxon Corporation, Allen Chemical Company, and Bostick Chemical, a division of USM corporation, Appellees.
    No. 83-9.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.

      Gary E. Garbis, Horton, Perse & Ginsberg, Miami, for appellants.
    Dixon, Dixon, Hurst & Nicklaus, and James A. Dixon, Jr., Mitchell, Harris, Canning, Murray & Usich, Highsmith, Strauss, & Glatzer, Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   ON MOTION FOR REHEARING

FERGUSON, Judge.

Plaintiff brought suit against nine defendants, alleging injury in the course of his employment from exposure to chemical products manufactured by the defendants. Motions for summary judgment were made by four of the defendants on the ground that the action was barred by the statute of limitations. The defendants’ motions were supported by plaintiff’s own testimony on deposition wherein he .stated, with uncertainty, when he first learned that his injuries might be causally related to these chemical products. The testimony was as follows:

Q. Approximately when was it that Dr. Schwartzman told you that he thought that you had some form of illness that was associated or that this numbness was caused by something that you were being exposed to at work?
A. (No response.)
Q. When did he tell you that?
A. I cannot tell you exact time.
Q. Give me a year.
A. I would say ’74 or ’75.

This action, which is governed by a four-year statute of limitations, was not filed until June, 1981. Based upon plaintiff’s testimony, the court entered summary judgment for defendants.

Plaintiff relied on an affidavit by his physician, which was attached to a motion for rehearing of the summary judgment motions, as setting up a factual issue requiring the trial court to reverse its judgment. In that affidavit, Dr. Schwartzman avers that it was not until approximately December, 1977, that he informed the plaintiff of a causal relationship between the chemical products used by the plaintiff in his employment and the disease which is the subject of the lawsuit. Dr. Schwartz-man further alleges that it was in 1977 that medical science first established a causal relationship between the use of such products and the disease.

Defendants, citing Kramer v. Landau, 113 So.2d 756 (Fla. 3d DCA 1959), contend that plaintiff’s testimony is binding on him and that he should not be permitted, by the affidavit of another person, to repudiate his previous deposition testimony so as to create a jury issue without an attempt to excuse or explain the discrepancy. Conceding a material variance between the testimony of the plaintiff and the affidavit of the physician, plaintiff relies on Willage v. Law Offices of Wallace and Breslow, 415 So.2d 767 (Fla. 3d DCA 1982). Willage holds that a party may give a subsequent affidavit for the purpose of explaining testimony given in a prior affidavit or deposition, as long as the explanation is credible.

The principles of law from Kramer and Willage, although their application is made tempting by the parties, would serve only to cloud the real issue.

The cited cases are inapposite because Dr. Schwartzman’s affidavit does not dispute plaintiff’s earlier testimony on a material issue. The question propounded to plaintiff did not address the ultimate question — when plaintiff knew or reasonably should have known that he had a cause of action against the named defendants. Rather, the question was when did Dr. Schwartzman tell plaintiff that he thought there was a causal relationship between the illness and “something that [plaintiff was] being exposed to at work.” The answer to the propounded question may be probative of, but is not dispositive of, the ultimate question. Dr. Schwartzman’s affidavit was, more precisely, the only evidence on a material issue, i.e., when did medical science first establish to a reasonable certainty, a cause and effect relationship between the subject solvents and peripheral poly-neutritis. See Brown v. Armstrong World Industries, 441 So.2d 1098 (Fla. 3d DCA 1983) (defendants who rely on statute of limitations must show that cause and effect relationship between product and injury could have been established to a reasonable medical certainty before time for bringing action had expired).

The record shows that, on the statute of limitations question, the defendants simply failed in their burden to demonstrate conclusively the absence of a genuine issue of material fact. See Perez v. Universal Engineering Corp., 413 So.2d 75 (Fla. 3d DCA 1982) (summary judgment was inappropriate where movants failed to show conclusively that plaintiff knew or should have known earlier of existence of cause of action).

We do, however, affirm the summary judgment in favor of appellee Allen Chemical Company for reasons advanced below but not ruled upon by the trial judge. See Hester v. Gatlin, 332 So.2d 660, 663 (Fla. 2d DCA 1976) and cases cited therein. Allen’s sworn statement that it was not a manufacturer, distributor, or seller of the products in question was not disputed in the trial court, nor is it challenged here on appeal. We have reviewed the additional contentions of the other appellees, and find that they are without merit.

