author: ZEHMER, Judge.

text:
    Marvin A. BURDEN, Appellant, v. STATE of Florida, Appellee. Robert C. DILLMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. AU-271, AU-272.
    District Court of Appeal of Florida, First District.
    July 27, 1984.
    Rehearing Denied Sept. 28, 1984.

      Louis 0. Frost, Public Defender, Jacksonville, for appellant Burden.
    Janine Yunker, Asst. Public Defender, Jacksonville, for appellant Dillman.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellees.
   ZEHMER, Judge.

Appellants Burden and Dillman appeal the trial court’s denial of their motions to suppress physical evidence seized pursuant to a search warrant. They contend the warrant was executed in violation of section 933.09, Florida Statutes (1981), the “knock and announce” statute. We agree and reverse.

On February 24, 1983, appellants Burden and Dillman were arrested for possession of controlled substances after a search warrant was executed at their dwelling in Jacksonville. Prior to trial, appellants moved to suppress the physical evidence seized under the warrant, alleging the warrant was executed in violation of section 933.09, Florida Statutes (1981). At the suppression hearing, detective Toohey testified that he and other law enforcement officers executed the warrant; that the main entrance to the house was a small porch (measuring eight feet by four feet) that had been enclosed to make a protected foyer with a wooden louvered door on the exterior; that based on information provided by a confidential informant prior to executing the warrant, he understood “that was not the main entrance door, it was only an outside shelter door for this porch area” and that the main entrance door was inside the foyer; that the outside door to the foyer “was always closed” and had no doorknob but “only a hole where the doorknob would be installed”; and that the house was brick but the foyer was enclosed by wood. Toohey further testified that he approached the house and entered the unlocked exterior door; that, although he neither knocked on the foyer door nor announced his presence before opening it, he did intend to knock on the door inside the foyer and announce his presence as he believed his knock on the foyer door would not be heard from the inside; and that upon opening the foyer door, he discovered the interior door to be open and observed several people sitting on two couches directly in front of the foyer, who were as “surprised to see me as I was to see them”; and that he immediately announced himself as a police officer with a search warrant. Toohey explained that his intention “was to enter the foyer so that I could knock.”

Burden and Dillman, as well as two other persons, testified that they were eating breakfast in a den in the back of the house when they noticed several cars drive up and that before anyone could reach the front room, or within thirty to forty-five seconds of the appearance of the cars, a police officer was “half-way through the house” before announcing his presence to serve a search warrant. During cross-examination of Dillman, the court asked:

THE COURT: So, in the wintertime, it’s not unusual for people to come through that, if they know you, they come there to the door and knock on the front door so that you can hear them?
THE WITNESS: Very seldom do people come through without knocking first.

The court, adopting Toohey’s version of the execution of the warrant, denied appellants’ motions to suppress upon the finding that defendants had no reasonable expectation of privacy in the foyer, “at least in the wintertime,” and that the police made a “good faith attempt” in keeping with both the spirit and the letter of the “knock and announce” statute.

The state, citing Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981), concedes that for the present there is no good faith exception to the knock-and-announce rule in Florida, but urges this point to preserve its right to appellate review of that issue. We adhere to Walden and decline to fashion such an exception.

Section 933.09 provides:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein. (Emphasis added.)

This statute requires that before an officer engaged in the execution of a search warrant “may break open any outer door” to enter the residence described in a search warrant, that officer must notify those within the residence of the officer’s presence by knocking or some other reasonable means and announce his authority and the purpose of his presence. State v. Collier, 270 So.2d 451, 453 (Fla. 4th DCA 1972). Since the rule specifically addresses instances where a “breaking” occurs, it is incumbent on the officer to comply with the knock-and-announce requirements where it appears that a breaking may precede the entry. State v. Manning, 396 So.2d 219 (Fla. 4th DCA 1981); State v. Clarke, 387 So.2d 980 (Fla. 2d DCA 1980). The concept of breaking is not limited to or synonymous with the use of force. Manning, citing Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), in which the United States Supreme Court strictly construed the federal statute equivalent to section 933.09 to apply to an officer’s entry through a closed but unlocked door, quotes the following from Sabbath:

An unannounced intrusion into a dwelling — what § 3109 basically proscribes— is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially opened door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door. At 589, 88 S.Ct. at 1757.

396 So.2d at 221.

In Nank v. State, 406 So.2d 1282 (Fla. 2d DCA 1981), the trial court’s denial of the appellant’s motion to suppress was reversed because the officers opened an unlocked screen door and stepped into the house without first knocking and giving notice of their authority and purpose. Similarly, in Johnson v. State, 395 So.2d 594 (Fla. 2d DCA 1981), the act of opening an unlocked screen door constituted a “breaking” within the ambit of section 901.19, Florida Statutes (1979).

In State v. Kelly, 287 So.2d 13 (Fla.1973), a detective, upon reaching the front door of the house, opened an exterior screen door and turned the knob of the front door. The door opened and the detective entered and then announced. The trial court granted the motion to suppress, finding that the warrant was not executed pursuant to section 933.09, Florida Statutes (1981). The district court of appeal affirmed, but the Supreme Court reversed and remanded for a determination of whether the fear-of-destruction-of-evidence exception would excuse the detective’s noncompliance with the statute.

The foyer in the instant case was totally enclosed and the foyer door, though slatted, did not permit a view into the foyer area itself. That the residents had every expectation of privacy in the closed foyer is indisputably confirmed by detective Too-hey’s testimony that the persons he encountered directly in front of the foyer were as surprised to see him as he was to see them. Hence, the opening of the closed door constituted a breaking. Neither the absence of a doorknob nor the door’s unlocked status relieved the officer of his obligation to knock and announce before entering. The fact that the officer did not knock on the foyer door because he relied on information supplied by a confidential informant is insufficient to relieve the officer of this duty to knock since his good faith intentions provide no exception to the statutory mandate. The record contains no suggestion that the officers entered without knocking out of fear that evidence would be destroyed. We hold that the officer’s entry in this case violated section 933.09, and reverse the denial of the motion to suppress.

REVERSED and REMANDED.

ERVIN, C.J., concurs.

BOOTH, J., dissents.

      . These cases were consolidated for appellate purposes since the issues in each are identical.


source: Caselaw Access Project

author: ORFINGER, Judge.

license: Public Domain

text:
    Orian P. WELLS, Jr. and Albert H. Crippen, Jr., Appellants/Cross-Appellees, v. Donald R. COBB, Appellee/Cross-Appellant.
    No. 83-428.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Rehearing Denied Sept. 20, 1984.
    Joe C. Miller, II, Palatka, for appellants/cross-appellees.
    Michael W. Jones, of Baxley & Jones, Gainesville, for appellee/cross-appellant.
   ORFINGER, Judge.

Appellants/cross-appellees Wells and Crippen appeal a final judgment awarding appellee/eross-appellant Cobb accelerated sums on a promissory note offset by certain sums awarded Wells and Crippen. Appellants argue that although the offset award to them was proper, the court’s finding that Cobb properly accelerated payments on the promissory note was error because they were never in default. We agree and reverse.

The parties entered into a contract on December 30, 1977, whereby Cobb agreed to sell to Wells and Crippen his interest in an accounting practice in which the three were partners. In exchange, Wells and Crippen agreed to pay Cobb $95,000, $15,-000 in cash and the balance of $80,000 represented by a promissory note. The promissory note required that principal payments of $5,000 each be made on August 20 and November 20 of each year until the note was paid in full.

The bill of sale from Cobb to Wells and Crippen reflected that $20,000 of the purchase price was allocated to “all clientele, working papers, files and goodwill arising therefrom” and that $27,500 of the purchase price was attributed to “all accounts receivable and work-in-process.” By addendum to the bill of sale Cobb agreed to assist in the delivery of clients and to continue working on their accounts for a reasonable period of time, for which Cobb would be compensated at a rate of $20 per hour plus expenses.

The trial court found, based on substantial evidence, that Cobb had breached the agreement with respect to a past due billing of $7,350 due the firm from a client, A.W. Killian, by personally accepting part of that sum and by making collection of the remainder impossible. When the partners determined that Cobb had made this billing uncollectable, they withheld the next $5,000 installment, advising Cobb that they were applying that sum to the uncollected billing. From the next due installment, they withheld the remaining $2,350, and submitted payment for the balance of $2,650, ($5,000 less $2,350) again informing Cobb of what they were doing. Cobb held that check and did not negotiate it, as he did the next two checks of $5,000 each which appellants timely paid. After Wells’ and Crippen’s initial withholding of the $5,000 payment, Cobb filed his complaint, accelerating payment and demanding judgment.

