text:
    Gerardo DIAZ, Frank Venezia, individually, and Frank Venezia, d/b/a Papa Piccolo’s and Florida Insurance Guaranty Association, as obligor for Security Casualty Company, Appellants, v. KENDALL LEASING CORPORATION, Appellee.
    No. 84-161.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Rehearing Denied Nov. 2, 1984.
    Schwartz & Hasty and G.J. Godfrey, Miami, for appellants.
    Corlett, Killian, Hardeman, McIntosh & Levi and Leanne J. Frank and Scott R. McNary, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Sentry Indemnity Company v. Hartford Accident & Insurance Company, 425 So.2d 652 (Fla. 5th DCA 1983).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Irma HIRSCH, as Guardian ad litem for Morris Z. Stein, incompetent, Appellant, v. MOUNT SINAI MEDICAL CENTER, INC., Appellee.
    Nos. 83-716, 83-2281.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Rehearing Denied Nov. 15, 1984.

      Daniels & Hicks and Elizabeth K. Clarke, Miami, Schwartz, Klein, Steinhardt & Weiss, North Miami Beach, for appellant.
    Kelner & Kelner and Milton Kelner, Miami, for appellee.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   PER CURIAM.

Appellant Irma Hirsch, guardian for Morris Stein, appeals from the final judgment entered on a jury verdict finding no liability on the part of appellee Mount Sinai Medical Center for Mr. Stein’s fall from his hospital bed. We affirm upon the holding that (1) if there is any competent evidence to support a verdict, that verdict must be sustained regardless of the district court’s opinion as to its appropriateness, Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); Miami Herald Publishing Co. v. Frank, 442 So.2d 982 (Fla. 3d DCA 1983); Gonpere Corp. v. Rebull, 440 So.2d 1307 (Fla. 3d DCA 1983); Wash-Bowl, Inc. v. Wroton, 432 So.2d 766 (Fla. 2d DCA 1983); and (2) appellee’s reference to possible county assistance for Mr. Stein did not violate the collateral source rule. Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984).

Based upon the foregoing, we must also affirm the award of attorney’s fees and costs to appellee as required by section 768.56, Florida Statutes (1983).

Affirmed.


text:
    MIAMI-DADE WATER & SEWER AUTHORITY, Appellant, v. CITY OF CORAL GABLES, Appellee.
    No. 84-308.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Rehearing Denied Nov. 13, 1984.
    Fertig, Curtis & Wakefield and Richard A. Sherman, Fort Lauderdale, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Bradford A. Thomas, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Mortgage Guarantee Ins. Corp. v. Stewart, 427 So.2d 776 (Fla. 3d DCA 1983), pet. for rev. denied, 436 So.2d 101 (Fla.1983); see Seaboard Coast Line R. Co. v. Brown, 297 So.2d 843 (Fla. 2d DCA 1974).


author: WIGGINTON, Judge.

text:
    Patrick LYNN, Appellant, v. STATE of Florida, Appellee.
    No. AT-264.
    District Court of Appeal of Florida, First District.
    Oct. 2, 1984.
    Rehearing Denied Nov. 13, 1984.

      Kenneth Vickers of Ken Vickers, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal is before us from the trial court’s amended order granting in part and denying in part appellant’s “Motion to Set Aside Judgment and Sentence and Plea of No Contest.” We affirm.

The convoluted history of this cause begins with appellant’s conviction, pursuant to a plea of nolo contendere, for sexual battery and burglary. On April 16, 1980, the plea bargain was accepted by the court and appellant was sentenced in accordance with the bargain to ten years in Florida State Prison, suspended after his serving 195 days, the balance of nine years to be unsupervised probation with the condition that appellant leave the State of Florida and not return while on probation.

Appellant filed his first motion for post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure, alleging, among other things, that his plea was not voluntarily given. The trial court entered an order denying the motion and appellant filed an appeal. On May 13, 1981, this Court affirmed the portion of the order finding that appellant’s plea was not unlawfully induced, but remanded to the trial court for correction of the judgment and sentence, holding the unsupervised probation portion of appellant’s sentence to be illegal. See Lynn v. State, 398 So.2d 977 (Fla. 1st DCA 1981).

On September 11, 1981, the trial court entered its order correcting the sentence by placing appellant on supervised probation for the period of time set forth in the original sentence. Shortly thereafter, appellant filed his second rule 3.850 motion alleging that the corrected sentence violated the plea bargain agreement and was therefore illegal. Appellant argued that the court could not impose a harsher sentence than that originally imposed, i.e. the supervised as opposed to unsupervised probation, and that he was entitled to withdraw his plea and to pursue a jury trial. The trial court denied the motion on February 3, 1982, and on February 10, appellant filed his second notice of appeal. Thereafter, on June 17, 1982, appellant, represented by counsel, filed a motion to vacate and set aside the judgment and sentence, arguing the probation issue.

This Court filed its opinion in the second appeal on September 8, 1982, remanding the cause to the trial court for either an evidentiary hearing or for attachment to the order denying appellant’s 3.850 motion that portion of the files and records which would conclusively show that he was entitled to no relief. See Lynn v. State, 418 So.2d 1276 (Fla. 1st DCA 1982). The opinion specifically referred to appellant’s allegation of a plea agreement violation. Unfortunately, the mandate in that cause inadvertently did not issue until July 13, 1983.

Meanwhile, unaware that the mandate had not issued, the trial court set for hearing for January 19, 1983, the June 17 motion to vacate. After hearing argument of counsel, the court took the matter under advisement and, on May 19, granted the motion only to the extent of correcting the September, 1981, order by striking that portion of the sentence placing appellant on supervised probation, while correcting the original sentence of April 16,1980, by striking the portion placing appellant on unsupervised probation. Since the court was under the impression that it was not imposing a harsher sentence than that originally agreed upon, it held that to vacate and set aside the entire judgment and sentence would be improper. Appellant filed his third notice of appeal.

Once it was determined that the May 19 order was entered before the mandate had issued from the prior appeal, and once the mandate did issue, in order to perfect the present appeal the trial court, on October 27, 1983, entered an amended order in which the above events were recounted, and the May 19 order was reentered in its entirety and incorporated therein.

In the present appeal, the argument is again made that appellant received a sentence violative of his original plea agreement, and, since the sentence is harsher, that he should have been given the opportunity to withdraw his plea. We disagree with this contention. The ramification of the combined May 19 and October 27 orders is that appellant is no longer on probation. Thus, the sentence is legal and not harsher.

In any event, appellant was not automatically entitled to withdraw his plea. ’Vifhen an illegal sentence has been imposed by the trial court pursuant to a plea agreement, the correct procedure to be followed by the court on remand is, first, to give the state the opportunity to accept the original plea with the sentence reduced to a legal status. If the state declines to elect that option, the trial court should allow the defendant to withdraw his plea and go to trial on the charges or to resentence him within the parameters of the plea agreement. See Forbert v. State, 437 So.2d 1079 (Fla.1983); and Chaney v. State, 452 So.2d 1148 (Fla. 5th DCA 1984).

In the instant case, when correcting its action taken pursuant to our original remand and striking both probation provisions, the trial court imposed a sentence well within the parameters of the plea agreement. While the record does not indicate whether the state was present to exercise its option to accept the corrected sentence, neither does it reflect any objection made by the state as to that action, and it would appear from appellee’s brief that the state is in accord with the court’s decision.

Accordingly, the amended order entered October 27, 1983 is AFFIRMED.

JOANOS and BARFIELD, JJ., concur.

      . As a result, it would appear that appellant has served the requisite 195 day incarceration imposed under the original sentence. Also, since the condition prohibiting appellant's returning to the State of Florida ran with his term of probation, and since appellant is no longer on probation, that condition is no longer in effect.


author: NIMMONS, Judge. THOMPSON, Judge,

text:
    Danny Neal MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. AW-407.
    District Court of Appeal of Florida, First District.
    Oct. 2, 1984.

      Gene T. Moss of Moss & Edwards, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and John T. Tiede-mann, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Mitchell appeals a sentence which departs from the sentencing guidelines, Fla. R.Cr.Pr. 3.701, and contends that the imposition of a sentence exceeding the guidelines sentence was impermissibly based upon consideration of factors relating to an offense for which he was not convicted. We disagree and affirm.

Mitchell was charged with conspiracy to traffic in cannabis and possession of in excess of 20 grams of cannabis. A jury acquitted him of the conspiracy charge, but convicted him of the possession charge. Upon Mitchell’s election to be sentenced under the guidelines, defense counsel and the prosecutor agreed that Mitchell’s “guidelines score” was 42, and that his presumptive sentence under the guidelines would be “any non-state prison sanction.” Nevertheless, the defendant was sentenced to a term of five years in the state corrections system.