Affirmed in part; reversed in part, and remanded.

      . The defendants also asserted other grounds as a basis for summary judgment. While noting that these other grounds appeared to have merit, the trial court ruled only on the statute of limitations defense.

      . § 95.11(3), Fla.Stat. (1981).


text:
    Spencer ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1563.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Rehearing Denied May 2, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment of guilty of “ATTEMPTED MANSLAUGHTER, a lesser included offense as contained in the Information” and a sentence under the Youthful Offender Act to a six year commitment to the Department of Corrections, the first two years of which were to be served in prison and the last four on probation.

The information charged appellant with attempted first degree murder by shooting a named person on December 9, 1979. The undisputed evidence at trial established that appellant shot the victim three times. The only factual issue was whether appellant fired the shots in self defense. Pursuant to a jury instruction appellant requested, a jury found him guilty of “ATTEMPTED MANSLAUGHTER, a lesser included offense as contained in the Information. ...” The court, on August 11, 1980, imposed judgment pursuant to the verdict and sentenced appellant under Section 958.-05(2), Florida Statutes (1979), after finding under Section 958.04(2), Florida Statutes (1979), that it was required to treat appellant as a youthful offender.

The first two of the three points on appeal attack the validity of the judgment, contending that the circuit court lacked jurisdiction to adjudge appellant guilty of attempted manslaughter because there is no such offense. The supreme court in Taylor v. State, 444 So.2d 931 (Fla.1984), held that a defendant may be convicted of attempted manslaughter if there is proof that the defendant had the requisite intent to commit an unlawful act, but he could not be convicted if the underlying conduct were culpable negligence. There is no question here that the appellant did intend to shoot the victim. Thus, the requisite proof is present and the judgment of guilty of attempted manslaughter was lawful.

The last point on appeal attacks the legality of the sentence, urging that appellant could be sentenced to the Department of Corrections for a maximum period of five years, since attempted manslaughter is a third degree felony, which may be punished by imprisonment for not more than five years.

The First District Court of Appeal, in Dunlap v. State, 433 So.2d 631 (Fla. 1st DCA 1983), rejected a substantially identical contention, upon a holding that sentencing for any felony, including a third degree felony, must be accomplished in accordance with Section 958.05, Florida Statutes, which provides that a court is to follow that section “in lieu of other penalties authorized by law” in disposing of criminal cases involving persons the court classifies as youthful offenders. We affirm the six year commitment to the Department of Corrections upon authority of Dunlap v. State, supra.

However, we note that the placement of appellant on probation after his period of imprisonment was inappropriate and must be modified. As the court said in Cruce v. State, 432 So.2d 734 (Fla. 4th DCA 1983):

“ ‘Chapter 958 authorizes defendant’s placement in a community control program upon completion of incarceration but does not authorize a term of probation.’ ”

Accordingly, the cause is remanded for modification of sentence. In all other respects the judgment and sentence are affirmed.

AFFIRMED AND REMANDED for modification.

ANSTEAD, C.J., DOWNEY, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . Because of an amendment effective October 1, 1980, such treatment became discretionary rather than mandatory. Chapter 80-321, Laws of Florida.


text:
    Raymond DIMARIA, a minor, By and Through his next friends, Joseph and Judith DIMARIA; Joseph and Judith Dimaria, Appellants, v. Norma STICKNEY, as personal representative of the Estate of Reginald Hall Johnson, deceased, First National Insurance Company of America, a foreign corporation, and Federal Insurance Company, Appellees.
    No. 82-2503.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Rehearing Denied May 2, 1984.
    H.L. Cooper, Jr., of O’Connell, Cooper, Parrish & McBane, and Larry Klein, West Palm Beach, for appellants.
    Dennis J. Wall, of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for appellee First Nat. Ins. Co. of America.
    F. Neal Colvin, Jr., of Van Kleeck, Norton & Schmidt, Boca Raton, for appellee Stickney.
   PER CURIAM.

Involved here are two cases which were consolidated at the trial level, the factual circumstances of which arose from a car accident.

As to the issue raised on appeal, Circuit Court Case No. 81-5048 CA(L) 01 I, we determine that the trial court correctly entered summary final judgment as a matter of law in favor of the insurer with regard to the issue of coverage. Having determined that the driver of the vehicle was not a “covered person” as defined in the policy, we therefore affirm the issue raised on appeal upon the authority of Henigson v. Davis, 305 So.2d 86 (Fla. 4th DCA 1974), certiorari denied, 315 So.2d 180 (Fla.1975).