We see no reason to disturb the trial court’s finding that the set-off was proper, because there was competent evidence to support the conclusion that the Killian obligation was due, was liquidated and that Cobb was obligated to appellants for that sum. This finding however, militates against the conclusion that appellants were in default when the complaint was filed. Because the $7,350 offset was for a liquidated sum to which Wells and Crippen were immediately entitled, they were not in default on the promissory note when Cobb attempted to accelerate the debt, so Cobb’s exercise of his option to accelerate was not proper. Accordingly, we reverse the judgment and remand the cause to the trial court with directions to dismiss the complaint. The remaining issues on appeal as well as the cross-appeal are rendered moot.

REVERSED and REMANDED

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


author: WENTWORTH, Judge.

text:
    Arnett P. ROGERS, Appellant, v. FLORIDA STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Appellee.
    No. AV-196.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1984.

      W.K. Lally, Jacksonville, for appellant. Jim Smith, Atty. Gen., Jeffrey A. Miller, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an administrative order denying his Petition for Certification of Compliance, by which he requested that the Florida State Board of Funeral Directors and Embalmers certify that he had complied with all of the terms and conditions of a previous order. We affirm the Board’s denial of appellant’s petition, without prejudice to appellant’s right to seek reinstatement consistent with this opinion.

Appellant was involved in a series of disciplinary proceedings culminating in a 1977 administrative order by which his licenses to practice as a funeral director and embalmer were revoked. The order further provided that “a fine of $1,000 is imposed ... payable prior to application for reinstatement of licenses.” Further proceedings ensued, and in 1983, after paying the $1,000 fine, appellant filed a Petition for Certification of Compliance. Appellant argued that he had satisfied the only requirement of the revocation order by paying the fine imposed, and that he is therefore entitled to certification of compliance and reissuance of his license pursuant to § 470.036(3), Florida Statutes (1983). The Board denied appellant’s petition by an order finding that “the fine ... is not a condition for reinstatement but is an act to be performed prior to ... de novo reapplication for licensure.”

While § 470.036(3), Florida Statutes (1983), mandates reissuance of a license upon certification “that the disciplined licensee has complied with all of the terms and conditions” imposed by the Board, this provision was not yet enacted when appellant’s licenses were revoked in 1977. The applicable statute then effective was § 470.13(3), Florida Statutes (1977), which required only that the Board consider an application for reinstatement and “in its discretion determine whether the offense or conduct giving rise to the revocation in the first instance was of sufficient gravity to justify the denial of such application for reinstatement.” There was thus no statutory impetus in 1977 for the Board, when disciplining a licensee, to express any exclusive terms or conditions for reinstatement. We therefore conclude that in the present case the Board did not err in construing the fine imposed in 1977 as “an act to be performed prior to ... reapplication,” rather than an exclusive condition for reinstatement, and accordingly denying appellant’s petition.

The order appealed is affirmed.

SMITH and WIGGINTON, JJ., concur.

      . We express no opinion as to the propriety of the Board’s implicit suggestion that appellant make "de novo reapplication,” and we thus do not consider the extent to which such procedure may differ from an application for reinstatement pursuant to § 470.13(3), Florida Statutes (1977). But we note in this regard that it is generally indicated that reinstatement proceedings should be conducted pursuant to the law as it existed when the disciplinary action was taken. See In re Turk, 307 So.2d 162 (Fla.1975); In re Bond, 301 So.2d 446 (Fla.1974); 1982 Op. Att’y.Gen. Fla. 082-50 (July 18, 1982).


author: WIGGINTON, Judge.

text:
    David Kevin KISER, Appellant, v. STATE of Florida, Appellee.
    No. AW-104.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1984.
    Rehearing Denied Oct. 8, 1984.

      Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal is from a sentence imposed by the trial court pursuant to the sentencing guidelines, rule 3.701, Florida Rules of Criminal Procedure. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). Appellant argues that the sentence was improperly imposed as he had not made a “knowing and intelligent” election to be sentenced under the guidelines, and because the trial court relied on improper factors to depart from the guidelines. We affirm.

Appellant’s first argument must fail in light of our very recent decision in Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), in which we rejected an identical contention, holding that a defendant’s “affirmative selection” and not his “knowing and intelligent election” is all that is necessary to be sentenced pursuant to the guidelines when the offense was committed prior to the effective date of the rule. See also In re Rules of Criminal Procedure.

Appellant’s second contention is similarly without merit. Appellant was adjudicated guilty of burglary of a dwelling, which carried with it a recommended sentence of three years under the guidelines. However, the trial court departed from the guidelines and sentenced appellant, over objection, to ten years in state prison. The court’s reasons for doing so were as follow:

Mr. Kiser, this sentence has been imposed outside the sentencing guidelines. It has been imposed because of your total disregard for the rights of others, particularly the property rights of others. Your long criminal record since 1973 indicates that you do have such a total disregard for the rights of others. You were in an extremely dangerous position when you broke into the house on the beach, both for yourself and for the officer that arrested you [Appellant was armed with a kitchen knife].
You show that you have continued the life of crime and I am led to believe from your prior record that there is absolutely no hope to rehabilitate you.
I have for this reason gone outside the sentencing guidelines. I have refused to go outside the sentencing guidelines in a large majority of cases because I think it is my duty to follow the sentencing guidelines but that now is the law of the State of Florida. But I have an equal duty to stop people, like you, who just continue to violate the law and have no hope of making yourself a productive citizen.
For that reason I’ve gone outside the guidelines. The record will reflect that he has affirmatively chosen the guidelines. That his sentence would have been considerably less than the ten years imposed and he has a right to appeal on that issue. That right to appeal also extends for thirty days.

Appellant argues that the trial court’s reasons were premised primarily on appellant’s prior record, which was already taken into account in computing the recommended sentence of three years, and were therefore improper. Again, we must disagree.

Rule 3.701d.ll authorizes departure from the presumptive sentence where there are “clear and convincing reasons to warrant aggravating or mitigating the sentence.” The only condition imposed by this rule as it existed at the time of appellant’s sentencing was:

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.

Certainly, here, the trial court considered neither factors relating to the instant offense for which convictions had not been obtained, nor factors relating to prior arrests without convictions; instead, the court reviewed the circumstances of the present offense. We cannot say that in doing so, the trial court abused its discretion. Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984); Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984).

The court also considered appellant’s “pockmarked” record concluding that appellant was totally unamenable to rehabilitation. This consideration is not too unlike that given by the trial court in Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984), in which we held that consideration given to the “timing” of the various offenses, i.e., the defendant’s establishing a pattern of committing new crimes within a short time after his release from any incarceration, was not precluded by the rule as a reason for departure from the recommended guideline sentence. See also Hendrix v. State, 450 So.2d 298 (Fla. 5th DCA 1984); and Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984).

AFFIRMED.

SMITH and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    ALLEGRA ENTERPRISES, INC., an Illinois corporation, Appellant, v. Ronald FAIRCHILD, individually, Meridian Marine Consultants, Inc., a Florida corporation, Ellis Hodgkins, individually, and Else K. Guinan, Appellees.
    No. 84-699.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.
    Rehearing Denied Oct. 9, 1984.

      John O’Donnell, Fort Lauderdale, and George E. Becker, Chicago, Ill., for appellant.
    Richard A. Goetz of Hodgson, Russ, Andrews, Wood & Goodyear, Fort Lauderdale, for appellees.
   PER CURIAM.

Involved is the ownership and right of possession to a Hatteras yacht.

This non-final appeal is from an order granting a preliminary injunction after notice and from an order which refused to dissolve that injunction.

We reverse and remand with instructions to dissolve the preliminary injunction because of these defects:

1. There was no showing of irreparable harm or lack of an adequate remedy at law. Ranaghan v. Sullivan, 432 So.2d 641 (Fla. 4th DCA 1983).
2. The injunction provided mandatory features not requested by movants, such as the return of the yacht. Connolly v. Connolly, 448 So.2d 641 (Fla. 4th DCA 1984); Zuckerman v. Professional Writers of Florida, Inc., 398 So.2d 870 (Fla. 4th DCA 1981).
3. The injunction order did not specify adequate reasons for its entry. Fla.R. Civ.P. 1.610(d).

REVERSED and REMANDED.

DOWNEY, DELL and WALDEN, JJ., concur.


text:
    The HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. L & T, INC., Ajax Truck Rentals, Inc., and Beaver Tire Co., Appellees.
    No. AT-62.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1984.
    Howell & Howell, P.A., Jacksonville, for appellant.
    Edward A. White, Jacksonville, for appel-lees.
   ZEHMER, Judge.

The Hartford Accident and Indemnity Company (Hartford) appeals a final summary judgment entered upon the trial court’s ruling that an oral settlement agreement Hartford sought to enforce against appellees violated the statute of frauds. We reverse and remand for resolution of disputed factual issues.

On January 12, 1978, appellant filed a complaint' against John G. Lane Lines (Lane Lines) seeking to collect premiums on several insurance contracts in which the named insureds were Lane Lines and L & T, Inc., Ajax Truck Rentals, Inc., and Beaver Tire Company (appellees). In November 1980, an oral settlement agreement was reached between Hartford and Lane Lines. Hartford claims that the settlement agreement obligated Lane Lines and appel-lees, jointly and severally, to pay $72,500 in full satisfaction of the outstanding premiums owed to Hartford and required, in addition, that appellees execute real estate mortgages and personal property security interests in favor of Hartford to secure the agreed payment.