The reasons given by the trial judge for departing from the guidelines sentence were that the quantity possessed was an entire bale and that it was the first of many bales which were to be delivered in the course of a large scale marijuana transaction.

Appellant asserts that the trial judge’s reasons for departure from the guidelines sentence were impermissible because the reasons given were related to an “instant offense ... for which convictions have not been obtained” and, thus, violative of Rule S.TOUdXll). Appellant argues that the reasons given by the trial court related only to the conspiracy to traffic charge of which he was acquitted. We disagree, at least as to the large quantity of cannabis possessed by the defendant.

Mitchell was in possession of an entire bale of marijuana. That, in itself, was reason enough to depart from the guidelines sentence. Mitchell was charged and convicted of possession of more than 20 grams of cannabis, a third degree felony punishable by a maximum term of five years imprisonment. A person who possesses 21 grams is guilty of the same statutory offense as one who possesses 100 pounds. Notably, the sentencing guidelines make no distinction between the two. In other words, the guidelines sentence in such cases do not reflect the “aggravation” present in a given case by reason of the large quantity of cannabis possessed by the defendant.

Prior to the recent advent of sentencing guidelines, one of the most important factors commonly considered by the sentencing judge in the determination of an appropriate sentence was the quantity of marijuana possessed by the defendant. We have no difficulty in finding that a large quantity of cannabis, such as that involved in the instant case, is a clear and convincing reason for departing from the guidelines. This is a “factor relating to the instant offense” for which the defendant has been convicted and is thus not violative of Rule 3.701(d)(ll).

Even though the trial court may have impermissibly stated (insofar as guidelines departure is concerned) that more bales of marijuana would be involved in the “transaction,” such does not vitiate, as a clear and convincing reason for departure, the defendant’s possession of a large quantity of marijuana. See Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984). Compare Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984) (case remanded for resentencing where possible valid reason was “mired in the confusion revealed by [the] record”). In Young, this court certified the following question to the Supreme Court of Florida:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLA.R.CR.P. 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENCING?

The State has urged that Mitchell’s appeal should not even be considered because Mitchell failed to make a specific contemporaneous objection to the trial court’s departure from the guidelines, the only “objection” having been made by defense counsel at a bail hearing (one month prior to sentencing) where counsel advised the court that the defendant intended to appeal if the sentence exceeded the guidelines sentence. We disagree. Two statutes and a rule make it clear that a defendant (or the State) may appeal as a matter of right from a sentence which is outside the range specified by the guidelines. Sections 924.06(l)(e) and 921.001(5), Florida Statutes (1983); Fla.App.R. 9.140(b)(1)(E); The Florida Bar: In Re Amendment to Rules of Appellate Procedure, 443 So.2d 972 (Fla.1983). Moreover, in view of the Supreme - Court’s opinion in Rhoden v. State, 448 So.2d 1013 (Fla.1984), the failure of the defendant to make a contemporaneous objection upon the imposition of sentence does not vitiate his right to appeal from the trial court’s departure from the guidelines. See also Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984); Jolly v. State, 454 So.2d 45 (Fla. 1st DCA 1984); compare Williams v. State, 414 So.2d 509, 511 (Fla.1982), and Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984) (on motion for rehearing) (contemporaneous objection required as prerequisite to appeal from trial court’s retention of jurisdiction under F.S. 947.16).

Although we find that the defendant was entitled to appeal the trial court’s sentence outside the guidelines range, we hold that the court stated a clear and convincing reason for doing so. The sentence is therefore Affirmed.

BARFIELD, J., concurs;

THOMPSON, J., dissents with written opinion.

THOMPSON, Judge,

dissenting.

It is apparent that the facts and circumstances which the trial judge determined to be aggravating factors warranting departure from the range of sanctions established by the sentencing guidelines were the same facts and circumstances which supported the State’s initial decision to charge Mitchell with both possession of cannabis and conspiracy to traffic in cannabis. The jury did not convict Mitchell of the conspiracy charge and Rule 3.701(d)(ll), Fla.R.Crim.P., specifically prohibits basing a departure from the guidelines on factors relating either to an instant offense for which the defendant has not been convicted or a prior offense for which no conviction was obtained. Compare Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984), wherein a departure from the guidelines on the basis of defendant’s prior arrests was disapproved.

The guidelines sentence is based on the offense with which the defendant was charged and convicted and does not vary if the amount of cannabis involved is 5 pounds, 10 pounds or even 100 pounds as pointed out by the majority. Only when the amount possessed exceeds 100 pounds does another statute control and another guidelines sentence apply. While I agree with the majority that possession of a bale of marijuana should warrant a more severe sentence than possession of 21 grams, neither the guidelines nor the statute making the possession of cannabis a criminal offense provide for any distinction between possession of 20 grams and 100 pounds. I do not think we have the authority to rewrite the guidelines or the statute, nor do I think a trial judge may depart from the guidelines in the absence of clear and convincing ¶reasons. The only other reason given by the trial judge for his decision to depart from the guidelines was that the bale of marijuana was but the first of many bales which were to be delivered in the course of a large scale marijuana transaction. The defendant was acquitted of this conspiracy charge and it cannot be considered as a valid reason for departing from the guidelines.

The State conceded the trial court erred in departing from the guidelines but urged that the appeal should not be considered because the defendant failed to make a specific contemporaneous objection to the trial court’s departure from the guidelines. I agree with the majority’s conclusion that the right of appeal on this point was properly preserved.

I would reverse and remand with instructions to impose a sentence which is within the appropriate guidelines range or would require the trial court to expressly base any sentence departing from the guidelines on factors not related to offenses for which the defendant has not been convicted.

      . Rule 3.701(d)(ll) provides in part:
      "Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.”
      The aboye Rule was recently amended. The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So.2d 824 (Fla.1984). The amendments do not apply to the case sub judice inasmuch as their effective date was July 1, 1984. See Chapter 84-328, Laws of Florida. But the result would be the same even under the amended Rule.

      . "Trafficking in cannabis" requires in excess of 100 pounds. Section 893.135(l)(a), Florida Statutes.


author: SMITH, Judge.

text:
    Timothy Lee CARNEY, Appellant, v. STATE of Florida, Appellee.
    No. AW-316.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.
    Rehearing Denied Nov. 14, 1984.

      Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    •Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant Timothy Lee Carney (“appellant”) contends that the trial court below erred in sentencing him for a term of years outside the recommended sentencing guidelines. We find it necessary to reverse and remand for resentencing.

Appellant, along with two codefendants not involved in the instant appeal, were charged by information on January 11, 1983, with the armed robbery of a Pizza Hut restaurant located near Fort Walton Beach, Florida. Appellant chose to enter a plea of nolo contendere to the charge, and aifter some delay occasioned by the penden-cy of a number of federal charges against him in Kentucky, a sentencing hearing was held on November 18, 1983, at which time appellant elected to be sentenced under the sentencing guidelines. Prior to sentencing, the trial court ordered the state to file its recommendations regarding appellant’s sentence in writing. The trial court further ordered the state to set forth what the recommended sentence of appellant would be under the guidelines, as well as any “clear and convincing reasons” justifying departure from the recommended guidelines sentence, if any such grounds existed. In response, on November 3, 1983, the state attorney prosecuting appellant’s cause filed with the trial court a letter recommending that appellant receive a sentence of ten years in prison. The letter contained seven suggested “clear and convincing reasons” for departure from the guidelines:

1. The defendant knowingly created a risk of injury of death to many people in that he brandished a pistol in a restaurant.
2. The robbery was premeditated and calculated and for pecuniary gain.
3. There was no provocation.
4. There were not excuses or justification’s [sic] for defendant’s conduct other than being under the influence of drugs which enhanced the danger to others through irrationality.
5. Defendant has not compensated the victim.
6. The victim [sic] has a prior history of delinquency and was on parole at the time of committing this offense.
7. The criminal [sic] is likely to recur based on testimony of a codefendant; the defendant and others robbed a number of establishments enroute to Florida.

Appellant’s counsel objected to the state’s sentencing recommendation, as well as to the supporting grounds. The guidelines’ recommended sentence based on appellant’s score sheet was a period of incarceration of between four and one-half to five and one-half years, with a three-year mandatory minimum sentence for possession of a firearm. The trial court, departing from the guidelines, imposed a sentence of ten years incarceration, with a three-year mandatory minimum. As reasons for his departure, the trial court incorporated by reference the seven reasons delineated in the state’s letter of recommended sentence dated November 3, 1983.