As to the matter raised on cross-appeal, in Circuit Court Case No. 81-5426 CA(L) 01 I, we affirm upon the authority of National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977); Kings Point West, Inc. v. North River Ins. Co., 412 So.2d 379 (Fla. 2d DCA 1982); and Klaesen Bros., Inc. v. Harbor Ins. Co., 410 So.2d 611 (Fla. 4th DCA 1982).

AFFIRMED.

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


text:
    Emilie Marie O’KEEFE, Appellant, Cross/Appellee, v. Edmund H. O’KEEFE, Appellee, Cross/Appellant.
    No. 83-1628.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Rehearing Denied May 1, 1984.
    Thomas E. Warner of Warner, Fox & Seeley, and Martha C. Warner, Stuart, for appellant/cross-appellee.
    Russell J. Ferraro, Jr., of McManus, Stewart & Ferraro, Stuart, for appel-lee/cross-appellant.
   PER CURIAM.

This is a dissolution of marriage case where the parties, being dissatisfied with various portions of the final judgment as concerns financial matters, have filed an appeal and a cross-appeal.

With the exception hereafter noted, we affirm upon authority of Canakaris v. Ca-nakaris, 382 So.2d 1197 (Fla.1980).

We opine that the trial court erred in failing to order appellee, Edmund H. O’Keefe, to provide medical insurance coverage for the minor children of the marriage when appellee offered to continue to provide such coverage. Thiel v. Thiel, 426 So.2d 1212 (Fla. 4th DCA 1983).

Affirmed in part; reversed in part; and remanded for further proceedings consistent herewith.

HURLEY, DELL and WALDEN, JJ., concur.


author: COWART, Judge. ORFINGER, Chief Judge,

text:
    John A. DIXON, et al., Appellants, v. Jacob Lynn FEASTER, et al., Appellees.
    No. 83-392.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.

      T. Allen Crouch, Gainesville, for appellants.
    H. Randolph Klein of Klein & Klein, Oca-la, for appellees.
   COWART, Judge.

This case involves the right to a way of necessity as that common law concept is recognized in section 704.01(1), Florida Statutes (1981).

When he died in 1943 Jake W. Feaster left children including J. Lynn, James 0., Mary Leila, and Lizzie Lois Feaster Dixon, and owned the 173 acres sketched as follows:

By agreement the children divided this property. Lizzie Lois Feaster Dixon received the northeast 40 acres; Mary Leila Feaster, the southeast 40 acres; J. Lynn Feaster, the northwest 40 acres; and James O. Feaster, the southwest 40 acres. J. Lynn and James O. took title to the 13 acre tract jointly.

When Jake W. Feaster, the ancestor, died there was a service road from county road 329 westward to the two back 40 acre tracts, which is shown as Route 1 on the above sketch. In 1946 Lizzie Lois Feaster Dixon and husband acquired the southeast acres previously owned by Mary Leila Feaster. Thereafter, sometime in the early 1950’s the Dixons and James O. Feaster relocated the road to the two back 40 acre tracts to the location shown as Route 2 on the above sketch. Mrs. Dixon conveyed some of her 80 acres to her children and their spouses. A few years ago J. Lynn Feaster conveyed 5 acres in his 40 acre tract to his son and daughter-in-law, Jerome W. and Patricia Feaster, who, desiring a shorter and better route to their 5 acres, filed an action against the children of Mrs. Dixon and their spouses to establish an easement of necessity under section 704.01(1), Florida Statutes, from the 5 acre tract easterly to County Road 329. The trial judge found that Jerome W. Feaster and wife were entitled to a way of necessity at the location shown as Route 3 oh the above sketch and the defendants appeal. We reverse.

Section 704.01(1), Florida Statutes (1981), provides:

(1) IMPLIED GRANT OF WAY OF NECESSITY. — The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accesible right-of-way except over his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which he conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United States; provided, however, that where there is a common source of title subsequent to the original grant from the state or United States, the right of the dominant tenement shall not be terminated if title of either the dominant or servient tenement has been or should be transferred for nonpayment of taxes either by foreclosure, reversion, or otherwise.

