author: FERGUSON, Judge.

text:
    Juan Laureano GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1837.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 30, 1984.

      Bennett H. Brummer, Public Defender and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

Appellant asserts as points on appeal: (1) it was error to deny his motion to suppress a statement obtained from him by officers who knew that he was represented by counsel, after he had invoked his right to counsel, where the interrogation was initiated by the officers in violation of his fifth amendment rights; and (2) it was error to sentence him for felony murder and the underlying felony. By way of cross-appeal, the state asserts that it was error to grant appellant a new trial on the robbery count of the six-count indictment.

Appellant was charged with six felonies: Count 1, premeditated or felony (robbery) murder of Perez; Count 2, premeditated or felony (robbery) murder of an unidentified person; Count 3, robbery of marijuana belonging to Perez; Count 4, attempted premeditated or felony (robbery) murder of Garcia; Count 5, possession of in excess of 2,000 pounds but less than 10,000 pounds of marijuana; Count 6, carrying a concealed firearm. A jury returned verdicts as follows: as to Counts 1 and 2, guilty of third-degree murder, a lesser offense; Counts 3 and 5 guilty as charged; Count 4, guilty of attempted third-degree murder; Count 6, not guilty. Appellant was sentenced to fifteen years each on Counts 1 and 2, five years on Count 4, and twenty-five years on Count 5, all to run concurrently. On Count 3, charging robbery, the verdict was set aside and new trial granted on a finding that:

1. The verdict as to count three was irreconcilably in conflict with counts one, two, four and five.

2. The verdict as to count three was contrary to the weight of the evidence.

The distilled facts are as follows.

On August 21, 1981, at about 1:00 a.m., Officers Petow and Perez, while headed toward a South Dade nursery in response to a burglar alarm, stopped a truck which appeared to be without a tag. Appellant was the driver. Two others, later identified as Martinez and Capote, occupied the front passenger seats. The three were instructed to exit the vehicle.

Officer Perez inquired of Gonzalez what he was doing in the area at that hour of night and asked for a driver’s license. Gonzalez produced his driver’s license, and in response to a question about the missing tag, responded that the truck had a tag which was obstructed by a lifter. Officer Petow observed a black purse on the front seat. He touched the bag and upon feeling what he believed to be a weapon he opened the bag, discovering a gun which he unloaded. Officer Perez inquired as to whether any of the others had weapons. Capote produced a weapon from under his shirt. Both Gonzalez and Capote were arrested for carrying concealed firearms. The third person, Martinez, who had been sitting in the middle nearest the purse containing the firearm, fled from the scene. Gonzalez and Capote were placed in the police car. Because of the strong smell of marijuana, Officer Petow opened the rear door of the truck. He discovered bales of marijuana. Appellant was advised of his Miranda rights but no questions were asked.

Later that morning, still on August 21st, appellant was again advised of his Miranda rights at police headquarters. Officer Riley informed appellant that he was under arrest for trafficking in narcotics, and that two bodies were found near the area where he was arrested. Appellant responded that he had accepted an offer to go to the farm to move furniture and that he knew nothing of what was going on, as he had remained outside the farm while the truck was driven onto the premises by two other men who later returned to pick him up. When questioned about the double homicides, which Officer Riley believed to be related to the marijuana-ladened truck, Gonzalez said that he did not wish to talk.

The next contact with Gonzalez was at his home on October 28, 1981. He had not been in custody for some time. When he was asked by Officer Torres whether he was willing to cooperate in the investigation of the homicides, Gonzalez declined to cooperate and informed the officers that he was represented by counsel. Officers Torres and Sessler next saw Gonzalez sometime between December and April 1st the next year, at which time Gonzalez told them that he would call Officer Torres at some later date. The officers did not attempt to communicate with appellant’s counsel because they knew that she was representing another suspect who could pose a threat to Gonzalez if that client were made aware that Gonzalez was willing to cooperate with authorities.

On April 1, 1982, after a lengthy investigation which connected Gonzalez to the homicides, he was arrested by Torres and Sessler at his home pursuant to a warrant. As Officer Torres took Gonzalez away, he observed Mrs. Gonzalez attempting to reach appellant’s attorney on the telephone. Officer Torres testified that on April 1st, at the station, he advised Gonzalez of his Miranda rights as required in light of the new arrest — just as had been done on August 21,1981. Gonzalez expressed a willingness to talk, signed a rights waiver form, and gave an inculpatory statement. Gonzalez, according to Torres, did not ask for an attorney during the time they were together. Gonzalez was provided with coffee and cigarettes and taken to a restaurant while the statement was being transcribed. The statement was the subject of a motion to suppress, denial of which presents the first issue on this appeal.

I. PRIVILEGE AGAINST SELF-INCRIMINATION

In support of the contention that his statement was illegally obtained, appellant relies on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) which held:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. 451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386.

The Edwards court relied upon the fifth amendment right identified in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which is the right to have counsel present at any custodial investigation. Appellant argues here that according to Edwards, his assertion of the right to counsel following the arrest for drug trafficking and firearm possession was still effective to preclude questioning about the murder and robbery charges which were the subject of a later arrest, even though he was not in continuous custody. We must consider the continued efficacy of the Edwards principle in light of events subsequent to appellant’s assertion of the right to counsel made on August 21, 1981 and October 28, 1981, namely (1) appellant was not in custody during the five-month interval between the last invocation of the right and the taking of the statement, (2) appellant’s subsequent arrest was on different charges, which required police to again advise him of his rights.

No Florida case seems to have considered this precise question, and those which have applied the Edwards teaching to find that statements were illegally obtained are easily distinguishable on their facts. See State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983) (continuous custody); Silling v. State, 414 So.2d 1182 (Fla. 1st DCA 1982) (continuous custody, same offense); Porter v. State, 410 So.2d 164 (Fla. 3d DCA 1982) (continuous custody, same offense).

We hold that Edwards is not applicable to preclude the admission into evidence of a defendant’s statement where he, having exercised the right to remain silent, and having obtained the services of counsel, leaves police custody, is later arrested on other charges, then, following an intelligent waiver of the right against self-incrimination, gives an inculpatory statement. There is no practical reason for a different result where, as here, an accused has had several months to reassess the earlier asserted right to counsel.

Our holding is consistent with two recent decisions of the United States Supreme Court which, on revisitation of Edwards, have rejected the notion that it states a “per se” rule which can be universally applied. Oregon v. Bradshaw, — U.S.-, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). Instead, the high court has interpreted Edwards to require an examination of the “totality of the circumstances” in order to determine if a fifth amendment violation has occurred. Wyrick, 459 U.S. at 47, 103 S.Ct. at 396, 74 L.Ed.2d at 218. These cases, however, focused on the issue of what constitutes a “defendant-initiated” conversation under Edwards, and did not discuss the tempering effect of a no-continuous-custody situation.

Two reported cases have decided this exact issue. We find highly persuasive the decision in United States v. Skinner, 667 F.2d 1306 (9th Cir.1982), cert. denied, — U.S.-, 103 S.Ct. 3569, 77 L.Ed.2d 1410 (1983), in which Edwards was held distinguishable. The court relied heavily on the fact that Skinner, unlike Edwards, was not in continuous custody between the time he invoked the right to counsel and the next day when he gave a full confession. It was noted that Skinner arrived at the police station voluntarily and talked to investigators. He was free to leave the station and did leave after stating that he wanted to talk to a lawyer before answering more questions. When he was arrested the next day, he intelligently and knowingly waived his right to counsel, then immediately gave a confession. The court emphasized that prior to the second interrogation, Skinner “had the opportunity to contact a lawyer or to seek advice from friends and family if he chose to do so.” Id. at 1309. Skinner was followed in Brown v. State, 661 P.2d 1024 (Wyo.1983), where the court found it dis-positive that the defendant was not held in continuous custody and was free to obtain counsel any time prior to giving the challenged statement. Similarly here, having already retained an attorney, appellant had the opportunity to confer with his attorney upon being confronted with the new charges.

II. DOUBLE JEOPARDY

There is merit in the second point on appeal. Appellant cannot be convicted, much less sentenced, in a single trial for felony murder and the felony underlying the felony murder. The underlying felony here is a necessarily included offense of the felony murder charge, which fails the “Blockburger Test” for double jeopardy. See Bell v. State, 437 So.2d 1057 (Fla.1983), relying on Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976), United States v. Buckley, 586 F.2d 498 (5th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979).