We agree with appellant that the trial court adopted a number of reasons for departure from the guidelines that are inappropriate. For example, the factors that “the robbery was premeditated and calculated and for pecuniary gain” and “[that] there was no provocation [for the robbery]” are, practically speaking, an inherent component of any robbery, and hence may properly be viewed as already embodied in the guidelines recommended sentencing range. The same is true of the fact that the appellant has not made restitution to the victim. However, some of the reasons for departure from the guidelines adopted by the trial court either are or might be considered “clear and convincing reasons.” For example, we agree that departure based on the trial court’s implicit finding that the robbery was motivated by appellant’s physical state due to the influence of drugs, which “enhanced the danger to others through irrationality” is an aggravating factor that might well warrant consideration. Moreover, the trial court’s citation to the factors that appellant “knowingly created a risk of injury or death to many people” by producing and waving a pistol in the restaurant he robbed, and that appellant and his codefendants had previously robbed a number of business establishments en route to Florida, could constitute “clear and convincing reasons” for departure, provided there is adequate basis in the record for such conclusion. However, if convictions were not obtained for the out-of-state robberies, these collateral offenses may not be used for departure. Rule 3.701(d)(ll), Florida Rules of Criminal Procedure. Cf., Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984). That the defendant had a prior history of delinquency and was on parole at the time of commission of the instant offense is also a factor that may properly influence a departure from the guidelines. Cf., Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984) (holding prior criminal record can be considered as factor in decision to deviate from guidelines, even though prior offenses are taken into account by guidelines in arriving at offender’s point score). Thus, it appears that the trial court utilized some reasons for departure that are “clear and convincing,” or permissible, along with others that are not.

On at least four occasions thus far, all occurring subsequent to the briefing in this case, this court has dealt with sentencing departures where one, or some, but not all reasons given by the trial court were necessarily permissible or “clear and convincing.” In the first two cases, departure was affirmed. Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984) (trial court erroneously stated defendant’s probation official had recommended departure from the guidelines, but trial court’s reliance on past abuses of probation, demonstrated by numerous violations thereof, held “clear and convincing reason”); and Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984) (several reasons given by trial court for departure, i.e., defendant demonstrated no remorse or rehabilitation, perjured himself at his trial, and failed to make restitution to the mother of his murder victim; this court held “at least one reason cited by the trial court” —defendant’s pattern of committing crimes within a very short time after release from any incarceration — “justifies departure”).

In the most recent of the four cases, Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984), opinion filed October 2, 1984, the- sentencing departure was also affirmed, based on the court’s determination that although the particular factor in question (quantity of marijuana possessed by defendant) was a factor relating to the offense of conspiracy to traffic in marijuana (as to which defendant was acquitted), it was also a factor relating to the instant offense of conviction (possession of marijuana in excess of 20 grams), and was therefore not improper. Further, said the court:

Even though the trial court may have impermissibly stated (insofar as guidelines departure is concerned) that more bales of marijuana would be involved in the “transaction,” such does not vitiate, as a clear and convincing reason for departure, the defendant’s possession of a large quantity of marijuana, (citation omitted)

Id. at 11.

In Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984), this court found that of the trial judge’s three written reasons for departure (plus two others stated orally during sentencing), “all but one were either impermissibly considered or not clear and convincing, or both.” As for the remaining reason, “the defendant is an amoral person and a career criminal who should be segregated from society ...,” this court found that this reason “finds support in the record,” but nevertheless concluded: “[W]hen this reason is mired in the confusion revealed by this record, it is impossible to determine whether the trial judge would have come to the same conclusion on this reason alone.” It should also be noted that the Young panel certified the following question to the Supreme Court of Florida as being one of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLA.R.CR.P. 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO' DETERMINE IF THOSE REASONS JUSTIFY DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENCING.

The element of confusion in the record, which influenced this court’s Young decision, is not present here. However, we do find ourselves hampered, as was the majority in Young, by an inability to determine whether the trial judge would have imposed the same sentence based only upon the permissible stated grounds for departure. Certain of the impermissible reasons given, specifically numbers two, three, and five (relating to premeditation, absence of provocation, failure to compensate victim) appear to us to be so inconsequential as to call for application of the harmless error rule. Not so reason number seven, which recites in part that “the defendant and others robbed a number of establishments en route to Florida.” This appears to us to be among the most serious and concrete of the reasons given for departure, and is linked to the court’s conclusion that appellant’s criminal conduct is “likely to recur.” Unfortunately, the trial court’s reliance upon the mere fact that defendant had been accused, but not convicted, of other separate offenses flies directly in the face of the prohibition of Rule 3.701(d)(ll). We therefore find it necessary to reverse the trial court’s sentence because we are reluctant to speculate, under the circumstances, that elimination of the impermissible grounds for departure would have no effect on the trial court’s sentencing decision.

Because of the similarities between this case and Young, we address one additional issue. Judge Nimmons, in his dissenting opinion in Young, in disagreeing with the result reached in that case, has articulated many of the reasons for declining to adopt a per se rule requiring reversal of sentences departing from the guidelines if one or more impermissible reasons are commingled with permissible ones. We will refrain from repetition of those reasons. We observe, however, that we agree with the views expressed by Judge Nimmons for the most part, and would recede from Young to the extent that it appears to adopt, at least by implication, a per se rule of reversal in every instance in which permissible and impermissible reasons for departure are stated by the trial judge.

We think a more appropriate rule— one which would allow greater flexibility to the trial court, but still preserve the substantial rights of the accused to have meaningful appellate review of a sentence outside the guidelines — would be to affirm the trial court’s sentencing departure where impermissible as well as permissible reasons for departure are stated, where the reviewing court finds that the trial court’s decision to depart from the guidelines, or the severity of the sentence imposed outside the guidelines, would not have been affected by elimination of the impermissible reasons or factors stated. A similar standard for review has been adopted by the Florida Supreme Court in death penalty cases where valid as well as invalid aggravating factors have been considered by the trial court. See Bassett v. State, 449 So.2d 803, 808 (Fla.1984), quoting Brown v. State, 381 So.2d 690, 696 (Fla.1980), cert. den., 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981); see also, Jackson v. Wainwright, 421 So.2d 1385, 1388 (Fla.1982), cert. den., — U.S. -, 103 S.Ct. 3572, 77 L.Ed.2d 1412 (1983); Straight v. State, 397 So.2d 903 (Fla.1981), cert. den., 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981).

In the interest of maintaining uniformity of decisions, we certify to the Florida Supreme Court as a matter of great public importance the same question certified in Young v. State, supra.

REVERSED and REMANDED for re-sentencing.

WENTWORTH and WIGGINTON, JJ., concur.

      . Had the trial court below ordered appellant to make restitution in the case at bar, in conformity with Section 775.089, Florida Statutes (1983), after notice to appellant and the opportunity to be heard as to whether he had the ability to pay restitution, see Harris v. State, 452 So.2d 1041 (Fla. 2d DCA 1984), then appellant’s purported failure to make restitution would undoubtedly constitute a "clear and convincing reason” for departure from the guidelines. Compare Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984) (violation of a substantive condition of probation a "clear and convincing reason” for departure from the guidelines.)

      . As amended, the rule now provides, in part: "Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction.” The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988— Sentencing Guidelines), 451 So.2d 824 (Fla.1984). See also, Committee Note (d)(ll), providing, in part: "The court is prohibited from considering offenses for which the offender has not been convicted.”

      . The opinion in Young does not expressly purport to adopt such a per se rule of reversal; the implication arises from the substance of the question certified.


author: FERGUSON, Judge.

text:
    EDCO ENTERPRISES, INC., d/b/a Colony Interiors, Petitioner, v. METROPOLITAN DADE COUNTY UNSAFE STRUCTURES BOARD and City of Miami Beach, Respondents.
    No. 84-1361.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Rehearing Denied Nov. 15, 1984.
    Mershon, Sawyer, Johnston, Dunwody & Cole and James M. McCann, Jr., Miami, and Pedro A. Cofino, Miami Beach, for petitioner.
    Robert A. Ginsburg, County Atty. and Ira Daniel Tokayer, Asst. County Atty., Christopher Korge, Miami, for respondent.
    Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

By a petition for writ of common law certiorari, Edco Enterprises, Inc., d/b/a Colony Interiors seeks review of a per cu-riam opinion of the Appellate Division of Dade County Circuit Court which affirmed a decision of the Metropolitan Dade County Unsafe Structures Board. That decision made a finding that certain uncompleted structures were unsafe and ordered that they be demolished.

