author: HERSEY, Judge.

text:
    Gilbert L. ROBINSON, Appellant/Cross-Appellee, v. WINN-DIXIE STORES, INC., Appellee/Cross-Appellant.
    No. 82-2083.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Rehearing Denied April 24, 1984.
    Haggard & Kirland, P.A., and R. Stuart Huff of Law Offices of R. Stuart Huff, Coral Gables, for appellant/cross-appellee.
    Vernis, Bowling, Montalto, Goodman & Black, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellee/cross-appel-lant.
   HERSEY, Judge.

The issues which confront us in this appeal arise from post-judgment orders related to new trial and remittitur. In an action for conversion, false imprisonment and malicious prosecution, the jury, by special interrogatory verdict, awarded plaintiff $200,000 as compensatory damages and $750,000 as punitive damages, finding liability as to each of these three causes of action. The trial court entered a final judgment whereupon appellee, Winn-Dixie, filed various post-trial motions. The trial court first entered an order granting a motion for directed verdict as to the punitive damages. The court then entered an order to take effect should the order directing out punitive damages be overturned on appeal, requiring the plaintiff to accept a remitti-tur of $500,000 and, in the alternative, granting a new trial on the issue of punitive damages. Subsequently the court entered an amended final judgment reflecting compensatory damages only. Both parties have appealed.

Appellant Robinson operates a small store in the Bahamas and makes frequent trips to the United States to purchase merchandise and transport it back for resale in his own store. On the evening before the incident which gave rise to this action appellant purchased goods which he stored in the backseat of his automobile. The next morning an employee of Winn Dixie assisted appellant in bringing additional purchases out to his car, observed the contents of the backseat, and concluded that the goods had been shoplifted. After consultation with the assistant .manager of the store the authorities were called, whereupon Robinson was placed under arrest and his person and vehicle were searched. Winn Dixie employees removed merchandise from his car and returned it to the shelves for resale.

Robinson was charged with petty theft, but a nolle prosequi was subsequently entered on that charge. Robinson then filed the within action, claiming damages for aggravation of an existing heart condition and for other direct and consequential damages. Trial resulted in the damage awards appealed.

We first address the issue of recovery of punitive damages against the corporate ap-pellee, Winn-Dixie.

Winn Dixie relies on Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). In that case the Florida Supreme Court prescribed the following principles to be applied in cases involving respondeat superior:

We conclude that the principles of law which should be applied in this and in other similar respondeat superior cases are as follows: (1) An employer is vicariously liable for compensatory damages resulting from the negligent acts of employees committed within the scope of their employment even if the employer is without fault. This is based upon the long-recognized public policy that victims injured by the negligence of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. (2) Punitive damages, however, go beyond the actual damages suffered by an injured party and are imposed only as a punishment of the defendant and as a deterrent to others. (3) Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superi- or, there must be some fault on his part. (4) Although the misconduct of the employee, upon which the vicarious liability of the employer for punitive damages is based, must be willful and wanton, it is not necessary that the fault of the employer, independent of his employee’s conduct, also be willful and wanton. It is sufficient that the plaintiff allege and prove some fault on the part of the employer which foreseeably contributed to the plaintiffs injury to make him vicariously liable for punitive damages.

Id. at 549. In the instant case Winn Dixie attempts to distinguish the acts of the corporation from the acts of its employees in order to argue that “some fault” was not proven.

On the other hand, Robinson argues that vicarious liability was not an issue in the case and that Mercury Motors does not apply where it is alleged and proved that the corporation “itself” committed the tort. Robinson points out that not one word in approximately seven hundred pages of trial transcript implies a distinction between the corporate acts and the acts of its employees. The jury, by special verdict, found that the corporate defendant acted with “malice, moral turpitude, wantonness, willfulness or reckless indifference to the rights of others.” In this respect the case is somewhat analagous to Dorsey v. Honda Motor Co., 670 F.2d 21 (5th Cir.), cert. denied, — U.S. -, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982), in which by pretrial stipulation the corporation accepted the acts of a subsidiary and its employees as its own acts. The court stated: “The case having been tried as laid out in the pretrial order, it is too late for Honda to say post-trial that there was insufficient evidence of its own fault independent of acts of Honda R & D and its employees to support the judgment against it for punitive damages.” Id. at 22. See also Farish v. Bankers Multiple Line Ins. Co., 425 So.2d 12 (Fla. 4th DCA 1983).