As section 704.01(1), Florida Statutes, makes clear, in order to entitle an owner of a dominant estate to a way of necessity over the servient estate both properties must have at one time been owned by the same party. This requirement is called a "unity of title”. The first relevant “unity of title” involved in this case was that held jointly by the heirs of Jake W. Feaster at the time of his death. The Feaster heirs (J. Lynn Feaster and James O. Feaster) who took the two back (west) 40 acre tracts reserved no express access easement over their interest in the front (east) two 40 acre tracts and were conveyed no express access easement by their coparceners. Perhaps J. Lynn and James O. Feaster received the additional IS acre tract to equalize the difference in value between the front tracts with their value enhanced by ready road access and the value of the back tracts with their access problem. Or'perhaps they obtained the 13 acres tract to assure themselves substantial but imperfect access from the county road to the two back 40 acre tracts. In any event, assuming contrary to these possibilities and most favorably to the two back 40 acre tracts, a way of necessity for access to them across the front 80 acres could reasonably be implied by law. However, the implied or presumed right of way for access would be that located at Route 1 because an actual way across the front tracts giving access to the two back tracts existed and was in actual use for that purpose at that location at that time and, therefore, there was no need or reason to imply its location at any other point.

Next, the Dixons and James O. Feaster then agreed to swap the location of the right of way from its location at Route 1 to the location shown as Route 2. Because these persons were all persons then owning the lands to which benefit or detriment resulted from the right-of-way swap, no one else can complain as to their action and those persons who made the swap are not now complaining in any way. Specifically, Lizzie Lois Feaster Dixon is not complaining about the fact that where Route 2 moves from the 13 acres tract to the southwest 40 acres owned by James O. Feaster it cuts a corner around a pond and transgresses a little across some of her property in the southwest corner of the southeast 40 acres.

Although it does not appear to affect or effect a proper result in this case, a second “unity of title” results from the fact that in 1949 J. Lynn Feaster sold his northwest 40 acres and his joint interest in the 13 acre tract to his brother James 0. Feast-er who, in 1962, reconveyed the northwest 40 acres to J. Lynn Feaster. The reconveyance would appear to be adequate to remove any question about the legal basis for implying a way of necessity in favor of the northwest 40 acres down and over Route 2 as it crosses the southwest 40 acres and the 13 acre tract.

A third “unity of title” and way of necessity would appear to result in favor of the 5 acre tract sold by J. Lynn Feaster to appellees Jerome W. Feaster and wife. This would appear to exist over the lands between the 5 acre tract and the north end of Route 2 at the southwest corner of the 35 acres retained by J. Lynn Feaster.

In addition to the requirement of unity of title from a common source, and in order that a grant of a way of necessity be implied by the common law, the common source of title must have caused the dominant estate to have become landlocked. See 2 Thompson on Real Property, § 364 at 405 (rev. ed. 1980). Here the partition by the heirs of Jake W. Feaster in 1945 did not cause appellee Jerome W. Feaster’s 5 acre tract, or even the 40 acre tract of which it is a part, to become landlocked because its owners had access to the county road by the use of the existing road at Route 1 and they swapped that right for the right to use Route 2 which continues to date to give access from the two back 40 acre tracts to the county road. Because of the existing actual way of ingress and egress at Route 1 in 1945 there was no basis for implying a way of necessity at any other location. In 1945 the area through which Route 3 passes was heavily wooded and there is no factual basis for any inference that the Feaster heirs in 1945 intended an access easement at that location.

Route 1 (or its agreed substitute, Route 2) is the way of necessity that the law would imply from the history of the title to these tracts of land and none of the owners of the servient estate under the access way along this route have objected to, or threaten to stop, its use by owners of property in the two back 40 acre tracts. Nevertheless, appellee Jerome W. Feaster and wife do not want the benefit of this easement at .this route. They claim, and apparently the trial judge agreed, that they have no legal easement over this route “created by prescriptive use” and, therefore, that they have no legal access and, having none, they are entitled under section 704.01(1), Florida Statutes, to have the law imply a way of necessity to them and that the route, the use of which will be most beneficial to their 5 acre tract, and the one which is most “practicable” and which they will most enjoy, is a route across appellants’ lands due east from their 5 acres to the county road. The trial judge apparently agreed but located the new easement at Route 3 (which does not connect with the 5 acre tract) because there it is centered over a land line between two parcels owned by appellants.