In early 1982, Spelican, N.V., a foreign corporation, began construction of a residence for Sheik Mohammed Al-Fassi on Star Island in Miami Beach. The property is owned by Al-Fassi through Spelican, N.V. When Al-Fassi left Florida, Spelican, N.V. also abandoned the uncompleted structures, leaving behind numerous creditors including petitioner, a mechanic’s lien-holder. After the abandonment a notice of violation and final order was issued by a building official of the Code Enforcement Department for the City of Miami Beach, citing violations of the South Florida Building Code and requiring the owner to “secure buildings and property immediately.”

A public hearing was held by the Unsafe Structures Board on September 13,1983, to hear evidence relating to the building official’s order. The Director of the Code Enforcement Department requested that the Board approve the demolition of all structures on the premises because of their unsafe condition. Several residents of Star Island appeared as witnesses to express concern that children wandering onto the property might be injured by the debris and hazardous condition of the structures and that a hurricane might cause construction materials to be blown onto other property on the island. An attorney who appeared on behalf of petitioner and other mechanic’s lienholders argued that the lien-holders’ security would be substantially impaired if the buildings were destroyed. He requested that the lienholders be granted time and permission to secure the property and render it safe pursuant to the notice of violation. The Board Chairman announced that the lienholders did not have standing to secure the buildings because they were not the owners nor had they perfected any rights by foreclosure proceedings.

The Board ordered that demolition of the buildings take place within fifteen days. Petitioner obtained a stay pending an appeal of the demolition order to the circuit court. Pursuant to the stay order petitioner was required to post a bond and secure the premises. The circuit court’s affirmance of the Board’s decision is the subject of this petition for review.

In its petition Edco argues, inter alia, that the circuit court and the Board departed from the essential requirements of law by failing to consider the valuation criteria set forth in Section 202.2(b), South Florida Building Code (1979). Respondents, Metropolitan Dade County Unsafe Structures Board and the City of Miami Beach, contend that the Code does not require that valuation criteria be applied in making a demolition determination and that the finding that the structures created a hazard under the physical criteria of Section 202.2(a) was sufficient to justify the Board’s decision. We disagree.

Section 202.1(c), South Florida Building Code (1979) provides that unsafe buildings “shall be demolished and removed from the premises concerned, or made safe, sanitary and secure_” [e.s.]. Section 202.2, titled “criteria,” sets forth physical criteria in subpart (a) and valuation criteria in subpart (b). The physical criteria are considered when making a determination as to whether a structure is unsafe. If a structure is found unsafe, the valuation criteria in Section 202.2(b) must be applied to determine whether a responsible person shall have an option to make the necessary alterations or repairs. The record, which includes the public hearing before the Board, is devoid of any mention of valuation criteria. In disregarding the requirements of Section 202.2(b), the circuit court departed from the essential requirements of law. See City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982); Police Pension Board, City of Hollywood v. Neilson, 435 So.2d 325 (Fla. 4th DCA 1983).

In their challenge to petitioner’s standing, respondents contend that the Board does not have the authority to order Edco to make repairs or to secure the buildings because Edco is not the owner of the property. We reject that argument in view of Section 202.10(b), South Florida Building Code (1979) which provides that the Board “may order the owner or persons responsible for the building or structure to ... make repairs and take necessary action to secure the building_” [e.s.]. The owner has abandoned the property. The lienhold-ers are the only entities which have come forward asserting rights or interest in the property. Additionally, Edco has consistently indicated its willingness to accept responsibility and to comply' with orders of the Board. It is therefore a “person responsible” as that term is used in the Code.

Certiorari is granted, the order under review is quashed, and the cause is remanded with instructions to hear further evidence in accordance with Section 202.-2(b), South Florida Building Code (1979).

      . Section 202.2(b)(1), (2), South Florida Building Code (1979) provides:
      (b) VALUATION CRITERIA:
      (1) If the cost of alteration, repair and/or replacement of an unsafe building or structure or part thereof exceeds 50 percent of its value, such building shall be demolished and removed from the premises. If the cost of alteration, repair and/or replacement of an unsafe building or structure or part thereof ' does not exceed 50 percent of such replacement cost, such building or structure may be repaired and made safe, as provided in Section 104 and in the applicable minimum housing code; or.
      (2) If the cost of structural repair or structural replacement of an unsafe building or structure or part thereof exceeds 33 percent of the structural value, such building or structure or part thereof shall be demolished and removed from the premises; and if the cost of such structural repairs does not exceed 33 percent of such replacement cost, such building or structure or part thereof may be structurally repaired and made safe, as provided in Section 104.


author: SCHWARTZ, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Lizandro DELGADILLO, Appellee.
    No. 83-2918.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Rehearing Denied Nov. 15, 1984.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Kogen & Kogen and Lauren Kogen, Hal-pern & Shenberg and Miguel A. DeGrandy, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

Delgadillo and an undercover police officer, Garcia, were apprehended in the course of a narcotics transaction in which they were both involved. Maintaining his cover, Garcia submitted to the “arrest.” During the trip in the police car, and later the same day in jail, the defendant made highly incriminating admissions to and in the presence of the officer. The statements were suppressed by the trial judge “based on the Fifth and Sixth Amendments of the Constitution,” and the state appeals. We reverse.

The order under review is entirely unsupportable on any basis. Although the appellee invoked his Miranda rights when he was taken into custody, his admissions were not barred under the Fifth Amendment both because (a) since Delgadillo did not know that Garcia was a police officer, the statement may not be deemed to have been “compelled” or subject to any sort of governmental coercion; Hoffa v. United States, 385 U.S. 293, 303-304, 87 S.Ct. 408, 414-415, 17 L.Ed.2d 374 (1966); see United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); and (b) none of the statements were made in response to “interrogation” or its functional equivalent by Garcia, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Just as plainly, no violation of Delgadillo’s United States or Florida constitutional rights to counsel was involved because no such rights had attached when the statements were made. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); State v. Douse, 448 So.2d 1184 (Fla. 4th DCA 1984). Finally, we reject the trial court’s view that Fifth and Sixth Amendment rights are, as it said, “solidly intertwined,” with the apparent result that a situation like this one, which involves some of the features of both, but not all of the requirements of either, may be thought to give rise to a sort of new and different hybrid or amalgamated constitutional right. The Fifth and Sixth Amendments and the interests they protect are separate and subject to separate analyses. Rhode Island v. Innis, supra; Edwards v. Arizona, 451 U.S. 477, 480 n. 7, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981); United States v. Miller, 432 F.Supp. 382, 388 (E.D.N.Y.1977), aff’d, 573 F.2d 1297 (2d Cir.1978); Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interrogation”? When does it matter?, 67 Geo.L.J. 1, 41 (1978). So far as we know, there is no amendment no. 5V2 to the United States Constitution.

Reversed.

      .According to Garcia, who was the only witness at the motion to suppress, Delgadillo’s first statement was spontaneously made after Garcia had said nothing at all. The others, respectively, followed the officer’s remark that "I can’t believe this is happening to me,” and his admonition to Delgadillo, while they were both in the cell, that he should not answer the questions "they were probably going to ask you.” It is obvious that neither of these sets of words was of the kind that "the police should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. at 303, 100 S.Ct. at 1691.

      . In addition, we do not believe, for much the same reason outlined in note 1, that the statements were "deliberately elicited" by Garcia as is also required to establish a Sixth Amendment violation. U.S. v. Henry, supra; Massiah v. United States, supra.

      . Because no first appearance had occurred or was required when the statements were made, we need not decide whether we agree with the majority in Douse that the right to counsel under Article I, Section 16 of the Florida Constitution is broader than that under the Sixth Amendment and attaches at that time. No formulation of the right to counsel suggests that it arises at the time of arrest.


text:
    Helga HUGET and Vera Bothman, a Florida partnership d/b/a Mare Grande Hotel, Appellants, v. CITY OF MIAMI BEACH, a municipal corporation; Anthony Hafez, d/b/a Michelle Apartments and Miami Beach Hotel; Kent Insurance Company and American La France Corporation, Appellees.
    Nos. 83-2939, 83-2940 and 83-2957.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Rehearing Denied Nov. 15, 1984.
    George, Hartz, Burt & Lundeen and Charles George, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, James F. Dough-erty, II, and Kathleen McCarthy, Miami, for appellees.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); Halpryn v. Highland Insurance Co., 426 So.2d 1050 (Fla. 3d DCA 1983); Royal v. Black & Decker Manufacturing Co., 205 So.2d 307 (Fla. 3d DCA 1967), cert. denied, 211 So.2d 214 (Fla.1968). See also U.S. Flourescent Manufacturing Co. v. Florida Power & Light Co., 360 So.2d 476 (Fla. 3d DCA 1978); Bush v. City of Dania, 121 So.2d 169 (Fla. 2d DCA 1960).


author: ERVIN, Chief Judge.

text:
    CRITERION INSURANCE COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF INSURANCE and Bill Gunter, as Insurance Commissioner and Treasurer of the State of Florida, Appellees.
    No. AT-462.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1984.
    Rehearing Denied Nov. 13, 1984.