Appellees, although not subsidiaries, were affiliated with Lane Lines, and Bruce Tyndall was president of each corporate entity. Hartford claims that its attorney made the settlement agreement with counsel for Lane Lines, that the agreement was reduced to writing, including notes for the $72,500, with separate signature lines for each appellee, and that Tyndall met with Hartford’s counsel and approved the agreements and notes as written. Tyndall did not sign the documents at that time because his counsel was not present. Nevertheless, pursuant to the agreement, Lane Lines paid the initial $12,500 down payment and six monthly payments. Lane Lines then filed for bankruptcy.

The settlement agreement provided that the trial court would retain jurisdiction to enforce it, so the pending action against Lane Lines was never dismissed. After Lane Lines defaulted, Hartford filed a motion to amend the complaint in that action adding appellees as parties and seeking specific performance of the oral settlement agreement, alleging that appellees were parties to it and jointly and severally liable for the remainder due.

Appellees filed a motion for summary judgment on the grounds that (1) Lane Lines is the only corporation bound by the oral settlement agreement, so appellant is attempting to hold appellees responsible for the debt of another in violation of the statute of frauds, section 725.01, Florida Statutes; and (2) the oral settlement agreement is invalid as an attempt to orally encumber real and personal property, in violation of the statute of frauds, sections 679.203 and 689.01, Florida Statutes.

In opposition to the motion for summary judgment, Hartford’s attorney handling the settlement filed an affidavit stating that the unexecuted written settlement agreement was a true representation of the oral settlement agreement made with Norwood S. Wilner, attorney for Lane Lines and appellees, and that the written settlement agreement was approved and ratified by Bruce Tyndall, president of Lane Lines and appellees, although not signed by him.

Final summary judgment was entered for appellees on the grounds that the oral settlement agreement violates the above-cited sections of the statute of frauds in that it attempts to hold appellees responsible for the debt of another and attempts to enforce an oral agreement to encumber real and personal property. This appeal ensued.

Initially, we note that Hartford has conceded that those portions of the settlement agreement requiring the execution of mortgages and security interests fall within the statute of frauds, necessitating a written instrument. Perimeter Investments, Inc. v. Amerifirst Development Co. of Central Florida, Inc., 423 So.2d .586 (Fla. 1st DCA 1982). Accordingly, we are concerned only with determining whether summary judgment was proper as to appellees’ liability for payment of the balance due under the oral settlement agreement.

In reviewing a summary judgment case, we must construe all facts and inferences drawn therefrom in a light most favorable to appellant. Groner-Youngerman, Inc. v. Denison, 117 So.2d 210 (Fla. 2d DCA 1960). Courts generally hold a party moving for summary judgment to a strict standard, closely scrutinizing the pleadings and affidavits supporting his position, while the pleadings and affidavits of the opposing party are leniently treated. Groner-Youngerman, Inc. v. Denison, supra. If the party seeking summary judgment fails to meet his burden of showing the nonexistence of material disputed facts, an appellate court will reverse a summary judgment entered by the lower court. Suhr v. Dade County, 198 So.2d 837 (Fla. 3d DCA 1967).

Initially, appellees argue they could not have been parties to the settlement agreement because they were not defendants in the lawsuit. It is, of course, well known that disputes are often settled without resort to judicial action. The mere fact that appellees were not named defendants in the lawsuit does not necessarily mean they were not parties to the settlement agreement which, according to Hartford, settled a dispute concerning their joint and several obligation to pay the insurance premiums. Whether appellees bound themselves to the oral settlement agreement is clearly a disputed issue of material fact. Hartford’s attorney filed an affidavit stating that the settlement agreement was agreed to by counsel for appellees and by the president of appellees. Appellees’ president has denied this. This factual dispute precludes summary judgment.

There is also an issue of fact as to whether appellees agreed to be jointly and severally liable for payment of $72,500 or simply agreed to execute real estate mortgages and personal property security interests to secure payment of that agreed-upon amount. The body of the unexecuted written settlement agreement refers only to Lane Lines as agreeing to pay the $72,500, but the promissory note attached as exhibit A to the agreement indicates that appellees are joint obligors on the note.

Appellees contend that since Lane Lines alone obtained the insurance policies from Hartford, it was solely responsible for payment of the premiums, and they argue that they were never primarily liable to pay the premiums, even though included as named insureds under the policies. For this reason, appellees argue, the oral settlement agreement was nothing more than a promise that they would answer for the debt of another, i.e., Lane Lines. We do not agree that this question is so clear that it may be disposed of as a matter of law. As a general rule, a party who accepts the benefits of a contract cannot escape its burdens, so that a named insured included on a policy at the request of another named insured becomes obligated to pay the premiums by accepting coverage under the policy. Smith v. Edward M. Thompson Agency, Inc., 430 So.2d 859 (Ala.1983). Therefore, there was at least a prima facie legal obligation on the part of appellees to pay the premiums when the settlement agreement was made, contrary to the conclusion of the court below that only Lane Lines was obligated for the premiums. We leave open to the parties the opportunity to introduce evidence to show by agreement or course of conduct that appellees werenot intended to be responsible for premiums on the insurance policies or did not, in fact, ever accept coverage under the policies so as to become obligated to pay the premiums.

Finally, we note appellees’ argument that even if they were liable for premiums on the insurance policies at the time the settlement agreement was made, the statute of limitations had run and barred recovery of that debt from them. Therefore, they argue, the agreement was not supported by consideration and was unenforceable as a matter of law. Whether the statute had run is also a question of disputed fact. But even if the statute of limitations had run when the settlement agreement was reached, the underlying debt owed by ap-pellees was not extinguished thereby. The statute of limitations defense simply enables appellees to confess and avoid a legal action based upon the debt; it does not impair the underlying obligation. Martz v. Riskamm, 144 So.2d 83 (Fla. 1st DCA 1962).

The summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

SHIVERS and THOMPSON, JJ„ concur.


author: JOANOS, Judge.

text:
    Robert Lee ROBINSON, Appellant, v. JDM COUNTRY CLUB and Corporate Group Service, Appellee.
    No. AV-406.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1984.
    Harry Goodmark of Goodmark & Good-mark, West Palm Beach, for appellant.
    Harry D. Robinson, West Palm Beach, for appellee.
   JOANOS, Judge.

This is an appeal from the deputy commissioner’s order denying wage loss benefits, transportation costs, payment of medical bills, attorney’s fees, and costs. The deputy commissioner denied the claim on the grounds that claimant failed to petition for modification as provided by Section 440.28, Florida Statutes (1979), and that the evidence failed to establish a change of condition. We reverse.

On September 2, 1981, claimant suffered an industrial accident which resulted in an injury to his back and kidney. A.n order was entered February 25, 1982, awarding temporary partial disability benefits through the date of maximum medical improvement, together with interest and penalties. The deputy commissioner accepted the opinion of claimant’s treating physician that claimant would reach maximum medical improvement on December 16, 1981, and that claimant sustained no permanent impairment under the American Medical Association Guidelines as a result of the industrial injury.

A hearing was held September 9, 1983, on the claim which is the subject of this appeal. On this second claim appellant sought temporary total and/or temporary partial disability benefits or in the event of a finding that claimant had reached maximum medical improvement, claim was made for wage loss benefits. Claimant had not sought wage loss benefits in his prior claim.

Claimant’s former treating physician testified that he first examined claimant in September 1981, shortly after claimant sustained his industrial injury. In September 1981 Dr. Dolce, treating physician, was deauthorized, but claimant continued to go to him until January 29, 1982. Following this deauthorization of Dr. Dolce, claimant was placed under the care of Dr. Matuszak. Dr. Matuszak, who was still treating claimant at the time of the 1983 hearing, prescribed medication, physical therapy, and a back brace. Dr. Dolce, claimant’s initial treating physician, examined claimant again on August 28, 1983. Pursuant to this examination, Dr. Dolce found that claimant had reached maximum medical improvement with a 10% permanent partial disability or the body as a whole, based on the American Medical Association Guidelines. In Dr. Dolce’s opinion, claimant’s present condition is related to the industrial injury of September 2, 1981. Dr. Dolce testified that he had reviewed the medical reports of claimant’s second treating physician, and that those medical reports corroborated his own findings. The restrictions placed on claimant’s activities included the avoidance of lifting, pushing, pulling, long standing, long walking, and climbing stairs.

Claimant obtained employment with a nursery and landscaping firm. His supervisor was unaware of claimant’s back problems at the time claimant was hired. He discovered claimant’s problems through his own observations, and because claimant occasionally went to him with complaints of pain. Because claimant was a good and willing worker, his supervisor provided claimant with light work, and assigned the duties he had hired claimant to perform to other workers.

