text:
    James Ernest QUERY, a/k/a Angelo Costa, Appellant, v. STATE of Florida, Appellee.
    No. AX-295.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Rehearing Denied Oct. 2, 1984.
    Kenneth L. Hosford, Asst. Public Defender, Tallahassee, for appellant.
    John Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

In this appeal from concurrent five-year sentences imposed for possession of cocaine and bail bond jumping, appellant contends that the trial court erred in refusing to honor his election to be sentenced under the sentencing guidelines, Rule 3.701, Fla. R.Crim.P. We agree that appellant was entitled to be sentenced under the guidelines, and reverse and remand for resen-tencing.

On September 28,1982, appellant entered a plea of nolo contendere to the charge of possession of cocaine. Appellant thereafter fled the jurisdiction, and failed to appear at the October 28, 1982, sentencing hearing. On November 5,1982, bail bond jumping charges were filed against appellant. Appellant was thereafter incarcerated in another jurisdiction and was not returned to Florida until January 6, 1984. On January 17,1984, he pled guilty to the charge of bail bond jumping and elected to be sentenced for both crimes pursuant to the sentencing guidelines. The trial judge refused to apply the guidelines on the ground that appellant would not have been entitled to be sentenced under the guidelines had he not absconded prior to being sentenced for the cocaine charge. This ruling was error.

In its opinion adopting the sentencing guidelines, our Supreme Court stated:

The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.

In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla.1983). The quoted language unequivocally establishes that defendants who are sentenced for applicable crimes on or after October 1, 1983, may elect to be sentenced under the guidelines. The court created no exception for fugitives from justice or others who cause sentencing proceedings which ordinarily would have been held pri- or to October 1, 1983, to be delayed until after that date. See Johnson v. State, 453 So.2d 411 (Fla. 1st DCA 1984); Duggar v. State, 446 So.2d 222 (Fla. 1st DCA 1984).

REVERSED and REMANDED for re-sentencing.

SHIVERS and ZEHMER, JJ., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    Marvin E. BLACKSHEAR, Appellant, v. STATE of Florida, Appellee.
    No. AY-131.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Rehearing Denied Oct. 2, 1984.
    Marvin E. Blackshear, pro se.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Blackshear appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Blackshear pled guilty to the charge of escape after his court-appointed attorney advised him that the maximum penalty for escape was fifteen years, but under an agreement with the state attorney a five-year penalty would be recommended to the judge. After asking Blackshear if his counsel had explained the maximum penalty for escape, the trial court accepted Blackshear's plea of guilty and imposed the recommended five-year penalty. Black-shear now argues that he was not fully advised of the consequences of his plea since his counsel failed to tell him that he could lose his accumulated gain time on the sentence being served when the alleged escape occurred upon conviction.

Before a plea of guilty may be accepted, the trial court must determine, among other things, that the defendant understands the nature of the charge and the consequences of his plea. Williams v. State, 316 So.2d 267 (Fla.1975). The trial court, however, “is not required to advise the accused of every collateral consequence which follows from a guilty plea.” Polk v. State, 405 So.2d 758, 761 (Fla. 3d DCA 1981). The distinction between direct and collateral consequence of a plea “turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982).

The forfeiture of gain time following a plea of guilty is accomplished by a proceeding which is not an automatic or mandatory procedure, but “may” be done in the discretion of the Department of Corrections. Section 944.28, Florida Statutes (1983). The proceeding is not instituted by either the state attorney or the trial judge. This discretionary forfeiture of accumulated gain time pursuant to Section 944.28 is a collateral consequence of Blackshear’s guilty plea of which neither the trial court nor his counsel must advise him for the plea to be valid. See Rosemond, v. State, 433 So.2d 635 (Fla. 1st DCA 1983), and see generally, Edwards v. State, 393 So.2d 597 (Fla. 3rd DCA 1981).

Accordingly, the trial court’s order is AFFIRMED.

SMITH and ZEHMER, JJ.,


author: MILLS, Judge.

text:
    Edna Johnson BADY, Appellant, v. Charles H. BADY, Appellee.
    No. AY-463.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.

      Bill A. Corbin, Blountstown, for appellant.
    Owen N. Powell, Bonifay, for appellee.
   MILLS, Judge.

Appellant (wife) in this domestic relations dispute seeks reversal of an interlocutory court order releasing a deed to real property from escrow and returning the property to appellee (husband). We affirm.

The deed to real property located in Holmes County, Florida, was placed in escrow pursuant to a stipulation entered into by the parties and confirmed by court order. The stipulation provided that, in return for release from confinement in jail on a contempt of court charge for a period from 1 June to 21 June 1982, husband would place the deed in escrow in wife’s name. The court order confirming the stipulation specifically states that the deed was “to insure the return of husband on or before June 21, 1982.” The record does not reflect, nor does wife allege, that husband failed to return to confinement on the appointed date. Therefore, any right wife might have had in the real property arising from this stipulation expired upon husband’s fulfillment of its terms.

Husband’s subsequent filing of a “stipu-lat[ion] to continue to pledge the property” for the assurance of his future appearance in court was an independent, gratuitous action on his part, not pursuant to an agreement of any sort between the parties or to a court order. The second stipulation is therefore unenforceable and confers no right to the property on wife. Assuming that the second stipulation was valid, there is no evidence in the record that husband failed at any time to appear pursuant to the terms thereof. The order of the lower court releasing the property from escrow to husband’s custody is affirmed. Wife’s motion for attorney’s fees is denied,

BOOTH and BARFIELD, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    In the Interest of M.S., a child.
    No. 84-1545.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1984.

      Jerrold A. Coff, Hollywood, for petitioners.
    Lawrence F. Kranert, Jr., Coral Springs, for respondent.
   PER CURIAM.

By petition for writ of habeas corpus we are asked to review the propriety of an order detaining an infant in the custody of the Florida Department of Health and Rehabilitative Services (HRS). We deny the writ, but order the trial court to conduct an adjudicatory hearing forthwith.

On April 11, 1984, M.S., a new-born infant, was taken to Broward General Hospital where he was diagnosed as having an unexplained subarachnoid hemorrhage (bleeding between the brain and the skull). The hospital reported this finding to HRS which, in turn, notified the state attorney. Suspecting child abuse, the state filed a verified petition for detention. The circuit judge to whom the case was assigned conducted a detention hearing pursuant to Rule 8.050, Fla.R.Juv.P., and entered an order finding probable cause to detain the child.

The matter was set for an adjudicatory dependency hearing on May 8, 1984. Unfortunately, it was necessary to have a substitute judge preside at this hearing. (We do not mean to disparage the actions of the substitute judge for he acted with great concern for the rights of the parties. As will be seen, however, the substitution resulted in substantial confusion.) At first, it appeared that the hearing would be uncontested. But soon it became obvious that the parents did not agree with what was taking place. The father expressed his frustration by saying, “I only know right and wrong; and what’s going on is wrong. Wrong.” Indeed, at one point the substitute judge observed, “I don’t think the problem’s with the [parents]; I think the problem’s with the Court. You know, I’m concerned that there’d be an adjudication here, based on nothing. I mean, it’s really based on nothing that I can see.” Later, the court said, “I will not sign an order adjudicating the child dependent; I will defer that decision. I will not make that decision today_ I will defer adjudication.” Throughout this proceeding the parents expressed a desire to do what was best for their child. Finally, to move things along, they stipulated to the entry of an agreed order which (1) expressly indicated that “adjudication of dependency is withheld”; (2) allowed the child to remain in the temporary physical and legal custody of HRS; and (3) called for a review within thirty days “or as soon thereafter as the psychological examinations have been completed.”

The case then reverted to the original trial judge. For reasons that we do not fully understand, the court took the position that the foregoing stipulated order resolved the issue of dependency. The court focused its attention on the phrase “adjudication of dependency is withheld,” and reasoned that the substitute judge had found the child to be dependent, but had declined to “formalize” that finding. It appears that the court may have been thinking of section 39.409(2), Florida Statutes (1983), which permits a judge in a dependency hearing to withhold adjudication if the court finds that the child is dependent, but that no action other than home supervision is required, or perhaps the court was referring to Rule 3.670, Fla.R.Crim.P., which permits a judge in a criminal case to withhold adjudication of guilt when placing a defendant on probation. In any event, the trial judge in this case, declined to conduct an adjudicatory hearing to determine dependency. Thus, we have the instant petition.

Preliminarily, we note that habe-as corpus is an acceptable vehicle for challenging wrongful detention of the child in this case. See Crane v. Hayes, 253 So.2d 435 (Fla.1971). However, in light of the stipulated order in this case, we cannot say that the child’s detention is wrongful. Yet it is equally clear that the parties have not been afforded an adjudicatory hearing as required by section 39.408, Florida Statutes (1983). The trial court’s characterization of the substitute judge’s order is simply not supported by the record. Therefore, in view of the passage of time and the critical nature of issue at hand, we deem it essential that the court convene and conduct an adjudicatory hearing in compliance with section 39.408, Florida Statutes (1983); see also A.Z. v. State, 383 So.2d 934 (Fla. 5th DCA 1980).

WRIT DENIED with instructions.

HURLEY and BARKETT, JJ., concur.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge,

concurring in part and dissenting in part.

