author: WALDEN, Judge.

text:
    Greg WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2058.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.

      Richard L. Jorandby, Public Defender, and Marcy Karr Allen, Asst. Public Defender, and Albert Jackson, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee. Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

Greg • Williams was tried by jury and convicted of attempted burglary contrary to Section 777.04, Florida Statutes (1981). He appeals. We reverse and remand for a new trial.

A single witness observed a man sitting on the windowsill of Clark Roofing, a business establishment. It was at night and the business was closed. The witness saw the man break the window of Clark Roofing with his naked hand. A car approached and the man departed on a bicycle. Greg Williams was apprehended in the neighborhood riding a bicycle. Shortly thereafter, the witness identified him as the person who broke the window. Williams said he was returning home from the library.

At the time Williams was apprehended he was wearing gloves, which gloves were received in evidence. The witness said he was not wearing gloves at the time of breaking the window and the first time she saw gloves was when she made the identification. There was no testimony that Williams’ hand was bleeding or injured at the time of his arrest.

The theme of Williams’ defense was that he was wrongly identified by the witness because, had he been the person who broke the glass window, he would have injured and bloodied his hand. Also, since there was no testimony that his hand was injured, he necessarily was misidentified. Williams’ counsel, in his closing argument, said:

He testified that the size of the glass was approximately two feet by four feet. That glass was broken by a person striking, hitting his hand into it, breaking it. The person, I submit, is not Greg Williams. Not only because Miss Owens said that she saw a hand, she did not see any gloves, because it is reasonable, it is reasonable, that if a person is going to break glass with their hand, what is going to happen to their hand? What is going to happen to their hand, Mrs. Ca-vallino?
Ms. Cavallino (a juror): It will bleed.

The same thesis was repeated in two other places in the closing argument.

The jury retired to the jury room to consider its verdict. At this point the plot thickens. The jury sent out a note, “We have discovered a bloody piece of paper in one of the glove fingers. May we consider this?” The existence of the stained paper in the glove was unknown to the State and to the defense. Williams’ counsel moved for a mistrial, arguing that the piece of paper had not been introduced in evidence and that since the jury had already concluded that the substance on the paper was blood, it undoubtedly assumed that the blood came from Williams.

The trial court denied the motion for mistrial, received the paper in evidence as a court’s exhibit, and instructed the jury to give the exhibit such weight as it deserved, considering all of the testimony that had been presented in the case.

There were no tests made to determine if the stain was blood and, if blood, that it was Williams’ blood. It was a total surprise with no opportunity for discovery, defense or cross-examination as to it. The “bloody” paper effectively destroyed Williams’ closing argument, and his counsel had no opportunity to even try to rebut or explain it, even had he been in a position to do so.

Identification was the key issue in the trial. We feel in light of the arguments, testimony and trial events, that inclusion of the stained paper as an exhibit severely prejudiced Williams and amounted to reversible error..

We reverse and remand for a new trial upon authority of Yanes v. State, 418 So.2d 1247 (Fla. 4th DCA 1982); Farese v. United States, 428 F.2d 178 (5th Cir.1970); Vicksburg-Meridian Railroad Co. v. O’Brien, 119 U.S. 99, 7 S.Ct. 172, 30 L.Ed. 299 (1866); State ex rel. Pryor v. Smith, 239 So.2d 85 (Fla. 1st DCA 1970).

REVERSED AND REMANDED.

HURLEY and DELL, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    FREEDOM SAVINGS AND LOAN ASSOCIATION, INC., Appellant, v. Charles LaMONTE and Avis LaMonte, et al., Appellees.
    No. 83-1804.
    District Court of Appeal of Florida, Second District.
    April 4, 1984.
    Stephen C. Chumbris of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Pe-tersburg, for appellant.
    Jeffrey W. Warren of Bush, Ross, Gardner, Warren & Rudy, Tampa, for appellees Charles LaMonte and Avis LaMonte.
   GRIMES, Acting Chief Judge.

This appeal involves a new twist in the ongoing controversy over the enforceability of mortgage due on sale clauses.

On October 18, 1976, Charles and Avis LaMonte executed a mortgage on their property to Freedom Federal Savings and Loan Association. The mortgage contained a due on sale clause. On June 10, 1980, the LaMontes entered into an agreement for deed of the secured property with James and Judith Roberts. As a consequence, Freedom declared its loan in default for violation of the due on sale clause and sued to foreclose the mortgage. The LaMontes and the Roberts’ filed motions to dismiss premised on the theory that in the absence of allegations of an impairment of security, the complaint failed to state a cause of action. Relying upon Chopan v. Klinkman, 330 So.2d 154 (Fla. 4th DCA 1976), they argued that an agreement for deed does -not constitute a sale of property in violation of a due on sale clause. The court entered an order dismissing the complaint with prejudice.

While this appeal was pending, our court rendered its decision in First Federal Savings & Loan Association of Fort Myers v. Fox, 440 So.2d 652 (Fla. 2d DCA 1983), in which we held that the execution of an agreement for deed constituted a violation of an identical due on sale clause of a federal savings and loan association mortgage so as to permit foreclosure. We distinguished Chopan because the due on sale clause in that case permitted acceleration only if the property was “sold.” Thus, as in Fox, the execution of the agreement for deed by the LaMontes and the Roberts’ constituted a transfer of an interest in real estate contemplated by Freedom’s due on sale clause.

The appellees acknowledge that a due on sale clause in a federal savings and loan association mortgage executed after June 8, 1976, may be enforced even though the prohibited transfer did not affect the security of the mortgage. Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); First Fidelity Federal Savings & Loan Association v. Quigley, 445 So.2d 1052 (Fla. 2d DCA 1984). However, they now argue for the first time that Freedom was no longer entitled to declare a default in its due on sale clause because on May 20, 1980, it converted its federal charter to a capital stock association authorized under the laws of Florida. They point out that a mortgage not protected by federal preemption cannot be foreclosed in Florida for a violation of its due on sale clause without a showing of impairment of security. Consolidated Capital Properties, II, Ltd. v. National Bank of North America, 420 So.2d 618 (Fla. 5th DCA 1982); Woodcrest Apartments, Ltd. v. IPA Realty, 397 So.2d 364 (Fla. 1st DCA 1981); First Federal Savings & Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980). The appellees argue that having chosen to accept the benefits of state regulation, Freedom must also accept the treatment accorded mortgage foreclosures by other state chartered associations. Freedom responds that its subsequent conversion to a state association cannot affect a due on sale clause which was valid when the mortgage was executed.

There is considerable merit in the positions of both sides, and we have found no case in which a court has been presented with this issue. After weighing each position, we are persuaded towards the view of Freedom. The emphasis in de la Cuesta is on the validity of the due on sale clause as of the date of the execution of the mortgage. At that time, all parties are presumed to know the status of the law with respect to the legality of the pertinent mortgage provisions. If the clause was valid at the time of its execution, its status should not be changed by the fortuity of the lender having converted its federal charter to that of a state stock association. The Florida statute under which the conversion was effected provided for the succession of all rights and benefits held by the predecessor association. § 665.710(4), Fla.Stat. (1979). The public policy implicit in the reluctance of our courts to permit mortgage foreclosures without an impairment of security is not so strong as to bar an acceleration under a due on sale clause which was valid at the time the mortgage was executed.

We reverse the order of dismissal and remand the case for further proceedings.

CAMPBELL and LEHAN, JJ., concur.

      . 17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender's prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender's option, declare all the sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shall be at such rale as Lender shall request. If Lender has waived the option to accclcratc provided in this paragraph 17, and if Borrower’s successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note.
      If Lender exercises such option to accelerate, Lender shall mail Borrower notice of acceleration in accordance with paragraph 14 hereof. Such notice shall provide a period of not less than 30 days from the date the notice is mailed within which Borrower may pay the sums declared due. If Borrower fails to pay such sums prior to the expiration of such period, Lender may, without further notice or demand on Borrower, invoke any remedies permitted by paragraph 18 hereof.

        . We have chosen to address this issue because the conversion to a state association was alleged in the complaint and many other mortgages may be similarly affected.

      . Wc reject Freedom's alternative argument that the Garn-St Germain Depository Institutions Act of 1982, Pub.L. No. 97-320, § 341, 96 Slat. 1469, 1505-1507, which purports to authorize the unrestricted enforcement of due on sale clauses in real property mortgages by any lender, has retroactive effect.

      . One could legitimately argue that the parties had no reason to know that federal law would preempt the state’s equitable jurisdiction in mortgage foreclosures until the United States Supreme Court so ruled in de la Cuesta. On the other hand, Lockwood and its progeny had not yet been rendered when this mortgage was executed, and the plain wording of the due on sale clause docs not suggest that it cannot be enforced if there is no impairment of security.

      . Cf. Continental Mortgage Investors v. Sailboat Key, Inc., 395 So.2d 507 (Fla.1981), which discusses the circumstances in which courts arc justified in invoking public policy to refuse to enforce a contract which was legally entered into in another jurisdiction.


author: FRANK D. UPCHURCH, Jr., Judge. DAUKSCH, Judge,

text:
    James Edward BARTON, etc., Appellant, v. STATE of Florida, Appellee.
    No. 82-1385.
    District Court of Appeal of Florida, Fifth District.
    April 5, 1984.