Buckley held that “where a defendant is improperly convicted for a lesser included offense, the proper remedy is to vacate both the conviction and sentence on the included offense, leaving the conviction and sentence on the greater offense intact.” Buckley, 586 F.2d at 505. The gloss we place upon that holding, as applied to this unique situation — where the included offense, trafficking in marijuana, carries a greater penalty than the offense in which it is included, third-degree felony murder — is that for the purpose of deciding which conviction and sentence will stand, the greater offense (same as the higher offense) is the one which carries the more severe penalty. See Rushing v. State, 355 So.2d 501 (Fla. 2d DCA 1978). Therefore, appellant’s convictions and sentences for third-degree felony murder and attempted third-degree felony murder must be vacated.

III. INCONSISTENT VERDICTS

The first point of the cross-appeal challenges the court’s finding that the jury verdict' of guilty on the robbery count is inconsistent with the guilty verdicts on third-degree murder, attempted third-degree murder and possession of marijuana. We find no legal inconsistencies.

The jury was instructed on first-degree felony murder with robbery as the underlying felony. It was also instructed, as a lesser degree of the homicide offenses, on third-degree murder with trafficking in narcotics as the underlying felony. It is argued that the finding of guilt on the lesser offense of third-degree murder is, in effect, an acquittal on the charged offense of first-degree felony murder, of which robbery is an essential element. We disagree. An exception to the general rule which permits inconsistent verdicts is recognized where an acquittal of the underlying felony effectively holds the defendant innocent of a greater offense involving that same felony. The classic legal inconsistency would be presented here if the defendant had been acquitted of trafficking in narcotics (as charged in Count 5) while being found guilty as to third-degree murder while trafficking in narcotics. See Mahaun v. State, 377 So.2d 1158 (Fla.1979) (where defendant was charged with third-degree murder with aggravated child abuse as the underlying felony, and in same trial was “acquitted” of aggravated child abuse separately charged, reversal of the conviction for felony murder was required). Logical inconsistencies, as distinguished from legal inconsistencies, are acceptable, Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946); Gonzalez v. State, 440 So.2d 514 (Fla. 4th DCA 1983); Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982), as a jury’s exercise of its power of lenity. See McCloud v. State, 335 So.2d 257, 259 (Fla.1976); Damon v. State, 397 So.2d 1224, 1228 n. 10 (Fla. 3d DCA 1981).

IV. WEIGHT OF THE EVIDENCE

The second part of the cross-appeal challenges the court’s grant of a new trial on the charge of robbery based on the finding that the verdict was contrary to the weight of the evidence.

We begin the analysis with a recognition of the general principle that the weight of the evidence is a standard of proof given to the trier of fact by which it decides which side of an issue or cause has presented the greater amount of credible evidence. Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), aff'd 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Accordingly, Florida Rule of Criminal Procedure 3.600(a)(2) authorizes a trial judge to grant a new trial if it is established that “the verdict is contrary to ... the weight of the evidence.” The process of determining whether the verdict is consistent with the weight of the evidence necessarily requires the trial judge to invade the fact-finding arena — to act, in effect, as an additional juror. Tibbs, 397 So.2d at 1123 n. 9.

As a general proposition, an appellate court is not permitted to reweigh conflicting evidence submitted to the fact-finder. Tibbs, 397 So.2d at 1123. This court has already stated that the scope of review on appeal from an order granting a new trial in a criminal case — the same as that in a civil case — is whether the appellant has made a clear showing that the trial court abused its discretion. State v. Tresvant, 359 So.2d 524, 527 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1375 (Fla. 1979). There is no authority for the proposition that the scope or nature of review should be different where the grant of a new trial is based on the weight of the evidence rather than on an error of law or procedure. No abuse of discretion is demonstrated where the action of the court is supported by competent and substantial evidence.

Here the court apparently found that all of the elements of the robbery offense had been established by some evidence, but the order granting the new trial fails to specify the nonbelievable evidence. A trial court must give express reasons which will support its finding that the verdict is against the manifest weight of the evidence in order to facilitate intelligent review. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Gould v. National Bank of Florida, 421 So.2d 798 (Fla. 3d DCA 1982); White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978). We are therefore compelled to examine the entire record.

It was suggested in argument that a lack of direct proof that the appellant knew the marijuana in his possession was the property of persons other than his co-defendants was the basis of the court’s ruling. Assuming that there was a lack of direct proof on the issue, the jury could have relied on the circumstantial evidence and found that, in totality, there was no reasonable hypothesis other than that appellant knowingly participated in the taking of property by force from one who had a greater right to possession. See Love v. State, 438 So.2d 142 (Fla. 3d DCA 1983) (jury could find from circumstantial evidence that defendant used force to overcome deceased victim’s resistance to the taking of property, thereby satisfying elements of robbery). Here, however, the cir-. cumstantial evidence conflicted with appellant’s testimony that he was not aware that the property which he was hired to transport belonged to someone other than his employer.

The trial court was empowered to reweigh the conflicting evidence and decide that the circumstantial evidence on the issue of knowledge was insubstantial, and did not preponderate over appellant’s own testimony. See State v. Coles, 91 So.2d 200 (Fla.1956) (where there is substantial evidence which supports the jury verdict a new trial should not be granted even though evidence is conflicting); Urga v. State, 160 Fla. 740, 36 So.2d 421 (1948) (same); State v. Riggins, 314 So.2d 238 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 464 (Fla.1976) (same). On review of the record it is not clearly shown that the trial court abused its discretion.

We affirm the conviction and sentence for trafficking in marijuana and remand to the trial court to vacate the convictions and sentences for murder and attempted murder committed in the course of trafficking in marijuana. We affirm the cross-appeal which challenges the order granting a new trial on the robbery conviction.

Affirmed in part, and remanded for further proceedings.

      . Florida cases have previously decided that the Edwards test does apply where a suspect in-continuous custody who has invoked his right to counsel is subsequently questioned in regard to charges different from those which were the subject of the initial investigation. Luman v. State, 447 So.2d 428 (Fla. 5th DCA); State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983). Accord State v. Routhier, 137 Ariz. 90, 669 P.2d 68 (1983) (en banc); Radovsky v. State, 296 Md. 386, 464 A.2d 239 (1983).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger, the same act violates two statutes only if "each [statutory] provision requires proof of an additional fact which the other does not.” Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. Trafficking in narcotics and third-degree murder by trafficking in narcotics do not each require proof of an additional fact which the other does not.

        Third-degree murder is an unlawful killing, without design, committed while perpetrating any felony except a felony which would make the killing first-degree murder. § 782.04(4), Fla.Stat. (1981). Trafficking in narcotics — because it is not a felony which would support first-degree felony murder — is statutorily an offense underlying third-degree murder. While there are alternative means of committing first-degree and second-degree murder, which according to some critics will permit a conviction of both the homicide and the underlying felony, there are no alternative means to find a person guilty of third-degree murder other than by establishing an appropriate underlying felony in the course of which a homicide occurred. Mahaun v. State, 377 So.2d 1158, 1160 (Fla. 1979).

      . Under the statute applicable to appellant's convictions, the offense of trafficking in marijuana is a first-degree felony, Section 893.135(l)(a) Florida Statutes (1981), punishable by a term of imprisonment not to exceed thirty years. § 775.082(3)(b), Fla.Stat. (1981). The offense also carries a mandatory minimum term of imprisonment of five calendar years and a fine of $50,000. § 893.135(l)(a)2., Fla.Stat. (1981) (where quantity of cannabis involved is 2,000 pounds or more, but less than 10,000 pounds). On the other hand, murder in the third degree constitutes a felony of the second degree, Section 782.04(4), Florida Statutes (1981), and is punishable by a term of imprisonment not exceeding fifteen years. § 775.082(3)(c), Fla.Stat. (1981).
      We note that the legislature has since amended the homicide statutes to provide that felony murder in the course of a trafficking offense is murder in the first degree and constitutes a capital felony. § 782.04(l)(a)2.a, Fla.Stat. (1983).

      . The reweighing of conflicting evidence which is permitted by the trial court on a motion for new trial is distinguished from an examination for "sufficiency of the evidence,” a much broader scope of review which may be undertaken by the trial or appellate court. Tibbs, 397 So.2d at 1125-26.

      . By this statement we are addressing a question which Tibbs purports to leave unresolved, i.e., whether an appellate court actually "reweighs” the evidence in reviewing a trial court’s grant or denial of a motion for new trial based on the ground that the verdict is contrary to the weight of the evidence. Tibbs, 397 So.2d at 1123 n. 12. Two earlier Florida Supreme Court cases, which we follow here, appear to have stated the applicable law. State v. Coles, 91 So.2d 200 (FIa.1956) (on appellate review of trial court’s order granting new trial based on insufficiency of the evidence, standard for determining abuse of discretion is whether there is substantial evidence to support the jury verdict); Urga v. State, 160 Fla. 740, 36 So.2d 421 (1948) (using "substantial evidence” test where new trial granted because verdict found contrary to law and the weight of the evidence).