In my view, the petition for habeas corpus should not have been considered as such. First, it did not comply with section 79.01, Florida Statutes (1983), as there was no showing of any unlawful detainment through affidavit or other evidence. The transcripts attached as an appendix are nothing more than unsworn dialogue of attorneys and others with two circuit judges. Second, the Supreme Court of Florida said by way of footnote in Potvin v. Keller, 313 So.2d 703, 705 n. 2 (Fía.1975), that habeas corpus is not a substitute for appeal of a juvenile court’s order but would be available as a remedy if the trial court’s adjudication of dependency was unconstitutional.

Moreover, the petition seeks other relief, assumingly certiorari, because of an alleged departure from the essential requirements of law, occasioning harm without adequate remedy by appeal, notwithstanding that section 39.413, Florida Statutes (1983), provides for appeal from any order entered pursuant to Chapter 39.

Finally, the petitioners have waited until July 17, 1984, to seek review of orders dated April 25, 1984, and May 8, 1984, notwithstanding the real issue seemingly arises out of a hearing that took place on June 8, 1984, from which no written order has apparently emanated. Section 39.-411(5), Florida Statutes (1983), plainly requires that all orders be in writing.

Notwithstanding the foregoing, I would sua sponte direct the trial court, by way of mandamus, to conduct an evidentiary hearing to adjudicate the issue of dependency as it should have done weeks ago. The alternative would seem to be contrary to the interest of justice; namely, denying the petition without prejudice to seek appeal from any order which the trial judge should issue hereinafter as a result of the hearing of June 8,1984. Neither the welfare of the child nor the interests of the parents may be consistent with further delay.

Having discussed my notion of appropriate disposition, I wish to visit other aspects of this case. First, I was initially concerned by the following remark made by the acting circuit judge who apparently was thrown into the breach because of the absence of the regularly assigned circuit judge.

You know, I’m concerned that there’d be an adjudication here, based on nothing. I mean it’s really based on nothing that I can see.

In its report, the child protection team concluded the infant had been the recipient of probable inflicted injury that had resulted in a life threatening situation. The team recommended that the infant be adjudicated dependent and that the parents be evaluated psychologically. Assumingly, the judge’s remark was based upon the absence of any evidence or affidavits, as the report contained no affidavits; and no one testified under oath. We have repeatedly called for evidence under oath, not un-sworn conversation, in the making of a record at the trial level.

Second, I gather from the transcript that no witnesses were asked to appear because the parents, at that point not represented by counsel, had consented verbally to the team’s recommendations on the day prior to the hearing. That consent apparently evaporated at the hearing, at which point it was the responsibility of the trial court, and all attorneys then or thereafter involved, to effect a timely evidentiary adjudicatory hearing. Such hearing never took place, leaving the child’s status vis a vis the parents in limbo. The uncertainty and lack of judicial resolution in this case, I feel, not only have affected the rights of the infant and its parents but may also become a potential source of frustration often experienced by non-legal professionals who spend their careers seeking judicial protection of children. It appears that while the child protection team may have done alot of work in response to the report of the infant’s condition, the judicial system did not hold up its end by staying in gear.

Third, if our courts have to be characterized, I would much prefer that they be described as meaningfully responding to the needs of the district’s children. It is no secret that the historical sensitivity of this nation to children is not shown in a flattering light when one learns that there was a Society for the Prevention of Cruelty to Animals before a similar Society for the Prevention of Cruelty to Children. The judiciary should be at the forefront as role models in matters involving those unable to protect or speak for themselves. All judges would do well, for example, to be familiar with the writings of Dr. C. Henry Kempe, who first diagnosed the battered child syndrome, and who represents the major wellspring of learning in the field of physical and sexual abuse of children. All of us trial and appellate judges should be aware of the work of child protection teams; informed of these team’s caring, concerned efforts to protect children from alleged abusive adults; and prepared, not only to require the necessary proof of abuse, but also to conduct proceedings with efficiency, informed perception and concern together with the appearance of concern.

      . § 415.504, Fla.Stat. (1983).

      . § 39.404, Fla.Stat. (1983).

      . Although the parents' subsequent consent to the entry of a detention order precludes a challenge to the initial detention hearing and the resulting finding of probable cause, we note our concern with the overall laxity that permeated the proceeding. The state’s verified petition was woefully inadequate. It did not provide sufficient facts to allow a neutral and detached magistrate to find probable cause. See, e.g., State v. I.B., Jr., 366 So.2d 186 (Fla. 1st DCA 1979). Of greater concern, however, is the fact that the magistrate did not seem to understand that his responsibility was to "perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964). Although the magistrate ultimately signed an order finding probable cause, that term was never mentioned during the hearing nor does it appear to have been a focus of concern. Rather, the magistrate seemed to presume justification to detain the child and implied that the parents had the burden of rebutting that presumption. The following colloquy is illustrative:
      THE COURT: My question today is — the only question before me today is, where does the child go between now and the time we get this matter settled?
      FATHER: Well, it seems like it’s guilt before proof.
      THE COURT: Well, I realize that.
      FATHER: I mean, so ...
      THE COURT: That was my problem with the last couple I was trying to explain it.
      Rule 8.050, Fla.RJuv.P., sets forth the procedures which must be employed in a detention hearing. It is critically important that the court scrupulously adhere to the dictates of this rule.

      .§ 39.408, Fla.Stat. (1983).

      . Appeals from orders rendered in juvenile proceedings are governed by section 39.413(1), Florida Statutes (1983), which provides:
      Any child, and any parent or legal custodian of any child, affected by an order of the court may appeal to the appropriate district court of appeal within the time and in the manner prescribed by the Florida Appellate Rules.
      Under the appellate rules, we have original jurisdiction over habeas corpus proceedings. See Fla.R.App.P. 9.030(b)(3). While we are aware that habeas corpus ordinarily may not be used as a substitute for an appeal or writ of certiorari, see Skipper v. Schumacher, 124 Fla. 384, 169 So. 58 (1936), cert. denied, 296 U.S. 578, 56 S.Ct. 88, 80 L.Ed. 408 (1935), appeal dismissed, 299 U.S. 507, 57 S.Ct. 39, 81 L.Ed. 376 (1936), and that petitioners in this case could have sought review by writ of certiorari but failed to avail themselves of that remedy within the time limitations imposed by Fla.R.App.P. 9.100(c), we nevertheless have determined to exercise our original jurisdiction under Rule 9.030(b)(3) in order to achieve substantial justice. See McDaniel v. State, 219 So.2d 421 (Fla.1969). Thus, we respectfully disagree with the dissent’s reliance on Potvin v. Keller, 313 So.2d 703 (Fla. 1975), as authority for the proposition that ha-beas corpus is not available as a means for reviewing any juvenile court order. Potvin and the cases cited therein merely restate the general principle that habeas corpus may not be used as a substitute for an appeal by one who failed to timely avail himself of the latter remedy.

      . On August 15, 1984, this court entered an order directing the trial court to conduct an adjudicatory hearing.

      . Former Chief Justice Grimes of the New Hampshire Supreme Court often lectures on the lack of necessity for footnotes. While he might say this case is illustrative of his point, nevertheless, I respectfully suggest that there are appropriate uses for such appendages. Hopefully, this procedural discourse may be illustrative. The reliance of the majority opinion upon McDaniel v. State, 219 So.2d 421, 424 (Fla.1969), as authority for permitting the use of habeas corpus "as a vehicle for the securing of substantial justice” appears inappropriate in this case because in McDaniel there were circumstances foreclosing adequate consideration through appeal. There are no circumstances in this case which would have precluded appeal from a written order to be entered by the regularly assigned circuit judge as a result of the hearing of June 8, 1984.
      Additionally, while Crane v. Hayes, 253 So.2d 435 (Fla.1971), which the majority also cites as authority for use of habeas corpus, points out that petitions for habeas corpus may be informal and need not be subject to the niceties of technical pleading, the case also says that the important issue is whether the petitioner has demonstrated a right to relief. Unsworn allegations in the present petition supported only by transcribed unsworn dialogue at hearings and without any supporting affidavits or stipulations, together with the express language of the above statute, lead me to believe that habeas corpus is inappropriate.


author: WENTWORTH, Judge.

text:
    Wallace SNEED, Appellant, v. STATE of Florida, Appellee.
    No. AT-44.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.
    Wallace Sneed, pro se.
    Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant was charged with one count of burglary of a dwelling, and one count of sexual battery. After a jury trial, he was found guilty as charged. On May 17,1983, he was sentenced to 30 years for the burglary and 15 years for the sexual battery. On May 19, 1983, appellant’s sentence was amended to 45 years for the burglary.

Initially, the public defender filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), certifying that counsel was unable to make a good faith argument that reversible error had occurred. With this court’s permission appellant filed a pro se brief. We reviewed the record and found no error with regard to the issues raised by appellant. However, we entered an order directing the parties to file briefs addressing the issue of whether a sentencing error had occurred.

The public defender then filed a supplemental brief arguing that the amended sentence was an improper increase in punishment effected after appellant had begun serving his initial sentence. See Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977). The state conceded the illegality of the amended sentence, but argued that the original sentences were proper and should be reinstated. We agree that the order purporting to vacate and amend the sentences was ineffective, and that the sentences originally imposed are proper and effective.