      Ronald L. Harrop and Leon H. Handley of Gurney & Handley, Orlando, for appellant.
    Daniel Y. Sumner and Ruth L. Gokel, Tallahassee, for appellees.
   ERVIN, Chief Judge.

Criterion Insurance Company appeals from the trial court’s final judgment upholding the facial constitutionality of Section 627.0651(10), Florida Statutes (1982), and dismissing with prejudice Criterion’s amended complaint seeking injunctive and declaratory relief. We affirm.

On October 13, 1982, Criterion submitted to the Department of Insurance (Department), pursuant to section 627.0651, Florida’s rate filing statute, a rate filing notifying the Department that Criterion had implemented rate increases for personal injury protection and uninsured motorist coverages effective October 1, 1982. On February 22, 1983, the Department, pursuant to section 627.0651(10), notified Criterion by its “Notice of Intent to Issue Final Order” that the rate filing “may be unfairly discriminatory or excessive among the members of the class affected.” Criterion requested an administrative hearing which was eventually held on June 23, 1983. No recommended order has issued from the hearing officer.

On March 31, 1983, Criterion submitted another rate filing to the Department, advising of another rate increase for coverage for other than personal injury protection and uninsured motorist coverages, including coverages for bodily injury, property damage, medical payments, comprehensive, collision, towing and labor. The Department took the position that this rate filing was within the prohibited time period under section 627.0651, which provides in part:

After the department notifies an insurer that a rate may be excessive, inadequate, or unfairly discriminatory, unless the department withdraws the notification, the insurer shall not increase the rate until the earlier of 120 days after the date the notification was provided or 180 days after the date of implementation of the rate. The department may, subject to chapter 120, disapprove without the 60-day notification any rate increase filed by an insurer within the prohibited time period or during the time that the legality of the increased rate is being contested.

A principal issue between the Department and Criterion is whether the statutory prohibition for increasing “the rate” within the time period specified in the statute applies to rate increases for all coverages in situations where the original rate increases purported to be for only certain specified coverages. The Department is of the view that the effect of the statute is to prohibit any such increases, and that this interpretation is the only reasonable and workable one. Criterion, however, disagrees. In any event, the Department, on April 8, 1983, issued an “Immediate Final Order of Disapproval”, finding that the March rate filing constituted an immediate danger to the public health, safety or welfare in that Criterion “is charging and collecting from insurance buying consumers of the State of Florida rates which have been illegally filed, and in utter derogation of the provisions of Section 627.0651(10), F.S. (1982).” The final order was issued without notice or hearing pursuant to Section 120.59(3), Florida Statutes (1981), which provides: (e.s.) At the same time the Department notified Criterion of its right to request a 120.57(1) administrative hearing.

(3) If an agency head finds that an immediate danger to the public health, safety, or welfare requires an immediate final order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appeal-able or enjoinable from the date rendered.

Thereafter, Criterion filed a complaint in the circuit court seeking injunctive and declaratory relief and attacking the facial constitutionality of section 627.0651. In what Criterion refers to as an abundance of caution, it also requested a formal administrative hearing. On June 13, 1983, the hearing officer entered an order holding such hearing in abeyance until such time as the parties advised him that the case should be heard or dismissed or until further order of the hearing officer. No such hearing has been held.

Criterion’s circuit court complaint, as amended, sought declaratory and injunctive relief and alleged nine counts: Count I— the April 8, 1983 order violates Criterion’s due process and equal protection rights since its rates are not unreasonable, arbitrary or excessive; Count II — the April 8 order unconditionally impairs the obligations of contract between Criterion and its policyholders; Count III — the Department misconstrues and misapplies section 627.-0651(10); Count IV — section 627.0651(10) constitutes an unlawful delegation of legislative authority and is facially unconstitutional; Count V — the April 8 order is deficient for failure to recite with sufficient particularity the facts constituting the alleged danger to the public health, Safety or welfare; Count VI — the entry of the April 8 order, without prior notice and opportunity for hearing, violates Criterion’s due process rights; Count VII — the Department is without authority to require return or rebate of premiums; Count VIII — the April 8 order, requiring return of premiums, constitutes the imposition of an administrative penalty not authorized by law and in violation of Article I, Section 18, Florida Constitution; Count IX — section 627.0651(10) is facially unconstitutional as it creates an unlawful, irrebuttable presumption that all rate increases within the prohibited time period are excessive, arbitrary, void or otherwise unlawful and, therefore, violative of Criterion’s due process and equal protection rights. The Department responded by moving to dismiss the complaint. The hearing was on: (1) the Department’s motion to dismiss the complaint; (2) Criterion’s motion for leave to file the amended complaint (tendered with the motion); (3) Criterion’s motion for stay, and (4) its motion to stay enforcement of the April 8 order.

Following the hearing, the court granted Criterion’s motion for leave to file its amended complaint, held that it had “no jurisdiction to consider any issue raised or raisable by the amended complaint other than the facial constitutionality vel non of section 627.0651(10),” and then ruled:

This Court determines that facially Section 627.0651(10), Florida Statutes (1982 Supp.), does not appear to be in violation of any constitutional principle.

Thereupon it denied the two motions to stay and dismissed the amended complaint with prejudice.

Criterion first contends that the court prematurely ruled on the facial constitutional claims; that it had no notice that the court would consider the constitutionality of the statute at the hearing on the motion to dismiss the complaint. We disagree. The motion to dismiss the complaint was explicitly based on appellant’s failure to exhaust its administrative remedies on the ground that it had an adequate administrative remedy under Chapter 120, Florida Statutes. In making such allegations, the Department in effect challenged the court’s subject matter jurisdiction to hear the case, a challenge which is properly raised by motion to dismiss. See Fla.R. Civ.P. 1.140(b). The only ground on which the court could have considered the suit was as to the claims directed to the facial constitutionality of the statute. See Key Haven v. Board of Trustees of Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982). Criterion was under no misconception as to the reach of the Department’s motion. In fact, before the court entered its order of dismissal, Criterion filed a memorandum of law in response to the motion to dismiss, stating, “[Ujnder well established principles of, law this court has jurisdiction to consider the constitutionality of ... Section 627.0651(10), Florida Statutes (1982).” In Criterion’s memorandum, citing to Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 ((Fla.1978) and Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976), it argued that “administrative remedies do not displace circuit court jurisdiction to enjoin the enforcement of facially unconstitutional agency action.” (e.s.) Criterion specifically stated in its response that count IV of its complaint was a challenge to the facial constitutionality of the statute in question. Clearly, then, Criterion not only was aware of the scope of the Department’s motion, but in fact appears to have invited the court’s ruling on the constitutional issue.

The ease before us is therefore in an altogether different posture from the circumstances presented in those cases relied upon by Criterion, Mills v. Ball, 344 So.2d 635, 638 (Fla. 1st DCA 1977), and Government Employees Insurance Company v. Anta, 379 So.2d 1038 (Fla. 3d DCA 1980), wherein factual issues — rather than issues of law — were required to be resolved following a final hearing on the merits. As this court observed in Mills v. Ball, 344 So.2d at 638: “A ruling on the merits should not be made until after the final hearing where the parties have full opportunity to present evidence in support of their respective positions.” (e.s.) In the case at bar, once the trial court'determined the legal issue that the statute under attack was constitutional, it correctly abstained from entertaining any of the non-constitutional questions by holding such questions were not properly before it.

We disagree also with Criterion’s argument that section 120.59(3), by using the words “appealable or enjoinable”, authorizes a statutory means for permitting entry into the circuit court without complying with the exhaustion doctrine. The fact that an alternative judicial remedy is explicitly recognized by the Administrative Procedure Act does not mean that the exhaustion requirement may be dispensed with. For example, this court in State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) was confronted with the following provisions of section 120.73, still extant, stating:

Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86.

Notwithstanding the Act’s implicit recognition of the circuit courts’ continuing equitable jurisdiction, as well as the constitution’s explicit provision conferring the power upon circuit courts to issue injunctions, Willis required adherence to the exhaustion doctrine. Later this court was asked whether exhaustion of administrative remedies was required in view of the statute’s provision authorizing the continuing jurisdiction of the circuit courts to render declaratory judgments under chapter 86, and the court again ordered compliance. School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977).