Appellees Jerome W. Feaster and wife argue that while Route 2 may have been satisfactory for farm use access in 1945 because of its condition, length and location it would now cost much more to fill, stabilize and improve Route 2 than Route 3 and that, therefore, Route 2 is not “practicable” for use for modern car traffic to get to the home they desire to build on their 5 acre tract. Appellees Jerome W. Feaster and wife cite the statutory definition of “practicable” in section 704.03, Florida Statutes, and Walkup v. Becker, 161 So.2d 893 (Fla. 1st DCA 1964), and Redman v. Kidwell, 180 So.2d 682 (Fla. 2d DCA 1965), cert. den., 188 So.2d 806 (Fla. 1966), appeal dismissed, 189 So.2d 631 (Fla.1966), which they interpret as replacing the common law “strict necessity” rule with a more flexible “reasonable necessity” rule. Nonetheless, both the statute and these cases purport to adopt the common law way of necessity which rests upon the common law concept of an implied grant and that implication is applicable only as to conditions existing at the time of circumstances giving rise to the implication; that is, to the time of the conveyance by the common source of part of a tract that caused the other part to become landlocked.

A way of necessity was implied by the common law based on the reasonable presumption that' the original parties intended the grantor to convey to the grantee whatever easement over lands retained by the grantor as was necessary for access for the grantee to use the property conveyed or that the parties intended the grantor to retain whatever easement over lands conveyed as was necessary to retain access for the grantor to continue to use lands retained. Section 704.01(1), Florida Statutes, purports to recognize, adopt and clarify this common law rule of an implied grant of a way of necessity. This common law implied grant of a way of necessity has nothing to do with the acquisition of an easement, such as for a road, by prescriptive use. Furthermore, a statute cannot constitutionally expand or extend the common law concept beyond its original reasonable, rational, logical and probable real life, common sense connection between the bare fact of an owner conveying part of his lands under circumstances leaving the conveyed lands or the retained lands without access and the presumed intent of the parties to that conveyance at that time and place because to do so would be to stretch reality into a mere fiction. This might be convenient to the general public interest and to some private parties because it could be used as a convenient device for private parties to avoid the necessity of paying for their needed rights of way for ingress and egress and for the government to avoid the necessity of exercising the power of eminent domain to provide adequate public access to newly developing lands in accordance with their increased needs for access. However, at the same time, such an interpretation would effectively constitute the granting of a private right of eminent domain authorizing the taking of private property rights without the payment of full and adequate compensation as required by the constitution and the giving of such private property rights to other private parties. No matter how subtle or obtuse the method, this is not permitted under our constitutional form of government. The result of such a doctrine is easy to visualize in this particular case. If the present or future owners of portions of the back 80 acres in this case continue to fail to consider the need for express easements of ingress and egress and continue to subdivide and upgrade the use of the land and are always successful in looking to the courts to provide their current needs under section 704.01(1), Florida Statutes, where will it all end? When J. Lynn Feast-er or his successors in title sell the 5 acre tract immediately north of the 5 acres now owned by appellee Jerome W. Feaster and wife, will that 5 acre tract also be entitled to a direct route east to the county road and across appellants’ lands? Will each and every other tract or lot into which the back 80 acres may be subdivided also be entitled to its own “practicable” route defined in terms of its then specific and current needs and location across appellants’ lands? To the same extent that the rationale and needed factual basis for the common law implication of a grant of a way of necessity is disregarded in favor of a rule based merely upon the reasonable needs of the present property owners, to that same extent private property rights are unlawfully taken from some and given to others. This cannot be constitutionally done.

There is a further problem. The grantor and grantee to the original conveyance dividing a tract with limited access to public roads should be able to readily see that their action is creating an access problem to a parcel severed or retained and the common law implication as to their intent is certainly not unfair as to them. However, if the implied way of necessity is not established physically and visibly on the ground the circumstances would normally not give subsequent good faith purchasers and lenders actual or legally sufficient constructive notice of the implied easement across the servient estate. This is so because neither a careful examination of the recorded chain of title to, nor an accurate survey or personal ground inspection of, the servient tract will necessarily or usually give notice of facts and circumstances that would put a cautious title examiner (or even a normal, reasonable and prudent person) on notice of the potential claim of a way of necessity in favor of some other tract of land. Must the cautious purchaser or lender inquire as to the sufficiency, “practicality” and legality of the present public access to all other tracts that were ever a part of some larger land tract of which the parcel in which he is interested was once a part? Stretching the basis of the common law implied way of necessity to provide for the current and enlarged needs of some present owner of a part of a long ago divided tract of land at the expense of other good faith present owners of other parts of such tract ignores the concept of a purchaser without notice of hidden land claims and the purposes of recording statutes and of legal doctrines relating to actual and constructive notice and constitutes a serious threat to the stability, marketability and insurability of land titles.