The transcript of the later sentencing hearing reveals that the trial judge was under the erroneous impression that he was not permitted to sentence appellant for both the burglary and the sexual battery. Since the original consecutive sentences were proper, the original sentencing order is affirmed and the amended sentence is stricken. See Green v. State, 415 So.2d 143 (Fla. 1st DCA 1982). In all other respects, the convictions are affirmed.

MILLS, J., and McCORD, Jr. (Ret.), Associate Judge, concur.


author: SHIVERS, Judge.

text:
    Lewis TAYLOR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AU-416.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.

      Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Taylor appeals his convictions and sentences for sexual battery and inmate possession of a weapon. Appellant argues that the trial court erred in denying his motion for severance of the two charges and in restricting defense counsel’s cross-examination of the key prosecution witness. We affirm the conviction and sentence for possession of a weapon but reverse the conviction for sexual battery and remand for a new trial.

Taylor, an inmate in Florida State Prison, was charged with the sexual battery of fellow inmate John Clark, Jr. and possession of a weapon, a homemade knife. Before trial, appellant moved to sever the two counts on the grounds that the offenses were factually unrelated and improperly joined. At the hearing on the motion defense counsel contended that it was unclear whether appellant was charged with possession of the knife at the time of the sexual battery or at a later time when his cell was searched. The prosecutor argued that judicial economy dictated one trial and stated that he believed the victim would identify the knife recovered from the cell as the same weapon, or consistent with the weapon, that was used in the sexual battery. The motion to sever was denied.

At trial, Clark testified as follows. At 11:30 A.M. on December 15, 1982, he was in his cell with his back to the door when someone sneaked up behind him. Clark felt a knife at his throat and was ordered to remove his pants. Clark identified the defendant, Taylor, as his assailant. Clark removed his pants as ordered and was anally penetrated. The knife was at his neck throughout the sexual attack. Later, Clark was able to get a look at the knife, and he described it as silver in color, aluminum or stainless steel, at least 8 to 10 inches long. He also stated that the blade was ¾ inch to one inch wide and that the knife had masking tape on the handle. After the attack, Clark cleaned himself, got dressed and reported the incident to his boss. He was examined at the prison clinic.

On cross-examination, defense counsel attempted to question Clark concerning other alleged sexual attacks. The State’s objections to this line of questioning were sustained and defense counsel was not allowed to proffer the evidence at that time. Defense counsel attempted to elicit from Clark whether he made sexual abuse complaints in order to get transfers or to get better treatment, but again the State’s objections were sustained. Defense counsel wanted to proffer the evidence, but the trial court would not allow a proffer at that time and told defense counsel, “you can call this witness if you want to.”

Officers Gilpin and Lazenby testified that they searched appellant’s cell on K wing at 2:30 P.M. on December 15, 1982. When Lazenby ordered appellant to step out of his cell, appellant walked up to the window and pushed out an object wrapped in toilet paper. After the officers searched appellant’s cell, they went outside and recovered a homemade knife wrapped in toilet paper outside appellant’s cell window. The knife was made from a pen with an insurance company name on it. They did not find a knife like the one described by Clark. When the State rested, appellant moved for a judgment of acquittal on both counts and also moved for a mistrial based upon the improper joinder of the two counts. The motions were denied.

The defense then called Clark who was shown the knife which was seized by Officers Gilpin and Lazenby outside appellant’s cell window. Clark testified that it was not the knife which appellant held to his throat during the sexual attack.

Medical Technician Lindberg testified that he examined Clark on the afternoon of December 15, 1982, and observed a minor bruise and chaffed area near Clark’s anus. There was no evidence of lacerations, blood, tears, swelling, or discharges.

Peterson, another inmate, testified that he had lunch with appellant and played basketball with him between 11:00 A.M. and 1:00 P.M. on December 15, 1982. Appellant also testified, and he denied attacking Clark. Defense counsel renewed his motions which were denied.

The jury found appellant guilty of both counts and he was sentenced to thirty years on the sexual battery count and five years on the weapon possession count to run consecutively. After sentencing, defense counsel informed the court that Clark had been returned to prison and was not available for the proffer desired by defense counsel. The trial court granted defense counsel’s request to propound for the record a proffer of what questions counsel would have asked Clark and what counsel expected the answers to be.

Florida Rule of Criminal Procedure 3.152(a)(2) provides that, inter alia, a court shall grant a severance of charges on motion of a defendant during trial upon a showing that such severance is necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. Rule 3.152(a)(1) provides that a defendant shall have a right to severance of the charges upon timely motion when two or more offenses are improperly charged in a single information. Rule 3.150(a) provides that two or more offenses may be charged in the same information when based on the same act or transaction or on two or more connected acts or transactions. We agree with appellant that the trial court abused its discretion in denying appellant’s renewed motion for severance at trial when it became clear that the knife found outside appellant’s cell was not the knife used in the alleged sexual battery.

In Paul v. State, 385 So.2d 1371 (Fla.1980), the court adopted Judge Robert Smith’s dissenting opinion in Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979), as the law of Florida on the question of whether charges are properly consolidated for the purpose of Rule 3.151. Although Paul is factually dissimilar, its rationale is applicable to the instant case. Judge Smith stated:

I conceive that consolidation rule 3.151 and its counterpart, joinder rule 3.150, refer to “connected acts or transactions” in an episodic sense, and that the rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are “connected” only by similar circumstances and the accused’s alleged guilt in both or all instances ....
[T]he more important purpose of requiring separate trials on unconnected charges is to assure that evidence adduced on one charge will not be misused to dispel doubts on the other, and so effect a mutual contamination of the jury’s consideration of each distinct charge. When as here the accuracy of an identification witness is critical in each unconnected case, their identifications will be regarded as mutually supportive although they are not mutually corroborative in law or in fact. The support that each identification lends to the other enables the prosecution to try the accused on a theory of cumulative guilt.

365 So.2d at 1065-66. Paul continues to reflect the law in Florida. State v. Williams, 453 So.2d 824 (Fla.1984). In Williams the court reiterated that the objective of fairness in determining a defendant’s innocence or guilt takes priority over considerations of judicial economy.

In the instant case, the evidence of the possession of a knife in appellant’s cell may have dispelled any doubts the jury may have had on the sexual battery charge because it established appellant as a person with a propensity to possess a knife. This is true even though the knife used in the alleged sexual battery was not the one found outside appellant’s cell and even though the evidence of the knife found outside appellant’s cell would be inadmissible in a trial on the sexual battery charge alone. Allowing the State to introduce the evidence of appellant’s possession of the homemade knife solely because of the consolidation of the charges allowed the prosecution to try appellant on a theory of cumulative guilt and precluded appellant from receiving a fair trial. Cf. State v. Vazquez, 419 So.2d 1088 (Fla.1982) (introducing evidence of a prior conviction to establish a charge of unlawful possession of a firearm by a convicted felon unfairly prejudiced Vazquez in regard to the charges of murder and display of a firearm during commission of a felony). Therefore, the trial court abused its discretion sub judice in not granting appellant’s renewed motion for severance because a showing was made during trial that severance was necessary to achieve a fair determination of defendant’s guilt or innocence of each offense. Rule 3.152(a)(2) (ii).

As to appellant’s conviction for possession of a weapon, however, we hold that the trial court’s error was harmless. The evidence of appellant’s guilt as to this charge was overwhelming, and we see no useful purpose in requiring a new trial. See Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882,102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982). Therefore, we reverse only the conviction for sexual battery.

Although our disposition of appellant’s first issue makes it unnecessary to address his second issue, in the intérest of judicial economy we do so to preclude the reappearance of this issue at a new trial on the sexual battery count. Defense counsel’s purpose in attempting to cross-examine the victim about prior alleged sexual assaults and requests for prison transfers was to establish whether the victim may have had a motive for lying about the alleged sexual battery, i.e., Clark may have made his story up in order to get a transfer or better treatment. This purpose was pointed out to the trial court in argument. It is well settled that a defendant, as a matter of right, may cross-examine a witness for impeachment purposes by inquiry which could possibly show a motive for the witness to be untruthful. See, e.g., Brown v. State, 424 So.2d 950 (Fla. 1st DCA 1983); McDuffie v. State, 341 So.2d 840 (Fla. 2d DCA 1977). As this court stated in Morrell v. State, 335 So.2d 836 (Fla. 1st DCA 1976):

It is settled in this court that, for the purpose of discrediting a witness, a wide range of cross-examination is permitted as a matter of right in regard to his motives, interest, or animus as connected with the cause or the parties thereto ....

335 So.2d at 838 (quoting from Pittman v. State, 51 Fla. 94, 41 So. 385, 394 (1906)). Sub judice, the trial court erred in sustaining the State’s objections to defense counsel’s attempted cross-examination of Clark.

Accordingly, appellant’s conviction and sentence for inmate possession of a weapon are affirmed; his conviction for sexual battery is reversed, the sentence is vacated, and the cause is remanded for proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMPSON and ZEHMER, JJ., concur.


author: PER CURIAM.

text:
    William L. HUGHES, Appellant, v. TOWN OF MEXICO BEACH, Appellee.
    No. AU-443.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.
    Scott R. Nabors of Hutto & Nabors, Panama City, for appellant.
    Paul G. Komarek of Daniel, Komarek & Martinec, Panama City, for appellee.
   PER CURIAM.