      Ralph Elver, LaBelle, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

James Edward Barton appeals from a final judgment forfeiting his jeep and its contents pursuant to Chapter 932, Florida Statutes (1981), the Florida Contraband Forfeiture Act. We reverse and remand.

After the state presented its case, Barton moved to dismiss the petition on the ground that a prima facie case had not been established. After each side presented argument as to the motiqn, the following exchange occurred:

THE COURT: Well, I will let you send me a brief on the question. In the meantime, do you wish to stand on the evidence and on your motion or present anything?
MR. ELVER [Barton’s counsel]: Judge, I would like to have my cake and eat it, too.
THE COURT: I can’t let you have that.
MR. ELVER: If the court is going to reserve ruling, then I would like to continue the hearing. The position this puts my client in is that he is also ... charged with a criminal violation.... And if I put him on the stand at this point in time, then I believe that anything he says can be used against him. It puts us in an awkward position. We feel we have made a valid argument to the Court. THE COURT: All right. We will take your motion under advisement, and give you an opportunity to present any kind of brief you wish, and if the Court rules in your favor, I will let you come back and pick up the Jeep. If I don’t, I will let you come back and present some evidence.

The record indicates that the court entered final judgment of forfeiture without any further hearing or opportunity to Barton to present his case. This is in direct contravention of the procedure set out by the court and acted to deprive Barton of his right to present witnesses and evidence in his behalf.

We have considered Barton’s other point which is that the state failed to present a prima facie case establishing that his jeep is subject to forfeiture and find it to be without merit. The state introduced evidence showing a sufficient nexus between the vehicle and the contraband in that the jeep was used “to facilitate the transportation ... receipt ... [or] possession” of the marijuana. § 932.702(3), Fla. Stat. (1981). See Hardcastle v. Kratz, 443 So.2d 1027 (Fla. 2d DCA 1983) [8 FLW 2943]; In re Forfeiture of 1979 Toyota Corolla, 424 So.2d 922 (Fla. 4th DCA 1982).

REVERSED and REMANDED.

SHARP, J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially.

I concur with the disposition of the case as decided by the majority — that a full hearing should now be afforded to appellant. I disagree with the dicta in the opinion which says, before a full hearing has been conducted and a ruling made below, that the jeep is subject to forfeiture.


author: COBB; Judge.

text:
    Colton Wayne PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1574.
    District Court of Appeal of Florida, Fifth District.
    April 5, 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.
   COBB; Judge.

The defendant, Colton Wayne Palmer, was charged with the theft of an outboard motor. The state’s case was dependent upon the validity of a warrantless search of the premises of Palmer’s home, based on the verbal consent given by Palmer’s wife to an investigating detective, Walter Perkins. Perkins discovered the stolen motor under a tarpaulin at the rear of the residence.

At trial the defense objected to Perkins’ proffered testimony concerning the consent to search, contending it was hearsay. Mrs. Palmer was not available as a witness for trial. Perkins, however, testified that he told her he was looking for an outboard motor and she gave him permission to search the premises, whereupon he found the motor. The trial court overruled the objection, admitted the testimony of Perkins about the consent and the search, together with the motor itself, and Palmer was convicted. He appeals on the basis that the search was illegal because the consent therefor was not established by the testimony of Mrs. Palmer.

Basically, the state argues that the inquiry regarding the consent was not directed to the truth of the words spoken by Mrs. Palmer but, rather, to whether in fact they were spoken. The appellant, on the other hand, argues that it was the burden of the state to prove a valid consent and that this could only be done by the presentation of Mrs. Palmer’s testimony that she voluntarily gave that consent.' The appellant argues in his brief:

Since Detective Perkins had foregone the process of obtaining a search warrant, it was the State’s burden to clearly establish that Appellant’s right against unlawful searches and seizures had been honored because of some other exception to the warrant requirement. Since it was Mrs. Palmer’s alleged consent to the search upon which the State relied, the State should have produced this critical witness at trial. Since the State did not, the trial court should have sustained Appellant’s objection to the hearsay testimony, to uphold his right to confront the witnesses against him. Art. I §§ 12, 16, Fla. Const.; Amends. IV, VI, XIV, U.S. Const.

The strongest support for the appellant’s argument is the Florida Supreme Court case of Tollett v. State, 272 So.2d 490 (Fla.1973). There, the court held that wiretap evidence could not be admitted without establishing consent by competent and relevant testimony of a party to the communication, subject to cross-examination. The only showing of consent therein was the testimony of police officers that the consent was given to them by their informant, who was unavailable for trial.

Tollett was a four-three opinion wherein the majority relied on the language of Article I, Section VII of the 1968 Florida Constitution, in effect at that time, and section 934.01(4), Florida Statutes, relating to the interception of wire or oral communications. Tollett, as pointed out in the dissenting opinion by Justice Adkins therein, was an aberrant departure from all past law in holding that the issue of consent necessitated testimony from the consentor rather than the consentee alone. Moreover, unlike the instant case, it dealt with construction of the Florida Constitution rather than the Fourth Amendment to the United States Constitution. Lastly, the questionable viability of Tollett in regard to its interpretation of the search and seizure provisions of the Florida Constitution was terminated by the recent constitutional amendment adopting federal standards. See Art. I § 12, Fla. Const., as amended in 1982.

The error of the defense argument in the instant case (and, respectfully, the majority opinion in Tollett) stems from the misconception of the true reason for an objection to the testimony of an officer who receives consent from a third party (i.e., someone other than a defendant) to the search of joint premises. The giving of consent is a verbal act; it is not an out-of-court statement offered to prove the truth of the matter contained therein. As such, it can be testified to by the recipient without violation of the hearsay rule. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). The violation occurs when the officer attempts to establish through hearsay the facts supplying the consenting party with standing to give that consent. For example, in the instant case, Perkins, in all probability, could not have qualified to testify, over timely and proper objection, as to the true proprietary interest and authority of Mrs. Palmer in regard to the searched premises. It is usually in the area of standing that the state faces the crucial challenge to establish that a warrantless search was properly authorized by third-party consent. See, e.g., United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). See also Whitebread, Constitutional Criminal Procedure, § 7.3 at 110-114. The converse of this proposition, however, is that standing to object to the search initially must be established by the defendant. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

In this case, the only objection to the search was that Officer Perkins' testimony of the verbal act of Mrs. Palmer in giving consent was hearsay. This objection was properly overruled. No objection as to her standing to give that consent was ever raised. Nor was any effort ever made by the defendant to establish his standing to object to the search. In point of fact, the record clearly indicates that both the state and the defendant assumed, throughout trial, that both Palmer and his wife had full authority and control over the searched premises.

AFFIRMED.

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

      . Given this constitutional amendment, a different result in Tollett would be mandated today by United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Michael Allen KOSEK, Appellant, v. STATE of Florida, Appellee.
    No. 83-238.
    District Court of Appeal of Florida, Fifth District.
    April 5, 1984.
    Michael Allen Kosek, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Michael Kosek appeals from an order denying his motion to correct sentence. On January 28, 1980, Kosek was convicted of second degree murder, false imprisonment and aggravated assault. Kosek was sentenced to life imprisonment.on the murder charge and to two five-year terms for the other charges, each sentence to run consecutively. The court also retained jurisdiction under section 947.16, Florida Statutes (Supp.1978), for the first one-third of the total consecutive sentences imposed. Ko-sek contends that the court could not retain jurisdiction over one-third of a life sentence as that would effectively deny him the possibility of parole contrary to the legislative intent of section 947.16. We agree.

Section 947.16(3), Florida Statutes (Supp. 1978) provides as follows:

Persons who have become eligible for parole and who may, according to the objective parole guidelines of the commission, be granted parole shall be placed on parole in accordance with the provisions of this law; except that, in any case of a person convicted of murder, robbery, aggravated assault, aggravated battery, kidnapping, sexual battery, arson, or any felony involving the use of a firearm or other deadly weapon or the use of intentional violence, at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order. This jurisdiction of the trial court judge is limited to the first third of the maximum sentence imposed. When any person is convicted of two or more felonies and concurrent sentences are imposed, then the jurisdiction of the trial court judge as provided herein shall apply to the first third of the maximum sentence imposed for the highest felony charged and proven. When any person is convicted of two or more felonies and consecutive sentences are imposed, then the jurisdiction of the trial court judge as provided herein shall apply to one-third of the total consecutive sentences imposed.

Kosek argues that retention of jurisdiction over the first one-third of a life sentence is improper because the period of retention of jurisdiction cannot be calculated.

The Third District has recently adopted the position that section 947.16(3) is inapplicable where a life sentence is imposed. Woodson v. State, 439 So.2d 976 (Fla. 3d DCA 1983); Rodriguez v. State, 424 So.2d 892 (Fla. 3d DCA 1982); Cordero-Pena v. State, 421 So.2d 661 (Fla. 3d DCA 1982). In Cordero-Pena, the court explained its reasoning as follows:

We conclude that where a court imposes a life sentence, Section 947.16(3) is inoperable, since because a life span is immeasurable, see Alvarez v. State, 358 So.2d 10 (Fla.1978), no calculation of the length of time jurisdiction is retained can be made. With the exception of the capital felony, all crimes set forth in Section 947.16(3) as to which a trial court may retain jurisdiction over the defendant, including life felonies, are punishable by imprisonment for a term of years, see § 775.082(3), Fla.Stat. (1981), against which term the time of retention can be measured. However, in the case of a capital felony, the imposition of a life sentence is' mandatory, and the defendant’s entitlement to parole consideration is solely controlled by the separate statutory requirement that he be required to serve no less than twenty-five years before becoming eligible for parole. See § 775.082(1), Fla.Stat. (1981).