      . Arguably, the finding is simply that the circumstantial evidence does not exclude every reasonable hypothesis of innocence, which amounts to a finding of insufficiency. Since, however, this is not the express ruling of the court, and appellant does not disagree with the ruling, our scope of review is limited. See note 4, supra; McArthur v. Nourse, 369 So.2d 578 (Fla. 1979).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CASA LOMA LAND CORP., a Florida corporation, Dante Land Corp., a Florida corporation, Casa Loma Leasing Corp., a Florida corporation, and Charles Sokolow, jointly and individually, Appellants, v. Ray STRAUSS, as Last Director and Trustee of Berkell & Strauss, P.A., a dissolved Florida corporation, Ray Strauss, individually, and Lawyers Professional Liability Insurance Company, a Florida corporation, Appellees.
    No. 83-2652.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 30, 1984.
    Martin P. Shachat, North Miami Beach, for appellants.
    Walton, Lantaff, Schroeder & Carson and Laurence A. Schroeder, Miami, for ap-pellees.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Industrial Trucks of Florida v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977).


author: SCHWARTZ, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Theodore S. TAMER, Appellee.
    No. 83-2829.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 30, 1984.
    Jim Smith, Atty. Gen. and William P. Thomas, Asst. Atty. Gen., for .appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon and Mitchell R. Bloomberg, Miami, for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   SCHWARTZ, Chief Judge.

We hold that (a) the search warrant issued for a designated vehicle in police custody was not rendered fatally defective merely because one of the seventeen digits of the car’s vehicle identification number (VIN) was incorrectly stated and the warrant designated the number of a spurious license plate which had been placed over the authentic one but which had been removed by the time the warrant was executed; United States v. Strauss, 678 F.2d 886 (11th Cir.1982), cert. denied, 459 U.S. 911, 103 S.Ct. 218, 74 L.Ed.2d 173 (1982); United States v. Rytman, 475 F.2d 192 (5th Cir.1973); Carlton v. State, 449 So.2d 250 (FIa.1984); Line v. State, 395 So.2d 1268 (Fla. 4th DCA 1981); and (b) the defendant’s operation of his vehicle at 1:00 a.m., first very slowly at the rear of an office building with many physicians’ offices which, as the apprehending officer had been informed that day, had been the subject of several arsons in the area; and then very quickly in an apparent attempt to evade the officer, provided ample “founded suspicion” to justify his stop and temporary detention. State v. Lawson, 446 So.2d 202 (Fla. 3d DCA 1984). The order under review, which was based on the trial judge’s plainly erroneous rulings to the contrary, and which suppressed (a) the items seized from the vehicle under the warrant and (b) those discovered in a search of the defendant’s person when he was arrested after a license check undertaken subsequent to the stop revealed that the car was stolen, is, in its entirety, therefore

Reversed.


text:
    ANTONELLI CONSTRUCTION COMPANY, INC., Appellant, v. John SANFILIPPO and Adele Sanfilippo, Appellee.
    No. 83-2203.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Franklin D. Greenman, Marathon, for appellant.
    Frigola, Devane & Wright and Alfred K. Frigola, Marathon, for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Strict compliance with the mechanics’ lien law is an indispensable prerequisite to securing relief thereunder, Hutton v. 3-L Enterprises, Inc., 431 So.2d 277, 279 (Fla. 5th DCA 1983), therefore the requirement that a contractor execute and deliver to the owner an affidavit stating that all persons providing labor, services, and materials have been paid in full is not satisfied by the filing of subcontractors’ releases, or by proof that no liens have been filed. See § 713.06(3)(d)l, Fla.Stat. (1983). The court’s dismissal of the action at the conclusion of all the evidence in a nonjury case was not erroneous. See Sowers v. Hoenstine, 417 So.2d 1137 (Fla. 5th DCA 1982) (in trial by jury, court properly granted directed verdict for failure of proof that contractor’s affidavit was filed).

Affirmed.


author: RYDER, Judge.

text:
    Hancel Drew PLATT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1519.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.

      Jerry Hill, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Hancel Drew Platt was convicted by a jury of DWI manslaughter and vehicular homicide. The trial court adjudged Platt guilty of both crimes, but only pronounced sentence for the conviction of DWI manslaughter. Platt asserts error in the trial court’s denial of his motions for judgment of acquittal for each of these two crimes and in the trial court’s adjudging Platt guilty of both crimes. We affirm in part, reverse in part, and remand this case to the trial court.

The motion for judgment of acquittal on the charge of DWI manslaughter was properly denied by the trial court. The evidence was sufficient to allow the jury to consider and decide this charge. Tsavaris v. State, 414 So.2d 1087 (Fla. 2d DCA 1982), petition for review denied, 424 So.2d 763 (Fla.1983). See also Muwwakil v. State, 435 So.2d 304 (Fla. 3d DCA 1983). Moreover, the evidence supports Platt’s conviction for DWI manslaughter. We affirm that conviction and the sentence imposed thereon.

We do not reach the question of whether the trial court properly denied the motion for judgment of acquittal on the charge of vehicular homicide. The issue is moot as we hold that the trial court erred by adjudging Platt guilty of vehicular homicide.

One person, Terry D. Collins, died as a result of injuries received in the automobile collision involving the vehicles driven by Platt and Collins. Platt caused a single death and could not be convicted of both DWI manslaughter and vehicular homicide. Ubelis v. State, 384 So.2d 1294 (Fla. 2d DCA 1980). Therefore, we reverse the judgment of guilt of vehicular homicide. This case is remanded to the trial court with instructions to set aside the judgment of guilt on vehicular homicide.

The conviction of DWI manslaughter is AFFIRMED, the conviction of vehicular homicide is REVERSED, and this case is REMANDED with instructions.

OTT, C.J., and BOARDMAN, J., concur.


author: ERVIN, Chief Judge.

text:
    Lilton B. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. A0-204.
    District Court of Appeal of Florida, First District.
    April 11, 1984.

      Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Harris appeals his conviction for possession of a firearm by a convicted felon, contending the court erred in (1) denying his motion to dismiss based on the doctrines of collateral estoppel, and double jeopardy, (2) allowing the state to introduce documentary evidence of Harris’ four prior felony convictions, and (3) denying his motion for judgment of acquittal. We disagree and affirm.

The evidence, viewed as it must be in favor of the state, see Cates v. State, 408 So.2d 797, 799 (Fla. 2d DCA 1982), shows that Harris and three others spent the evening of December 3, 1981 at several Tallahassee nightclubs. During the early hours of December the fourth, they went to Harris’ residence, which he shared with his elderly grandmother. There, Harris and one of his companions, Deloris Jackson, became embroiled in a heated argument over money which Jackson claimed was missing from her purse. As Jackson left in her own automobile, shots were fired into her vehicle, shattering the rear window. Nobody, including Jackson, then saw Harris actually possess or shoot a firearm.

Later during the evening, Harris was confronted at his home by police officers who questioned him regarding the shooting incident. Harris denied having or shooting a gun but, in response to interrogation, stated there had been a number of burglaries at his home and he guessed he had “overreacted.” Officer Bailey asked where “the gun” was and Harris replied that his grandmother had taken it into the house. When Officer Bailey later questioned the grandmother about the weapon, she directed Vanessa Edwards, Harris’ fiance, to retrieve it from her bedroom and give it to the officer.

Harris was charged both with shooting into an occupied vehicle and with possession of a firearm by a convicted felon. At his trial, Jackson, Edwards and Officer Bailey recounted the events of December third and fourth as described above. In deposition testimony, which was read to the jury, Harris’ grandmother stated that she owned a .38 caliber pistol and that, when Harris asked to borrow it on December the third, she complied, and on the following morning, she found a gun under the driver’s seat of Harris’ car and took it into the house. Some time after Harris’ arrest she was asked to go to the police station to identify a weapon and she then discovered it was not a .38. When the grandmother confronted Harris with the discrepancy, he told her he had traded her gun for a heavier weapon.

For purposes of satisfying the elements of the second charge, the parties stipulated to Harris’ status as a convicted felon. On that evidence the jury acquitted Harris on the charge of shooting into an occupied vehicle, but was unable to reach a verdict as to count two, thereby resulting in a mistrial.

Harris was retried on the charge of possession of a firearm by a convicted felon and Jackson and Officer Bailey testified as before. The in-court testimony of Harris’ grandmother differed from her prior deposition testimony admitted at the previous trial only insofar as she stated she had found the gun in Harris’ car and retained it with her when she had gone to a hospital, returning it to her bedroom only after coming home. The only additional evidence, presented at the second trial was the introduction, over objection, of certified copies of Harris’ four prior felony convictions. The introduction of the documentary evidence was accomplished by the testimony of a deputy clerk who authenticated each judgment of conviction and read, to the jury, the particulars of each of Harris’ pri- or crimes. After each document was thus introduced, the trial court instructed the jury that the conviction was for the commission of a felony. On that evidence Harris was convicted as charged and was sentenced to five years in prison.