Appellant appeals from an adverse final judgment rendered below denying appellant’s claim of ownership of a strip of property located in Bay County, Florida. Appellant disputed the appellee’s claim of ownership by dedication of a 25-foot wide, approximately 130 foot long parcel of property located within a previously subdivided unit of land in what is now Mexico Beach, Florida. The disputed property is located between two lots owned by appellant, Lots 2 and 3 of a six-lot unit of property recorded as Mexico Beach Unit No. 6, Block 1.

Appellant’s primary argument centers on the contention that there neither was nor could be a formal acceptance of the dedication of the disputed strip under Section 177.081, Florida Statutes (1983), and that the evidence is not sufficient to support a claim of ownership by any governmental authority under Section 95.361, Florida Statutes (1983).

Appellee, on the other hand, points out that the disputed parcel is a part of a dedicated street shown on the original plat of the subdivision, which was duly approved by the county commission and recorded as required by law in 1951. Appel-lee maintains further that the evidence before the trial court was ample to establish acceptance of the dedication by improvement of some of the streets in the subdivision, and by public use of those streets as well as the disputed strip for many years prior to as well as after the time efforts were made by appellant or his predecessors to establish private ownership or control over the property.

The acceptance of a dedication of property for public use can be either by formal action of the government to whom the dedication is offered, or by public user. Hollywood v. Zinkil, 283 So.2d 581 (Fla. 4th DCA 1973), quashed in part on other grounds, 321 So.2d 65 (Fla.1975), on remand, 403 So.2d 528 (Fla. 4th DCA 1981). Hence, formal or written acceptance is unnecessary. Anderson v. Town of Groveland, 113 So.2d 569 (Fla.2d DCA 1959). The acceptance of some of the streets or roads in a platted subdivision is said to constitute an acceptance of the offer to dedicate all of the roads in the subdivision, absent proof of an intention to limit the acceptance. Indian Rocks Beach South Shore v. Ewell, 59 So.2d 647 (Fla.1952), followed in Town of Palm Beach v. Palm Beach County, 313 So.2d 770, 771 (Fla. 4th DCA 1975). Moreover, acceptance of a dedication is implied from the actual use of the property by the public. 19 Fla.Jur.2d, Dedication, Section 20.

Upon our consideration of the briefs and the record, we conclude that the trial judge did not err in determining that the disputed parcel was a dedicated street owned and held by the Town of Mexico Beach for public use. We find appellant’s argument on equitable estoppel grounds wholly without merit.

The judgment appealed from is therefore AFFIRMED.

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.

      . By action on April 27, 1982, subsequent to the filing of this action, appellee formally accepted all dedicated property within its corporate limits.


author: ZEHMER, Judge.

text:
    Jesus ARAMBURO, Appellant, v. CARGO DEVELOPMENT, INC., Travelers Insurance Co., and the Division of Workers’ Compensation, Appellees.
    No. AV-43.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.
    Rehearing Denied Oct. 8, 1984.
    Peter S. Schwedock of Pelzner, Schwe-dock, Finkelstein & Klausner, Miami, for appellant.
    Daniel J. Sullivan of Gladson & Sullivan, Miami, for appellees.
   ZEHMER, Judge.

In this workers’ compensation case, claimant appeals an order denying advance payment of all or a portion of his permanent total disability benefits. We find that the record contains competent, substantial evidence to support the deputy’s findings of fact and that the deputy properly applied the correct law to the facts so found. Accordingly, we affirm.

We write this opinion for the principal purpose of focusing attention on a serious problem that frequently arises out of the present provisions of the workers’ compensation act regarding payment of claimants’ attorneys’ fees. This case dramatically illustrates why, in disputed compensation cases where a claimant can pay attorney’s fees only out of the benefits recovered, competent attorneys are motivated to decline representation of claimants based on the pure adverse economic consequences of doing so.

The claimant here is a sixty-six year old Columbian who speaks no English. He was injured on November 14, 1981, and shortly thereafter retained his present counsel to assist in obtaining benefits denied by the employer and carrier. Some sixteen months later, on March 7, 1983, the employer and carrier accepted his claim for permanent total disability benefits, which amount to $980.40 per month. In the same order, the deputy approved an attorney’s fee in the amount of $23,883.75 for the services of claimant’s attorney and ordered that claimant use fifteen percent from each compensation check to pay the fee. This results in payments to the attorney of $147 per month over thirteen and one-half years until the entire $23,883 is paid. We note that claimant and his attorney apparently agreed to this arrangement so that claimant could have sufficient funds each month to meet his living expenses and avoid penury-

As the deputy approved the fee in his order, we must assume that it was a reasonable amount for the services performed. In today’s economic environment — with interest rates at twelve percent per annum and higher — ordering the fee paid in this manner has reduced its present value to less than $13,000. Indeed, simple monthly interest on the principal sum owed, calculated at ten percent per annum, amounts to $199 per month, or $52 per month more than the monthly payment due the lawyer. Claimant’s attorney indicated that he plans to retire in the near future and would like to receive his fee now.

The 1979 workers’ compensation law, as amended prior to November 1981, is applicable in this case. The 1979 enactment contained comprehensive changes designed to make the workers’ compensation system “self-executing” and thereby substantially reduce the injured claimant’s need for representation by an attorney. The claimant’s need for representation, though somewhat abated by these changes, nevertheless has continued to be significant. For this reason, section 440.34, Florida Statutes, contains elaborate provisions governing the payment of a claimant’s attorney’s fees under the direct supervision and approval of the deputy commissioner and the court. That section now makes the claimant fully responsible for payment of his own attorney’s fees in all but the three limited situations where the employer and carrier are required to pay such fees. The three exceptions are (1) when the claimant successfully asserts a claim for medical benefits only and is not entitled to file for certain disability benefits at that time; (2) where the carrier has acted in bad faith with regard to handling the employee’s claim; and (3) where the employer or carrier denies a compensable injury occurred and the claimant prevails on the issue. The vast majority of litigated compensation cases involve the extent of claimant’s compensable injury, i.e., whether temporary or permanent, whether total or partial, or whether earning ability is actually impaired or wages actually lost. In such cases, the claimant is, in the absence of bad faith by the carrier, afforded no right to recover attorney’s fees. Hence, in most disputed cases claimants themselves are responsible for payment of their attorney’s fees and such fees are made a lien upon compensation benefits awarded the claimant. § 440.-34(4), Fla.Stat.

As a matter of “stated policy,” the present act encourages periodic payment of benefits to claimants and discourages lump-sum settlements. § 440.20(12), Fla. Stat. Similarly, the act contains substantial limitations on advance payment of compensation benefits, whether agreed to by both parties or sought by the claimant over objection of the employer or carrier. When the claimant seeks an advance payment, as in this case, the deputy commissioner must determine, based upon competent, substantial evidence, that such advance is in the best interest of the claimant, is reasonable under the circumstances, and will not materially prejudice the rights of the employer and carrier. § 440.20(13)(d), Fla.Stat. This court recently held that a partial advance for the purpose of paying claimant’s attorney’s fees is prejudicial to the carrier because it would require the carrier to advance the sum at a discount well below the current market interest rates and cause the carrier to lose income it would otherwise earn; thus, it is not a sufficient reason to justify such advance. Travelers Insurance Co. v. Taylor, 444 So.2d 39 (Fla. 1st DCA 1984). By similar reasoning, forcing the claimant’s attorney to delay receipt of his fee over thirteen and one-half years through monthly payments less than the market interest on the fee is equally prejudicial to a claimant’s attorney.

The facts in this case readily demonstrate the need for more equitable provisions for payment of claimants’ attorneys’ fees, whether by advance payment of benefits or shifting the burden for payment of fees to the employer and carrier in a broader range of cases. Because the situation here is far from being an isolated incident, we recommend to the Division of Workers’ Compensation and to the Florida Legislature that this problem be given further serious study and resolved through appropriate statutory revision.

The order below is reluctantly AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


author: ERVIN, Chief Judge.

text:
    Janet H. CAMPBELL, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission and Tallahassee Community Hospital, Appellees.
    No. AV-190.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.
    Marc E. Taps, Tallahassee, for appellant.
    William T. Moore and Geri Atkinson-Ha-zelton, Unemployment Appeals Com’n, Tallahassee, for appellees.
   ERVIN, Chief Judge.

Appellant Campbell was discharged from employment as a hospital ward secretary for being absent from work without notice to her employer on two consecutive days (fail days) in violation of employer’s personnel rules. A claims examiner determined that Campbell was disqualified from entitlement to unemployment benefits by reason of Section 443.101(l)(a), Florida Statutes (1983), which provides that “[a]n individual shall be disqualified for benefits: ... [when] he has been discharged by his employing unit for misconduct connected with his work ...” (e.s.). “Misconduct” is defined at Section 443.036(24), Florida Statutes (1983), as follows:

MISCONDUCT. — “Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil designs or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

At hearing before an appeals referee, Campbell testified that she was absent from work to be with her daughter, hospitalized in another state following a serious car accident, and that she had relied upon her husband to notify the employer that she had been called away. The appeals referee found that Campbell’s distress over her daughter’s condition and her good faith reliance upon her husband to contact the employer excused her fail days. Accordingly he concluded that Campbell was not guilty of misconduct disqualifying her for benefits. The Unemployment Appeals Commission (the Commission), while purporting to accept the referee’s findings of fact, nonetheless found that Campbell had been discharged for misconduct and reversed the award of benefits. We, in turn, reject the findings of the Commission and reverse.