421 So.2d at 661-662.

In Woodson and Rodriguez, the court applied the same rule to a case involving life felonies. Here, Kosek was convicted of murder in the second degree which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in sections 775.082, 775.083 or 775.084. § 782.04(2), Fla.Stat. (1977).

The state relies on Harmon v. State, 416 So.2d 835 (Fla. 1st DCA 1982). There, the First District held that it was not error for the trial court to retain jurisdiction for one-third of each of six consecutive 100 year sentences. In approving the appellate decision, the supreme court held that imprisonment for a term of years, even though it is longer than the defendant’s life expectancy, is a definite term of imprisonment. Harmon v. State, 438 So.2d 369 (Fla.1983). The same, however, cannot be said of a life sentence. Since a life sentence has no known termination point, it would be impossible to calculate when the trial court’s retention of jurisdiction had ended and hence the court could retain jurisdiction for a longer time than permitted by law.

We REVERSE the order below and REMAND the cause for further proceedings consistent with this opinion.

SHARP, J., concurs.

ORFINGER, C.J., dissents without opinion.


author: PER CURIAM.

text:
    HERTZ EQUIPMENT RENTAL CORP., Appellant, v. R.E. DAILEY & COMPANY and United States Fidelity & Guaranty Company, Appellees.
    No. 83-587.
    District Court of Appeal of Florida, Fifth District.
    April 5, 1984.
    Donald F. Wright of Wright & Fulford, Orlando, for appellant.
    Donald E. Karraker of De Renzo & Me-hok, Boca Raton, for appellees.
   PER CURIAM.

DISMISSED. See S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974); Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980).

SHARP and COWART, JJ., and WOLF-MAN, STANLEY, Associate Judge, concur.


author: ORFINGER, Chief Judge.

text:
    In re the Marriage of Kenneth GRUNDMAN, Appellant, v. Dolores Evelyn GRUNDMAN, Appellee.
    No. 83-639.
    District Court of Appeal of Florida, Fifth District.
    April 5, 1984.
    Glenn A. Craig of Harvey C. Poe, Jr., P.A., Melbourne, for appellant.
    Grady W. White and George E. McCarthy, Melbourne, for appellee.
   ORFINGER, Chief Judge.

In this appeal from a final judgment of dissolution of marriage we find no abuse of the trial court’s discretion on matters relating to equitable distribution of assets, alimony and child support. We do hold, however, that the trial court abused its discretion ip awarding attorney’s fees to the wife when the record clearly shows that she has the greater ability to pay those fees and does not require the husband’s assistance to provide herself with competent counsel. See McIntyre v. McIntyre, 434 So.2d 61 (Fla. 5th DCA 1983); Bucci v. Bucci, 350 So.2d 786 (Fla. 3d DCA 1977).

The final judgment is reversed as to the award of attorney’s fees, but in all other respects is affirmed.

AFFIRMED in part and REVERSED in part.

COBB, J., and CYCMANICK M.F., Associate Judge, concur.


text:
    Eric THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-800.
    District Court of Appeal of Florida, Fifth District.
    April 5, 1984.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979); Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

ORFINGER, C.J., and SHARP and CO-WART, JJ., concur.


text:
    A Moneim RAMADAN, M.D., individually and d/b/a Parkwood Professional Office Complex, a/k/a Parkwood Professional Plaza, Appellant, v. EQUICO LESSORS, INC., Assignee of Hastings Capital Corporation, Appellee.
    No. AT-155.
    District Court of Appeal of Florida, First District.
    April 6, 1984.
    William B. Watson, III, of Watson, Folds, Steadham, Sproull, Christmann & Brashear, Gainesville, for appellant.
    Fredrick I. Gottlieb of Baskin & Sears, Palm Beach, for appellee.
   PER CURIAM.

Lessee Ramadan appeals the trial judge’s entry of final summary judgment in favor of assignee Equico Lessors, Inc. (Equico). We conclude that the evidence raises material issues of fact which preclude entry of summary judgment.

Assignee Equico sued lessee Ramadan, claiming that lessee defaulted in making payments due on the Kilo-Watt-Cher 400 equipment leased by Hastings Capital Corporation (Hastings). Ramadan defended on the grounds that execution of the lease was induced as a result of fraud and misrepresentation by an agent of Equico and that the sole consideration for execution of the lease failed. Ramadan also counterclaimed for breach of warranty. Equico’s reply to Ramadan’s defenses and answer to counterclaim was predicated upon Paragraph 17 of the lease, which provides as follows:

17. It is understood that Lessor contemplates assigning this Agreement, and that said assignee may assign the same. All rights of Lessor in the equipment and hereunder may be assigned, pledged, mortgaged, transferred, or otherwise disposed of, either in whole or in part, without notice to Lessee. The assignee’s rights shall be free from all defenses, set-offs or counterclaims which Lessee may be entitled to assert against Lessor. No such assignee shall be obligated to perform any duty, covenant or condition required to be performed by Lessor under the terms of this Agreement.

The actual assignment of the lease was dated ten days after the lease between Ramadan and Hastings was executed. The basis for Equico’s summary judgment motion was that, because it had no dealings, contact, nor communication with lessee until ten days after execution of the lease, it could not have committed fraud or misrepresentation, thus rendering Ramadan’s defenses invalid.

Ramadan deposed that Equico’s name, as assignee, was on the preprinted form at the time of execution of the lease agreement; that he understood Energy Savings, a subsidiary of Hastings with whose salesman Ramadan dealt, Hastings, and Equico were one and the same; and that financing was arranged through the lessor.

Section 679.206(1), Florida Statutes, provides, in pertinent part, that:

(1) Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the chapter on commercial paper....

Pursuant to the foregoing statute, agreements precluding assertion of certain defenses against an assignee are enforceable if the assignee is a holder in due course. However, appellant relies on the close connection theory, an exception to the holder in due course doctrine, see First New England Financial Corporation v. Wofford, 421 So.2d 590 (Fla. 5th DCA 1982), adopted in Florida in Mutual Finance Company v. Martin, 63 So.2d 649 (Fla.1953). That theory provides that, if the financing company is closely connected with the transaction, it cannot be heard to say that it, in good faith, was an innocent purchaser of the instrument for value before maturity against whom the defense of failure of consideration may not properly be maintained. Mutual Finance Company v. Martin, supra; see also Industrial Credit Company v. Bradford and Company, 177 So.2d 878 (Fla. 3d DCA 1965), cert. denied, 183 So.2d 835 (Fla. 1966); Rehurek v. Chrysler Credit Corporation, 262 So.2d 452 (Fla. 2d DCA 1972), cert. denied, 267 So.2d 833 (Fla.1972). Thus, a provision precluding a purchaser from asserting certain defenses against the financing company will not be enforced when it appears that (Rehurek v. Chrysler Credit Corporation, supra, at 453):

“... [T]he financer maintains a close relationship with the dealer whose paper he buys; where the financer is closely connected with the dealer’s business operations or with the particular credit transaction; or where the financer furnishes the form of sale contract and note for use by the dealer, the buyer signs the contract and note concurrently, and the dealer endorses the note and assigns the contract immediately thereafter or within the period prescribed by the financer.” Unico v. Owen, 1967, 50 N.J. 101, 232 A.2d 405 at 411.

We conclude that Equico’s name on the preprinted form, in conjunction with Ramadan’s deposition testimony, raises the issue of a close connection between Equico and Hastings sufficient to preclude summary judgment. Accordingly, the final summary judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.

ERVIN, C.J., and BOOTH and ZEH-MER, JJ., concur.


author: BASKIN, Judge.

text:
    Patrick F. SMITH, James T. Bernhardt and Joan M. Bernhardt, Appellants, v. WINN DIXIE STORES, INC., Appellee.
    No. 83-1262.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Holland & Knight, Thomas G. Schultz and Paul M. Bauch, Miami, for appellants.
    Lapidus & Stettin and Richard Lapidus, Miami, for appellee.
    Before HUBBÁRT, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

We have reviewed' the Final Judgment entered by the trial court in favor of The Grand Union Company . The court considered whether:

[Ujnder the facts of this case, should a Court of equity relieve a tenant from forfeiture of a lease where said tenant defaults on the lease and the jury determines that the owner has not waived the default under the terms of said lease.