The final judgment “awarding” an easement of necessity across appellants’ lands at Route 3 is

REVERSED.

DAUKSCH, J., concurs.

ORFINGER, C.J., concurs specially with opinion.

ORFINGER, Chief Judge,

concurring specially.

I concur in the result reached by the majority opinion. I write only to say that the opinion appears to be in direct conflict with that of Walkup v. Becker, 161 So.2d 893 (Fla. 1st DCA 1964), and I think we should say so.

      . The parties do not remember the exact year the road was relocated. J. Lynn Feaster conveyed his 40 acre tract and his interest in the 13 acre tract to James O. Feaster in 1949 before reacquiring the 40 acre tract in 1962, and J. Lynn testified that he was not a party to the agreement to relocate the road.

        . See Crigger v. Florida Power Corp., 436 So.2d 937 (Fla. 5th DCA 1983), for an example and explanation of the consequences of the shift in the theoretical basis for the concept of a prescriptive right of use from the common law presumption of a prior "lost” grant to a theory based on analogy to acquiring title to land by adverse possession. The basis for the common law presumption of a prior "lost” grant, which supported the now outmoded common law concept of prescriptive rights, was very analogous, and in harmony with, the common law presumption of a grant of a way for ingress and egress when necessary for the use of lands granted or retained by a common owner. An implied grant of a way of necessity is, theoretically, necessarily a permissive use and a permissive use is anathema to an adverse use and vice versa. The concept of an implied grant of a way of necessity and the concept of a way acquired by prescriptive use are absolutely mutually repugnant and inconsistent methods at arriving at the same result. One cannot acquire a right of way by both concepts and proof of facts supporting one theory always constitutes proof of facts defeating the other theory. Proof of both constitutes proof of neither.

       An awarded way of necessity not only takes the right of exclusive use of the servient owner’s property from him but, in order to use or protect the remainder, it often imposes the practical and legal duty of erecting, and forever maintaining, fences. See Ch. 588, Fla.Stat.


author: PER CURIAM. JORGENSON, Judge,

text:
    Joann LE MIEUX, Appellant, v. MIAMI DADE COMMUNITY COLLEGE, a subdivision of the State of Florida, Appellee.
    No. 83-1057.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing Denied May 1, 1984.

      Horton, Perse & Ginsberg and Edward A. Perse, Hoppe & Backmeyer, Miami, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appel-lee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment entered in an action against the appellee for injuries sustained when appellant was attacked by an intruder in a restroom at Miami Dade Community College, North Campus, as a result of the alleged negligence of the college.

Our review of the record convinces us that summary judgment was improper as there were issues of fact that deserved development in further proceedings. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); McCoy v. Hoffmeister, 435 So.2d 989 (Fla. 5th DCA 1983); Moore v. Freeman, 396 So.2d 276 (Fla. 3d DCA 1981), and cases cited; Dawson v. Scheben, 351 So.2d 367 (Fla. 4th DCA 1977); Byrnes v. Publix Super Markets, Inc., 272 So.2d 218 (Fla. 4th DCA 1973).

Therefore, the judgment appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

JORGENSON, Judge,

concurring specialty-

I agree that the summary judgment should be reversed because discovery was still ongoing. See Moore v. Freeman, 396 So.2d 276 (Fla. 3d DCA 1981). Because the record is not fully developed I take no position on the ultimate liability of the defendant, a public institution, and the duty it owes to the plaintiff, a student who was injured by the criminal acts of a third party. See Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980).


text:
    U. Rolande BROWN, Appellant, v. Roberta DI PETTA, Appellee.
    No. 83-2095.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing Denied May 2, 1984.