This court addressed the standard for review of an agency’s substitution of its own findings for those of a hearing officer in McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977):

In determining whether substantial evidence supports the agency’s substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer’s contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof or when concerning those facts the agency may not rightfully claim special insight.
At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the sub-stantiality of evidence supporting the agency’s substituted findings.
Thus, the substantiality of evidence supporting an agency’s substituted finding of fact depends on a number of variables: how susceptible is the factual issue to resolution by credible witnesses and other evidence, how substantially the hearing officer’s discarded findings are supported by such evidence, how far the factual issue tends to be one of opinion, how completely agency policy occupies a field otherwise open to different opinion.

(e.s.)

In the present case the factual issues surrounding the order include the issues of whether the employee was under the duress of a family emergency at the time of the fail days and whether there was good faith reliance upon another person to notify the employer of absences, so as to prevent the employee’s conduct from amounting to misconduct justifying disqualification for benefits. The judicial gloss placed on the statutory definition of misconduct excludes fail days under circumstances such as those on review. Tucker v. Florida Department of Commerce, 366 So.2d 845 (Fla. 1st DCA 1979); Fredericks v. Florida Department of Commerce, Industrial Relations Commission, 323 So.2d 286 (Fla. 2d DCA 1975); Williams v. Florida Industrial Commission, 135 So.2d 435 (Fla. 3d DCA 1961). As these factual issues are susceptible to ordinary methods of proof, the Commission can claim no special expertise regarding such issues, and there is competent substantial evidence to support the findings of the referee that Campbell’s fail days occurred while she was under the duress of a family emergency and that she in good faith relied upon her husband to contact the employer. The Commission’s substituted findings are therefore rejected; the order appealed from is reversed and this cause is remanded with directions that the order of the appeals referee be reinstated.

BOOTH and WENTWORTH, JJ., concur.


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. In the Interest of J.M.L. and T.M.L., Children, Appellee.
    No. AW-493.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1984.
    James A. Sawyer, Jr., District III Legal Counsel, Dept, of Health and Rehabilitative Services, Gainesville, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

The Department of Health and Rehabilitative Services (HRS) appeals the trial court’s order which places J.M.L. and T.M.L. in the care and custody of their paternal grandparents. HRS contends that this order violates the Interstate Compact on the Placement of Children and, further, was entered without due notice to HRS. We agree on both points and reverse.

On November 11, 1982, T.M.L., born October 12, 1980, and J.M.L., born June 29, 1982, were adjudicated dependent by reason of neglect. On January 17, 1983, these children were placed, after the parents had failed to comply with the trial court’s order to obtain electricity, running water, and adequate heating, in the care, custody and control of HRS for foster care placement. Thereafter, T.M.L. and J.M.L. were placed in foster care and the parents entered into a performance agreement with HRS.

On May 25, 1983, HRS petitioned the trial court to enter an order of compliance with the Interstate Compact on the Placement of Children, section 409.401, Florida Statutes; HRS informing the court that it wished to conduct a home study of the children’s paternal grandparents, residents of Statenville, Georgia. The trial court granted HRS’s petition and agreed to be the sending agency for T.M.L. and J.M.L. and abide by all provisions of the Interstate Compact on the Placement of Children. On August 2, 1983, the appropriate Georgia officials sent notice that they disapproved placement of T.M.L. and J.M.L. with their paternal grandparents. The Georgia home study found that the children would not receive the nurturing needed by them at the grandparents’ home. After reviewing this, the trial judge, on August 9, 1983, ordered that T.M.L. and J.M.L. continue in the temporary care and custody of HRS and directed the children’s parents to enter into another performance agreement.

On November 29, 1983, apparently after holding an ex parte hearing with the paternal grandfather, the trial judge entered the order on review. This order places T.M.L. and J.M.L. in the care and custody of the paternal grandparents and relinquishes jurisdiction over the children.

HRS first contends that the trial judge erred in entering this order without giving HRS prior notice of the hearing attended by the paternal grandfather. We agree. Here, HRS became the legal custodian of T.M.L. and J.M.L. on January 17, 1983, when the children were placed in HRS’s care and custody. Section 39.-41(l)(d), Florida Statutes (1983). As legal custodian, HRS was a party entitled to reasonable notice of the hearing attended by the grandfather. See Fla.R.Juv.P. 8.220(g) (providing that where the rules of juvenile procedure do not require a specific notice, all parties will be given reasonable notice of any hearing); Fla.R.Juv.P. 8.340 (the terms party and parties shall include the petitioner, the child, and every person upon whom service of summons is required by law); section 39.405(4), Florida Statutes (1983) (the summons shall be directed to, and shall be served upon, the ... legal custodian).

Next, HRS contends that the trial judge’s order is in violation of Article 111(d) and Article V of the Interstate Compact on the Placement of Children. Again, we agree. Here, the trial judge placed T.M.L. and J.M.L. in the care and custody of their paternal grandparents, residents of Georgia, after placement had been specifically disapproved by the appropriate Georgia officials. Moreover, the trial judge’s order relinquished jurisdiction over T.M.L. and J.M.L. This is contrary to the provisions of Article 111(d) and Article V(a) of the Interstate Compact on the Placement of Children, section 409.401, Florida Statutes (1983). See also Article 111(a) of the Interstate Compact on the Placement of Children (providing that the sending agency shall comply with each and every requirement set forth in the article and with the applicable laws of the receiving state governing the placement of children).

Accordingly, we reverse the trial court’s order and remand this cause to the trial court to conduct a hearing on the status and placement of T.M.L. and J.M.L., after giving reasonable notice to all interested parties, and direct that the trial court make no out-of-state placement of T.M.L. and J.M.L. except in compliance with the provisions of the Interstate Compact on the Placement of Children.

REVERSED and REMANDED with directions.

THOMPSON and ZEHMER, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Benjamin POLLOCK, Appellant, v. T & M INVESTMENTS, INC., Appellee.
    Nos. 83-2423, 84-130.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.
    Sidney L. Syna, Miami, George Schwartz, Miami Beach, for appellant.
    Louis Vernell, Sunny Isles, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

The order entered after and pursuant to our opinion and mandate in Pollock v. T & M Investments, Inc., 420 So.2d 99 (Fla. 3d DCA 1982), pet. for rev. denied, 430 So.2d 452 (Fla.1983), was erroneous insofar as it terminated as of March 12, 1979, the $25 per day compensatory fine, imposed by the trial court in 1978 and affirmed by this court in T & M Investments, Inc. v. Pollock, 374 So.2d 110 (Fla. 3d DCA 1979) (per curiam), for its contemptuous failure to comply with the order for the payment of $175 per month to Pollock we had previously affirmed in Pollock v. Morton, 311 So.2d 206 (Fla. 3d DCA 1975). This was incorrect both because (a) the trial court was not authorized to depart from the terms of our affirmance of the fine absent our authorization and consent, Goodner v. Shapiro, 367 So.2d 1110 (Fla. 3d DCA 1979), and eases cited; and (b) since the condition upon which the fine was predicated, that is, compliance with the order has never been satisfied, it was improper to permit the appellee to escape its effect by simply ignoring its terms without prior order of court. Shane v. Shane, 444 So.2d 86 (Fla. 3d DCA 1984); Adams v. Adams, 423 So.2d 596 (Fla. 3d DCA 1982).

We also find error in the order declining to award attorney’s fees for the efforts of Pollock’s lawyers in enforcing the contempt order. In view of the “long history of non-compliance by T & M” which we have already commented upon, 420 So.2d at 100, and which has lengthened considerably since we did, this holding was a clear abuse of discretion. Ibis Construction Co. v. Sinclair, 406 So.2d 510 (Fla. 3d DCA 1981), and cases cited.

We therefore direct that, forthwith upon remand, additional judgments be entered against T & M for (a) the $25 per day compensatory fine from March 12, 1979 until entry or payment of the underlying judgment, plus interest; and (b) for the reasonable attorney’s fees required by this opinion. In an attempt to put this interminable litigation to an end, we also direct that, immediately thereafter, the property of T & M unencumbered by the lien or any interest of Morton — which we have ordered cancelled in Pollock v. Morton, 455 So.2d 574 (Fla. 3d DCA 1984) — be subject to execution to satisfy any judgment, held by Pollock against it. It is also ordered that the time for filing a motion for rehearing herein is shortened to five days from the date hereof.

      . This was the date a fraudulent conveyance from T & M to Morton was set aside. See Morton v. Pollock, 386 So.2d 1327 (Fla. 3d DCA 1980) (per curiam); Pollock v. Morton, 455 So.2d 574 (Fla. 3d DCA 1984); Pollock v.T&M Investments, Inc., 420 So.2d at 100-101.