Upon consideration of the pleadings, evidence, testimony, and argument of the parties, the trial court concluded:

It is a recognized principle of law that if there is an express provision of the lease providing for forfeiture upon a default for failure to comply with any obligation under the lease, forfeiture of a lease may be permitted. Forfeiture of leases have been permitted for breach on the part of the lessee to pay rent or to repair or remedy defects or to pay taxes. See 34 Fla.Jur[.]2d, Landlord and Tenant, Section 116; wad Augusta [Corporation] v. Strawn, 174 So.2d 422 (Fla. 3rd D.C.A. 1965).
It is also axiomatic that a Court of equity may relieve a lessee against forfeiture when the effect of enforcing the tenant’s default would result in an eviction which would be unconscionable, inequitable or unjust under the circumstances. Rader v. Prather, [100 Fla. 591], 130 So. 15 (Fla.1930), and Amerifirst Federal Savings and Loan v. Century 21, 416 So.2d 45 (Fla. 3rd D.C.A. 1982); Brady v. Edgar, 415 So.2d 141 (Fla. 5th D.C.A.1982). It-has long been the law in this State that contractual provisions for forfeiture are not favored and will be strictly construed against the party seeking to invoke them and will [be] enforced unless the Court finds substantial, egregious or continued violations of the conditions of the lease. Augusta Corporation v. Strawn, 174 So.2d 422 (Fla. 3rd D.C.A.1965). The rule that equity will relieve lesses [sic] from a forfeiture incurred by breach of a condition contained in a lease based upon the notion that forfeiture is intended merely as security for payment of money. Rader v. Prather, [100 Fla. 591], 130 So. 15 (Fla.1930). Further, [130 So.], at page 18 of the Rader opinion,
“In absence of gross negligence or willful and persistent violation of the contract, such matters as are alleged in the bill of complaint should appeal to the conscience of a Court of equity and [are] ordinarily sufficient to justify granting relief from a forfeiture.” (emphasis supplied)
In this case the lease is one that has been in existence for a long period of time. The tenant Grand Union duly paid rent and taxes, and substantially complied with the other obligations under the lease. Granting the fact that Smith acted in accordance with the terms of the lease insofar as notifying Grand Union of their breach, in light of the size and complexity of the corporate structure of Grand Union, said breach amounts to no more than excusable neglect. Under the facts of this case to allow the landlord the right to evict the tenant would be inequitable and unconscionable. This is particularly true when the lease has been of long standing and the breach is of a covenant of relatively minor importance. Hyman v. Cohen, 73 So.2d 393 (Fla. 1954). Although the default was a technical violation, the Court does not find it a willful, deliberate or intentional violation of a material covenant of the lease, particularly in view of the relatively prompt attempt to correct the default by the return of the $495.00 to reimburse for the City’s lien by Grand Union by its letter of January 30, 1980.
As further ground for relief Smith asserts that Grand Union's overall conduct constitutes unclean hands, failure to do equity and illegal conduct which prevents it from asserting any equitable defenses. In particular, evidence was presented by Grand Union that subsequent to the institution of this action, the roof and ceiling at Grand Union had fallen into disrepair and as a consequence thereof, Grand Union applied for a building permit by filing a sworn statement stating it was the owner of the property and did not notify Smith until after the roof had been repaired. As the law of Coral Gables requires that a building permit be obtained through an application by a sworn statement of the owner, Smith asserts that by filing a false statement under oath, Grand Union has engaged in a fraudulent, illegal act and should not be in a position to invoke the equitable grace of the Court.
Article 18 of the lease places upon the tenant, the duty, at the tenants [sic] expense, to “erect such buildings and improvements as the tenant shall choose, provided such buildings and improvements comply with all relative laws...” As the tenant had the duty under the lease to repair the roof on the Grand Union building and there is no issue that the work was performed according to applicable law, the fact that Grand Union filled out a building permit as the “owner” is not the type of conduct to apply the doctrine of unclean hands. Roberts v. Roberts, 84 So.2d 717 (Fla.1956), Peninsula Land Co. v. Howard, [149 Fla. 772, 786], 6 So.2d 384 (Fla.1941). While it is true equity will interfere where a party is guilty of conduct condemned by honest and reasonable men, it is also true that de minimis non curat lex.
In conclusion, under all the circumstances, a long term lease, no default in rent, a prompt willingness to cure the default by a tender of the amount ($495.00) due after being advised of the default it would be unconscionable and unreasonable to approve a forfeiture of the Grand Union lease.

We find no impediment to the trial court's grant of relief from forfeiture under general equitable principles. We therefore affirm the Final Judgment.

Affirmed.

       Upon motion, Winn Dixie Stores, Inc. has been substituted for The Grand Union Company.

       Articles 2, 16 and 20 of the lease provide for termination or forfeiture for any breach of its covenants or obligations.

       In Rader v. Prather, supra, the rule was stated as follows: "A Court of equity has inherent power to relieve a tenant from a forfeiture of his estate because of a failure to pay rent at the time required by the terms of the lease... And this Court has held that Courts of equity always mitigate forfeitures when it can be done without doing violence to the contract of the parties..130 So. at 216-17 [sic].


author: NESBITT, Judge.

text:
    Norman M. CANTER, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1411.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.

      Dilworth, Paxson, Kalish, Kauffman & Tylander and Lewis M. Petzold, Boca Ra-ton, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

Norman Canter appeals an order denying his motion to expunge and seal the court record concerning a charge filed against him. The order is reviewable by appeal. Capuano v. State, 347 So.2d 629 (Fla. 4th DCA 1977). We reverse.

Canter was charged with three separate incidents of passing bad checks. The case numbers on the respective charges were 79-13001, 79-13002 and 79-13379. Although never formally consolidated, the three eases were handled together in the lower court. Following Canter’s successful completion of the Pretrial Diversion Program, the state entered a nolle prosequi in all three cases. Subsequently, Canter, by three separate motions, moved to have the court records in the cases expunged and sealed pursuant to section 943.058, Florida Statutes (1983) and Florida Rule of Criminal Procedure 3.692. All three motions were set for hearing at the same time. Upon learning Canter was making similar motions on three separate cases, the court denied the motion in case number 79-13379. It is clear from the record that the court did not rule on the motions in the other two cases. The motion, affidavit, order and notice of appeal in the record on appeal make reference only to case number 79-13379. Therefore, only the order denying the motion in case number 79-13379 is before us.

The present expungement statute’s predecessor, section 901.33, Florida Statutes (1975), was declared unconstitutional in part in Johnson v. State, 336 So.2d 93 (Fla.1976). The supreme court, however, upheld the statute to the extent it created a substantive right to have one’s court records closed to public inspection. The court found the statute invalid only insofar as it attempted to establish judicial procedure. Johnson, 336 So.2d at 95.

In response to Johnson, the legislature enacted the present statute which, in part, provides:

The courts of this state shall continue to have jurisdiction over their own procedures, including the keeping, sealing, ex-punction, or correction of judicial records containing criminal history information, (emphasis added)

§ 943.058(2), Fla.Stat. (1983). It is clear the legislature was merely conforming the statute to the constitutional mandate of Johnson while retaining the substantive right established in the prior statute.

The present statute sets out the criteria a person must meet before a court can order the expunction or sealing of a record. § 943.058(2)(a)-(d). Through Canter’s affidavit submitted in compliance with Florida Rule of Criminal Procedure 3.692(a), and the state’s representation to the court that the case had been “nolle prosed,” it is apparent that Canter met the criteria. The state did not traverse or demur to the motion or the affidavit, although they had a right to do so. Fla.R. Crim.P. 3.692(b). In fact, it is apparent from the record before us that the state had no objection to the court granting the motion to expunge the record in this case. Although we read the statute as giving the court some discretion, we find that when, as here, Canter met the criteria set out in the statute, the state did not object, and there was no other indication in the record of any pertinent reason for denying the motion, the court abused its discretion in not ordering the records sealed.

For the reasons above, we reverse with directions to enter an order granting Canter’s motion to expunge or seal the court record in case number 79-13379.


text:
    Raul CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1437.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Bennett J. Brummer, Public Defender, John Paul J. Violette, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Clark v. State, 363 So.2d 331 (Fla.1978); Fraley v. State, 426 So.2d 983 (Fla. 3d DCA 1983); Lecoin v. State, 418 So.2d 336 (Fla. 3d DCA 1982); Jones v. State, 415 So.2d 852 (Fla. 5th DCA), review denied mem., 424 So.2d 761 (Fla.1982); Jackson v. State, 403 So.2d 1063 (Fla. 4th DCA 1981), review denied mem., 412 So.2d 466 (Fla.1982); De La Cova v. State, 355 So.2d 1227 (Fla. 3d DCA), cert. denied mem., 361 So.2d 831 (Fla.1978); Bush v. State, 341 So.2d 534 (Fla. 3d DCA 1977).


text:
    OCEAN FARMING SYSTEMS, INC., a Florida corporation, Alexander L. Shepard, Alan B. Maxwell, Mel Alderman, George M. Cohan, Sondra H. Cohen, Louis Lebowitz and Adele C. Lebowitz, Appellants, v. Theodore R. BAYER and David L. Tobin, Appellees.
    No. 83-1607.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.

      Bailey & Dawes and Jesse C. Jones, Miami, for appellants.
    Tobin, Bayer & Jacobson and Allen C. Jacobson, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Appellants seek reversal of a judgment on the pleadings entered in favor of appel-lees.

Appellants filed an amended counterclaim against appellees alleging that appel-lees, who were attorneys of record for plaintiffs Michael McMaster and his wife, caused process to be issued, served and subsequently used for ulterior purposes, resulting in abuse of process. Upon motion by appellees, the trial judge entered judgment on the pleadings in favor of ap-pellees and against appellants.

We have considered the counterclaim and the amended counterclaim and have concluded that the trial judge did not err in entering judgment on the pleadings as it clearly appears that the counterclaims are legally insufficient to state a cause of action against appellees.