Moreover we conclude that, even accepting appellant’s hypothesis, the evidence satisfies the “some fault” requirement of Mercury Motors thereby justifying punitive damages. Winn-Dixie’s own fault is evidenced by its publication and implementation of policies governing the conduct of employees who observe shoplifting. Thus it was error for the trial court to grant the motion directing out punitive damages. Accordingly, we reverse that order.

In the contemplation of the trial court, our reversal of this order would activate the order for remittitur or new trial. It is appropriate “to issue an order for new trial or remittitur when the manifest weight of the evidence shows that the amount of punitive damages assessed is out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct. Either this finding must be affirmatively supported by the record or the judge must find that the jury was influenced by matters outside the record.” Arab Termite and Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039, 1043 (Fla.1982). We first consider the remittitur aspect of the alternative order.

A punitive damages award may be excessive and therefore erroneous “where the amount bears no reasonable relation to the defendant’s ability to pay and results in economic castigation.” Arab Termite, 409 So.2d at 1041. In the present case the parties concede that the corporate defendant is a multimillion dollar corporation so that economic castigation is not a viable issue. The remaining question, then, is whether the remittitur is appropriate in light of the manifest weight of the evidence. We provided the trial court with an opportunity to demonstrate, by record reference, those factors which influenced his decision to order a remittitur. We commend his painstaking effort to comply with that request. Notwithstanding, we are not convinced that the amount of punitive damages assessed by the jury was unreasonable, keeping in mind that “[pjunitive damages ‘are peculiarly left to the discretion of the jury as the degree of punishment to be inflicted must always be dependent on the circumstances of each case, as well as upon the demonstrated degree of malice, wantonness, oppression, or outrage found by the jury from the evidence.’ ” Wackenhut Corp. v. Canty, 359 So.2d 430, 436 (Fla.1978) (emphasis supplied) (quoting Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222 (1936)). We therefore reverse the order on motion for remittitur.

Having found that remittitur was improper, we find that the alternative order granting a new trial also was improper as there were no other grounds justifying a new trial.

Our treatment of the alternative orders in this case should not be construed as an implicit approval of this device. On the contrary, it is not the function of the trial court, however well-intentioned, to second guess the appellate process. He must make his findings based upon the evidence and apply to it the law as he sees it. The ultimate result should be a final judgment which is consistent with what has gone before. On this basis alone we would have and will in the future vacate an order entered under these circumstances. Finding substantial competent evidence to support the jury verdict and the original final judgment, we reverse the two post-judgment orders and the amended final judgment, and remand with instructions to reinstate the original final judgment.

REVERSED AND REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James Perry HOLLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1563.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the judgment but remand for correction of the sentence to reflect the specific period of time for which appellant is to receive credit as having been served. Appellant need not be present for the sentencing.

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


text:
    Leonard A. CONTICELLO, Appellant, v. Gloria CONTICELLO, Appellee.
    No. 83-1633.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Leonard A. Conticello, pro se appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm the final judgment of dissolution in all respects with the exception that we reverse the trial court’s award of attorneys fees to the wife in the amount of $7,500. We remand this cause to the trial court with directions to modify its final judgment to award attorneys fees to the wife in the amount of $4,700.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

HURLEY, DELL and WALDEN; JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Kenneth Lamar GAY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2194.
    District Court of Appeal of Florida, Second District.
    March 28, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Kenneth Lamar Gay appeals the sentences imposed upon him for sale of a controlled substance and possession of a controlled substance with intent to sell, both a violation of section 893.13(l)(a), Florida Statutes (1983).