      . There is no merit in the appellant’s remaining contentions.

      . We so order because of what we have called in the companion case, Pollock v. Morton, 455 So.2d 574 (Fla. 3d DCA 1984), an "intolerable" history of delay and obstructions in and to the vindication of Dr. Pollock's established rights in this cause.

      .These include, but are not necessarily limited to, the principal judgment of December 6, 1982; the order and judgment of May 26, 1983 for 14,125.00, under review herein; the judgments to be entered in accordance with this opinion; and the order for $2,000 in appellate attorney’s fees which we have assessed in this proceeding. Ibis Construction Co. v. Sinclair, supra.


text:
    Benjamin POLLOCK, Appellant, v. Emil MORTON, Appellee.
    No. 84-66.
    District Court of Appeal of Florida, Third District.
    Aug. 28, 1984.

      Sidney L. Syna, Miami, for appellant.
    Dubbin, Berkman, Dubbin & Greenfield, Evan J. Langbein, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

The final judgment granting the appellee Morton a so-called, but wholly misnamed “equitable lien” on property titled in a corporation in which he held, to say the least, a substantial interest, T & M Investments, Inc., is completely unsupportable and is consequently reversed. Of the numerous reasons which may properly be assigned for this result, we refer only to the most obvious:

1. The basis for Morton’s claim— that, without either receiving a mortgage from, or agreeing to the existence of such an interest with T & M — he advanced money to the corporation for that entity to acquire and improve realty taken in its own name, simply does not, as a matter of law, give rise to an equitable lien or equitable mortgage upon the property. Proudley v. Fidelity & Guaranty Fire Corp., 345 Pa. 385, 29 A.2d 48 (1942); compare, e.g., So-carras v. Yaque, 452 So.2d 992 (Fla. 3d DCA 1984); Merritt v. Unkefer, 223 So.2d 723 (Fla.1969); 36 Fla.Jur.2d Mortgages § 10 (1982).

2. It is manifestly not a matter of “equity and good conscience,” as is indispensable for the intervention of the chancery court to achieve any such result, Turturro v. Schmier, 374 So.2d 71 (Fla. 3d DCA 1979), for Morton (a) to receive an “equitable lien” upon property which was the subject of a transfer to him previously set aside as a fraudulent conveyance in a judgment we affirmed in Morton v. Pollock, 386 So.2d 1327 (Fla. 3d DCA 1980) (per curiam), particularly when (b) the lien is adjudicated as an interest superior to recorded judgments of the appellant, Dr. Pollock, which represent a portion of the consideration owed by T & M (and therefore, in essence, Morton) for Pollock’s original transfer of that very same property to it. See Pollock v. Morton, 311 So.2d 206 (Fla. 3d DCA 1975).

3. The appellee’s action is barred by virtue of his failure to assert the contention to establish his alleged interest in the property as a compulsory counterclaim in the prior action to set aside the fraudulent conveyance. Cabinet Crafts, Inc. v. A.G. Spanos Enterprises, Inc., 348 So.2d 920 (Fla. 2d DCA 1977), and cases cited.

The judgment below is reversed and the cause remanded with directions to cancel and hold for naught the lien imposed therein and to dismiss the complaint with prejudice. Because of the intolerable delay already involved in these and related proceedings, we order that these directions be complied with forthwith upon the receipt of our mandate in the circuit court. In addition, the time for filing a motion for rehearing in this appeal is shortened to five days from the date hereof.

Reversed and remanded with directions.

      . Much of the background of this cause, including numerous prior appearances in this court, is detailed in Pollock v. T & M Investments, Inc., 420 So.2d 99 (Fla. 3d DCA 1982), pet. for rev. denied, 430 So.2d 452 (Fla.1983). See also, Pollock v. T & M Investments, Inc., 455 So.2d 573 (Fla. 3d DCA 1984).

      . By separate order, we have granted Pollock's motion for appellate attorney's fees under Sec. 57.105, Fla.Stat. (1983) in the amount of $5,000.

      . As opposed to a claim against or interest in T & M.

      . Appellee's counsel’s admission at oral argument that — because none exists — he could find no authority to support his position on the merits would inspire our admiration for its candor had it not come so late in the game.


text:
    Roger H. DEAN, Appellant/Cross Appellee, v. Jon Frederic COYNE, Appellee/Cross Appellant.
    Nos. 83-1112, 84-287.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Rehearing Denied Sept. 24, 1984.
    Richard M. Goldstein of Goldstein & Ta-nen, P.A., Miami, for appellant/cross appel-lee.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, and Moss, Henderson & Lloyd, P.A., Vero Beach, for appellee/cross appellant.
   PER CURIAM.

This is an appeal by the maker of a promissory note, claiming the award of an attorney’s fee of $15,000.00 to be excessive and a cross appeal by the payee, claiming the award to be inadequate. Subject to the discussion hereinbelow, we affirm the main appeal, there being substantial competent evidence to support the award. Similarly, we affirm the issue on cross appeal because the parties stipulated that the trial court could determine the issues of entitlement and amount.

However, we reverse the trial judge’s determination that section 687.06, Florida Statutes (1983), is unconstitutional. The statute, assuming its applicability outside of the context of usury, does not prevent the court from looking into the reasonableness of the contract’s provision for attorney’s fees; it merely says there does not have to be such an inquiry when the provision calls for no more than a fee of 10%. We conclude this means when the contract flatly calls for a fee of 10% or less, there should be no judicial inquiry into the fee’s fairness or reasonableness absent some plea for equitable consideration, e.g., un-conscionability, but that when the contract is not limited to such ceiling on the fee, such adjudication is appropriate. Here the contract called for a 10% fee or such greater fee as may be just and reasonable. That provision left appellee free to seek a greater fee than 10%. While he did not do so, he could have; and the statute should not be read, in such circumstance, to permit him to try to show that a just and reasonable fee of more than 10% should be taxed, without also permitting appellant to show that a fee of less than 10% was in fact proper. Were it so construed, the statute might then be found to be applied unconstitutionally because it might violate the maker’s right to equal protection or access to the courts.,

In Sepler v. Emanuel, 388 So.2d 28 (Fla.3d DCA 1980), the court said that if the statute is construed to permit the plaintiff to show a fee of more than 10% to be reasonable, it might be construed also to permit the defendant to show that a fee of less than 10% was reasonable; else the statute would be unconstitutional. Although this was stated in a factual context where the stated note provision called for an attorney’s fees but failed to specify the amount, and the trial court assumed the 10% rate, mentioned in the statute, to be applicable, we believe we can extrapolate the foregoing to the instant situation.

DOWNEY and GLICKSTEIN, JJ., and SCOTT, ROBERT C., Associate Judge, concur.


text:
    Ronald F. WOLFSON, Appellant, v. Eva L. WOLFSON, Appellee.
    Nos. 83-2125, 83-2430.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1984.
    Rehearing Denied Sept. 21, 1984.

      J. Mark Maynor of Beverly & Freeman, West Palm Beach, for appellant.
    Ronald E. Jones, West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

We grant the petition for rehearing, withdraw our opinion issued on June 27, 1984, and substitute the following opinion.

The husband appeals four non-final orders of the trial court in a dissolution of marriage action. We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(B) and 9.130(a)(3)(C)(i) and (iii). One of the orders the husband appeals denies the husband’s motion to dismiss for lack of in personam jurisdiction. The remaining orders concern temporary alimony and child support.

Ronald and Eva Wolfson were married in New York in 1979 and made their marital home in Chile, where Mr. ■ Wolfson was employed by an American bank. A son was born to the marriage. There came a time when Mrs. Wolfson left the marital home, taking the child with her, and took up residence in Palm Beach County, where her father also lives. When Mr. Wolfson, who has never resided in Florida, came to visit the child, he was served with summons and complaint in a marriage dissolution suit commenced by Mrs. Wolfson.

We hold that the trial court correctly denied appellant’s motion to dismiss for lack of personal jurisdiction. Still alive and well is the traditional principle that proper service on a person found within the territory of the state effects in personam jurisdiction when the person is present voluntarily, not because of fraud or trick, and not to appear in court on an unrelated matter. Appellant is mistaken when he contests the court’s personal jurisdiction of him on the ground that he lacks connection with the state of the kinds set forth in section 48.193(l)(e), Florida Statutes (1983). That section comes into play where there is not already territorial jurisdiction, or personal jurisdiction has not otherwise been acquired. It expands rather than limits the historic jurisdiction of Florida courts, albeit it does not expand that jurisdiction as far as federal case law would permit.

Appellant also challenges both the award and the amount of temporary support for appellee and the parties’ minor child. He contends that since appellee has liquid assets in the amount of $65,000 and derives interest income from a trust fund, that she is not entitled to temporary alimony. Alternatively, he argues that the amount of the award is excessive. Unfortunately, the trial court did not specify how much of the award represented alimony and how much represented child support. Such specification is preferred if not required. See Zalka v. Zalka, 100 So.2d 157 (Fla.1958).