We have also considered appellees’ cross-appeal of the order denying them attorneys’ fees and have found it to be without merit.

Affirmed.


text:
    Angel AGET, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1629.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Angel Aget, appealing his conviction for the sale of diazepan, cites as prejudicial error the trial court’s instruction charging the jury, over defense objection, to consider the testimony of an accomplice with great caution. Finding merit in appellant’s assertion, we reverse.

In Dudley v. State, 405 So.2d 304, 305, 306 (Fla. 4th DCA 1981), the court stated the general rule regarding the use of the accomplice testimony instruction:

This instruction is intended to be used when the state presents the testimony of an accomplice whose motivation for testifying against his alleged colleague and cooperating with the state may be substantially influenced by his own self-interest. The instruction was not intended to be used against a defendant who may present a co-defendant or other person involved in the incident in question as a witness for the defense.

In the present ease, the alleged accomplice testified on behalf of defendant Aget. Thus, the accomplice instruction cast doubt upon the exculpatory testimony given by a key defense witness, Taylor v. State, 403 So.2d 585 (Fla.2d DCA 1981); Wheelis v. State, 340 So.2d 950 (Fla. 1st DCA 1976), and mandates reversal.

Reversed.


text:
    Alfred Herbert CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1657.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Alfred Herbert Cunningham, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The trial court’s written order revoking the defendant’s probation does not conform to its oral pronouncement finding that the defendant had not violated conditions 6 and 9, and upon remand, these findings should be stricken from the written order. In all other respects, the order revoking probation is affirmed.

Affirmed as modified.


author: SCHWARTZ, Chief Judge. BARKDULL, Judge,

text:
    Marc Anthony WILLIAMS, Appellant, v. PAN AMERICAN WORLD AIRWAYS, INC., Appellee.
    No. 83-1759.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.

      Philip T. Weinstein and Elliot Weitzman, Miami, for appellant.
    Thornton, David & Murray and Ann Thomas, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

The plaintiff-appellant Williams was an employee of Ground Services, Inc., a division of a company which had contracted with Pan American World Airlines to perform the ground handling of its passengers’ baggage. He was injured at the Miami International Airport in the course of his employment by the alleged negligence of a Pan Am employee while they were both engaged in that process. After receiving worker’s compensation benefits from Ground Services and its carrier, Williams brought this third-party damage action against Pan Am. The trial court, however, granted summary judgment to Pan Am on the ground that it was.a “contractor” — for transportation services with its passengers — which had “sublet” part' of that “contract work” — its obligation to transport their luggage — to Ground Services. On this basis, Pan American was held immune from tort liability to Williams as a Ground Services employee under the exclusive remedy provisions of Sections 440.10, 440.11, Fla.Stat. (1981). We disagree and, upon the opposite holding that Pan Am is, as a matter of law, not immune, revérse the judgment below.

Even assuming, contrary to the thrust of West v. Sampson, 142 So.2d 74 (Fla.1962) and the holding of State v. Luckie, 145 So.2d 239 (Fla. 1st DCA 1962), cert. denied, 148 So.2d 278 (Fla.1962), that exclusive-remedy-compensation-immunity may ever exist outside the familiar general contractor-construction job situation it plainly does not in this case. Two closely related, if perhaps analytically distinct reasons, compel this result. First, as in the controlling case of Florida Power & Light Co. v. Brown, 274 So.2d 558 (Fla. 3d DCA 1973), Pan Am’s “primary obligation” in transporting their luggage arises not out of its countless individual contracts, that is, the tickets, with its passengers, but from generalized statutory and common law requirements that it do so. See e.g., 49 U.S.C. § 1301, et seq., § 1374; State ex rel. Burr v. Jacksonville Terminal Co., 90 Fla. 721, 754, 106 So. 576, 584 (1925); State ex rel. Postal Tel.-Cable Co. v. Wells, 96 Fla. 591, 600, 118 So. 731, 736 (1928); Atlantic Coast Line R. Co. v. Campen Bros. Co., 114 Fla. 386, 388, 154 So. 131, 133 (1934). Indeed, Brown is a fortiori case to this one, because, in contrast, a single express written agreement to supply electricity to a shopping center was involved. Nonetheless, this court held that the primary obligation allegedly “subcontracted” to the plaintiffs employer was not based on the contract, but upon F.P.L.’s statutory duties as a public utility.

Second, the purportedly “sublet” work of carrying baggage was, at best, but a small, surely not indispensable portion and was thus, to use the legal term of art, merely “incidental” to the essence of the “prime contracts” — which was clearly to transport the passengers themselves. Under the now highly-buffed judicial gloss which has been placed on Section 440.10, Pan Am is not entitled to immunity for this reason as well. State v. Luckie, supra; Florida Power & Light Co. v. Brown, supra; Cork v. Gable, 340 So.2d 487 (Fla. 2d DCA 1977).

Because it is so obviously and decisively distinguishable, we need not decide whether Hart v. National Airlines, Inc., 217 So.2d 900 (Fla. 3d DCA 1969), cert. denied, 225 So.2d 533 (Fla.1969), upon which the appellee almost wholly relies, retains any viability whatever in the light of the later decision in Florida Power & Light Co. v. Brown, supra, and the other authorities already cited. In Hart, the airline’s duty of transporting mail arose, not by operation of law, but out of a specific, one-purpose, written contract to that effect with the United States government. Moreover, it was that very contractual purpose, to handle mail, which was the subject of the subcontract with the plaintiffs employer. Thus, both of the reasons we have identified for denying immunity because they are not present in this case were satisfied in Hart.

For these reasons, the judgment below is reversed and the cause remanded for trial.

Reversed.

BARKDULL, Judge,

dissenting.

I respectfully dissent. If an employer has a duty to supply workmen’s compensation benefits to an employee of a subcontractor and it does, it is entitled to immunity from suit as a third-party tortfeasor. Third-party actions should only be allowed against those tortfeasors who do not owe a duty to such an employee. Compare Employers Insurance of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983). Pan American had a contract with its passengers to carry their baggage. It sublet a portion of this basic contract to the appellants’ employer with an express provision that its employees be provided with workmen’s comp. Which was done. The employee having recovered workmen’s compensation should not be entitled to a double recovery from the prime employer. Therefore I would affirm the summary judgment under review.

      . ... [I]n case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.
      Sec. 440.10, Fla.Stat. (1981).

      . ... [T]he liability of an employer described in S.440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor.
      Sec. 440.11, Fla.Stat. (1981).

      . Accord, Florida Power & Light Co. v. Brown, 274 So.2d 558 (Fla. 3d DCA 1973); Cork v. Gable, 340 So.2d 487 (Fla. 2d DCA 1977); Richardson v. United States, 577 F.2d 133 (10th Cir. 1978) (applying Florida law).

      . E.g., Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967); Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981).

      . It is significant that Hart is the only reported case which has accepted the contractor immunity defense in a non-construction project context. Compare, State v. Luckie, supra; Cork v. Gable, supra.


text:
    Paul D. WALTERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1944.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Nurik, O’Donnell, Lazarus & Grillo, John F. O’Donnell, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Adler v. State, 382 So.2d 1298 (Fla. 3d DCA 1980); Fla.R.Crim.P. 3.713(a).


author: HENDRY, Judge.

text:
    J.K., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2077.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Bennett H. Brummer, Public Defender, and Chaykin, Karlan & Jacobs and Sharon B. Jacobs, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

J.K., a juvenile, appeals from an adjudication of delinquency upon a finding that he was guilty of the charges of burglary and theft. We reverse.

On December 6, 1982, two classrooms of Ponce de Leon Junior High School were burglarized and certain property, an amplifier, hot plate, art supplies, and candles, was stolen. All of the property was later returned to the school by unidentified means. Witnesses testified that they saw appellant carrying boxes marked “candles,” that he was standing in the vicinity near where the amplifier was discovered, and that he allegedly made certain spontaneous statements to the school resource (police) officer which could be interpreted as being incriminating. There was no direct evidence adduced at trial to show that appellant illegally entered the classrooms, removed any of the property, or took part in the return of the property. Appellant’s motion for a judgment of acquittal was denied and this appeal followed.

At trial, both parties stipulated that the evidence against appellant was wholly circumstantial. The supreme court has stated that the standard to be applied is that “[wjhere the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Jaramillo v. State, 417 So.2d 257 (Fla.1982). In Owen v. State, 432 So.2d 579 (Fla.2d DCA 1983), the court stated that “when the state relies on circumstantial evidence, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense charged.” Id. at 581 (emphasis in original). See also E.R. v. State, 422 So.2d 88 (Fla.3d DCA 1982); J.A.L. v. State, 409 So.2d 70 (Fla. 3d DCA 1982).