Harris first contends that repros-eeution for possession of a firearm by a convicted felon was barred by the doctrine of collateral estoppel. This doctrine, which is embodied in the Fifth Amendment’s prohibition against double jeopardy, “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Unlike double jeopardy, however, collateral estoppel does not create a complete bar to prosecution, rather, it “may in some eases only prevent the relitigation of certain issues.” 21 Am. Jur.2d Criminal Law § 322 (1981) (e.s.). Harris urges that the case at bar is controlled by State v. Perkins, 349 So.2d 161, 164 (Fla.1977), which holds, “[Ejvidence of crimes for which a defendant has been acquitted is not admissible in a subsequent trial.” We disagree that Perkins has the effect of barring a defendant’s later trial for an offense for which the jury was unable to return a verdict. Perkins is factually distinguishable from the case at bar in that there the defendant was charged with the attempted rape of a six-year old child. In an evident attempt to offer evidence of the defendant’s “modus operandi”, a witness was allowed to testify that when she was fourteen years old, Perkins had attempted to rape her. Because Perkins had been acquitted of that prior crime, the trial court committed reversible error in permitting that evidence to go before the jury. Here, however, no similar fact or Williams rule evidence relating solely to a prior incident of firing into an occupied vehicle was admitted. Instead, the state sought to introduce evidence of the events of December the third and fourth to show, if possible, that on December the fourth Harris owned, or had in his care, custody, possession or control, a firearm during a time that he retained his status as a convicted felon. That the jury had never previously decided such issue in Harris’ favor is clearly evidenced by the fact that it was unable to reach a verdict on this specific offense.

The controlling

test to determine whether collateral es-toppel acts as a bar to further prosecution is not whether the factual issue in question was inherently decided by the jury’s prior verdict, but rather whether such factual issue was actually decided by the jury in reaching its verdict.

Gragg v. State, 429 So.2d 1204, 1206 (Fla. 1983) (e.s.). Here, unlike the situation that occurred in Gragg, it is evident that the factual issue of possession was not “actually decided” by the jury when it acquitted Harris of shooting into an occupied vehicle. In the first place, the jury could have reasonably acquitted Harris on that charge by concluding, as the state suggests, that Harris lacked the requisite intent or, which is more likely, that he possessed a gun but did not shoot it. Second, there was independent evidence of Harris' possession of a firearm in the form of his grandmother’s testimony that Harris had borrowed her gun on December the third; that she found a gun under the driver’s seat of his car on December four, and that, after learning that the gun she turned over to the police was not hers, Harris told her he had traded her pistol for a heavier weapon. Finally, a mistrial resulted from the jury’s inability to decide the possession issue in this case. Applying Gragg, we are convinced that admission of evidence relating to the alleged shooting incident for which Harris was acquitted was not barred by the doctrine of collateral estoppel.

Harris next contends that the trial court committed reversible error by allowing the state to introduce documentary evidence of Harris’ four prior felony convictions, because the probative value of that evidence was substantially outweighed by its prejudicial and cumulative effect. Section 790.-23, Florida Statutes, under which Harris was charged, provides in part:

(1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm or electric weapon or device or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.
(2) This section shall not apply to a person convicted of a felony whose civil rights have been restored.

(e.s.) There is no question that a “prior conviction is a substantive element of the crime of possession of a firearm by a convicted felon.” State v. Vazquez, 419 So.2d 1088, 1090 (Fla. 1982) (e.s.).

Although it is clear that the state was required to prove that Harris was convicted of at least one prior felony, Harris nevertheless urges it was unnecessary to introduce evidence of all four of his prior convictions and that the decision to do so, at the second trial, amounted to prosecuto-rial “overkill”. We agree that the state was required to prove only that Harris had been convicted of one prior felony to satisfy this element of section 790.23. Once, as in this case, the state is presented with numerous prior felonies from which to choose, case law suggests it is not necessary to introduce evidence of all prior felony convictions out of an abundance of caution lest the selected felony conviction later prove subject to collateral attack. This is because section 790.23, similar to its federal counterpart, “imposes a firearm disability until the [felony] conviction is vacated or the felon is relieved of his disability by some affirmative action”, such as having his civil rights restored. Lewis v. United States, 445 U.S. 55, 60-61, 100 S.Ct. 915, 918-919, 63 L.Ed.2d 198 (1980). At issue is the defendant’s status at the time of the alleged possession; the fact that his “outstanding felony conviction ultimately might turn out to be invalid for any reason” provides no exception. 445 U.S. at 62, 100 S.Ct. at 919. See also United States v. Johnson, 612 F.2d 305 (7th Cir.1980); Cassity v. United States, 521 F.2d 1320 (6th Cir.1975).

Although we are convinced there was no necessity to introduce documentary proof of Harris’ four prior felony convictions, we are also mindful that the test for admissibility of evidence of such prior convictions is one of relevancy, not necessity. See Ruffin v. State, 397 So.2d 277, 279 (Fla.1981). Because a “prior conviction” is a substantive element to be proved by the state in prosecuting a defendant charged with possession of a firearm by a convicted felon, there is no question that evidence of all prior felony convictions has probative value. See Parker v. State, 408 So.2d 1037 (Fla.1982). The issue, then, is whether some other evidentiary rule would render evidence that is clearly relevant nevertheless inadmissible because it is simply “unnecessary” in establishing the offense? The answer, we consider, is found in Parker, wherein the Florida Supreme Court concluded that the test of “legal relevancy”, set out in Section 90.403, Florida Statutes, is to be applied:

[Pjroof of conviction is relevant evidence and is admissible unless its probative value is substantially outweighed, by the danger of unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence.

408 So.2d at 1038 (e.s.). Accord Vazquez, 419 So.2d at 1090.

Applying the above test to the facts of this case, we must first determine whether it can be said that the probative value of Harris’ four prior felony convictions was “substantially outweighed” by the danger of unfair prejudice or the needless presentation of cumulative evidence. In reaching this determination, we must bear in mind that although the inadmissibility of evidence which fails to satisfy the test of section 90.403 is stated in mandatory terms,

a large measure of discretion rests in the trial judge to determine whether the probative value of the evidence is substantially outweighed by any of the enumerated reasons. The court must weigh the proffered evidence against the other facts in the record and balance it against the strength of the reason for exclusion.
Certainly, most evidence that is admitted will be prejudicial to the adverse party. Section jOS does not bar this evidence; it is directed at evidence which inflames the jury or appeals strongly to the jury’s prejudice. Only when that unfair prejudice substantially outweighs the probative value of the evidence, is the evidence excluded.

C. Ehrhardt, Florida Evidence § 403.1 at 62-63 (1977) (e.s.). See also Westley v. State, 416 So.2d 18, 19 (Fla. 1st DCA 1982) (unfair prejudice means an undue tendency to evoke an emotional response). As with other discretionary evidentiary determinations which a trial court is called upon to make, a decision to admit evidence will not be disturbed absent a showing of abuse of discretion, see Jent v. State, 408 So.2d 1024, 1029 (Fla.1981), or, in other words, a demonstration of prejudice to the substantial rights of the defendant. Brown v. State, 426 So.2d 76, 79 (Fla. 1st DCA 1983). In the absence of such a demonstration, the erroneous admission of evidence may require the application of the harmless error rule, thus making reversal improper unless “the error committed was so prejudicial as to vitiate the entire trial.” State v. Murray, 443 So.2d 955, 9 FLW 16 (Fla.1984) (e.s.). See also Westley, 416 So.2d at 19 (overly repetitious presentation of evidence relating to defendant’s inculpatory statement to police officers did not constitute reversible error).