      Scott T. Eber, Miami, for appellant.
    Joseph C. Segor, Miami, for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

This is an appeal from an order granting summary judgment in favor of Roberta Di Petta, one of the claimants in an interpleader action brought by the insurance company seeking designation of the proper beneficiary. Based upon our review of the record disclosing that the decedent failed to comply with procedures of the insurance company required to effectuate a change of beneficiary, we affirm. It is a well-settled rule of law that a beneficiary under a life insurance policy may be changed only by strict compliance with the conditions set forth in the policy. Gerstel v. Arens, 143 Fla. 20, 196 So. 616 (1940); Warren v. Prudential Ins. Co. of America, 138 Fla. 443, 189 So. 412 (1939); Sheppard v. Crowley, 61 Fla. 735, 55 So. 841 (1911). We conclude that the decedent’s mere intent to change the beneficiary of the policy was legally insufficient absent an effective designation of beneficiary on the form required by the insurer. See Garner v. Bemis, 81 Fla. 60, 87 So. 426 (1921). Furthermore, we find no merit in appellant’s contention that because the insurance company filed an interpleader action, it waived its requirements for effectuating a change of beneficiary. Dixon v. Dixon, 184 So.2d 478 (Fla. 2d DCA 1966) is inapposite. In that case the court found that the decedent had made a lifetime gift of his insurance policy; because he was divested of the incidents of ownership, his subsequent attempt to change the beneficiary was ineffective, regardless of the terms of the policy. Here, however, the decedent retained ownership of the policy during his lifetime and was thus subject to “the provisions for change of beneficiary established by the contract ... [and] binding on the parties.” Id. at 480. The insurance company did not waive its binding contract provisions by filing an interpleader action.

Affirmed.


author: ZEHMER, Judge.

text:
    Luis ACOSTA, Appellant, v. KRACO, INC., and Corporate Group Services, Appellees.
    No. AT-7.
    District Court of Appeal of Florida, First District.
    April 3, 1984.

      Sadow, Lynne & Gonzalez, North Miami, for appellant.
    Adams, Kelley & Kronenberg, Miami, for appellees.
   ZEHMER, Judge.

This workers’ compensation case presents another in a continuing series of challenges to the constitutionality of section 440.15(3)(b)3d, Florida Statutes (1979), which prohibits injured employees sixty-five years of age and older from receiving wage-loss benefits. This court previously upheld the validity of this statute against numerous constitutional challenges in Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), and O’Neil v. Dept. of Transportation, 442 So.2d 961 (Fla. 1st DCA 1983). Both of these decisions are presently under review by the Florida Supreme Court.

The appellant/claimant has made three arguments regarding the alleged unconstitutionality of section 440.15(3)(b)3d, Florida Statutes:

(1) The Sasso court incorrectly determined that the statute does not violate equal protection.

(2) The statute violates the federal supremacy clause because it conflicts with the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (1983).

(3) The statute violates the federal supremacy clause because it conflicts with section 403(f)(3) of the Social Security Act. 42 U.S.C. § 403(f)(3) (1983).

The first argument is simply a reargument of the Sasso case, in which this court rejected claimant’s contention. Claimant’s second argument, regarding the Age Discrimination in Employment Act, has also been addressed and resolved adversely to claimant in O’Neil. We are constrained by the doctrine of stare decisis to follow these decisions. Claimant’s third argument, however, has not yet been addressed by this court.

Claimant’s third argument centers upon section 403(f)(3) of the Social Security Act, Title 42, U.S.Code, which allows a recipient of social security benefits between the ages of sixty-five and seventy to receive the full amount of benefits so long as earned income does not rise above a maximum level and, also, allows the receipt of partial benefits to the extent earned income exceeds such maximum level. Recipients of social security benefits over the age of seventy may receive the full amount of benefits without regard to their income level. The avowed purpose of the statute is to allow those persons over the age of sixty-five who continue participating in the work force to recover all or part of their investment in the social security program. Raskin v. Moran, 684 F.2d 472, 476 (7th Cir. 1982).

Claimant argues that section 440.-15(3)(b)3d, Florida Statutes, operates in contravention of this federal statute by providing that a person over the age of sixty-five cannot receive wage-loss benefits. Claimant alleges that this statute deprives persons over sixty-five of wage-loss benefits specifically because of their eligibility to receive social security benefits. This alleged rationale is arguably contrary to the federal law which states that a person over sixty-five is permitted to receive both social security benefits and earned income at the same time.