In the case at bar, the circumstances taken as a whole are consistent with a reasonable hypothesis of innocence. The school was selling candles as a fundraising project; appellant, as a student, had every right to be carrying boxes labeled “candles.” The amplifier was found near an area where students await instructions for their physical education classes; appellant was, in fact, awaiting such instructions. The school resource officer could not recollect whether the allegedly spontaneous in-culpatory statements were made by appellant or a co-defendant. We find the evidence legally insufficient to support a finding of guilt on the crimes charged. The adjudication below is REVERSED.


text:
    Eugene SCURIO and Eileen Scurio, his wife, Appellants, v. SEARS, ROEBUCK AND COMPANY, Appellee.
    No. 83-2110.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Michael Lechtman, N. Miami Beach, for appellants.
    Stinson, Lyons & Schuette, Mark D. Greenberg, Miami, for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Habelow v. Travelers Insurance Co., 389 So.2d 218 (Fla. 5th DCA 1980); Gellert v. Eastern Air Lines, 370 So.2d 802 (Fla. 3d DCA 1979), cert. denied mem., 381 So.2d 766 (Fla.1980); DeMarco v. Publix Super Markets, Inc., 360 So.2d 134 (Fla. 3d DCA 1978), aff'd, 384 So.2d 1253 (Fla.1980); Dowling v. Blue Cross of Florida, 338 So.2d 88 (Fla. 1st DCA 1976).


text:
    The STATE of Florida, Appellant, v. George MARTIN-TRIGONA, Appellee.
    No. 83-2778.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Jim Smith, Atty. Gen., G. Bart Bill-brough, Asst. Atty. Gen., for appellant.
    Ellis Rubin, Naples, Alan S. Marshall, St. Petersburg, for appellee.
    Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Richard J. Ovelmen, Miami, for The Miami Herald Publishing Co. as amicus curiae.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Robertson v. Industrial Insurance Co., 75 So.2d 198 (Fla. 1954); Myers v. Hodges, 53 Fla. 197, 44 So. 357 (Fla.1907); Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977); Hodgson r. Scarlett, 1 Barn. & Ald. 232 (K.B. 1818).


text:
    Dudley S. POWELL, etc., et al., Petitioner, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Respondent.
    No. 84-125.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.

      Alan J. Kluger, Miami, for petitioner.
    Shutts & Bowen and Phillip G. New-comm and Karen H. Curtis, Miami, for respondent.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   NESBITT, Judge.

By common law certiorari, Powell challenges an order denying his motion claiming entitlement to a trial by jury. We have jurisdiction. Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982). We agree with Powell and quash the order under review.

Southern Bell commenced an action against Powell for declaratory judgment and other relief. Powell procured a court order granting him an extension of time in which to file a counterclaim. His counterclaim was filed on the last day permitted by that order. Two days later, Southern Bell filed an answer to the counterclaim. Two days after the filing of Southern Bell’s answer, Powell filed an amended counterclaim. At the end of this amended pleading, Powell indorsed a general demand for trial by jury. On Southern Bell’s motion, the trial court disallowed the amended counterclaim finding it a nullity because it was filed without the consent of the opposing party and without leave of court. Fla. R.Civ.P. 1.190(a). By subsequent motion, Powell claimed the demand for jury trial indorsed on the failed pleading was effectual and entitled him to a trial by jury. The trial court denied the motion, finding the demand a nullity along with the pleading.

The sole issue presented is whether a demand for jury trial indorsed on a fatal pleading is nonetheless effective. Florida Rule of Civil Procedure 1.430(b) provides that a party may demand a jury trial by either serving a written demand therefor on the opposing party not later than ten days after service of the last pleading directed to the issue, or by indorsing the demand upon a pleading. By this latter means, the rule merely allows service to be made without the necessity of a separate piece of paper. In the present case, although the trial court correctly found the amended counterclaim to be a nullity, Warner-Lambert Co. v. Patrick, 428 So.2d 718 (Fla. 4th DCA 1983), the general demand for a jury trial should have been regarded as a separate and independent demand. Since such a demand indorsed on a pleading is not actually an element of that pleading, it will not fail because the pleading is fatal.

Unlike the amended pleading in this case, a demand for jury trial by a party does not require the opposing party’s consent nor leave of court when made within ten days after service of the last pleading. Boston Rug Galleries, Inc. v. William Iselin & Co., 212 So.2d 58, 60 (Fla. 4th DCA 1968). Powell’s demand was in writing and served on Southern Bell two days after service of the final pleading (Southern Bell’s answer to the counterclaim). The demand, therefore, was timely and effective. Fla.R.Civ.P. 1.430. Cf. Moretto v. Sussman, 274 So.2d 259 (Fla. 4th DCA 1973) (demand for jury trial not made within ten days after last valid pleading on the issue).

Once a demand for a jury trial is made, the right thereto is preserved inviolate to the party making it. Boston Rug Galleries, 212 So.2d at 60. Thereafter, it takes affirmative action on the part of the one making the demand to waive the right to a trial by jury. Barth v. Florida State Constructors Service, Inc., 327 So.2d 13, 15 (Fla.1976). Powell has taken no such action in the present case.

For the foregoing reasons, certiorari is granted and the order denying the motion claiming entitlement to trial by jury is quashed with directions to grant the motion.


text:
    Linda Irene LEONE f/k/a Linda Irene Weed, Appellant, v. Thomas John WEED, Appellee.
    No. 83-944.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.

      William H. Stolberg of Shankweiler & Stolberg, Fort Lauderdale, for appellant.
    Terrence P. O’Connor of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for ap-pellee.
   PER CURIAM.

The parties to this litigation have been in court often since their divorce in 1974. On July 16, 1982, the trial court entered a final judgment in favor of the wife’s attorneys, Miller and Schwartz, P.A., and against the husband for attorneys’ fees in the amount of $17,051.30. After these fees were satisfied by the wife, Miller and Schwartz, P.A., assigned the judgment to the wife on February 14, 1983, and she undertook collection efforts against her former husband. She moved for attorneys’ fees for post-judgment collection efforts and the husband filed a motion to strike her motion for fees. After a hearing on the matter, the trial court entered an order granting the husband’s motion to strike. The wife appeals contending that the lower court erred in striking her motion. We reverse.

Initially, we hold that a trial court can award attorneys’ fees for the collection of attorneys’ fees pursuant to Section 61.-16, Florida Statutes (1981). That statute reads as follows:

61.16 Attorney’s fees, suit money, and costs. — The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, .suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney; who may enforce the order in his’ name.’

We determine that post-judgment collection fees and costs are recoverable as incidents of “maintaining or' defending any prócéed-ing” under Chapter 61.

In this case, the finál judgment was in the name of the attorneys’ rather than in the name of the wife and counsel. We have before us only the judgment for attorneys’ fees, which was issued .pursuant to-an affidavit of non-payment filed by the wife’s attorneys. We have no knowledge of whether the original order granting the’ wife attorneys’ fees was in the wife’s name or the attorneys’ name or both. ’ The husband argues that a judgment for fees in favor of a law firm and not the wife should be excluded from coverage of Chapter 61. According to the husband, the law firm is simply a creditor which assigned its rights under the judgment to the wife. Thus, anyone could seek attorneys’ fees under Chapter 61 for collecting a judgment merely by purchasing the judgment from a law firm.

The husband’s contention is meritorious to the extent that a stranger to the proceedings should not be allowed to receive an assignment of the judgment and-then receive attorneys’ fees for collecting that judgment. That is not the situation here, however. The wife, as assignee, is not a stranger to the proceedings. Ultimately, the award of attorneys’ fees was for her benefit. To hold to the contrary would elevate form over substance. We see no reason why the wife should not have the protection of Chapter 61 in this proceeding in the enforcement of the fee award which was initially entered for her benefit.

REVERSED AND REMANDED WITH' DIRECTIONS TO DETERMINE THE AMOUNT OF ATTORNEYS’ FEES.

LETTS, BERANEK and HERSEY, JJ„ concur.


text:
    Dennis B. GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1190.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Dennis Gordon appeals from an order revoking his probation. The order found that appellant violated two conditions of probation: first, by failing to pay $10.00 per month for the cost of supervision; and second, by failing to work diligently at a lawful occupation. We reverse.

Initially, we note that the State recognized its failure to present any evidence concerning the allegation of violation of probation by failing to work at a lawful occupation. Thus the trial court improperly revoked appellant's probation based on that allegation. We turn next to the allegation of violation of probation for failure to pay supervision costs.

In order to revoke probation for failure to pay supervision costs “[t]here must ... be a sufficient demonstration of probationer’s ability to pay and a specific finding by the court regarding that ability to pay.” Kimble v. State, 39(5 So.2d 815, 817 (Fla. 4th DCA 1981); Smith v. State, 380 So.2d 1175 (Fla. 4th DCA 1980). We find the proof in this case, as we have found in many other appeals involving this point, wholly inadequate to establish appellant’s financial ability to make payments. If the State elects to proceed on this point then it should be prepared to offer the evidence necessary to establish the probationer’s ability to make the payments. The State’s failure to meet its burden causes additional work for both the Attorney General’s office and this court, which otherwise would have been unnecessary.

Accordingly, we reverse the order revoking appellant’s probation.

REVERSED.

DOWNEY, HURLEY and DELL, JJ., concur.


author: DOWNEY, Judge.

text:
    POLICE PENSION BOARD, CITY OF HOLLYWOOD, Appellant, v. John GAINES, Appellee.
    No. 83-1320.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Myles G. Cypen of Cypen, Cypen & Dri-bin, Miami Beach, for appellant.
    Susan Horovitz Maurer of Panza & O’Donnell, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellee Gaines, a police officer with the City of Hollywood, suffered permanently disabling service connected injuries. He thereafter applied for pension benefits. On May 19, 1978, the Board of Trustees of the retirement system denied the request. Subsequently, on June 13, 1979, the circuit court reversed the action of the Trustees and instructed them to grant appellee pension benefits. In addition, the circuit court directed the Trustees to award appellee interest at 8% on the benefits due from June 15, 1979, through June 10, 1981, and interest at 26% for those due from June 10, 1981, through December 1, 1982.