The present state of Florida law on the prejudice, or lack thereof, resulting from a trial court’s receiving evidence of collateral crimes unrelated to the offense charged is not, however, without considerable confusion. On the one hand, Parker holds that a copy of a single judgment of conviction that shows on its face the nature of the crime involved is admissible for the purpose of proving the element of prior felony conviction. Following that reasoning, we recently held in McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983), that seven capias-es, which included a description of the nature of each crime, were admissible to prove that the defendant was in lawful custody in connection with an escape charge, and that it was not necessary to limit the state to one such capias. On the other hand, in State v. Williams, 444 So.2d 13 (Fla.1984), holding that the state need only prove the defendant was in custody as opposed to lawful custody at the time of his purported escape, our supreme court has again suggested that the considerations described in Fonts v. State, 374 So.2d 22 (Fla. 2d DCA 1979), concerning prejudice to the defendant by admitting evidence of the nature or details of collateral convictions, remain viable. In State v. Vasquez, the supreme court reversed convictions of first degree murder and unlawful display of a firearm during commission of a felony, because of the trial court’s erroneous refusal to sever at trial a count charging unlawful possession of a firearm by a convicted felon. The court was particularly concerned that the jury’s verdict may have been influenced by evidence supporting the unlawful possession count, revealing that the defendant had been adjudicated guilty of offenses unrelated to those for which he was then on trial. More importantly perhaps is the supreme court’s holding that, for purposes of prosecutions under the felony petit theft statute (section 812.021(3), Florida Statutes), evidence of prior misdemeanor convictions cannot be submitted to the jury, but must be presented to the court in a later proceeding after conviction of the defendant on the pending theft charge. State v. Harris, 356 So.2d 315 (Fla.1978). The court reasoned in Harris that evidence of the prior offenses adversely affected the defendant’s constitutional right to the presumption of innocence and required reversal.

Each of these eases is obviously distinguishable on the facts, but the decisions’ rationale is impossible to reconcile with any degree of consistency regarding the issue of prejudice resulting from the jury’s consideration of prior crimes that are unrelated to the offense for which the defendant is being tried and that are not otherwise admissible under the Williams rule. Accordingly, we are obliged to look to the supreme court for clarification of this confusion and certify the following as a question of great public importance:

Whether, in a prosecution for unlawful possession of a firearm by a convicted felon under section 790.23, Florida Statutes, the admission into evidence of more than one prior felony conviction and the particulars of each such crime (none being related to the offense charged), for the purpose of proving that the defendant was a convicted felon, is so prejudicial to the defendant’s right to a fair trial as to constitute reversible error?

With these principles in mind, and although we may well have reached a result different than that of the trial court, we are unable to find, on this record, that the trial court’s decision to admit evidence of Harris’ four prior felony convictions amounted to an abuse of discretion. Finally, we reject as without merit appellant’s argument that the court erred in denying his judgment of acquittal.

AFFIRMED.

BOOTH and ZEHMER, JJ., concur.

      . Harris also contends that double jeopardy applies to bar his retrial for the offense of possession of a firearm by a convicted felon. This contention is without merit. The double jeopardy provisions of the United States and Florida constitutions protect "against multiple punishments for a single criminal offense”, not against prosecution for multiple offenses arising out of a single criminal episode. Bell v. State, 369 So.2d 932, 934 (Fla.1979). Moreover, the declaration of a mistrial based upon the jury’s inability to agree on a verdict does not constitute former jeopardy, and a defendant may be retried for the same offense. See State v. Grayson, 90 So.2d 710, 713 (Fla. 1956); Larrabee v. State, 243 So.2d 432, 434 (Fla. 2d DCA 1971); 14 Fla.Jur.2d Criminal Law § 301 (1979).

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . See Brown v. State, 426 So.2d 76, 88-89 (Fla. 1st DCA 1983), wherein we discussed the distinctions between "logical" relevancy, set out in Section 90.401, Florida Statutes, and "legal” relevancy, set out in section 90.403.


text:
    John NOLAN and Jan Nolan, Appellants, v. Douglas L. ALTMAN, a/k/a Altman Industries: A.C.R.R. Specialties, Altman’s Commercial & Residential Renovation Quality Commercial & Residential Painting, Appellees.
    No. AT-479.
    District Court of Appeal of Florida, First District.
    April 13, 1984.
    Rehearing Denied May 17, 1984.

      Jack M. Ross, Gainesville, for appellants.
    Frederick D. Smith, McGalliard, Mills, de Montmollin & Smith, Gainesville, for appel-lees.
   ERVIN, Chief Judge.

Appellants, the Nolans, appeal an order awarding attorney’s fees to Appellee, Altman, and contend the trial court erred in entering the award first, because the No-lans had taken a voluntary dismissal of the underlying civil action and, second, that such award was premature where the specific statutory authority for attorney’s fees precludes an award until after entry of judgment and exhaustion of appeals. We agree with the second point raised and reverse.

In 1978 and 1979, the Nolans and Altman entered into a series of contracts in which Altman, allegedly a general contractor, agreed to make various repairs and renovations in the Nolans’ home. The work was not to the Nolans’ satisfaction and they later filed an action seeking damages for deceptive trade practices, fraud, breach of contract and breach of implied and express warranties. In early 1983, the Nolans obtained new counsel who moved to amend the thrice-amended complaint. Upon denial of the motion, the Nolans filed a notice of voluntary dismissal of the entire cause and immediately instituted a new case based on the same claims. Altman then sought attorney’s fees pursuant to section 501.2105, Florida Statutes and costs, on the theory that it was the prevailing party in the original action. The trial court, agreeing with Altman’s position, granted the motion and awarded fees and costs.

The Nolans first contend the trial court erred in awarding attorney’s fees because the voluntary dismissal of the original action divested the trial court of jurisdiction to enter any orders in that case on the basis of Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978). Although prior opinions of this court have interpreted Randle as precluding attorney’s fee awards subsequent to voluntary dismissal, see Knight v. County of Alachua, 396 So.2d 846 (Fla. 1st DCA 1981) and Mannion v. Mannion, 414 So.2d 598 (Fla. 1st DCA 1982), the Florida Supreme Court has now held that “when the legislature has specifically defined attorney’s fees as part of the costs, then the assessment of attorney’s fees after a case has been voluntarily dismissed is within the purview of Rule 1.420(d).” Wiggins v. Wiggins, 446 So.2d 1078 (Fla.1984). At issue in Wiggins was section 61.16, Florida Statutes, which provides that a court may award “a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending” proceedings relating to dissolution of marriage. At issue here is section 501.2105, which similarly provides for the recovery of “reasonable attorney’s fees and costs.” Applying Wiggins, we conclude that the trial court had jurisdiction to consider Altman’s motion for attorney’s fees after the underlying action was voluntarily dismissed by the Nolans.

We find, however, that despite the court’s proper retention of jurisdiction to consider such issue, it erred in finding Altman to be the ■prevailing party for purposes of recovering attorney’s fees pursuant to section 501.2105, allowing the prevailing party the right to recover attorney’s fees in an action brought under Florida’s Deceptive and Unfair Trade Practices Act, sections 501.201-501.213, Florida Statutes, only “after judgment in the trial court and exhaustion of all appeals, if any.” (e.s.) As with all statutes providing for the recovery of attorney’s fees, this section is in derogation of common law and must be strictly construed. Whitten v. Progressive Casualty Insurance Company, 410 So.2d 501, 505 (Fla.1982). Unlike most statutory provisions for attorney’s fees, section 501.-2105 “clearly contemplates a two-step procedure under which judgment is first entered on liability, and then, after any appeals, attorney’s fees are awarded.” B & L Motors, Inc. v. Bignotti, 427 So.2d 1070, 1072 (Fla. 2d DCA 1983) (e.s.). Accord Jeffcoat v. Heinicka, 436 So.2d 1042 (Fla. 2d DCA 1983). Altman has cited several Florida cases in which parties seeking attorney’s fees, after the entry of voluntary dismissal, have been considered “prevailing parties” for purposes of awarding attorney’s fees, notwithstanding that the action had not yet been resolved on its merits. We do not, however, consider that these factually distinguishable cases control over the case at bar in that section 501.2105 clearly and unambiguously precludes an award of attorney’s fees until after a judgment has been entered by the trial court and the appellate process, if any, has run its course. An award of fees in a case such as this case in which no judgment had been entered was erroneous and requires reversal.

REVERSED and REMANDED for further consistent proceedings.

BOOTH and ZEHMER, JJ., concur.

      . Section 501.2105 provides, in part:
      (1) In any civil litigation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.

      (2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
      (3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
      (4) Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.
      (e.s.)