Claimant testified that the only work he can now perform is picking up paper with a stick and watering plants. He is unable to trim hedges, push a lawnmower, or bend to pick up paper. Although the physical therapy prescribed by Dr. Matuszak helped ease his pain somewhat, the relief was temporary and claimant’s pain has continued.

It was the employer/carrier’s position that no further benefits were due because an order had been entered in 1982 finding that claimant had reached maximum medical improvement in December 1981 with no permanent impairment, and no claim or petition for modification had been filed following entry of the 1982 order. Claimant took the position that Dr. Dolce’s prior belief that there would be no permanent impairment had been shown to be error, and that employer/carrier knew that claimant’s condition had worsened since Dr. Ma-tuszak’s treatment of claimant was at the instance of employer/carrier.

The deputy commissioner erred in denying the claim on the basis of claimant’s failure to phrase his claim as a Section 440.28 petition for modification. “The statute allows the previous order to be modified upon the initiative of the deputy commissioner or upon the petition of any interested party, provided the deputy finds that there has been a change of condition or a mistake of fact.” Bishop v. Pinellas Framing and Finishing, 414 So.2d 596, 597 (Fla. 1st DCA 1982), pet. for rev. dism. 419 So.2d 1195 (Fla.1982). Here, the evidence adduced at the hearing demonstrated that the employer/carrier were fully cognizant of the worsening of claimant’s condition and the continued treatment of that condition by Dr. Matuszak. The employer/carrier did not controvert the finding that claimant now has a 10% permanent partial impairment. Clearly the employer/carrier were not prejudiced by claimant’s mislabeling of a claim that should have been construed as a petition for modification based on changed condition, therefore the deputy should have, upon his own initiative, treated the claim as a petition for modification. Id.

Modification is the statutory remedy provided for a claimant whose condition has changed following entry of a prior order. “The change of condition provision is designed to afford relief to a claimant whose condition either becomes progressively worse when not anticipated by the original diagnosis or is the product of evi-dentiary factors not known at the time of the initial claim proceeding.” General Electric Co. v. Osborne, 394 So.2d 1089, 1090 (Fla. 1st DCA 1981). Accord: Thatcher Glass Co. v. Joseph, 424 So.2d 68, 69 (Fla. 1st DCA 1983). Although a claimant’s testimony of increased pain, standing alone, is insufficient to constitute grounds for modification due to changed condition, such grounds do exist when claimant’s testimony is taken in conjunction with a doctor’s testimony. Oglesby v. Southern Bell Tel. and Tel. Co., 397 So.2d 291 (Fla.1981).

Claimant has demonstrated that his condition has worsened or deteriorated, i.e., he is now rated as having a 10% permanent partial impairment of the body as a whole as opposed to the 1981 finding of no permanent impairment. ' In addition, claimant has produced competent medical testimony that the deterioration was caused by increased pain from the original injury, and it is clear that this deterioration was not originally anticipated by his treating physician. Nor did Dr. Dolce, claimant’s original treating physician, base his finding of a 10% permanent partial impairment solely on claimant’s subjective complaints of pain. Rather, Dr. Dolce testified that he arrived at the 10% permanent impairment rating based on claimant’s complaints of pain, taken together with the muscle spasm on claimant’s right lumbar area, and the tenderness over the lumbar spines.

Claimant has presented unrefuted evidence of a changed condition. Therefore, it was incumbent upon the deputy commissioner to treat claimant’s claim for wage loss benefits as a petition for modification of the prior order. Claimant demonstrated that he has a permanent impairment that was not known or had not manifested itself “in sufficient degree, to be subject to proof at the time of the initial order, i.e., a change of conditon”, and that this impairment was causally related to the industrial injury. Frito Lay, Inc. v. Anderson, 453 So.2d 135 (Fla. 1st DCA 1984). Here, there was no conflict between medical testimony and lay testimony, and no conflict between the evidence adduced by claimant’s treating physicians. The deputy commissioner expressly rejected a finding that claimant’s condition had significantly changed since his testimony at the 1982 hearing. Viewed in the light of Dr. Dolce’s testimony that claimant now has a 10% permanent partial impairment, when at the prior hearing no impairment was found, the deputy commissioner abused his discretion in rejecting “uncontroverted medical testimony without a reasonable explanation.” McCandless v. M. M. Parrish Construction, 449 So.2d 830 (Fla. 1st DCA 1984), citing Polk Nursery Co., Inc. v. Riley, 433 So.2d 1233 (Fla. 1st DCA 1983).

The deputy commissioner’s order denying wage loss benefits is reversed and the causé is remanded for a hearing on the claim, with the claim being treated as a petition for modification.

ERVIN, C.J., and NIMMONS, J., concur.

      . Section 440.28, Florida Statutes (1979) provides:
      440.28 Modification of orders.-Upon a deputy commissioner's own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the deputy commissioner may, at any time prior to 2 years after the date of the last payment of compensation pursuant to any compensation order, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each, review a compensation case in accordance with the procedure prescribed in respect of claims in s. 440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and, if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the deputy commissioner.

      . East Manor Medical Care Center v. Stevens, 437 So.2d 721, 723 (Fla. 1st DCA 1983):
      "As this court recently held, the claimant’s own testimony as to increased pain and inability to do work ‘standing alone’, is insufficient to establish a change in condition." Austin Co. v. Lindenberger, 410 So.2d 601, 602 (Fla. 1st DCA 1982), citing Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla. 1975), and Cheathem v. Fruit Bowl, Inc., 184 So.2d 171 (Fla.1966).


author: BOARDMAN, Judge.

text:
    Raymond T. STREETMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2368.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant and three accomplices allegedly robbed a bank teller of over $7000 by threatening him with a plastic-like substance, which they identified as a bomb, and a remote control television channel selector which had been “rigged up” to resemble a radio command detonator. We are called upon to determine whether the evidence presented at trial was legally sufficient for the jury to conclude that this bomb device constituted a weapon, as defined under section 790.001(13), Florida Statutes (1983).

During appellant’s trial for robbery with a deadly weapon, the victimized bank teller testified that one of appellant’s accomplices approached the bank’s commercial drive-through window on a bicycle and deposited an envelope in the window’s transaction box. The envelope contained what the teller described as a small, triangular piece of old, hard plastic, pinkish to murky-clear in color, with various colored dots in the plastic. An accompanying note identified the plastic object as a bomb which would be detonated unless the teller relinquished the money in his cash drawer. The bicycling bandit then displayed what appeared to be a remote control detonating device, thus prompting the teller to comply with the note’s demand without further hesitation.

Two of the participants in the robbery testified as witnesses for the state, relating their understanding of how the bomb and bogus detonator had been constructed. Neither witness had actually assembled the bomb or detonator nor been present during the construction of either device. Both had been advised by the individual entrusted with the construction assignment, however, that the bomb was comprised of nine parts Vaseline petroleum jelly and one part potassium chlorate, a combination which, according to the third participant, had been described as “explosive” in an underground weapons manual or “terrorist magazine.” Neither witness had any independent knowledge concerning the actual chemical composition of the bomb or the explosive propensity of a Vaseline/potassium chlorate combination. Both realized, however, that the bomb could not be detonated by the device displayed to the teller, which was merely a remote control television channel selector, modified to resemble a detonator through the addition of a battery and a few protruding wires. When asked to describe the physical appearance of the bomb, one witness stated that it was a pliable, green substance, while the other witness described it as a flexible, yellowish chemical compound. Obviously, these descriptions differed substantially from that given by the bank teller.

The only other testimony concerning the bomb came from two social acquaintances of appellant who had heard details of the accomplished “bank caper” from appellant as he drank and “traded stories” with them in their home. One witness, who admittedly had been drinking during his conversation with appellant, testified that appellant claimed to have robbed a bank with an active, homemade bomb. The other witness, who had not been drinking, recalled only that appellant described the bomb as being made of tape and possibly a coat hanger. The second witness did not recall appellant’s having described the bomb as active.

At the close of the state’s case, defense counsel moved for judgment of acquittal on both the charged offense of robbery with a deadly weapon and the lesser included offense of robbery with a weapon. After careful consideration, the trial court ultimately granted the motion as to the charged offense alone, agreeing that the state’s failure to establish the explosive propensities of the bomb left its evidence insufficient to show that the device was “capable of causing death or great bodily harm.” The court refused, however, to reduce the charge to simple robbery, concluding instead that the evidence was sufficient for the jury to find that the fake bomb constituted a “chemical weapon or device” as described in section 790.001(13). Additionally, the court concurred in the state’s assessment that the use of an alleged bomb to threaten the victim enhanced the seriousness of the offense beyond that of simple robbery.