Appellant relies on Grace v. Grace, 162 So.2d 314 (Fla. 1st DCA 1964), and argues that the statute authorizing allowance of temporary alimony does not apply when a wife has substantial liquid assets with which to keep herself in reasonable comfort pending final hearing. Here ap-pellee admitted that she had $65,000 in liquid assets and $19,000 annual interest income from a trust fund with which she could tide herself over for four to six months. At first blush, it appears the trial court failed to heed the language of Grace. However, appellee further testified that it would be necessary to deplete her savings to maintain herself and her child. Appellee should not be compelled to consume her separate assets to maintain the style of living which she and appellant enjoyed. Lutgert v. Lutgert, 362 So.2d 58 (Fla. 2d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979); De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983); Weasel v. Weasel, 421 So.2d 749 (Fla. 4th DCA 1982). Our review of the record satisfies us that a basis exists in the record for an award of temporary alimony.

We find no merit in appellant’s challenge of the amount of temporary relief awarded appellee and the parties’ minor child. The only evidence before the trial court consisted of the parties’ financial affidavits and the testimony of appellee. The resolution of this conflicting evidence was for the trier of fact and based on the record before us we find sufficient evidence to support both the award and the amount of temporary relief. The trial court has broad discretion in deciding matters of temporary alimony and child support and we will not disturb that discretion in the absence of a showing that no reasonable man would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Under the circumstances of this case, we cannot say the trial court abused its discretion.

Therefore, we affirm the orders appealed with the caveat that either party may petition the court for further hearing on temporary relief if the circumstances warrant.

AFFIRMED.

GLICKSTEIN, DELL and BARKETT, JJ., concur.


text:
    Warren F. MAZEK, Appellant, v. Nancy L. MAZEK, Appellee.
    No. AX-142.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1984.

      Elaine N. Duggar, of Gardner, Shelfer & Duggar, Tallahassee, for appellant.
    James P. Judkins, Tallahassee, for appel-lee.
   WENTWORTH, Judge.

The parties’ marriage was dissolved in 1982 by a final order which incorporated a Settlement Agreement executed by them. The agreement provided for the property settlement and support for the wife and four children who were minors at the time of the dissolution. The trial court specifi.cally retained jurisdiction to enforce or modify the judgment, and in November, 1983, the husband filed a petition for modification which resulted in the order now being appealed by him. We affirm.

The husband’s primary contention in this appeal is that the terms of the support provision in the Stipulation and Agreement demonstrate the parties’ intention that the wife would not receive permanent alimony, and that it was therefore error for the court to have awarded it. The original support provision required the husband to pay a sum of $1,850.00 per month as “family support” for the wife and children. The paragraph containing the support provision included the following language:

The parties do not anticipate that the Wife will need to rely on the Husband permanently for support ... The level of support contained in this section is for the purposes of maintaining the Wife and children while the Wife completes her education and seeks employment.
Nothing in this paragraph shall be construed as a waiver on the part of either party to apply to the court or seek, in March of 1983, a change in the support payments or to seek termination, increase or decrease thereof. The provisions of this paragraph are in recognition of the fact that the parties and the court will be in a better position to determine the issues of support for the Wife and children in March of 1983.

Because of the statement that the parties did not “anticipate” that the wife would require alimony, and in spite of the express statement to the contrary, the husband argues that the wife waived her right to permanent alimony by agreeing to the stipulation. We are not persuaded by his argument and we will not hold that the parties were bound by their anticipations in view of the totality of the agreement.

On the merits, we find that the trial court’s determinations that the wife is in need of permanent alimony and that the husband has the ability to pay are supported by the record. We also note that the order appealed incorporates the provision of the final judgment pertaining to retention of jurisdiction so that the parties may seek future modification should such be warranted by a change of circumstances.

Affirmed.

SMITH and WIGGINTON, JJ., concur.

      . This arrangement is referred to in appellant’s brief as a “Lester Agreement,” an arrangement commonly utilized to secure the most desirable tax advantages for the parties.

      . At the time of the modification the wife had recently secured permanent employment as a legal librarian earning $13,500 per year. The husband was earning approximately $62,000.


text:
    John R. PARRY, D.D.S., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. AX-291.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1984.
    Rehearing Denied Oct. 2, 1984.
    Kenneth M. Meer and Thomas V. Infanti-no, Winter Park, for appellant.
    Julie Gallagher, Staff Atty., Dept, of Professional Regulation, Tallahassee, Jim Smith, Atty. Gen., M. Catherine Lannon, Asst. Atty. Gen., Board of Dentistry.
   WENTWORTH, Judge.

This is an appeal from a final order of the Board of Dentistry placing John Parry’s license to practice dentistry on probation for one year. The Department of Professional Regulation cross-appeals the board’s decision that Parry was guilty of violating § 466.028(l)(g), Florida Statutes, instead of a violation of § 466.028(l)(aa), as found by the hearing officer. We affirm on the issues presented by the appeal and the cross-appeal, but amend the final order to eliminate ambiguity in the penalty imposed.

After finding appellant guilty of violating § 466.028(l)(y) and 466.028(l)(g) the board imposed the following penalty:

3. That Respondent’s license to practice dentistry is placed on probation for one year subject to the term and condition that any violation of the laws or rules relating to the practice of dentistry shall result in an automatic suspension of Respondent’s license.

Appellant argues that the penalty is improper because it is vague, it permits revocation of his license in derogation of the protections of the Administrative Procedure Act, and it attempts to bind future boards with regard to the penalty to be imposed in the event of a future violation. Appellees respond that the penalty should be interpreted to mean that appellant’s license is “subject to” suspension in the event of a finding of a future violation. Since the board apparently recognizes that it may not, by this order, require a future automatic suspension of appellant’s license, we find that the complained of language is mere surplusage. In the interest of clarity the provision requiring automatic suspension is stricken, and the last paragraph of the order is amended to read:

3. That Respondent’s license to practice dentistry is placed on probation for one year subject to the term and condition that any violation of the laws or rules relating to the practice of dentistry may result in suspension of Respondent’s license.

In all other respects, the appealed order is affirmed.

SMITH and WIGGINTON, JJ„ concur.


author: SHARP, Judge.

text:
    T.A.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 83-564.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    James B. Gibson, Public Defender, and Lucinda J. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

T.A.W. appeals from an order of disposition in a delinquency case which ranked as first priority the option of sending him to a state school. Section 39.-09(3)(e), Florida Statutes (1983), requires the court to rank the options presented to it by the Department of Health and Rehabilitative Services. As in L.J.N. v. State, 411

(3) DISPOSITION HEARING FOR DELINQUENCY CASES. — When a child has been found to have committed a delinquent act, the So.2d 1349 (Fla. 1st DCA 1982), the court selected as the number one placement priority an alternative that was not suggested by the Department of Health and Rehabilitative Services. The provisions of this statute regarding disposition of juvenile cases are mandatory.
While this case was on appeal, the lower court attempted to modify its order to comply with section 39.09(3)(e), but it lacked jurisdiction to do so. Accordingly, we vacate the disposition order and remand for entry of an order in compliance with the controlling statute.

ORDER VACATED; REMANDED.

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

      . Section 39.09(3)(e), Florida Statutes (1983), provides: following procedures shall be applicable to the disposition of the case:
      (e) If the court determines that the child should be adjudicated as having committed a delinquent act and that he should be committed to the department, such determination shall be in writing or on the record of the hearing. The determination shall include a specific finding on reasons for the decision to adjudicate and commit the child to the department. If the court decides to commit a child to the department, the department shall furnish the court, in order of the preference of the department, a list of not less than three options for programs in which the child may be placed. The court shall rank the options presented by the department in order of the preference of the court. The recommendation of the court shall be reviewed by the department and shall be given primary consideration. The recommendation of the court shall be followed if the commitment resource is available. The court may also require that the child be placed in a community control program following the child’s discharge from commitment. Community-based sanctions may be imposed by the court at the disposition hearing or at any time prior to the child’s discharge from commitment.

        . W.Y. v. State, 414 So.2d 659 (Fla. 1st DCA 1982); L.J.N. v. State, 411 So.2d 1349 (Fla. 1st DCA 1982); see also T.S.J. v. State, 439 So.2d 966 (Fla. 1st DCA 1983).

      . Ward v. State, 405 So.2d 503 (Fla. 2d DCA 1982); Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980).


author: PER CURIAM. DAUKSCH, Judge,

text:
    Perry Olin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1839.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Gary W. Tinsley, Daytona Beach, for appel-lee.
   PER CURIAM.

The other members of a state attorney’s office are not disqualified from prosecuting a criminal case merely because one prosecuting attorney in the office is the alleged victim and a State’s witness in the case. See Clausell v. State, 455 So.2d 1050 (Fla. 3d DCA 1984). See also State ex rel. Oldham v. Aulls, 408 So.2d 587 (Fla. 5th DCA 1981); Thompson v. State, 246 So.2d 760 (Fla.1971); United States v. Caggiano, Baszner, and Winfield, 660 F.2d 184 (6th Cir.1981), cert. denied, Winfield v. United States, 454 U.S. 1149, 102 S.Ct. 1015, 71 L.Ed.2d 303, cert. denied, Braszner v. United States, 455 U.S. 945,102 S.Ct. 1444, 71 L.Ed.2d 658 (1982).

AFFIRMED.