Additionally, the administrative order entered on April 8, 1983, although immediate, is not final in the sense of concluding all administrative labors. Such an order has finality only from the standpoint that it is immediately reviewable for the purpose of determining whether it recites with particularity “specific findings of fact to support the summary agency action.” Commercial Consultants Corporation v. Department of Business Regulation, 363 So.2d 1162, 1164 (Fla. 1st DCA 1978). See also Saviak v. Gunter, 375 So.2d 1080 (Fla. 1st DCA 1979); Lerro v. Department of Professional Regulation, 388 So.2d 47 (Fla. 2d DCA 1980); Gervais v. Division of Alcoholic Beverages and Tobacco, 438 So.2d 90 (Fla. 2d DCA 1983).

The emergency order is more properly labeled one involving “preliminary, ..., or intermediate agency action or ruling [which] is immediately reviewable [in that] review of the final agency decision would not provide an adequate remedy.” Section 120.68(1), Fla. Stat. This statement becomes all the more pertinent when it is considered that one species of a 120.59(3) order is an order involving summary suspension of a license without a prior hearing based on a finding that continued operation under the license would constitute an “immediate serious damage to the public health, safety, or welfare .... ” Section 120.60(7).

The Third District Court of Appeal, in a series of decisions, Aurora Enterprises, Inc. v. State, Department of Business Regulation, 395 So.2d 604 (Fla. 3d DCA 1981); Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. N.K., Inc., 399 So.2d 416 (Fla. 3d DCA 1981); Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038 (Fla. 3d DCA 1981), and Department of Professional Regulation v. Fernandez-Lopez, M.D., 407 So.2d 286 (Fla. 3d DCA 1981), has approved the right of a regulatory agency to suspend a license without a pre-suspension hearing to the party affected, conditioned, however, upon its providing a prompt, post-suspension hearing. An emergency suspension order, cognizable under both sections 120.-59(3) and 120.60(7), does not per se, however, furnish a basis for injunctive relief in circuit court. A judicial remedy is only available “in those extraordinary cases where a party has no other adequate administrative remedy to cure egregious agency errors or where a party’s constitutional rights are endangered.” Metropolitan Dade County v. Department of Commerce, 365 So.2d 432, 433 (Fla. 3d DCA 1978); accord Department of Business Regulation v. N.K., Inc. The test to determine whether injunctive relief should be granted to relieve a party from administrative action is the same as that which courts have otherwise used in determining whether to grant injunctive relief: the party applying for same must make a showing of the likelihood of irreparable harm; such a showing depends upon the unavailability of an adequate remedy at law, or, as here, the absence of an adequate administrative remedy to cure allegedly egregious agency error. See Department of Business Regulation v. Provende, Inc., and Willis, 344 So.2d at 590 (“[S]ome agency errors may be so egregious or devastating that the promised administrative remedy is too little or too late.”) Compare the decisions of this court in Communities Financial Corporation v. Florida Department of Environmental Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982), where, in following Willis, we set forth the following criteria for determining the jurisdiction of the circuit court to act: .

(1) [T]he complaint must demonstrate some compelling reason why the APA ... does not avail the complainants in their grievance against the agency; or (2) the complaint must allege a lack of general authority in the agency and, if it is shown, that the APA has no remedy for it; or (3) illegal conduct by the agency must be shown and, if that is the case, that the APA cannot remedy that illegality; or (4) agency ignorance of the law, the facts, or public good must be shown and, if any of that is the case, that the Act provides no remedy; or (5) a claim must be made that the agency ignores or refuses to recognize related or substantial interests and refuses to afford a hearing or otherwise refuses to recognize that the complainants’ grievance is cognizable administratively.... Since such avenues of relief were not pursued, we cannot conclude that the remedies of the administrative process were inadequate.

(e.s.). Criterion has failed to allege in its complaint the specificity required by Communities Financial Corporation regard-' ing the absence of an administrative remedy as a predicate to conferring jurisdiction upon a circuit court.

We are not unaware that there is language in State of Florida, Department of Banking and Finance v. Standard Federal Savings and Loan Association and K-Mart Corporation, 452 So.2d 105, (Fla. 1st DCA 1984), suggesting that a circuit court has jurisdiction to entertain an application for injunctive relief under the provisions of Section 120.59(3), Florida Statutes, from an administrative cease and desist order. This case was, however, decided upon its own extraordinary and unique facts. There the agency had first inconsistently applied for a permanent injunction before the circuit court to prevent alleged violations of the banking laws. When such relief was denied, it issued a cease and desist order, the effect of which was to restrain appellees from the very activities that the Department had sought to enjoin in circuit court. When the court entered a temporary restraining order (TRO), restricting the Department from enforcing the order, the agency sought relief before this court, arguing that the circuit court had no jurisdiction to consider the TRO — although it had previously appealed to this court from the lower court’s denial of its petition for permanent injunction. In affirming the circuit court’s TRO, we specifically noted: “Since appellant itself has gone outside the Administrative Procedures Act in the course of these proceedings, it will not now be heard to argue that it is improper for appel-lees to do so.” 452 So.2d at 106. The Department, by its inconsistent conduct, could therefore be said to have waived its right to insist on adherence to the exhaustion doctrine. Cf. Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43 (Fla. 1st DCA 1983). No similar conduct implying waiver exists in the case now on review.

The facts in the case at bar dramatically evince the need for scrupulous adherence to available administrative remedies. Criterion, notwithstanding that it was advised by the Department in the emergency order of its right to request a 120.57 hearing, filed its suit for injunctive and declaratory relief in circuit court. The only issue cognizable in that court was, as stated, a facial attack on the regulatory statute. Clearly Criterion had an effective, alternative remedy. It had the right of immediate review to an appellate court from the Department’s order for the purpose of determining whether the order set out with particularity the facts underlying it, as required by section 120.59(3). Cf. Department of Business Regulation v. N.K., Inc., 399 So.2d 416 (“The licensee [who obtained a circuit court injunction from an emergency administrative order suspending his license without a hearing] ... clearly had another remedy. Section 120.68 ... provides for immediate review in the appropriate District Court of Appeal_”). Criterion could also have asked this court to enjoin or stay the order during the penden-cy of the review proceeding. See section 120.68(13)(a). Finally, it could have asked for the constitutional issues to be considered de novo by this court after the administrative hearing on the merits was concluded. Cf. Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). There is simply no reason why the administrative order of April 8, 1983 should be accorded different treatment than is given those orders involving licensing suspensions. Both are 120.59(3) orders and the sufficiency of such orders should be tested by applying the provisions of sections 120.59(3), 120.-54(9) and 120.60(7) in pari materia with one another.

This court’s order, staying the enforcement of the Department’s order of April 8, 1983, is vacated.

AFFIRMED.

THOMPSON and NIMMONS, JJ., concur.

      . The hearing officer had previously entered an order on May 23, 1983, directing the parties to show cause why Criterion's application for a 120.57 hearing should not be dismissed for the reason that the Department’s April 8, 1983 order appeared to constitute, as the hearing officer said, "final agency action which is either appeal-able to a district court of appeal or enjoinable in an appropriate circuit court." Apparently, counsel appeared before the hearing officer pursuant to the order to show cause, which culminated in the officer’s June 13, 1983, holding in abeyance the 120.57 proceeding.

      . Criterion, as a basis for invoking the circuit court’s jurisdiction, makes the simple concluso-ry allegation that it “has no adequate remedy either at law or through any administrative proceeding”.

      . The denial of Criterion’s application for a rate increase obviously affected its substantial interests. Thus, although the Department has the undoubted authority to deny the filed rate increase under the circumstances presented without a hearing, it is required, both constitutionally, Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), and statutorily, section 120.-57(l)(b)2, to grant a prompt, post-emergency order hearing.


author: BOOTH, Judge.

text:
    Michael A. CLIFFIN, as Personal Representative of the Estate of Sarah L. Cliffin, Deceased, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Michael D. Stockton, Thomas B. Reed, and William H. McClure, Jr., Appellees.
    No. AU-417.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1984.
    Aaron A. Green, Gainesville, for appellant.
    Charles G. Felder and Robert E. Round-tree, Jr., of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from summary final judgment entered by the trial court based on the statute of limitations and the immunity provisions of the Workers’ Compensation Act.

Michael A. Cliffin, personal representative of the estate of his deceased wife, Sarah L. Cliffin, filed suit for wrongful death on behalf of himself, the surviving minor child, and the decedent’s estate on January 14, 1983. The action was based upon an incident which occurred on January 15, 1979, at the North Florida Evaluation and Treatment Center (NFETC) of the Florida Department of Health and Rehabilitative Services (HRS) facility located in Gainesville, Florida, where Sarah Cliffin, a custodial employee of NFETC, was assigned to work in the Mentally Disordered Sex Offender Unit (MDSO Unit). While working that day, she was physically attacked, murdered, and sexually assaulted by a resident of the MDSO Unit.