The Trustees contend that the allowance of post judgment interest was erroneous. We disagree and hold that appellee was entitled to post judgment interest; however, interest should not have been awarded on the amount due after June 10, 1981, the period of time after which the Trustees notified appellee that they were ready to tender the back payments less a set-off for social security and worker’s compensation benefits received by appellee. Appellee delayed notifying the Trustees of the appropriate amount for set-off until September 3, 1982.

Therefore, we affirm that part of the circuit court’s order that allowed interest at 8% per. annum from June 15, 1979, through June 10, 1981, and the allowance of interest at 8% from September 4, 1982, through December 1, 1982, and we reverse the allowance of interest from June 10, 1981, through September 3, 1982.

AFFIRMED IN PART; REVERSED IN PART, and remanded.

HERSEY and DELL, JJ., concur.

      . Apparently this rate represents the return the Trustees received on the amount due during the period from June 10, 1981, through December 1, 1982.


author: HURLEY, Judge.

text:
    In re FORFEITURE OF A 1977 DATSUN 280Z AUTOMOBILE, VIN # HLS30408139.
    No. 83-1552.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Jeffrey J. Hochman, Fort Lauderdale, for appellant City of Fort Lauderdale.
    Steve M. Glerum of Howard M. Zeidwig, P.A., Fort Lauderdale, for appellee Michael Erice.

      . Section 893.12(2), Florida Statutes (1979), provided:
      (2) Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of this chapter or in, upon, or by means of which any violation of this chapter has taken or is taking place vnay be seized and forfeited as provided by the Florida Uniform Contraband Transportation Act.

   HURLEY, Judge.

The City of Fort Lauderdale petitioned for forfeiture of appellee’s motor vehicle under the Florida Contraband Forfeiture Act, sections 932.701-932.704, Florida Statutes (1983), contending that the vehicle was used to conceal or possess a contraband article. The petition was denied and the City appeals. We reverse.

In criminal proceedings, appellee, Michael Allen Erice, was charged and convicted of possession of cannabis, a misdemean- or, upon a plea of nolo contendere. In subsequent civil proceedings, the City sought forfeiture of Mr. Erice’s vehicle based on the underlying events leading to his criminal conviction. Essentially, the forfeiture petition alleged that police officers observed Mr. Erice in his automobile loading a cube of hashish into a pipe. Upon arresting Mr. Erice and searching the automobile, the officers seized two and one-half tablets containing diazepam and eight grams of hashish from the auto.

At the forfeiture proceeding, Mr. Erice admitted that hashish and diazepam were seized from his auto on the date in question. The trial court nevertheless denied the forfeiture on the theory that it had discretion to do so because of the small amount of drugs seized. We hold that the trial court erred by finding that it had discretion to deny the forfeiture, and therefore, reverse.

Section 932.703(1), Florida Statutes (1983), provides in pertinent part:

In any incident in which possession of any contraband article defined in § 932.-701-(2)(a)-(d) constitutes a felony, the vessel, motor vehicle, aircraft, or personal property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture.

Since hashish and diazepam are “contraband articles” within the meaning of section 932.701(2)(a), the vehicle was necessarily subject to forfeiture under 932.703(1) if possession of those substances constitutes a felony. Under section 893.13(l)(e) possession of any amount of diazepam or hashish is a felony of the third degree. The trial court therefore should have granted the City’s petition for forfeiture because section 932.703(1) specifically provides that vehicles falling within its ambit “shall be contraband subject to forfeiture.”

There is no exception for cases involving small quantities of drugs, provided a felony amount is at issue, cf. State v. Peters, 401 So.2d 838 (Fla. 2d DCA 1981), and a trial court is without authority to create an exception. In so holding, we observe that the forfeiture statute was amended in 1980 to provide that conveyances containing contraband articles “shall be contraband subject to forfeiture,” whereas it previously provided that such conveyances “may be forfeited.” We think that the Legislature intended a mandatory connotation to attach to section 932.703 when it substituted the mandatory “shall” for the permissive “may.” See Neal v. Bryant, 149 So.2d 529 (Fla.1962); Florida Tallow Corp. v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970); see also Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 1st DCA 1963).

Accordingly, we find that Mr. Erice’s vehicle was properly subject to forfeiture under section 932.703(1). See Naples Police Department v. Small, 426 So.2d 72 (Fla. 2d DCA 1983); City of Clearwater v. Malick, 429 So.2d 718 (Fla. 2d DCA 1983). Thus, we remand the case to the trial court for entry of an order consistent with this opinion.

REVERSED AND REMANDED.

GLICKSTEIN, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.

      . See In re Forfeiture of Approximately Forty-Eight Thousand Nine Hundred Dollars, 432 So.2d 1382 (Fla. 4th DCA 1983).

      . Section 932.701 (2)(a) provides that a "contraband article" is any controlled substance as defined in chapter 893. Hashish is a controlled substance under section 893.03(l)(c), and dia-zepam is a controlled substance under section 893.03(4)(h).


text:
    Randell YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 83-1562.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Richard L. Jorandby, Public Defender, Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Laura L. Sellers, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Maselli v. State, 446 So.2d 1079 (Fla. 1984).

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    Harold M. HASKEW, Appellant, v. Sandra L. HASKEW, Appellee.
    No. 83-2101.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.

      Errol S. Willes, Fort Pierce, for appellant.
    Michael Jeffries and Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellee.
   PER CURIAM.

Pursuant to the former wife’s motion, the trial court ordered the former husband to- make child support payments “until each child reaches age 21, or becomes otherwise emancipated.” We reverse.

Section 743.07, Florida Statutes (1973), which lowered the age of majority to eighteen, took effect on July 1, 1973. Child support orders entered subsequent to the statute’s effective date cannot, with limited exceptions, require a parent to provide support beyond a child’s eighteenth birthday. Wilkerson v. Wilkerson, 430 So.2d 542 (Fla. 1st DCA 1983); see Jones v. Jones, 421 So.2d 815 (Fla. 4th DCA 1982). Of course, prior to section 743.07’s enactment, child support payments were re--quired until the child reached twenty-one years of age. See Finn v. Finn, 312 So.2d 726 (Fla. 1975).

In the case at bar, the husband and wife were divorced in December, 1972. The husband, however, was not ordered to make child support payments until July 6, 1973, five days after the effective date of section 743.07. Prior to entry of the court’s July 6th order, the husband had voluntarily made monthly payments. However, this did not constitute, nor did the trial court find, a pre-July 1st child support agreement between the husband and wife. Cf. Bird v. Bird, 436 So.2d 981 (Fla.3d DCA 1983); contra Kramer v. Kramer, 26 Md.App. 620, 339 A.2d 328 (1975). Since the trial court entered its child support order after section 743.07’s effective date, the former husband’s legal obligation to provide child support terminated upon the youngest child attaining majority, i.e., eighteen years of age.

Accordingly, the order requiring husband to make payments until each child reaches age twenty-one is reversed.

HURLEY and WALDEN, JJ., and NORRIS, WILLIAM A. Jr., Associate Judge, concur.


text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY and James C. McClelland, Appellants, v. Esther RODRIGUEZ, a minor, by and through her father and natural guardian, Jose Rodriguez, and Jose Rodriguez, individually, Appellees.
    No. 83-2259.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Fred L. Fulmer of Fertig, Curtis & Wak-enfield, Fort Lauderdale, for appellants.
    John B. Ostrow of John B. Ostrow, P.A., Miami, for appellees.
   PER CURIAM.

Affirmed. See Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983).

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


text:
    Jack HALPERIN, Appellant, v. NORDIC AMERICAN BANKING CORPORATION, Appellee.
    No. 83-2358.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Mark D. Cohen of Britton, Cohen, Gassel, Kaufman & Schantz, Fort Lauderdale’ for appellant.
    Robert P. Frankel of Lapidus & Stettin, Miami, for appellee.
   PER CURIAM.

Defendant, Jack Halperin, appeals from an order denying his motion to quash service of process. We reverse upon authority of Stokes v. Bell, 441 So.2d 146 (Fla. 1983); Huguenor v. Huguenor, 420 So.2d 344 (Fla. 5th DCA 1982); State ex rel. Cox v. Adams, 148 Fla. 426, 4 So.2d 457 (1941); Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (1937), vacated on other grounds on rehearing, 142 Fla. 298, 195 So. 422 (1939).

REVERSED.

HERSEY, DELL and WALDEN, JJ., concur.


text:
    Sam W. GROOME, Appellant, v. Donald ABRAMS, Peter Marsh, and Jon Oostemeyer, Appellees.
    No. 83-2575.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Durwood A. Hunter, Lake Worth, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, P.A., West Palm Beach, for appellees.
   DOWNEY, Judge.

Appellant seeks reversal of a non-final order changing venue from Palm Beach to Marion County.

Appellant sued appellees to recover money due him under an oral contract for personal services. The complaint alleges that the parties entered into the contract in Ocala, Florida (Marion County) and that appellant performed under the contract and received payments therefor in Palm Beach County, Florida, where appellant resides.