      . For example, parties seeking attorney’s fees have been held to have "prevailed” for purposes of awarding such fees, prior to resolution of the merits of the cases, where they have challenged the actions of public employers before the Career Service Commission, see State, Department of Health and Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982); have alleged failure to comply with provisions of condominium associations, see Dolphin Towers and Condominium Association, Inc. v. Del Bene, 388 So.2d 1268 (Fla. 2d DCA 1980); have shown a complete absence of justiciable issues, see MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979); and have sought to enforce mechanic's liens, see Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974). We do not find the result reached in those cases to be controlling here where, unlike the statutes relied upon in those cases, the statutory authority for attorney’s fees expressly precludes the award of such fees until "after judgment in the trial court and exhaustion of all appeals.”
      Altman also cites Rustic Village, Inc. v. Friedman, 417 So.2d 305 (Fla. 3d DCA 1982), in which the district court concluded that the trial court erred in not granting attorney’s fees pursuant to section 501.2105. That case is distinguished from the case at bar, however, because there fees were sought after the trial court had entered a judgment on the pleadings in favor of the defendant. Because no such judgment was entered in this case, fees were improperly awarded.


text:
    Kim KASHUK, a minor, By and Through her father and next friend, Jay KASHUK, and Jay Kashuk, individually, Appellants, v. SURFSIDE PHARMACY, INC. and Mount Sinai Hospital of Greater Miami, Inc., Appellees.
    No. 82-1697.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied May 30, 1984.
    Joe N. Unger, Miami, and Jay Dermer, Miami Beach, for appellants.
    Kelner & Kelner and Milton Kelner, Pyszka & Kessler, Greene & Cooper and Robyn Greene and Joan M. Bolotin, Miami, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Plaintiff brought an action against Surf-side Pharmacy and Mt. Sinai Hospital on a theory that defendants’ negligent acts aggravated a preexisting mental condition. The trial court disallowed the testimony of the plaintiff’s two expert physicians and ultimately directed a verdict in favor of the defendants. We affirm.

The only expert testimony presented by the plaintiff to establish that the defendants' acts caused an aggravation of the plaintiffs preexisting condition was that of Drs. Shellow and Gilbert.

As to Dr. Shellow, we find that: (1) the hypothetical question by which the causal relationship and aggravation of a psychiatric disorder were to be established failed to identify the preexisting condition and thus any testimony based on it was properly excluded; see Steiger v. Massachusetts Casualty Insurance Co., 273 So.2d 4 (Fla. 3d DCA 1973) (the nature of the plaintiffs psychiatric condition at the time of the accident was a necessary element in a hypothetic question which purported to state a medical history of the plaintiff); (2) direct and cross-examination of the expert revealed that he had no knowledge of the plaintiffs preexisting condition from which he could form an opinion of its aggravation; Caputo v. Taylor, 403 So.2d 551 (Fla. 1st DCA 1981), pet. for review denied, 412 So.2d 464 (Fla.1982); see also Husky Industries, Inc. v. Black, 434 So.2d 988 (Fla. 4th DCA 1983); Tarkoff v. Schmunk, 117 So.2d 442 (Fla.2d DCA 1959); and (3) his opinion amounted to little more than a guess. Husky Industries, Inc.

Turning to Dr. Gilbert, we conclude, as we did with respect to Dr. Shellow, that he had no knowledge of the preexisting condition from which he could form an opinion. See Caputo; Husky Industries, Inc.

The only two experts presented by the plaintiff to establish that the incidents in question caused an aggravation of her preexisting condition were unable to do so. Thus, we conclude that the directed verdict was properly entered. Caputo, 403 So.2d at 554.

Affirmed.

      . In response to the question: “You do not know how Kim was before these episodes, do you?", Dr. Gilbert testified, “No, I do not."

      . When testifying as to the plaintiff's prior condition, Dr. Shellow stated:
      What I am saying is that she had some kind of a condition, I do not know what that condition is.


text:
    Georgina VALLADARES, individually and as the Natural Mother and Guardian of Marlene Lopez, a minor, Appellant, v. AVIS RENT-A-CAR SYSTEMS, INC. and Scott W. Lawrence, Appellees.
    No. 83-817.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied May 31, 1984.
    Daniels & Hicks and Patrice A. Talisman, Feldman, Abramson, Smith, Magidson & Levy and Donald Feldman, Miami, for appellant.
    Highsmith, Strauss & Glatzer and Philip Glatzer, Magill, Reid & Lewis and R. Fred Lewis, Miami, for appellees.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   PER CURIAM.

Affirmed. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981); Henry v. State, 359 So.2d 864 (Fla.1978); City of Miami v. Smith, 165 So.2d 748 (Fla.1964); Shaw v. Puleo, 159 So.2d 641 (Fla.1964); Miller v. James, 187 So.2d 901 (Fla. 2d DCA 1966); White v. Acker, 155 So.2d 176 (Fla. 1st DCA 1963); Bailey v. Sympson, 148 So.2d 729 (Fla. 3d DCA 1963).


author: JORGENSON, Judge.

text:
    The STATE of Florida, Appellant, v. William RIDER, Appellee.
    No. 83-821.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied May 25, 1984.
    Jim Smith, Atty. Gen., Calvin L. Fox, Asst. Atty. Gen., for appellant.
    William A. Meadows, Jr., South Miami, George T. Pallas, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

This case presents the question of whether one spouse may be prosecuted under section 794.011(3) and (5), Florida Statutes (1981), for sexual battery upon the other spouse. For the reasons which follow we find, contrary to the trial court, that a spouse may be so prosecuted. Accordingly, we reverse and remand with directions to reinstate the prosecution.

I

William Rider was charged by information with the crime of sexual battery upon Marion Rider, his wife. The two-count information alleged that Mr. Rider, in committing the sexual battery, used both actual physical force likely to cause serious personal injury, in violation of section 794.-011(3), Florida Statutes (1981), and physical force and violence not likely to cause serious personal injury, in violation of section 794.011(5), Florida Statutes (1981).

The trial court found that at the time of the alleged sexual battery Mr. and Mrs. Rider were living together as husband and wife and that no dissolution of marriage action had been begun, no temporary restraining order or judicial decree of separation had been obtained and no written separation agreement existed. The trial court also found that Mrs. Rider had stated under oath that Mr. Rider had never physically abused her prior to the alleged sexual battery.

Citing 1 M. Hale, History of the Pleas of the Qrown 629 (1736), as its authority, the trial court stated that “[t]here is a common law interspousal exception which precludes a husband from being prosecuted for the forceable rape of his wife” and that the sexual battery statute, § 794.011, Fla.Stat. (1981), is silent as to this “common law interspousal exception” and, therefore, does not abrogate it. The trial court determined that this “interspousal exception” to prosecution for sexual battery is applicable except in situations where “the complaining witness first [initiates] a judicial proceeding [for dissolution of marriage], [has] a separation agreement and/or physically [separates] herself from the defendant.” In doing so the trial court distinguished two recent cases in which prosecution of a husband for sexual battery upon or the rape of his wife was ostensibly allowed because in each case the defendant and the alleged victim were, at the very least, living separately. See State v. Smith, 401 So.2d 1126 (Fla. 5th DCA 1981) (dissolution of marriage pending, temporary restraining order and separate residences); State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981) (separate residences). Finding that these factual prerequisites were absent from the present case, the trial court dismissed the information.

II

The idea that a husband could not be prosecuted for the common-law crime of rape when the offense was allegedly perpetrated upon his wife apparently had its origin in the following statement which appeared in an English treatise published several centuries ago: “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract,” 1 M. Hale, supra. See Smith, 401 So.2d at 1128.

That this single sentence, which stands alone, naked of citation to any authority judicial or otherwise, could be considered sufficient precedent to allow a husband to rape with impunity his wife baffles all sense of logic. Although subsequent cases and treatises have stated the same principle, at times with citation to Hale and at times with citation to nothing, we can find no rational authority for such a proposition. Nowhere in the line of judicial holdings which constitutes the corpus juris of the state of Florida can we find even the suggestion of such a proposition. Contrary to the trial court’s conclusion, we simply cannot find any indication that a common-law “interspousal exception” to rape has ever existed in this state. We, therefore, see no need to further consider in other than a hypothetical sense what apparently exists, if at all, only as some phantom legal truism without basis in the common law of Florida.

Ill

We hold that even if a common-law “in-terspousal exception” to rape prosecution had existed, its hypothetical existence would now be immaterial because in 1974 the Florida Legislature repealed the codified common-law crime of rape and replaced it with the statutory crime of sexual battery. Further, we hold that there is no legally relevant distinction between the facts in the fifth district’s Smith opinion and those in the case before us. Although the fifth district noted in Smith that the wife had withdrawn any “implied consent” to sexual battery by filing a dissolution of marriage action and procuring a restraining order, thé district court went on to state that “to rest the decision on this factor alone would require an assumption that the common law exception still exists. We reject such a contention,” id. at 1129 (emphasis added). We agree.

A

As pointed out by the fifth district in Smith, the sexual battery statute, § 794.011, Fla.Stat. (1981), proscribes a crime of violence, not a crime of sex. See Aiken v. State, 390 So.2d 1186 (Fla.1980); Smith, 401 So.2d at 1129. Sexual gratification is not an element of sexual battery. “ ‘Chapter 794 of the Florida Statutes shows a clear intent to protect an individual’s sexual privacy from violence,’ ” Aiken at 1187 (quoting State v. Aiken, 370 So.2d 1184, 1185 (Fla. 4th DCA 1979)). “[A] violation of the sexual battery statute occurs whenever ... there is an intentional, non-eonsensual intrusion into the sexual privacy of another,” Surace v. State, 378 So.2d 895, 899 (Fla. 3d DCA), (Schwartz, J., specially concurring) (emphasis added), cert. denied mem., 389 So.2d 1115 (Fla.1980).