The defendants in the wrongful death action were: State/Department of Health and Rehabilitative Services (HRS); Michael D. Stockton, Director of the MDSO Unit; Thomas B. Reed, Administrator of NFETC; and William H. McClure, Jr., the District Administrator of HRS, District III, where NFETC is located.

The trial court, in entering summary judgment, found that, as to HRS, the exlu-sive remedy provisions of Chapter 440 (Workers’ Compensation Law) “immunized this Defendant as the alleged employer of the decedent against this civil action.” It was admitted that the decedent was an employee of the State, that she was killed while in the course and scope of her employment, and that appellant had filed claim for and was receiving workers’ compensation benefits. This part of the trial court’s order is not contested on appeal.

Summary judgment was entered in favor of the individual defendants based on the court’s ruling that the complaint was filed beyond the two-year statutory period provided in Section 95.11, Florida Statutes (1977), and that the four-year statute of limitations set forth in Section 768.28(11), Florida Statutes (1977), did not apply to the individual defendants. Additionally, the court found that the three individual defendants, as supervisors, were immune from suit by virtue of the exclusive remedy provisions of Chapter 440 because the complaint did not “allege any affirmative act of negligence going beyond the scope of the employer’s non-delegable duty.”

Where, as here, the State agency is immune from suit for injuries or death of a State employee incurred in the course of employment, plaintiff may not claim the benefit of the four-year statute of limitations found in Section 768.28 as to parties remaining in the case. The causes of action against individual defendants must meet the requirements of Section 95.11. Subsection 11 of Section 768.28, which provides for the four-year statute of limitations, does not by its terms refer to an officer, employee, or agent of the State, and cannot be extended to include those individuals.

We also affirm the trial court’s second holding, which grants summary judg- ■ ment due to the failure of the complaint to allege affirmative acts of negligence going beyond the scope of the employer’s non-del-egable duty. Although that concept is subject to interpretation and may, in a particular case, involve questions of fact for the jury, no material issues of fact were presented here which would preclude entry of summary judgment on this ground. Clark v. Better Construction Company, Inc., 420 So.2d 929 (Fla. 3d DCA 1982); Dessert v. Electric Mutual Liability In surance Company, 392 So.2d 340 (Fla. 5th DCA 1981).

ERVIN, C.J., and WENTWORTH, J., concur.

      . Trial court’s order, in pertinent part:
      2. The Motions for Summary Judgment filed by and on behalf of the Defendants MICHAEL D. STOCKTON, THOMAS B. REED, and WILLIAM H. McCLURE, JR., be and the same are hereby granted on the following grounds:
      a. This action is barred by the applicable statute of limitations. The Court holds that the four year limitations provision contained in Section 768.28 Florida Statutes applies only to claims against the State, or its agencies or subdivisions. Claims for damages against the individual employees are governed by Section 95.11 Florida Statutes (1977). Since this action was commenced more than two years from the date of the alleged injury, this action against the individual employees is barred.
      ' b. The Complaint alleges acts of supervisory negligence by the individual employees, and fails to allege any affirmative act of negligence going beyond the scope of the employer's nondelegable duty. The individual employees accordingly are immune from suit by virtue of the exclusive remedy provisions of Chapter 440 Florida Statutes.


text:
    BAY STEEL ERECTIONS and United States Fidelity and Guaranty, Appellants, v. Andrew CHUNG and the Division of Workers’ Compensation, Appellee.
    No. AX-308.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1984.
    Rehearing Denied Nov. 8, 1984.
    Robert H. Gregory, Miami, for appellants.
    Brian R. Hersh, Law Offices of Hersh & Bernstein, Miami, for appellee.
   SMITH, Judge.

The deputy commissioner’s order awarding claimant wage loss benefits is reversed insofar as it excuses claimant from the requirement of filing wage loss benefits forms for the period of April 30, 1980, through January 6, 1982. The evidence presented below shows that the claimant asked for “Request for Wage Loss Benefits” forms (LES Form BCL-13b (Rev. 6-79)) from the carrier, but the carrier neglected to send the forms to claimant. While the claimant’s untimely filing of the forms may be excused due to the employer/carrier’s negligence, Gall Silica Mining Co. v. Sheffield, 401 So.2d 1169 (Fla. 1st DCA 1981), we see no reason based upon the record before us, to waive the filing requirement entirely. Without these wage loss benefits forms it is impossible to determine accurately the amount of wage loss benefits due unless and until the E/C are informed of the amount of wages, if any, actually earned by the claimant during the months involved. See Ardmore Farms v. Smith, 423 So.2d 1039, 1043 (Fla. 1st DCA 1982). Moreover, these forms apprise the employer/carrier of any other benefits, such as social security, received by the claimant.

In all other respects, the deputy commissioner’s award of wage loss benefits and temporary disability benefits is affirmed. Accordingly, the deputy’s order is affirmed in part, reversed in part, and the cause is remanded with directions that claimant be required to complete and file wage loss benefit forms for the months which these forms were not filed.

BOOTH and THOMPSON, JJ., concur.


text:
    Weddie DALE, Appellant, v. LANDRUM TEMPORARY SERVICES INC., Self-Insured, Appellee. Cisroe HICKS, Appellant, v. DYSON & COMPANY and Aetna Insurance Company, Appellees. Willie Lee GRACE, Appellant, v. DYSON & COMPANY and Aetna Insurance Company, Appellees.
    Nos. AY-278, AY-280 and AY-279.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.
    Rehearing Denied Nov. 8, 1984.
    John L. Myrick of Kinsey, Myrick, Troxel & Johnson, P.A., Pensacola, for appellants.
    William H. Clark of Clark, Partington, Hart, Hart & Johnson, Pensacola, for ap-pellee-Landrum Temporary Services, Inc.
    Rollin D. Davis, Jr. of Shell, Fleming, Davis & Menge, Pensacola, for appellees-Dyson & Co. and Aetna Ins. Co.
   PER CURIAM.

Appellants appeal orders of the deputy denying their requests for a partial advance upon compensation benefits in order that they might pay their attorney’s fees. In Travelers Insurance Company v. Taylor, 444 So.2d 39 (Fla. 1st DCA 1984), this court recently held that a partial advance for the purpose of paying claimant’s attorney’s fees is materially prejudicial to the carrier and must be denied. We decline to recede from our opinion in Taylor. However, we join in the sentiments of another panel of this court that this matter should be given further study by the Division of Workers’ Compensation and the Florida Legislature, since the present legislative scheme seriously impacts upon injured claimants’ ability to secure the services of competent attorneys in cases in which the absence of such assistance is tantamount to a forfeiture of benefits conferred by law. Aramburo v. Cargo Development, Inc., 455 So.2d 567 (Fla. 1st DCA 1984).

AFFIRMED.

BOOTH, SMITH and THOMPSON, JJ., concur.


author: HURLEY, Judge.

text:
    Charlotte B. KEISTER, Appellant/Cross Appellee, v. James V. KEISTER, Appellee/Cross Appellant, and Lilian Maria Brown, Appellee. Charlotte B. KEISTER, Appellant, v. James V. KEISTER, Appellee.
    Nos. 82-1300, 83-1387.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1984.
    Rehearing Denied Nov. 21, 1984.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for Charlotte B. Keister.
    W.K. Chester, Miami, for James V. Keis-ter.
   HURLEY, Judge.

The wife, Charlotte B. Keister, appeals from a final judgment of dissolution. The husband, James V. Keister, cross appeals. We affirm in part and reverse in part.

The parties were married for ten years. The wife had been married once before, and has one child from her previous marriage. The husband, who had been married twice before, was adjudicated bankrupt before marrying Charlotte Keister. During the marriage, he worked for short periods of time in real estate offices and as a car salesman, grossing a total of about $53,-000.

Although the record does not contain any evidence establishing the wife’s exact net worth, the trial court found that she owned substantial assets which increased greatly in value during the ten years that the parties resided together. Included among those assets were several bank accounts maintained at Home Federal Savings & Loan Association (“Home Federal”). After she married James Keister she placed the accounts in the parties’ joint names.

Shortly before the parties separated, the husband gained access to two safety deposit boxes maintained in both parties’ names at Home Federal and removed $221,500.00 in cash, together with various jewelry, documents and other miscellaneous items of personal property. He also withdrew $154,000.00 from jointly held accounts at that institution. The trial court held that the husband was entitled to a one-half interest in the cash assets on the basis that the funds were jointly owned, or alternatively, on a theory of equitable distribution.