Appellees filed a motion attacking jurisdiction and an affidavit stating appel-lees are nonresidents of Florida. Appellees also filed a motion for change of venue “by reason of the allegations in Plaintiff’s Complaint and any other facts which are otherwise brought to the Court’s attention.” At the hearing on the motion to change venue, appellees failed to adduce any proof to sustain their burden of demonstrating entitlement to a change of venue. Moreover, the allegations of the complaint did not constitute adequate grounds for a venue change. As this court held in Merrill Lynch, Pierce, Fenner & Smith, Inc., v. National Bank of Melbourne and Trust Co., 238 So.2d 665, 667 (Fla. 4th DCA 1970):

The plaintiff is not required to plead facts in support of his selection of the venue for his suit. Inverness Coca-Cola Bottling Company v. McDaniel, Fla. 1955, 78 So.2d 100. If the defendant desires to contest the propriety of the venue selected by the plaintiff, he may do so by filing a motion to dismiss on the ground of improper venue. Rule 1.140(b)(3), F.R.C.P.; Inverness Coca-Bola Bottling Company v. McDaniel, supra. A motion by the defendant to dismiss on the ground of improper venue raises issues of fact which must be resolved by an evidentiary hearing, unless the complaint shows on its face that venue is improper. A party contesting the venue selected by the plaintiff has the burden of clearly proving that the venue selected by the plaintiff is improper. Permenter v. Bank of Green Cove Springs, Fla.App. 1962, 136 So.2d 377, 379; Tribune Co. v. Approved Personnel, Inc., Fla.App.1959, 115 So.2d 170, 174.

The trial court has a broad discretion in dealing with matters of venue. However, the movant must furnish a sufficient factual basis for the exercise of that discretion. That was not done here and the order appealed from constitutes an abuse of discretion.

Accordingly, the order under review is reversed.

REVERSED.

BERANEK and HURLEY, JJ., concur.


author: HOBSON, Judge.

text:
    Stephen William GERRY, Appellant, v. STATE of Florida, Appellee.
    No. 83-538.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.
    See also Fla.App., 394 So.2d 581.
    Alice K. Nelson, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

In 1978 Stephen William Gerry was acquitted of second degree murder by reason of insanity and committed to the custody of the State Department of Health and Rehabilitative Services (“DHRS”) for involuntary hospitalization because of the likelihood that he would injure himself or others if allowed to remain at liberty. He appeals a 1983 order in which the committing court determined that he continues to meet the criteria for involuntary hospitalization and therefore directed that he be returned to the state mental hospital for further treatment.

We reject Gerry’s main arguments on appeal since they are devoid of merit. However, we accept his final contention that the court below exceeded its jurisdiction by commanding in the recommitment order that the administrator of the state mental hospital “not file an immediate request for the release of STEPHEN WILLIAM GERRY.” An administrator of a state mental hospital acts under the authority of the DHRS, a department of the executive branch. The DHRS is solely responsible for supervising state mental health facilities, programs, and services. Section 394.457(1), Fla.Stat. (1983). Consistent with these duties, an administrator of a state mental hospital is provided with the power to file a report with the committing court “at any time” for the release of an insanity aequittee if the administrator has concluded that the insanity aequittee no longer meets the conditions for continued involuntary hospitalization. Section 916.-15(2), Fla.Stat. (1983). Thus, by mandating in the recommitment order that the administrator “not file an immediate request for the release of STEPHEN WILLIAM GERRY,” the court below usurped the jurisdiction of the DHRS; it acted in derogation of the doctrine of the separation of powers of our state government. See State ex rel. Department of Health & Rehabilitative Services v. Sepe, 291 So.2d 108 (Fla.3d DCA 1974).

Accordingly, we affirm the order of re-commitment but remand with the instruction that the court strike from the order the above-quoted directive.

AFFIRMED and. REMANDED.

OTT, C.J., and SCHEB, J., concur.


author: LEHAN, Judge.

text:
    Anthony HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1610.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals from his conviction and sentence for second degree murder. We find no merit in the issues raised by defendant regarding errors allegedly occurring at trial. Therefore, we affirm the conviction.

As to his sentence, defendant contends that the trial court improperly retained jurisdiction over one-half of the 99-year sentence imposed. We agree. Section 947.-16(3), Florida Statutes (1983), was amended to reduce the maximum amount of jurisdiction that a judge could retain from one-half to one-third of a sentence. The amendment was effective June 15, 1983. Defendant argues that the amended statute should have been applied to his sentencing on June 22, 1983.

This court has previously held that when section 947.16(3) was amended to increase the portion of a sentence over which a trial judge could retain jurisdiction, the correct statute to be applied was the statute in effect on the date the crime was committed, not the statute in effect on the date the defendant was sentenced. See Reid v. State, 440 So.2d 651 (Fla. 2d DCA 1983); Wicker v. State, 438 So.2d 398 (Fla. 2d DCA 1983). However, that result was necessary to prevent an ex post facto application of a more severe punishment to a defendant who had committed the crime prior to the effective date of the amendment. In this case, applying the amended statute to a defendant who committed the crime prior to the effective date of the statute but who was sentenced after that effective date would not be disadvantageous to the defendant and, therefore, would not be an illegal ex post facto application. See Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); State v. Williams, 397 So.2d 663 (Fla.1981); Cunningham v. State, 423 So.2d 580 (Fla. 2d DCA 1982). Such an application would carry out the legislative intent of the statutory revision reducing the length of time for which a trial court can retain jurisdiction.

Accordingly, the conviction is AFFIRMED, but the case is REMANDED for correction of the sentence to reflect the trial court’s retention of jurisdiction over only one-third of the sentence.

OTT, C.J., and SCHOONOVER, J., concur.


author: RYDER, Judge.

text:
    Val Lee RATHBONE, Appellant, v. STATE of Florida, Appellee.
    No. 83-2058.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Ann Garrison Pasehall, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Val Lee Rathbone appeals from the sentences imposed upon his plea of guilty to burglary of a conveyance and grand theft. We remand for reconsideration of the sentences.

In May 1983, Rathbone was charged by information with burglary of a conveyance and grand theft. At the time of the commission of these offenses, April 6, 1983, Rathbone was seventeen years of age. Three days later, Rathbone reached his eighteenth birthday.

A plea agreement was entered into through which Rathbone would plead guilty to the charges and would receive probation and be required to pay restitution and a fine. At the sentencing hearing, the trial court reviewed a presentence investigation report and a predisposition report, the latter recommending that juvenile sanctions be imposed. Counsel for Rath-bone stated to the court that the court must determine, prior to the imposition of sentence, whether Rathbone should be treated as a juvenile or as an adult. The court recognized that this determination should be made, but stated “that in view of the fact that Mr. Rathbone has now reached his eighteenth birthday that it would be inappropriate to place him on community control under juvenile sanctions.”

Both parties agree that section 39.111(6), Florida Statutes (1983), is applicable to this case. It was incumbent upon the trial court to determine the “[sjuitability or non-suitability for adult sanctions ... before any other determination of disposition. The suitability determination shall be made by reference to” the criteria enumerated in the statute. § 39.111(6)(c). Additional considerations are provided for in section 39.-111(6). The trial court’s failure to follow the procedure outlined in section 39.111(6) is reversible error. Rhoden v. State, 421 So.2d 780 (Fla. 2d DCA 1982). See also T.S.J. v. State, 439 So.2d 966 (Fla. 1st DCA 1983); State v. Cain, 381 So.2d 1361 (Fla. 1980).

We therefore AFFIRM the trial court’s acceptance of Rathbone’s plea of guilty but REVERSE the disposition and REMAND for reconsideration of the sentences. In pronouncing sentence, the trial court shall follow the criteria contained in section 39.-111(6), Florida Statutes (1983).

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


text:
    Bobby Jack CORNELIUS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2155.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.

      Jerry Hill, Public Defender and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Bobby Jack Cornelius appeals from his convictions and sentences for fifteen counts of lewd assault on a child. Count One charged that a lewd assault occurred in November 1979. Counts Two through Fifteen charged one lewd assault for each month from December 1979 through January 1981, inclusive. We affirm in part and reverse in part.

After the state presented its evidence, Cornelius moved for a judgment of acquittal on each count contending that the state failed to prove fifteen lewd assaults. The trial court denied this motion. After the defense rested, the motion for judgment of acquittal was renewed and again denied.

The principal witness for the state, appellant’s daughter, was the victim. She testified that the first lewd assault occurred after her parents were divorced. The victim stated that the assault took place during her second or third visit with her father. In response to a question on cross-examination, the victim agreed that the assaults began in November 1979. She could not remember, however, when or how often the subsequent assaults occurred, or whether an assault occurred more than once. No other evidence exists in the record to substantiate the allegations of the remaining fourteen counts of lewd assault. As the evidence was legally insufficient to support Counts Two through Fifteen, the motion for judgment of acquittal should have been granted on those counts. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

In his other points on appeal, appellant Cornelius has not shown reversible error. We therefore affirm appellant’s conviction and sentence for lewd assault as charged in Count One of the information, and set aside his convictions and sentences for lewd assault as charged in Counts Two through Fifteen of the information.

AFFIRMED in part and REVERSED in part.

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