In instructing the jury on robbery with a weapon, the trial court deleted the standard jury instruction’s definition of weapon as “any object that could be used to cause death or inflict serious bodily harm,” in order to reconcile the instruction with the court’s previous denial of defense counsel’s motion for judgment of acquittal on that offense. The court acknowledged, however, that the state’s evidence was insufficient to establish that the bomb was a weapon as described in the standard jury instruction’s definition. Over defense counsel’s objection, the trial court substituted the definition of “weapon” set forth in section 790.001(13) in lieu of the deleted language. The jury subsequently found appellant guilty of robbery with a weapon, and this timely appeal ensued. We reverse.

As a general rule, Florida courts have utilized the statutory definition of “weapon” provided in section 790.001(13) to determine whether a particular object constitutes a “weapon” for purposes of section 812.13(2)(b). See, e.g., Depasquale v. State, 438 So.2d 159, 160 (Fla. 2d DCA 1983); Hartman v. State, 403 So.2d 1030, 1031 (Fla. 4th DCA 1981); McCray v. State, 358 So.2d 615, 617 (Fla. 1st DCA 1978). Under this approach, a device used in the course of a robbery qualifies as a “weapon” only if it is either one of the objects specifically delineated in the statute or a “deadly weapon.” Depasquale, 438 So.2d at 160; McCray, 358 So.2d at 617. As the trial court recognized, and as the record makes clear, the state’s proof failed to establish that the fake bomb displayed to the teller constituted a “deadly weapon,” i.e., “one likely to produce death or great bodily injury.” (Emphasis added), Goswick v. State, 143 So.2d 817, 820 (Fla.1962); McCray, 358 So.2d at 617; Fla.Std. Jury Instr. (Crim.) Robbery. Although the trial court apparently concluded that the fake bomb could be classified as a “chemical weapon or device,” we cannot agree with that conclusion.

It appears clear that each of the devices enumerated in section 709.001(13) has the actual ability to cause death or inflict bodily harm. Consequently, we believe that “chemical weapon or device” should be construed to include only those objects which, likewise, have a capability to injure. The standard jury instruction, which the trial court rejected, reflects this construction. As the trial court conceded, the state’s second and third-hand evidence concerning the composition of the bomb and its explosive characteristics was simply insufficient to permit the jury lawfully to conclude that the device possessed any capacity to inflict harm. Accordingly, we believe that the trial court erred in denying appellant’s motion for judgment of acquittal as to the offense of robbery with a weapon.

In reaching our decision, we are not unaware of federal authority which has held fake bombs to constitute “dangerous weapons” under 18 U.S.C. § 2113(d). See, e.g., United States v. Shannahan, 605 F.2d 539, 541-42 (10th Cir.1979); United States v. Marx, 485 F.2d 1179, 1185 (10th Cir.1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); United States v. Cooper, 462 F.2d 1343, 1345 (5th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 452, 34 L.Ed.2d 303 (1972); United States v. Beasley, 438 F.2d 1279, 1282-83 (6th Cir.), cert. denied, 404 U.S. 866, 92 S.Ct. 124, 30 L.Ed.2d 110 (1971). But see Bradley v. United States, 447 F.2d 264, 275 (8th Cir. 1971) (to establish a violation of section 2113(d), prosecutor must show that accused intended to create reasonable apprehension on part of victim and possessed actual capability to cause death or physical harm). While these courts have based their decisions on a variety of legal explanations, which are applicable only to the federal statute, some have predicated their holding on a statutory construction which identifies a “dangerous weapon” as one which places the victim in reasonable expectation of death or serious bodily injury. See Marx, 485 F.2d at 1185; Beasley, 438 F.2d at 1282-83. However, as our sister court in the Third District noted in M.R.R. v. State, 411 So.2d 983 (Fla. 3d DCA 1982), where the instrument is not a firearm as statutorily defined, Florida courts apply an objective test and look to the nature and actual use of the instrument and not to the subjective fear of the victim or intent of the perpetrator. Id. at 984. See also Duba v. State, 446 So.2d 1167, 1169 (Fla. 5th DCA 1984). Although the Third District made this observation while addressing a starter gun’s status as a deadly weapon under the aggravated assault statute, we believe that this assessment applies equally to the identification of weapons under the robbery statute. See McCray, 358 So.2d at 617. Consequently, we are not persuaded by the federal cases cited above.

For the reasons previously discussed, we reverse appellant’s judgment and sentence for robbery with a weapon and remand to the trial court for entry of judgment and sentence for simple robbery under section 812.13(2)(c). Because the court necessarily must resentence appellant, we need not address the court’s departure from the guidelines with regard to the sentence presently before us.

REVERSED and REMANDED. Appellant is to be present for resentencing.

RYDER, C.J., and HOBSON, J., concur.

      . Section 790.001(13), provides: "‘Weapon’ means any dirk, metallic knuckles, slungshot, billic, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pockctknife."

      . Section 2113(d) provides:
      (d) Whoever, in committing, or in attempting to commit, any offense, defined in subsections (a) and (b) of this section, assaults any person or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.


author: RYDER, Chief Judge.

text:
    Leo Armand JEAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2532.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.

      Robert A. Boland, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

Jean appeals from the sentence imposed after his plea of no contest to two counts of delivery and possession of marijuana in violation of section 893.13, Florida Statutes (1983). We affirm.

The appellant was sentenced under the Florida Sentencing ' Guidelines, Florida Rules of Criminal Procedure 3.701 and 3.988(g). In Jean’s case, for the total number of points calculated on his scoresheet, the corresponding chart lists a recommended sentence range of “any non-state prison sanction.” Fla.R.Crim.P. 3.988(g). However, the trial judge chose to depart from the recommended range, and imposed a sentence of two years incarceration upon the appellant. As required under rule 3.701(d)(ll), the judge provided a written statement delineating her reasons for departure:

1.The guidelines state that their purpose is punishment. The Defendant has previously received a six months county jail and a one year county jail sentence for similar offenses. That punishment did not deter him from committing further drug offenses.
2. Defendant violated his felony probation for a drug offense almost immediately (less than one month) after being placed on probation and was sentenced to one year in the county jail.
3. The amount of marijuana was not a small amount, but rather two pounds for $2,100.00, far exceeding the 20 grams necessary for a felony possession.

4. The Court realizes the guidelines do not allow for prior drug offenses to count extra “points” within the guidelines. However, this is the Defendant’s third conviction for sale and possession of a controlled substance, and this Court finds that aggravating, particularly when he received both probation and two county jail sentences previously.

On appeal, Jean argues that under the rule, the trial judge improperly considered certain factors and misapplied the rule when deciding to aggravate his sentence. Specifically, the appellant contends that his previous jail sentences for similar convictions and his probation violation were already calculated on the scoresheet as prior convictions, and, according to the intent of the guidelines, cannot serve as reasons for departure. He further argues that because the two pounds of marijuana which he possessed is ninety-eight pounds ■ less than the amount required to be convicted under the next most severe category of sales (trafficking), it was not the intent of the legislature to enhance the penalty in this fashion. Finally, he claims that because the guidelines under Category VII (drugs) do not provide for the calculation of extra points for the same criminal behavior as other guideline categories do, his sentence cannot be aggravated on that basis.

The determination of a defendant’s sentence has always been within the discretion of the trial court, and the promulgation of the guidelines was not intended to supersede this principle. Fla.R.Crim.P. 3.701(b)(6); Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984). Rather, the guidelines are intended to assist the sentencing judge in the decision-making process (rule 3.701(b)) and to ensure that the “use of inearcerative sanctions ... be limited to those persons convicted of more serious offenses or those who have longer criminal histories.” Fla.R.Crim.P. 3.701(b)(7).

(Emphasis added).

While it is true that the scoresheet provides for the calculation of points for prior convictions on their face, the guidelines cannot properly account for the circumstances underlying the prior convictions. In this case, the judge noted that the appellant’s prior incarceration for similar offenses did not deter him from committing the same offense again. Further, upon release from his first conviction, the appellant violated his probation within one month. We believe that the judge was well within her discretion to reason that incarceration rather than a non-state prison sanction was required to punish Jean and deter him from committing any future drug offenses. The primary purpose of sentencing is to punish the offender. Fla. R.Crim.P. 3.701(b)(2).

Although the appellant attempts to minimize the amount of marijuana he possessed at the time of his arrest, the two pounds in his possession far exceeded the twenty grams which is necessary for a felony conviction.

In this ease, the trial judge provided clear and convincing reasons which justified a departure from the range given in the sentencing guidelines. The sentence is, therefore, AFFIRMED.

GRIMES and LEHAN, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Timothy DONOGHUE, Petitioner, v. Kurt L. WALLACH, d/b/a Hidden Village Mobile Home Park, Respondent.
    No. 84-1037.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1984.
    Lawrence E. Queen, Clearwater, for petitioner.
    William H. Walker, St. Petersburg, for respondent.
   GRIMES, Acting Chief Judge.

This is a petition for writ of certiorari to review a circuit court order reversing the judgment of the county court on a state sales tax issue.