The state filed two informations, both of which charged appellant with sale of cannabis and possession of cannabis with intent to sell. The record discloses the following factual basis for the charges:

In CF83-1847, on or about the 29th of October, 1982, about 12:15 a.m., the Defendant sold a bag of cannabis for $5 to Investigator Shumate of the Polk County Sheriffs Office; and in CF83-1846, at about 12:45, about a half an hour later, he sold two bags of cannabis for about $12 to Investigator Shumate.

Appellant pled guilty to all the charges. The court withheld adjudication and placed appellant on concurrent terms of three years probation on all four charges.

Appellant contends that the trial court violated the constitutional prohibition against double jeopardy in sentencing him for the charges of possession of cannabis with intent to sell. We agree.

In Bell v. State, 437 So.2d 1057 (Fla.1983), the Florida Supreme Court defined the term “same offense” for purpose of double jeopardy: “In a pure sense of the definition, two offenses are ‘the same’ if they are identical in law and fact. That is, that one statute has been violatéd once. Of course merely labeling statutes does not, and cannot, make offenses distinct when in fact they are identical.” Id. at 1058-59.

In the instant case, each charge of possession of cannabis with intent to sell is based upon the same factual occurrence as the corresponding sale charge. In addition, the offenses are both proscribed by the same statutory provision, section 893.-13(l)(a). Therefore, the separate charges in each information are identical in law and fact and, thus, the same offense for purposes of double jeopardy.

Accordingly, we vacate the two probationary sentences for possession of cannabis with intent to sell, and the cause is remanded for proper sentencing in light of this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

SCHEB and RYDER, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Luther HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-457.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Chief Judge.

The issue on appeal is whether or not a prior conviction for petty theft is a crime by which a witness’ credibility may be impeached under section 90.610(1), Florida Statutes (1981). We hold that it may be so used, and we affirm.

After the State rested in this prosecution for second degree grand theft, defendant made a motion in limine to prevent the State from using the prior petty theft conviction for impeachment purposes, without a prior showing that such conviction involved either “dishonesty or moral turpitude.” The trial court said that “if stealing wasn’t dishonest, he didn’t know what was” and denied the motion in limine. In cross examining the defendant, the prosecutor received an affirmative reply to two questions: a) have you ever been convicted of a felony; and b) have you ever been convicted of a crime involving dishonesty.

The harmless error doctrine has been applied to a similar fact situation, where because of an adverse ruling on a motion in limine, the defendant’s counsel brought out the impeachment testimony himself. See McClellan v. State, 417 So.2d 1098 (Fla. 4th DCA 1982); So too here, it might be said that the error, if any, was harmless because defendant admitted to a prior felony conviction in addition to the questioned misdemeanor conviction. However, because we feel the necessity to rule on the question, we are impelled to the conclusion that the trial court was correct.

The statute permits a witness’ credibility to be attacked by evidence of the prior conviction of any felony or of any crime which involves “dishonesty or false statement,” no matter what the punishment. Without belaboring the issue, we believe that a person who steals is dishonest, and that stealing (or theft) is thus a crime of dishonesty. We are aware of the decisions in Rivers v. State, 423 So.2d 444 (Fla. 4th DCA 1982) and Hall v. Oakley, 409 So.2d 93 (Fla. 1st DCA 1982), but we respectfully disagree with their conclusions. Both cases are predicated on the interpretations of Rule 609 of the Federal Evidence Code by the federal courts which have held that proof of deceitfulness, untruthfulness or falsification must be proved before the offense of petty larceny is relevant to credibility. Because we believe that a thief is involved in a dishonest venture when he steals we do not agree that anything other than conviction of the crime must be proved to demonstrate that the crime involved dishonesty. We thus recognize direct conflict with Rivers and Hall, and we certify to the Supreme Court of Florida the following question which we deem to be of great public importance:

Does the crime of petty theft involve “dishonesty or false statement” as to make it an impeachable offense under section 90.610(1), Florida Statutes, without additional proof that the conviction involved elements of deceitfulness, untruthfulness or falsification?

AFFIRMED.

COBB and SHARP, JJ., concur.