Appellant places primary reliance upon the case of Raskin v. Moran, supra, in which the Seventh Circuit reviewed a Wisconsin statute that specifically reduced, in an amount exactly equal to the social security benefits they received, the salary of judges who were over the age of seventy. The admitted purpose of this statute was to avoid “double dipping,” whereby an employee would receive a full salary plus social security benefits. The court held the Wisconsin statute unconstitutional because it “stand[s] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 477. The court further found:

Although not directly preventing or impeding plaintiffs receipt of social security' benefits, Wisconsin effectively deprives the recipient of those federal benefits by reducing plaintiffs’ salaries in an amount precisely equal to the federal benefits.

Id.

Although we agree with the rationale and reasoning of Raskin, we are compelled, in light of Sasso, to distinguish it from the present case. Unlike the Wisconsin statute, the Florida statute in question does not specifically rely upon the receipt of social security benefits in mandating elimination of wage-loss benefits to persons over the age of sixty-five. Although such reliance seems clearly implicit to us, the Sasso court held that the prevention of “double dipping” was not a valid purpose upholding the statute. The court hypothesized that other purposes behind the statute were:

(1) To cut the payment of employment-related fringe benefits due to an old-age related decline in productivity and physical abilities;
(2) To make room in the job market for younger workers by inducing retirement of older workers through a process of wage or fringe benefit reduction; and
(3) To reduce the costs of insurance premiums to the employers.

Sasso at 218.

In view of the rationale of Sasso, we must conclude, that the valid purposes of section 440.15(3)(b)3d are not directly related to preventing “double dipping,” and, accordingly are not in contravention of the salutary purpose behind section 403(f)(3) of the Social Security Act. We do, however, certify the following question to the Supreme Court as one of great public importance:

DOES SECTION 440.15(3)(b)3d, FLORIDA STATUTES (1979) VIOLATE THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION BECAUSE IT CONFLICTS WITH 42 U.S.C. SECTION 403(f)(3) (1983)?

We suggest that the inequities and hardships being created by section 440.-15(3)(b)3d are appropriate subjects for further investigation and consideration by the legislature.

AFFIRMED.

WENTWORTH and NIMMONS, JJ., concur.

      . Sasso was argued before the Supreme Court on March 5, 1984, and O’Neil is in the early stages of the appellate review process.


author: GLICKSTEIN, Judge.

text:
    Michael PETTIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1068.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Rehearing Denied May 2, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

There are two issues involved in this appeal. The first is whether appellant was properly sentenced to two consecutive three-year mandatory minimum terms after being convicted of aggravated battery upon one individual and aggravated assault upon another. We hold he was not because the episode involving both victims occurred at the same time and place. Palmer v. State, 438 So.2d 1 (Fla.1983) was decided by the supreme court after the sentencing in this case; accordingly, the trial judge did not have the benefit of that decision — albeit it was a 4-3 result. Chief Justice Alderman, speaking for the dissenting justices, was of the opinipn that a robber victimizing thirteen victims in a funeral home by use of a firearm was appropriately sentenced to thirteen consecutive three-year mandatory minimum terms. He observed in his reading of sections 775.087(2) and 775.021(4), Florida Statutes (1981) that had Palmer committed thirteen robberies in thirteen separate homes, he could have received thirteen consecutive three-year mandatory minimum sentences, noting:

Certainly a defendant who commits multiple crimes should be punished more severely than one who commits only one crime. The legislature did not intend that crime be “cheaper by the dozen.”

Id. at 4. The majority, basing its decision on statutory construction, concluded that consecutive mandatory minimum sentences would be proper for offenses arising from separate times and places but not for holding up the mourners and staff of the funeral home.

The second issue has been raised by the state, which contends that appellant did not raise the impropriety of the consecutive mandatory minimum sentences at the trial level. We can think of no more fundamental error than the excess caging of a human being without statutory authority. Such an error in sentencing should be visited by an appellate court even if the trial court did not have the opportunity to do so. See Pugh v. State, 423 So.2d 398, 399 (Fla. 1st DCA), dismissed 426 So.2d 28 (Fla. 1982), which held:

Because the error in sentencing could cause Pugh to be incarcerated for a greater length of time than the law permits, it is fundamental, and we must consider it although Pugh could otherwise challenge it via a Rule 3.850 motion. Polk v. State, 418 So.2d 388 (Fla. 1st DCA 1982); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981).

Accordingly, we remand the matter to the trial court with direction to correct the sentence in accordance herewith. Appellant need not be present.

DOWNEY, J., concurs.

ANSTEAD, C.J., concurs in conclusion only.