The differences between the sexual battery statute and the repealed rape statute, § 794.01, Fla.Stat. (1973), are more than sufficient to abrogate any “implied consent” upon which a common-law “inter-spousal exception” to prosecution may be based. There was but one degree of “force” required for conviction of rape. “[I]f the exhibited or threatened force was not sufficient to put the woman ‘in fear of loss of life or other great danger,’ evidence of resistance was required to demonstrate the act was by force and against her will.” Hufham v. State, 400 So.2d 133, 134 (Fla. 5th DCA 1981). Thus, under the rape statute the Florida Supreme Court held the evidence insufficient for conviction where the defendant, after the alleged victim refused to enter his tent, grabbed the alleged victim by her arm, pulled her into the tent, threw her on a bed and had sexual intercourse with her while choking her with his hand. See Bailey v. State, 76 Fla. 213, 79 So. 730 (1918).

The sexual battery statute divides the crime of sexual battery into degrees. Rather than depend upon outcry or resist-anee from the victim to determine force or lack of consent the sexual battery statute defines consent as “intelligent, knowing, and voluntary consent [which] shall not be construed to include coerced submission,” § 794.011(l)(h), Fla.Stat. (1981). “ ‘[Consent’ is a relative term to be viewed under the circumstances of each case, but by the standards established by the new statute, rather than the old, and this, too, is essentially a question for the jury.” Hufham, 400 So.2d at 135. Whatever the traditional notions concerning spousal consent to sexual intercourse may be they certainly do not contemplate consent to acts of violence such as those alleged in the information in this case.

The sexual battery statute divides “force” into various- degrees and separate crimes, including the threat of force. See § 794.011(3), (4)(b), (c), (5), Fla.Stat. (1981).

The only conclusion that can be reached is that the legislature, by repealing the rape statute and enacting the sexual battery statute, intended to abrogate any common-law assumptions concerning, the crime of rape.

B

In Smith, the fifth district examined and rejected the various reasons other jurisdictions have offered in attempts at rationalization of an “interspousal exception”: (1) a wife is the chattel of her husband or father, (2) a wife and husband are one person and one cannot rape oneself and (3), as proposed by Hale, a woman by repeating the words “I do” consents to sexual intercourse with and therefore bestows upon her thusly-created husband the right to rape or sexually batter her. See Smith, 401 So.2d at 1128-29.

All of these rationalizations of course presume the common-law crime of rape which proscribed the sexual gratification of a male by forceable non-consensual sexual intercourse with a female. Florida, however, repealed its gender-based rape statute in 1972, replaced it with a gender-neutral rape statute and in 1974 repealed the gender-neutral rape statute and replaced it with a gender-neutral sexual battery statute. As the fifth district pointed out, “[i]t is inconceivable that a husband would accept the argument that by marriage he consented to the conduct defined in the statute if inflicted upon him by force or violence,” see id. at 1129 (emphasis added). We agree.

Further, placing presumption upon presumption, were we to assume that a common-law “implied consent interspousal exception” once existed and still exists under the gender-neutral sexual battery statute, it does not follow, as the fifth district pointed out, that such consent can never be withdrawn so long as the marriage technically exists. See id. Although in Smith the fifth district dealt with parties who had begun dissolution of marriage proceedings and were restrained to limited contact by a court order, the district court rejected the contention that the presence of those facts would be necessary for an interspousal sexual battery prosecution. See id. As stated by the New Jersey Supreme Court

If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage “contract,” may she not also revoke a “term” of that contract, namely, consent to intercourse? ... [A husband] has no right to force sexual relations upon [his wife] against her will. If her repeated refusals are a “breach” of the marriage “contract,” his remedy is in a matrimonial court, not in violent or forceful self-help.

Smith, 85 N.J. at 205-06, 426 A.2d at 44. We agree.

IV

As we have stated, there is no authority for the proposition that a common-law “in-terspousal exception” to rape prosecution ever existed in Florida. “[R]ules of old English common law, if contrary to Florida customs, institutions, or intendments of constitutional and statutory provisions, are not part of the Florida common law.” Gates v. Foley, 247 So.2d 40, 43-44 (Fla. 1971) (citing Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780 (1931)). We agree with the New Jersey Supreme Court in rejecting Hale’s justification for the interspousal exception that upon entering marriage a wife irrevocably consents to sexual intercourse with her husband. We also agree that

the existence of the [interspousal exception under English common law] is not as obvious as the lower [court] here or courts in other jurisdictions have believed. The rule may simply not have been applicable to revocable marriages, which exist today as a result of changes in divorce laws. The fact that many jurisdictions have mechanically applied the rule, without evaluating its merits under changed conditions does not mean that such blind application was part of the “principles of the common law” adopted in this State.

Smith, 85 N.J. at 202-03, 426 A.2d at 43.

Justice Terrell, in State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946), in abrogating the common law rule that marriage vested the ownership of a wife’s property in her husband, said that a court must interpret the law in light of changing concepts, reason and good conscience and “can no longer interpret the law from the back of an ass; the process is so slow that it overlooks factors that require a different interpretation today from what might have been required yesterday,” id. at 117-18, 27 So.2d at 835 (emphasis added).

We cannot today in good conscience recognize a common-law “interspousal exception” to prosecution for violation of section 794.011(3) and (5), Florida Statutes (1981).

[W]hen grave doubt exists of a true common law doctrine ... we may, as was written in Ripley v. Ewell, [61 So.2d 420 (Fla.1952)], exercise a “broad discretion,” taking “into account the changes in our social and economic customs and present day conceptions of right and justice.” It is, to repeat, only when the common law is plain that we must observe it.

Duval v. Thomas, 114 So.2d 791, 795 (Fla. 1959).

• Given a common-law notion of dubious validity and the legislative abolition of the codified common-law crime to which the notion supposedly attaches, we cannot and will not adopt a common-law presumption of consent to an act of violence.

Reversed and remanded with directions to reinstate the prosecution.

      . Section 794.01 l(l)(f), Florida Statutes (1981), provides that " ‘[s]exual battery’ means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not in-elude acts done for bona fide medical purposes.”

      . Section 794.011(3), Florida Statutes (1981), provides that
      [a] person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      - Section 794.011(5), Florida Statutes (1981), provides that
      [a] person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Section 794.01, Florida Statutes (1973), which was repealed by an Act of Oct. 1, 1974, ch. 74-121, § 1, 1974 Fla.Laws 371, 372, provided:
      (1) Whoever of the age of seventeen years or older unlawfully ravishes or carnally knows a child under the age of eleven is guilty of a capital felony, punishable as provided in § 775.082.
      (2) Whoever ravishes or carnally knows a person of the age of eleven years or more, by force and against his or her will, or unlawfully and carnally knows and abuses a child under the age of eleven years, shall be guilty of a life felony, punishable as provided in § 775.082.
      (3) It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.
      Although the rape statute was not previously gender-neutral, see § 794.01, Fla.Stat. (1971), wherein it is provided that
      [w]hoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be guilty of a capital felony, punishable as provided in § 775.082. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only,
      it was made so by an Act of Dec. 8, 1972, ch. 72-724, § 7, 1973 Fla.Laws 15, 20. It was, of course, repealed altogether less than a year later.
      The repealed rape statute contained language virtually identical to the language found in the 1868 codification of common-law rape. See Act of Aug. 6, 1868, ch. 1637, sub-ch. 3, § 40, 1868 Fla.Laws 61, 68, wherein it is provided that
      [w]hoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully and carnally knows and abuses a female child under the age of ten years, shall be punished by death or by imprisonment in the State penitentiary for life.
      Common-law rape was first recognized by the supreme court in Cato, a slave, v. State, 9 Fla. 163 (1860).

      . See also Hollis v. State, 27 Fla. 387, 9 So. 67 (1881) (evidence insufficient to support guilty verdict where the defendant seized a fourteen-year-old victim around the waist, covered her mouth with one hand and threw her down, removed his hand from her mouth, pressed his arm against her throat, told her that if she cried out he would kill her, then lifted her dress and had sexual intercourse); O’Bryan v. State, 324 So.2d 713 (Fla. 1st DCA) (evidence insufficient to sustain the defendant’s conviction where the defendant forced himself into the victim’s home, pushed her to the floor, held her with one hand, removed her slacks and panties with the other hand, pinned her legs down with his legs and had sexual intercourse), cert. denied mem.; 336 So.2d 1184 (Fla.1976).