On December 5, 1981, petitioner Timothy Donoghue (buyer) entered into a written contract to purchase a mobile home from respondent Kurt L. Wallach (seller) for $23,600, payable in installments over a period of two months. There was no separate statement of the sales tax. On February 1, 1982, possession and use of the mobile home were transferred to the buyer.

In December 1982, the State of Florida Department of Revenue demanded that the seller pay the sales tax on the transaction. After the seller paid the taxes amounting to $1,180, title of the mobile home was transferred to the buyer. The seller then instituted suit against the buyer for recovery of the taxes plus interest.

Following a hearing, the county court, acting in its small claims jurisdiction, entered judgment for the buyer. The court, apparently sua sponte, applied chapter 520, the retail installment sales statute, to the cause before it. The court found that the seller was a mobile home dealer as defined by the chapter, that the contract between the parties had not been executed in compliance with provisions of the chapter, and that the tax was included as part of the monies paid under the contract. Thus, the county court concluded that the buyer was not required to pay the amount of taxes to seller.

The seller then appealed to the circuit court. The circuit court agreed that by failing to separately itemize the sales taxes the seller had violated section 520.07, Florida Statutes (1981). However, the court pointed out that section 520.12, Florida Statutes (1981), the penalty section, which bars a seller in violation of the chapter from recovering certain charges, makes no reference to sales taxes. Citing Spencer v. Mero, 52 So.2d 679 (Fla.1951), the court reasoned that payment of sales tax is an obligation of the buyer which cannot be obviated by the inadvertence of the seller. Since the contract was silent on the matter of the sales tax, the circuit court held that the buyer was legally bound to pay the amount due. The buyer seeks review from that decision.

At the outset, we believe that both the county and the circuit courts mistakenly focused upon chapter 520. While the provisions of this chapter apparently governed many aspects of the transaction, the chapter does not purport to determine the liability for the payment of sales taxes. We suggest that in order to determine this question, the proper provision to rely upon for guidance is section 212.07, Florida Statutes (1981), which reads in pertinent part:

(1) The privilege tax herein levied measured by retail sales shall be collected by the dealers from the purchaser or consumer.
(2) Dealers shall, as far as practicable, add the amounts of the tax imposed under this chapter to the sale price and the tax shall be separately stated as Florida tax on any charge tickets, sales slips, invoices or other tangible evidence of sale, and such tax shall constitute a part of such price, charge or proof of sale which shall be a debt from the purchaser or consumer to the dealer, until paid, and shall be recoverable at law in the same manner as other debts. Any dealer who shall neglect,' fail or refuse to collect the tax herein provided upon any, every and all retail sales made by him or his agents or employees of tangible personal property which is subject to the tax imposed by this chapter shall be liable for and pay the tax himself.
(3) Any dealer who shall fail, neglect or refuse to collect the tax herein provided, either by himself or through his agents or employees, shall, in addition to the penalty of being liable for and paying the tax himself, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(4) A dealer engaged in any business taxable under this chapter shall not advertise or hold out to the public, in any manner, directly or indirectly, that he will absorb all or any part of the tax, or that he will relieve the purchaser of the payment of all or any part of the tax, or that the tax will not be added to the selling price of the property sold or released or when added that it or any part thereof will be refunded either directly or indirectly by any method whatsoever. A person who violates this provision with respect to advertising or refund shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083. A second or subsequent offense shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(9) Any person who has purchased at retail, used, consumed, distributed, or stored for use or consumption in this state tangible personal property, admissions, communication services, or leased tangible personal property, or who has leased any commercial offices or buildings, real property, space or spaces in parking lots or garages for motor vehicles or docking or storage space, or spaces for boats in boat docks or marinas and cannot prove that the tax levied by this chapter has been paid to his vendor or lessor shall be directly liable to the state for any tax, interest, or penalty due on any such taxable transactions.

The tax is said to be a “privilege” tax measured against retail sales which shall be collected by the dealer (seller) from the purchaser. § 212.07(1). The seller is supposed to add the tax to the sales price. § 212.07(2). Any seller who neglects or fails to collect the tax becomes personally liable for its payment, section 212.07(2), and he may also be subject to criminal sanctions. § 212.07(3). We are convinced that the portion of section 212.07(2) which provides that the sales tax is a debt from the purchaser to the seller is conditional upon the seller’s compliance with the requirement to separately state the tax on the charge slip, sales slip, invoice or other tangible evidence of the sale.

In Spencer v. Mero, 52 So.2d 679 (Fla.1951), in a dispute over whether a merchant was liable to the state for sales tax proceeds which he had collected and which were later stolen, the supreme court did make the observation that the sales tax was a tax against the buyer rather than the seller. However, in Green v. Panama City Housing Authority, 115 So.2d 560 (Fla.1959), the court held that the tax on rentals prescribed by section 212.03, Florida Statutes, was an excise tax levied upon landlords for the privilege of doing business in the state and receded from any language to the contrary in Spencer v. Mero. Any doubt that this principle was intended to be limited to taxes on rentals was dispelled in Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822 (Fla.1964), when the supreme court said:

It is well settled that the sale or use tax is a tax on the privilege of engaging in a particular business on [sic] occupation. The tax is not levied against the consumer, but upon the businessman who is engaged in the business or occupation.

170 So.2d at 825. See also State Department of Revenue v. Anderson, 403 So.2d 397 (Fla.1981).

Therefore, in the instant case, the seller, by failing to collect the sales taxes and to separately state the amount of the taxes, waived any right to later recover the amount of the taxes from the buyer. Accordingly, we grant the petition for writ of certiorari and quash the order of the circuit court which reversed the judgment of the county court.

CAMPBELL and SCHOONOVER, JJ., concur.

      . Upon review, the circuit court in its order stated the county court had been "justified in applying the law that an unrepresented party did not plead, for Small [C]laims Court is a People's Court in which technical rules of pleading must not obscure the greater purpose of justice for all." The circuit court also commended the trial court for its action.

      . We reject the seller’s argument that we must decide this case upon a construction of chapter 520. The buyer was not necessarily relying upon this chapter in the county court and contends that he argued section 212.07 before the circuit court. In any event, the parties cannot bind this court to decide a case upon an erroneous legal premise.


text:
    Dell SMITH, Appellant, v. SUNLAND TRAINING CENTER and Division of Risk Management, Appellees.
    No. AU-71.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1984.
    Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    James G. Clayton of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gaines-ville, for appellees.
   JOANOS, Judge.

Having considered the appellant claimant’s motion for clarification or rehearing, we grant the motion in part and withdraw the decision and opinion filed March 13, 1984, substituting the following decision and opinion in lieu thereof.

The primary issue in this workers’ compensation appeal is whether the deputy commissioner erred in failing to include employer contributions to claimant’s retirement program in her average weekly wage where the retirement benefits were vested. Resolution of the matter involves determination of a question of law as to whether section 440.14(3) (effective May, 1982) applies to retirement benefits and, if so, whether under the circumstances of this case the deputy correctly determined that employer continues to provide these benefits.

The 62 year old claimant was injured when she slipped and fell at work and as of the entry of the order appealed she was still temporarily totally disabled. She had been working for employer for more than 15 years and it is undisputed that her retirement benefits had vested. After the work related accident, employer made no actual contributions to claimant’s retirement account. The deputy determined that section 440.14(3) applies to retirement benefits, and that because claimant continues to be eligible to receive retirement credits for the full period of time during which workers’ compensation payments are received pursuant to Fla.Admin.Code Rule 22B2.12, she has lost no benefits as a result of her temporary total disability.

Claimant argues, based on the difference in language used in sections 440.02(12), Fla. Stat. (1981) (defining wages) and 440.14(3), that retirement benefits are not intended to be encompassed in section 440.14(3). In addition, she contends her continuing eligibility for retirement credit under Rule 22B2.12, should she return to work, does not amount to continued provision of the benefit by the employer.

Wages are defined in section 440.-02(12) to include “the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer .... ” For purposes of determining average weekly wage, wages have been construed to include vested pension or retirement benefits, see Buckhalter v. University of Florida, 411 So.2d 1327 (Fla. 1st DCA 1982), and Reese v. Sewell Hardware Co., 407 So.2d 965 (Fla. 1st DCA 1981). See also City of Tampa v. Bartley, 413 So.2d 1280 (Fla. 1st DCA 1982); Sunland Training Center v. Irving, 384 So.2d 745 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Ryan, 381 So.2d 269 (Fla. 1st DCA 1980); and Sunland Training Center v. Thomas, IRC 2-3917 (1979). None of these cases considered the applicability or effect of section 440.14(3), however.

Section 440.14(3) provides:
If, during the period of disability, the employer continues to provide consideration, including board, rent, housing, or lodging, the value of such consideration shall be deducted when calculating the average weekly wage of the employee so long as these benefits continue to be provided, (e.s.)