In addition to a share of the jointly held cash assets, the trial court further awarded the husband a one-half interest in the purchase price of a Cadillac Seville which the wife bought for $15,000 during the marriage. Thus, the husband received a total award of $144,250. He also received an award of permanent periodic alimony in the amount of $1,000 per month “until [he] dies or becomes married, whichever event shall occur first,” and a partial attorney fee award of $56,970.00.

The husband remarried one of his former wives in Georgia after dissolution of the marriage, but before final judgment entered on March 31, 1982. On April 9, 1982, the wife filed a motion to amend or alter judgment, alleging, inter alia, that the husband was not entitled to periodic alimony or an attorney fee award because he had remarried. The motion was denied.

On appeal, the wife argues that the trial court erred by awarding the husband one-half of the jointly held cash assets, a one-half interest in the purchase price of the Cadillac Seville, and a partial attorney fee award of $56,970.00. She further argues that the court erred in denying her motion to alter or amend judgment. In his cross appeal, the husband maintains that he was erroneously denied an interest in certain New Jersey real estate owned by the wife, and that his award of cash assets was insufficient to effect a fair and equitable distribution of the marital assets.

We first address the wife’s challenge to the award of $144,250.00 to the husband. The trial court noted that the husband’s contribution to the jointly held cash assets was minimal, “if in fact there was any,” but nevertheless awarded him a one-half interest therein on the justification that “the husband and wife during the marriage commingled funds derived from their separate endeavors, as well as their mutual efforts.” Alternately, it found that the award was supported by the doctrine of equitable distribution.

We need not reach the issue of whether there is any record support for the lower court’s finding of a commingling of funds, because we find that the husband waived any right he may have had to jointly held or acquired marital assets by virtue of several antenuptial agreements which he executed, one of which specifically provided for the release of any interest he may have in the following:

All real, personal, and tangible property held by Charlotte Brown Keister, or held jointly acquired by her or acquired jointly and at whatever time acquired by her or jointly, and wheresoever situate, so that neither I or my heirs, executors, administrators, or assigns, nor any other person or persons for me, or in my place and stead, and them or any of them shall have, claim, or demand or pretend to have, claim, or demand, any right of title of elective share or demand any other right or demand whatsoever of, in or to the real, personal and tangible property of Charlotte Brown Keister or any part thereof.

Although the trial court upheld the validity of the property agreements, it came to the limited conclusion that by signing the contracts, “the husband intended, and did release and relinquish all right of curtesy and all other interests by virtue of title or as a result of the marriage in and to the wife’s real property.” (emphasis added.) The record is silent as to why the trial judge did not deem the release enforceable insofar as it purported to waive the husband’s interest in the wife’s personal property. We do not see any basis for severing the real estate provisions of the release from those pertaining to personal property, and therefore, we hold that the contract effectively waived the husband’s interest in the jointly held cash assets. See generally Underwood v. Underwood, 64 So.2d 281 (Fla.1953). Such a result is mandated regardless of whether any of the husband’s minimal earnings were in fact deposited in those accounts, because the broad language of the release covers “all ... personal ... property held by Charlotte Brown Keister or held jointly, acquired by her or acquired jointly, and at whatever time acquired by her or jointly .... ” (emphasis added.) Accordingly, we reverse the husband’s award of a one-half interest in the jointly held cash assets. For the same reason, we find that the trial court erred by awarding the husband a one-half interest in the Cadillac Seville which was purchased by the wife but titled in the names of both parties.

We next consider whether the trial court erred by ordering the wife to pay attorney’s fees to the husband’s former attorneys. The wife argues that the award was improper because (1) the proceedings were brought by the husband’s discharged attorneys who had no standing to bring a suit under section 61.16, Florida Statutes (1983), (2) the husband remarried before entry of the final judgment of dissolution and thereby lost any entitlement he may have had to attorney’s fees, and (3) the postnuptial agreements signed by the husband effectively waived his right to claim attorney’s fees. She alternatively argues that the award was excessive.

The law firm of Dingwall, Morgan & Olsen appeared as counsel of record for the husband in this action and filed an amended counterclaim on his behalf which included a request for attorney’s fees. The firm was still the attorney of record for the husband when the trial court entered its final judgment of dissolution, which included an award of attorney’s fees and retained jurisdiction to determine the amount of the award at a later hearing.

The husband thereafter discharged the firm, which formally withdrew as counsel pursuant to a court order dated June 28, 1982. On July 7, 1982, an attorney’s fee hearing was held. The trial court determined that $123,941.50 was a reasonable fee and ordered that the wife pay $56,-970.00 of that amount.

The wife first contends that the attorney fee award was not authorized under section 61.16, Florida Statutes (1983) because the firm was not the attorney of record for the husband when the fee hearing was held. In support of that position, she cites Robinson v. Hucker, 423 So.2d 477 (Fla. 1st DCA 1982) and Baucom v. Baucom, 397 So.2d 345 (Fla. 3d DCA 1981), which hold that only a party to a dissolution action may apply for an award of attorney’s fees. Those cases do not control here, however, because the husband sought the award of fees in his pleadings, and the firm was still his counsel of record when the final judgment authorizing the attorney fee award to it was made. The firm is therefore entitled to enforce the award entered in its own name. See Baucom, supra.

The wife further argues that the husband’s remarriage, which occurred nine months before entry of the final judgment, barred the award. In this connection she relies on Claughton v. Claughton, 393 So.2d 1061 (Fla.1980), where the Supreme Court held that remarriage of a party to a dissolution proceeding bars an award of any type of alimony predicated on the need to support the recipient spouse. However, we do not believe that the attorney fee award is barred under Claughton because the purpose of a fee award under section 61.16 is not related to maintenance of a former spouse. Rather, it is designed to ensure that both parties to a divorce proceeding have a similar ability to secure competent legal counsel to represent their interests during the litigation. See Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980).

We also reject the argument that the husband waived his right to claim attorney’s fees by execution of various general releases because the agreements at issue do not contain an express waiver of attorney fees. See Scott v. Scott, 303 So.2d 683 (Fla. 4th DCA 1974).

Finally, we address the wife’s challenge to the alleged excessiveness of the award. The trial court heard two expert witnesses testify that a reasonable fee for the services rendered to the husband by Dingwall, Morgan & Olsen was either $140,000.00 or $125,000.00. In addition, Mr. Olsen testified that 1,360 hours of representation were expended by the firm on the husband’s behalf, and the wife did not attempt to contradict that testimony. On this record we cannot say that the trial court abused its discretion by finding that $123,941.50 was a reasonable attorney’s fee, and ordering that the wife must pay $56,970.00 of that amount. See Posner v. Posner, 315 So.2d 175 (Fla.1975); Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1109 (Fla.1980); cf. Larsen v. Larsen, 429 So.2d 725 (Fla.3d DCA), petition for rev. denied, 440 So.2d 352 (Fla.1983). However, because we have decided to reverse the husband’s award of $144,250.00, and thereby have substantially altered the results obtained by husband’s former counsel, we must also reverse the attorney fee award and remand for reconsideration as to the amount of a reasonable fee in light of the final results obtained. See Adams, supra; Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977).

We have further considered the wife’s contention that she was improperly excluded from the courtroom during certain portions of trial testimony, but decline to review this point on appeal because the record does not show that she raised any objection during the proceedings below. See Keller Industries, Inc. v. Morgart, 412 So.2d 950 (Fla. 5th DCA 1982); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980).

Finally, we reject her challenge to the trial court’s denial of her motion to amend judgment. For reasons discussed above, we do not believe that an attorney fee award is barred by the husband’s remarriage. As for the award of periodic alimony, we do not find that the trial court erred by refusing to amend its final judgment, which ordered that the wife shall pay permanent periodic alimony “until the husband dies or becomes married, whichever event shall occur first.” An amendment would have been unnecessary even if the judgment failed to provide for those contingencies, because remarriage terminates a party’s entitlement to permanent periodic alimony payments as a matter of law. See Friedman v. Schneider, 52 So.2d 420 (Fla.1951). See generally Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980).

We have reviewed the husband’s points on cross appeal and find them meritless. Accordingly, we reverse the husband’s award of $144,250.00. We also reverse his partial attorney fee award and remand for a redetermination as to what constitutes a reasonable fee. In all other respects, the judgment on appeal is affirmed.

GLICKSTEIN and DELL, JJ., concur.

      . We note that in any case the record does not support a finding of commingling. The husband’s accountant testified at his deposition that the husband grossed a total of $53,138.00 between 1969 and 1977. According to the husband, he turned over all the money he made to the wife, who physically made all bank deposits. However, he did not testify or attempt to show that any of the money he earned was actually placed in any of the jointly held accounts.