      . The marital privacy right recognized by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), may not be used as a justification for immunity from prosecution for sexual battery. The freedom of married persons to make choices in their own home does not include the freedom to batter one's spouse. To recognize such a freedom would harm the very values the Court in Griswold sought to protect. See Hilf, Marital Privacy and Spousal Rape, 16 New Eng.L.Rev. 31, 35-40 (1980); Case Note, 10 Fla.St.U.L.Rev. 326, 332-33 (1982).

      . See note 4, supra.

      . And it is not a novel proposition in Florida for one spouse to be prosecuted for crimes committed upon the other spouse. See, e.g., Herndon (husband may be prosecuted for larceny of his wife's property); Dunn v. State, 397 So.2d 748 (Fla. 2d DCA) (husband prosecuted for attempted first degree murder of his wife), review denied mem., 407 So.2d 1103 (Fla.1981); Vasquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977) (husband prosecuted for battery upon his wife), cert. denied mem., 360 So.2d 1250 (Fla.1978); . Grantz v. State, 268 So.2d 572 (Fla. 4th DCA 1972) (wife prosecuted for larceny of her husband's property). See generally 41 C.J.S., Husband & Wife § 164 (1944) (at common law husband and wife may be prosecuted for assault and battery upon one another). Because spousal prosecution for assault and battery is proper and because assault and battery are lesser included offenses of sexual battery, see Brice v. State, 348 So.2d 636 (Fla. 2d DCA 1977), it logically follows that a spouse may be prosecuted for the greater offense of sexual battery.


text:
    The STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. James M. BROWN, Appellee.
    No. 83-1048.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied May 18, 1984.
    Paul R. Ezatoff, Jr., Tallahassee, for appellant.
    David Paul Horan, Key West, for appel-lee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Appellee Brown was found in violation of environmental control statutes, Chapter 403, Florida Statutes (1983), for having placed fill over a roadway without a permit, which cut off the tidal exchange causing damage to mangrove wetlands. After an administrative hearing Brown was ordered to restore the land to its original condition and to pay costs of $604.79. Because Brown failed to comply within the time provided in the enforcement order, the Department filed in the circuit court a petition for enforcement pursuant to Section 120.-69, Florida Statutes (1983). After a hearing on the enforcement petition the trial court determined the agency’s restoration order to be an inappropriate remedy, and ordered instead that Brown pay $1,000 to the Department as a civil penalty and for expenses incurred by the Department in tracing, controlling, and abating the fill violation.

The Department brought this appeal, contending that so long as the penalty imposed by the agency was within the range of that permitted as a matter of agency discretion, the circuit court was powerless to overturn the penalty, citing to Florida Real Estate Commission v. Webb, 367 So.2d 201, 203 (Fla.1978).

We distinguish Webb because it involved a Section 120.68 review which was limited to a determination whether the penalty imposed was within the range of discretion delegated to the agency.

In a Section 120.69(5) enforcement proceeding the court may find, as it did here, that an agency action, even though within the range of discretion delegated to the agency, is not “appropriate”, i.e. not suitable for the particular person, condition, occasion, or place. See definition of “appropriate”. The American Heritage Dictionary 64 (1980). The agency action is presumed correct in an enforcement proceeding the same as in a judicial review proceeding, which presumption is, nonetheless, rebuttable. The circuit court reviewed all the facts and concluded that, under the circumstances, an order requiring the violator himself to complete restoration of the land, water and vegetation to its original condition and to the Department’s satisfaction, within 60 days of approval of a plan submitted by the violator, was inappropriate. It appears that the Department was capable of making the same restorations at the violator’s expense. That determination is supported by competent and substantial evidence and will not be disturbed on appeal. Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

Affirmed.


author: BARKDULL, Judge.

text:
    Nury AGUDO, Appellant, v. Marcelo M. AGUDO, Appellee.
    Nos. 83-924, 83-1427.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied May 30, 1984.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Ted H. Bartelstone and Paul Louis, Miami, for appellant.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   BARKDULL, Judge.

Following the opinion and decision reported as Agudo v. Agudo, 411 So.2d 249 (Fla. 3d DCA 1982), and a short unsuccessful attempted reconciliation by the parties, the matter reoccurred in the trial court. After final hearing, the trial court entered a final judgment of dissolution finding and adjudicating, among other things, the following: that the husband had a special equity in the wife’s one-half of the marital residence, ordered rehabilitative alimony of $200 a week for a one-year period, ordered $150 a week as child support for one year with an automatic increase to $200 a week thereafter for the minor child of the parties, plus additional funds for nursery and private school, and denied a motion to strike the wife’s claim for attorney’s fees and costs and determined that fees would be fixed at a time subsequent to the entry of the final judgment.

The wife appeals under clerk’s file number 83-924 and contends that the court erred in awarding the special equity and in limiting the rehabilitative alimony to a one-year period. In this appeal the husband has filed a cross-appeal as to the automatic increase in the child support and the wife’s entitlement to attorney’s fees. No complaint is made as to the reasonableness of the fee awarded. After the trial court awarded attorney’s fees and costs the husband appealed this post-final judgment under clerk’s file number 83-1427. These appeals were consolidated for argument and both will be disposed of by this opinion and decision.

As to the special equity, the evidence is undisputed that all the funds to purchase this home came from the proceeds of a sale of a home owned by the husband prior to the marriage. The husband testified that title was put in both names for probate purposes and not with the intention to create a gift. The wife offered no testimony, beyond the fact that the deed was in both names, to meet her burden to establish a gift. Therefore we find no error in the trial judge awarding the husband the entire house, which was purchased entirely with his premarital assets. Ball v. Ball, 335 So.2d 5 (Fla.1976). As to the length of the rehabilitative alimony, this was a marriage of short duration, approximately one-half of the time of the marriage the parties were involved in the litigation which resulted in the dissolution. The wife is a healthy, young woman with approximately one and one-half years of college education, had prior work experience, holds a real-estate license and has evidenced a desire to work. Coupling all this with the husband’s responsibility to pay for nursery care and private schooling in order that the child will have proper supervision when the mother is gainfully employed, we find no error in the trial court’s ruling limiting the time for rehabilitative alimony. No complaint is made as to the reasonableness of the award. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); McLean v. McLean, 384 So.2d 915 (Fla. 3d DCA 1980).

We cannot say on this record that the automatic increase in child support from $150 a week to $200 a week at the time of the expiration of the wife’s rehabilitative alimony, to wit: 12 months, is erroneous. The husband claims such an automatic increase provision is error under the reasoning contained in Ramsey v. Ramsey, 431 So.2d 258 (Fla. 2d DCA 1983); Kangas v. Kangas, 420 So.2d 115 (Fla. 2d DCA 1982); Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980); Stoler v. Stoler, 376 So.2d 253 (Fla. 3d DCA 1979). We would distinguish this case from the cited authorities because the trial judge herein has now made the determination of the increase for this child of tender years on the record then before him, whereas in the cited authorities, the increase was subject to future factors that were not then present before the trial court i.e. the future cost of living index. It is possible that automatic increases of child support several years in the future may in fact be erroneous, but we do not find the automatic increase provided for 12 months after the initial award to be error.

Turning to the entitlement to attorney’s fees, no claim for same was contained in the original complaint filed by the wife, however, the wife filed a motion for fees some 24 days after the institution of suit. She was awarded temporary attorney’s fees. Her counsel always sought fees in appearances before the court when appropriate, it was made clear on the onset of the final hearing that the wife was claiming attorney’s fees and after the evidence was admitted it was undisputed that the wife had either next to none or minimal assets and that the husband had at least a $50,000 a year income. The wife moved ore tenus to amend her complaint to pray for attorney’s fees in conformity with the undisputed evidence. This ore tenus motion was followed by a written motion to the same effect. It was these motions which the trial court refused to strike in the final judgment, wherein he held that the wife was entitled to fees. Assuming, without conceding, that there was no notice of a claim for attorney’s fees prior to the beginning of the final hearing, it is clear that the trial court did not abuse its discretion in allowing the amendment to conform to the proof and in refusing to strike the demand for fees and costs. Haight v. Haight, 350 So.2d 1155 (Fla. 2d DCA 1977).

Therefore for the reasons above stated the rulings complained of in appeal and cross-appeal 83-924 be and the same are hereby affirmed and the ruling complained of in 83-1427 be and the same is hereby affirmed.

Affirmed.

      . "The Husband shall pay for NURY RAQUEL'S day care or private school so long as its costs are within the Husband's ability to pay. The parties shall agree as to the school which the child shall attend.”

      . In Ball v. Ball, supra, in dealing with the question of presumption of a gift in situations like the instant case, it is stated,
      "... Consistent with prior decisional law, however, we hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship.7 In these cases the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during cover-ture, in the absence of contradictory evidence that a gift was intended.”