The underscored language is similar to the language in section 440.02(12), which has been construed to include vested retirement and pension benefits, thus lending support to the argument for inclusion of vested retirement or pension benefits within the scope of consideration under section 440.14(3). In addition, the enumeration of benefits which constitute consideration in section 440.14(3) is not exhaustive as indicated by use of the term “including.” We conclude that contributions to vested retirement or pension programs are to be covered by section 440.14(3) when the employer continues to provide such benefits.

The next question, therefore, is whether the employer continues to provide this consideration under the circumstances of this case. We conclude, as did the deputy commissioner, that given claimant’s continuing eligibility to receive retroactive credit toward her retirement by virtue of Rule 22B-2.12, and considering her present temporary total disability status, that the employer is continuing to provide the benefit. Therefore, the employer may exclude the value of its contributions to retirement from the calculation of claimant’s average weekly wage under section 440.14(3) so long as such consideration is provided and subject, of course, to any right to modification which may in the future exist under section 440.28, Florida Statutes, based on changed conditions cognizable under that section such as, for example, termination of claimant’s state employment.

The deputy commissioner also found in the order appealed that the employer continues to make health and life insurance premium payments, thus the value of these benefits was also properly excluded from the determination of claimant’s average weekly wage. Claimant has not challenged this finding or conclusion on appeal, and has specifically asked that this court not address this issue in our opinion. However, we note that the issue was determined in the final order appealed. By failing to take issue with that aspect of the order and abandoning that issue on appeal, appellant has waived the opportunity for review of that part of the deputy’s order.

AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.

      . 22B-2.12 Worker’s Compensation Credit. A member who has been eligible or becomes eligible to receive Worker’s Compensation payments for an injury or illness during his employment as a member of the Florida Retirement System shall receive retirement credit for such period in accordance with the following provisions:
      (1) A member who receives only Worker’s Compensation benefits during this period shall, upon his return to active employment, receive full retirement credit for the period during which Worker’s Compensation payments were received at no cost. Such credit shall be based on his rate of monthly compensation immediately prior to his receiving Worker's Compensation payments.


author: ORFINGER, Judge. SHARP, Judge,

text:
    Hugh Miller CURTIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-1704.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant Curtis appeals a judgment of conviction of the crime of aggravated assault with a deadly weapon, contending in his sole issue on appeal that a new trial is required because the trial court responded to a question from the jury without first giving notice to the prosecutor and to defendant’s counsel as required by Florida Rule of Criminal Procedure 3.410. We find no error and affirm.

During its deliberations, the foreman of the jury sent two written questions to the trial judge, viz:

Q: Jury wishes to know if there is a record of plaintiff shouting into the phone, “he’s going to stab me.”
Q: Can we accept that statement as evidence?

On the same sheet of paper, filed in open court and made part of the record, the trial judge responded:

A: Members of the jury:
Your decision in this case will have to be based solely on the evidence presented in the trial itself — This evidence consists of the testimony of the witnesses and the photographs only. As to the testimony, you will have to consider all of it and you may accept or reject all or part of any witness’s statement depending upon its credibility or lack of credibility when considered or compared with all of the other evidence.

The record is silent as to whether or not the trial court notified counsel of this request. Appellant contends that the absence of any record showing that counsel were notified or that court was reconvened, unerringly points to the conclusion that no such notice was given. On the other hand, the State asserts that the absence of any such indication in the record could mean that the record is incomplete. We would consider the State’s position in a stronger light had it been represented to us that the record was, in fact, incomplete so that we could order it supplemented pursuant to Florida Rule of Appellate Procedure 9.200(f)(2), but neither party has suggested to us the absence of a complete record. As a matter of fact, the record appears to reflect each time the court is convened or recessed, and times when the jury is excused and brought back into the courtroom. Because neither the trial transcript nor -the court minutes reflect that court was reconvened or that counsel were present when the judge received and returned the questions, for purposes of this opinion, we can only assume that they were not so notified or present.

Appellant relies on Ivory v. State, 351 So.2d 26 (Fla.1977) as warranting reversal here. In Ivory, the trial court responded to a request of the jury for certain documentation without first notifying the defendant, his counsel or the prosecutor, and outside of their presence and submitted the requested material to the jury. In reversing for a new trial, the supreme court said:

Any communication with the jury outside the presence of the prosecutor, the defendant, and defendant’s counsel is so fraught with potential prejudice that it cannot be considered harmless.
We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored.

Id. at 28.

Ivory has been distinguished, however, by the supreme court in Hitchcock v. State, 413 So.2d 741 (Fla.1982), a first degree murder trial where the jury asked if it was required to recommend a death penalty or life, and the judge wrote back that only guilt or innocence should be decided. The supreme court held that the communication from the jury did not fall within the scope of Rule 3.410, thus there was no error in responding to it outside the presence of defendant or of counsel. The supreme court appears to have receded from the apparent per se rule of Ivory in Rose v. State, 425 So.2d 521 (Fla.1982), where the court held that any error in the giving of an “Allen” charge to the jury without first notifying counsel and giving counsel an opportunity for discussion was harmless.

Rule 3.410 proscribes the giving of additional instructions or the reading of testimony to the jury without first giving notice to counsel. While we agree that the safer practice would be to convene court and advise counsel and the defendant of the jury’s request before deciding how to respond, we cannot consider the court’s refusal to answer the questions here a violation of the rule, particularly where there is abundant evidence, although disputed, upon which the jury’s verdict could be based and there is no prejudice shown. See also State v. Prieto, 439 So.2d 288 (Fla. 3d DCA 1983) [8 FLW 2387] (Ferguson, J., concurring). Cf Flowers v. State, 348 So.2d 602 (Fla. 4th DCA 1977) [where there was no record of what the judge told the jury in response to their question],

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

If adherence to Florida Rule of Criminal Procedure 3.410 is not strictly required, it may be more often not followed than followed. Further, I think that requiring the defendant to demonstrate that the breach of the rule was not harmless error is too great a burden because it opens the door to speculation about what counsel might have argued had they been given the chance.

Notice to counsel of the jury’s questions and the judge’s proposed response should be required in all cases where the inquiry is germane to the trial. Counsel have legitimate rights to make comments and suggestions concerning the text of the court’s instructions to the jury, regardless of whether the instructions occur before or after the jury retires. After the jury has retired, counsel should be allowed to object and comment on the method of response, including whether the question should be answered at all. The denial of these rights violates the defendant’s constitutional guaranty to due process of law. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911). See also United States v. United States Gypsum Company, 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927); Fillippon v. Albion Vein Slate Company, 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 76 (1919); Slinsky v. State, 232 So.2d 451 (Fla. 4th DCA 1970).

I do not think that Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, — U.S. —, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), or Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982), alters the application of Ivory v. State, 351 So.2d 26 (Fla.1977), to this case. In Rose, the supreme court sustained the trial court when it gave an Allen charge on its own initiative without allowing counsel advance notice of its intentions. Defense counsel was present when the charge was given and he did have a chance to object after it was given. Technically Rose does not involve rule 3.410 because the jury did not “request additional instructions or to have any testimony read to them....”

Similary in Hitchcock, the inquiry from the jury involved an issue beyond the scope of their deliberations. The jury was determining guilt in a first degree murder case, and inquired about the penalty phase. The court reasoned that this inquiry was outside the scope of rule 3.410 because it was not germane to their deliberations. It could be dismissed as irrelevant, rather like an inquiry by the jury as to what time it was, or when they could break for lunch.

However, in this case the jury did initiate the inquiry and the substance of the inquiry related to the evidence in the case. We are directly confronted by a violation of rule 3.410, unlike in Rose and Hitchcock. Under these circumstances, Ivory mandates a reversal.

As a general rule, it is error for a judge to respond to a jury’s question without the parties being present and having the opportunity to discuss the request.

Hitchcock at 744.

Nor are the federal cases contrary to this view. The Court in Rushen v. Spain, — U.S. —, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), cited with approval Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), a case factually much more similar to this case than Rushen, involving a jury’s request for further instructions. The Court cited Federal Rule of Criminal Procedure 43 and noted:

Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury’s message should have been answered in open court and that petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded. See, e.g., United States v. Schor, 418 F.2d 26, 29-30 (CA2 1969); United States v. Glick, 463 F.2d 491, 493 (CA2 1972).

Rogers, 422 U.S. at 39, 95 S.Ct. at 2095. The Court stated further:

Although a violation of Rule 43 may in some circumstances be harmless error, see Fed. Rule Crim.Proc. 42(a); United States v. Schor, supra, the nature of the information conveyed to the jury, in addition to the manner in which it was conveyed, does not permit that conclusion in this case.

Id.

I would reverse on the authority of Ivory.