SHARP and COWART, JJ., concur.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

I agree that the state attorney and his assistant state attorneys should not be disqualified in this case. Of course the assistant who prosecuted the case was not the one who testified at trial. There was no showing of any prejudice to the appellant in this case but such could be so in another case. Thus I agree with the result here but am reluctant to join in the majority opinion which seems to announce a per se rule. In my opinion the better way to handle the matter would be to say unless some actual or potential prejudice can be demonstrated by the accused the entire office is not disqualified. For example, if it be shown or strongly indicated that prose-cutorial overreaching in the handling of the case occurred then perhaps the office should be disqualified.

I concur in the result here.


author: DOWNEY, Judge.

text:
    Sharon T. FORNES, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT, a special tax district, Appellee.
    No. 83-947.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 3, 1984.
    James C. Pilkey of Taylor, Brion, Buker & Greene, Miami, and John L. Korthals of Musselman, Rhinehardt, Welch & Korthals, Pompano Beach, for appellant.
    William Zei of Gibbs & Zei, P.A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The narrow question presented by this appeal is whether a taxpayer has standing to sue to enjoin an alleged illegal expenditure of public funds by a taxing district that will result in an increased tax burden to the taxpayer. The trial court implicitly answered the question in the negative and the taxpayer has perfected this appeal. We reverse.

Appellee, North Broward Hospital District, is a special tax district in Broward County. Through its appointed commissioners, the District operates certain hospitals in Broward County. To finance the building, expansion, operation and maintenance of these hospitals, the appointed commissioners levy taxes against property owners residing in their district. Appellee, Sharon T. Fornes, owns property within the taxing district and pays taxes to the District.

The District decided to expand North Broward Hospital. Pursuant to its charter, all contracts for construction of improvements in excess of five thousand dollars may be approved only after competitive bids have been sought from at least three different sources. In an attempt to comply with this requirement, the District developed specifications for the expansion project and invited bids from the public. In her complaint, Fornes alleges that the specifications were drawn so as to permit favoritism and collusion and stifling of the competitive bidding process required under the district charter, all of which prevented the project from being completed at the lowest possible cost to the taxpayers. The District moved to dismiss the complaint on the grounds that Fornes’ allegations that she was a resident and a taxpayer within the taxing district and that her tax burden would be increased by the alleged actions of the District were insufficient to state a cause of action. The District alleged that for Fornes to have standing to sue it was necessary that she allege some special injury or that the proposed expenditure under the circumstances violated the Florida Constitution. Simultaneously with the filing of the complaint, Fornes filed a motion for preliminary injunction alleging the increased tax burden that would result to her from the District’s illegal act in violating the competitive bidding procedure. The trial court granted the motion to dismiss upon authority of Godheim v. City of Tampa, 426 So.2d 1084 (Fla. 2d DCA 1983), and Fornes has perfected this appeal.

Although there are numerous eases in Florida involving a taxpayer’s suit to prevent the illegal expenditure of public funds, at the present time there appears to be some uncertainty regarding the requirements for standing to bring such a suit. That uncertainty is well presented by the majority and dissenting opinions in the Go-dheim case relied upon by the trial court. Since all of the arguments pro and con are present therein, we will not unduly belabor the point here. Suffice to say, we are persuaded by the dissenting opinion authored by Judge Lehan because it is supported by a long line of Florida Supreme Court decisions holding that a taxpayer has standing to sue to prevent the illegal expenditure of public funds where he alleges that such expenditures will increase his tax burden. Wester v. Belote, 103 Fla. 976, 138 So. 721 (1931); Robert G. Lassiter & Co. v. Taylor, 99 Fla. 819, 128 So. 14 (1930); Hathaway v. Munroe, 97 Fla. 28, 119 So. 149 (1929); Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917); Anderson v. Fuller, 51 Fla. 380, 41 So. 684 (1906); Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890); see also Lewis v. Peters, 66 So.2d 489 (Fla.1953); Ashcroft v. Melbourne Civic Improvement Board, 232 So.2d 436 (Fla. 4th DCA 1970). In addition, those cases are not inconsistent with the more recent decisions holding that other grounds giving rise to standing in this situation are a) where the attack is based upon constitutional grounds as in Department of Administration v. Horne, 269 So.2d 659 (Fla.1972) and b) a showing by the taxpayer of some special injury distinct from that suffered by other taxpayers in the district.

The difficulty in determining the present status of the law on this question stems primarily from Department of Revenue v. Markham, 396 So.2d 1120 (Fla.1981), Department of Administration v. Horne, and Paul v. Blake, 376 So.2d 256 (Fla. 3d DCA 1979), and their interpretation of Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). Those cases state that the “Rickman rule” still obtains, but the Godheim majority cites them as support for the position that, in order to have standing, the taxpayer must suffer a special injury distinct from other taxpayers. The Rick-man opinion, which has apparently not been overruled, found that an allegation of an increased tax burden fulfills the standing requirement because it constitutes a peculiar injury distinct from other inhabitants.

We are also impressed with the policy arguments that militate in favor of allowing a taxpayer whose burden will be increased by alleged illegal expenditures of public funds to have standing to sue. For example, if an offended taxpayer cannot sue to prevent such activity, who will? Even other bidders may not have standing unless they, too, are taxpayers. Furthermore, an interesting question presents itself, should the enforcement of competitive bidding laws be left solely to thé public officials and the bidders?

Being of the opinion that this case involves a question of great public importance, we certify the following question to the Supreme Court of Florida:

Does a taxpayer who alleges that the taxing authority is acting illegally in expending public funds, which will increase his tax burden, have standing to sue to prevent such expenditure, or is it necessary that he suffer some other special injury distinct from other taxpayers (as opposed to other inhabitants) or launch a constitutional attack upon the taxing authority’s action in order to have standing?

REVERSED.

ANSTEAD, C.J., and DELL, J., concur.


author: OTT, Judge.

text:
    Ruben GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 84-132.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Ruben Green was convicted of shooting into a building, contrary to section 790.19, Florida Statutes (1983). In this appeal, he challenges a two and one-half year sentence imposed outside the recommended sentence of “any nonstate prison sanction.” We affirm.

On the evening of August 16, 1983, defendant followed Ella Mae Green, his sister-in-law, to her mother’s residence. Ella Mae Green drove her vehicle into and across the yard, rather than the driveway, in order to get as near the entry to the residence as possible before alighting from her ear. Convinced by defendant’s earlier actions and threats that defendant intended her bodily harm, Ella Mae jumped out of the automobile, ran to the house, broke a glass pane in the door with her elbow, and opened the door from the inside in order to gain immediate entry. Once inside, she peeked out the door and observed defendant speaking with her mother. Using foul language, defendant commanded Ella Mae Green’s mother in no uncertain terms to tell Ella Mae that he was going to kill her. Ella Mae called out to defendant, “Why are you trying to hurt me? What have I done to you?” Defendant then fired two shots in her general direction. One bullet was recovered from the door frame. No one was physically injured during the incident. However, at trial, Ella Mae Green briefly described her fear of defendant.

Defendant’s recommended sentence was “any nonstate prison sanction.” However, the sentencing judge imposed a sentence of thirty months in state prison. On the scoresheet, the judge offered the following reason for deviation from the recommended sentence:

Serious mental strain and/damages on victims occasioned by his threats in the past and threats to do damage in the future.

Departures from the presumptive sentence should be avoided by the sentencing judge unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Fla.R.Crim.P. 3.701 d. 11. These reasons shall be articulated in writing. Fla.R.Crim.P) 3.701 b. 6. Defendants are afforded appellate review of the sentencing judge’s decision to impose sentence outside the recommended sentence range. Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984). However, the appellate court’s role is limited to assuring that the sentencing judge did not commit an abuse of discretion in exercising his discretion to sentence outside the guideline range. Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984).

Defendant contends that the sentencing judge erred in considering psychological trauma as a reason for departure because the scoresheet limits scoring for victim injury to those cases involving physical trauma. See Committee Note to Fla.R. Crim.P. 3.701 d. 7. The simple answer to defendant’s point is that the sentencing judge did not use the fact of victim injury caused by psychological trauma in guideline computation, but rather used such injury as a basis for departure from the recommended sentence. As noted in Weems v. State, supra, “[tjhere is nothing in rule 3.701 to suggest that matters excluded for purposes of guideline computation cannot be considered as reasons for departure from the guidelines.” We believe an additional and even more compelling reason exists to include psychological trauma as a permissible reason for departure. In cases such as those involving sexual offenses, the real effect of the crime often cannot be fully measured without accounting for the psychological trauma occasioned upon the victim. The sentencing judge is in the best position to observe the vicious and malevolent intentions of the accused together with their marked and lasting effect on the victim. By considering psychological trauma as a reason for departure from the guidelines, the sentencing judge can ensure in appropriate cases that the penalty imposed is “commensurate with the severity of the convicted offense and the circumstances surrounding the offense.” See Fla.R. Crim.P. 3.701 b. 3. For the reasons expressed above, we reject defendant’s contention that a sentencing judge may never consider psychological trauma as a reason for departure.

In the instant case, we find no abuse of discretion in the sentencing judge’s reason for departing from-the recommended sentence.

AFFIRMED.

RYDER, C.J., and SCHEB, J., concur.