      . Contrary to the assertion in the dissenting opinion that a communication between the judge and the jury outside of the presence of counsel violates a defendant’s constitutional right to due process, and thus (we presume) automatically requires reversal, the United States Supreme Court has recently held that the "harmless error” rule can be applied in such cases, where appropriate. In Rushen v. Spain, — U.S. —, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), the court expressly disapproved a ruling by the court of appeals for the Ninth Circuit which had held that an unrecorded ex parte communication between the trial judge and a juror could never be harmless error. We need not decide, in the case before us, whether an unrecorded communication between the court and the jury outside the presence of counsel requires reversal, although it has so been held. See Flowers v. State, 348 So.2d 602 (Fla. 4th DCA 1977). Here, the jury question was in writing as was the answer, and both were made a matter of record, so that what was asked and what was answered are clear.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


text:
    Melvin E. RUDNER, Appellant, v. Wanda Koske CABRERA, Appellee.
    No. 83-1072.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.

      Joe Teague Caruso, of Wolfe, Kirschen-baum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellant.
    Karen M.P. Thompson, of Bross, Tracht-man, Henderson & Childress, P.A., India-lantic, for appellee.
   ORFINGER, Judge.

The issue on appeal is whether a defendant against whom a default has been entered, may file a compulsory counterclaim in the form of a separate action after his motion to set aside the default and to permit him to plead has been denied. The trial court held that he could not, and dismissed the action. We affirm.

Wanda Cabrera filed an action against Melvin Rudner alleging that Rudner had fraudulently induced her to borrow $25,000 from Bank of Brevard and to sign a note for that sum, pledging two automobiles as collateral, on the representation that he wanted to use the money as a down payment on a condominium; that she derived no benefit from the loan but borrowed the money as a convenience to Rudner; that when he failed to repay the loan she was compelled to do so, suffering the loss of her collateral, and other damages. Rudner was served with process, and when he failed to respond, Cabrera secured the entry of a default against him by the Clerk of the Court.

Through counsel, Rudner subsequently moved to set the default aside, alleging that the failure to respond was caused by excusable neglect, and there was attached to the motion a proposed answer, affirmative defenses and a counterclaim. The counterclaim sought damages identical to those sought in the instant action. After hearing, the trial court denied the motion to set aside the default. The order denying the motion to vacate the default is not involved in this appeal.

Thereafter, Rudner filed the instant action, claiming damages against Cabrera based on identical allegations as in the proposed counterclaim which he had attempted to file in Cabrera’s action against him. On motion, the trial court dismissed the complaint, and after Rudner amended, alleging essentially the same facts, entered a final order of dismissal. Although the order dismissing the action states no reason, the motion seeking the dismissal was essentially predicated upon the default in the earlier case, the identity of the subject matter and the ground that “filing a new lawsuit concerning the old subject matter is an impermissible attempt to evade the intent and effect of Rule 1.170 regarding compulsory counterclaims.”

A review of the complaint here quickly reveals the fact that Rudner is referring to the same bank loan and the same $25,000 as was claimed by Cabrera in her suit. The difference is that Rudner claims here that Cabrera, with whom he had had a relationship for four years, borrowed a total of $25,000 from him at different times, and when they broke up, she agreed to borrow the $25,000 from the Bank of Brevard so that she could repay her debt to Rudner. Clearly the same bank loan is involved, but the parties assert different reasons for borrowing the money.

Appellee asserts that Rudner’s action was in the nature of a compulsory counterclaim, which should have been filed in Cabrera’s action, and because it was not so filed that Rudner is estopped from filing that counterclaim as a separate action. Rule 1.170(a), Florida Rules of Civil Procedure states:

Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading a pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

In determining whether a counterclaim is compulsory, several tests are usually applied: (1) are the issues of fact and law raised by the claim and counterclaim largely the same; (2) will substantially the same evidence support or refute the plaintiff’s claim as well as the defendant’s counterclaim; (3) would the doctrine of res judicata bar the counterclaim if it is asserted subsequent to the action. See Bratcher v. Wronkowski, 417 So.2d 1132 (Fla. 5th DCA 1982); Neil v. South Florida Auto Painters, Inc., 397 So.2d 1160 (Fla. 3d DCA 1981). Judged by this test, and because it “arises out of the transaction ... that is the subject matter of [Cabrera’s] claim and does not require for adjudication the presence of third parties ...,” the counterclaim which forms the basis for the action here was clearly compulsory.

Appellant relies on Cheezum Development Corporation v. Maddox Roof Service, Inc., 362 So.2d 99 (Fla. 2d DCA 1978); cert, denied, 368 So.2d 1370 (Fla.1979), as authority for the proposition that prior to the entry of a final judgment in the original action, the subject matter of a compulsory counterclaim may be filed as a separate action. The Cheezum court recognized the principle that on the basis of estoppel or res judicata, where the first suit has proceeded to judgment, a party who has failed to file a compulsory counterclaim cannot thereafter assert that claim in a separate action. Because the action had not proceeded to judgment, the Cheezum court concluded that neither estoppel nor res ju-dicata prevented the defendant from filing the counterclaim as a separate action. Cheezum is distinguishable however because there, no default had been entered against the defendant. An answer had been filed, but defendant had neglected to file the counterclaim. We must determine if the default against Rudner alters the effect of the Cheezum decision.

We believe that it does, and even though the default had not matured to a judgment, it nevertheless precludes the filing of a counterclaim here. In Bischoff v. Dixie Auto Parts and Equipment Corp., 346 So.2d 146 (Fla. 3d DCA 1977), the court held that it was error for the trial court to permit a defendant to file and prosecute a counterclaim and cross-claim after a default had been entered against it because the Rules of Civil Procedure provide that a party in default may not file pleadings in an action, other than those pleadings as seek relief from the default. Fla.R.Civ.P. 1.500. If the counterclaim cannot be filed in the same action after a default, the rule and the effect of a default should not be circumvented by permitting the filing of the counterclaim in a separate action.

The policy behind the compulsory counterclaim rule is to prevent multiplicity of actions and to require the resolution in a single lawsuit of all disputes arising out of the same transaction. Neil, supra; Kinney v. Allied Home Builders, Inc., 403 So.2d 440 (Fla. 2d DCA 1981). When a default is entered against a party for failure to plead, that party has the right to contest unliquidated damages, but no other issue. Harless v. Kuhn, 403 So.2d 423 (Fla.1981). It would therefore appear that the entry of the default (unless set aside) precludes the filing of the compulsory counterclaim either in the same action or in a subsequent action, notwithstanding the fact that the first action has not proceeded to judgment.

The final order of dismissal is

AFFIRMED.

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

      . The trial court appears to have relied on Sottile v. Gaines Construction Company, 281 So.2d 558 (Fla. 3d DCA 1973) as authority to support the dismissal here, but that case does not control here because there, the original action had proceeded to final judgment after default. See also, Pesce v. Linaido, 123 So.2d 747 (Fla. 3d DCA 1960).


text:
    Robert Earl BRUMLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1124.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

We find no merit in the issues raised by defendant with regard to the trial proceedings, so the convictions are affirmed.

Appellant contends also that the trial court erred in retaining jurisdiction over one-half of each sentence, because effective June 15, 1983, the legislature had amended section 947.16(3) to permit retention of jurisdiction over one-third of a defendant’s sentence, instead of one-half, and defendant was sentenced after that date. We agree with the decision in Hayes v. State, 448 So.2d 84 (Fla. 2d DCA 1984), that because the period of retention was reduced, the law in effect at the time of sentencing should prevail.

The State’s contention is that the issue as to whether the court erred in retaining jurisdiction was not preserved for appeal because no objection was made below. This position, is arguable under Williams v. State, 414 So.2d 509 (Fla.1982) and is one which we had previously adopted [see, e.g., Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982) ], but this principle has apparently been rejected by the Florida Supreme Court in State v. Rhoden, 448 So.2d 1013, (Fla.1984),-where the court held that the purpose for which the contemporaneous objection rule exists is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge.

We have rejected the need for a contemporaneous objection as necessary to preserve the issue involved here, in Neal v. State, 451 So.2d 1058 (Fla. 5th DCA 1984). The First District Court of appeal has taken the opposite view in Cofield v. State, 453 So.2d 409 (1984), but we agree with the dissenting view of Judge Ervin that Rhoden dispenses with the need for such objection as a necessary prerequisite for an appeal of an alleged wrongful retention of jurisdiction. Cofield would appear to be in conflict with the earlier decision of the First District in Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984).

The judgments of conviction and sentences are affirmed, and the cause is remanded to the trial court with instructions to amend that portion of each sentence which retains jurisdiction to review future Parole Commission orders so as to limit such jurisdiction to not more than one-third of each sentence.

We certify to the Supreme Court of Florida, as a question of great public importance, the following:

WHETHER, BY OPERATION OF THE CONTEMPORANEOUS OBJECTION RULE, A DEFENDANT IS PRECLUDED FROM CHALLENGING, ON DIRECT APPEAL, THE TRIAL COURT’S RETENTION OF JURISDICTION OVER ONE-HALF OF HIS SENTENCE WHEN NO OBJECTION TO SUCH RETENTION IS MADE AT THE TIME OF SENTENCING?

AFFIRMED; QUESTION CERTIFIED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.