      . Fla.Stat. § 90.610(1) provides in part:
      (1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or if the crime involved dishonesty or false statement regardless of the punishment — ...


author: SHARP, Judge.

text:
    Elsie Leon TOOTLE, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a Florida corporation, Alfred Foster Greene, and Terris Cloud Collins, Respondents.
    No. 83-1492.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.
    Edna L. Caruso, of Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for petitioner.
    Joseph P. Milton, of Howell, Liles, Braddock & Milton, Jacksonville, for respondents.
   SHARP, Judge.

Tootle files a petition for writ of certiora-ri to review an order of the trial court which compelled Dr. Harry Krop, a clinical psychologist who previously examined Tootle, to give his deposition. Because Tootle lacks standing to raise any federal privilege against Krop’s testifying, we deny his petition.

Tootle sued Seaboard after being injured in a train-automobile accident. Seaboard sought to depose Krop, who had examined Tootle for the Social Security Administration. Apparently, the Social Security Administration terminated Tootle’s benefits and is attempting to retrieve some benefits paid. Krop performed a consultative examination of Tootle to assist in determining Tootle’s right to benefits under the disability insurance program. Krop was selected and hired by the Social Security Administration, and he was not a treating physician.

By letter from its attorney, the Office of Disability Termination informed Seaboard that Krop’s findings and report are considered federal property and that Krop is prohibited by federal statutes and regulations from disclosing information contained therein. See 5 U.S.C. § 552(b)(3)(A) (1982); 42 U.S.C. § 1306(a) (1982); 20 C.F.R. 401.1. There are also criminal penalties for those who willfully and knowingly disclose information contrary to these provisions.

Neither the Department nor Krop has filed pleadings or appeared in this proceeding to raise any claim of privilege. The federal courts have different views on whether the privilege would apply here, but in any event, only the person being compelled to testify who enters a protest on his own or through the government, has standing to challenge the compulsion of his testimony. See Stiles v. Atlanta Light Company, 453 F.Supp. 798 (N.D.Ga.1978); Gilley v. Travelers Insurance Company, 298 F.Supp. 47 (S.D.Tenn.1969); In re Mengel, 201 F.Supp. 687 (W.D.Pa.1962); Hubbard v. Southern Railway Company, 179 F.Supp. 244 (M.D.Ga.1959); Texas Employer’s Insurance Association v. Marshall, 436 S.W.2d 617 (Tex.Civ.App.1969). Accordingly, we deny this petition.

PETITION FOR CERTIORARI DENIED.

COBB and COWART, JJ., concur.

      . See, e.g., Schecter v. Weinberger, 506 F.2d 1275 (D.C.Cir.1974); Stiles v. Atlanta Light Co., 453 F.Supp. 798 (N.D.Ga.1978); California v. Richardson, 351 F.Supp. 733 (N.D.Cal.1972); Gilley v. Travelers Ins. Co., 298 F.Supp. 47 (E.D.Tenn.1969); see also Texas Employer's Ins. Ass'n v. Marshall, 436 S.W.2d 617 (Tex.Civ.App.1969).


author: CAMPBELL, Judge.

text:
    AMERICAN CAPITAL CORP., formerly known as Viking General Corp., Appellant/Cross-Appellee, v. Esther FORSHEE, Appellee/Cross-Appellant.
    No. 83-1667.
    District Court of Appeal of Florida, Second District.
    March 30, 1984.

      George O. Kluttz, P.A., Fort Myers, for appellant/cross-appellee.
    Thomas E. Baynes, Jr. of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Lake Wales, for appellee/cross-appel-lant.
   CAMPBELL, Judge.

Appellant, American Capital Corporation (American Capital), formerly known as Viking General Corporation, seeks review of the trial court’s entry of an amended final judgment. We affirm. On cross-appeal, appellee, Esther Forshee, argues that the trial court erred by entering the amended final judgment without an evidentiary hearing to determine the exact amounts to which she was entitled. We agree and remand to the trial court for an evidentiary hearing.

Presented here is a dispute between two of the defendants in a foreclosure suit which has been before the courts for many years. American Capital was the landowner/defendant in the original foreclosure action. Forshee was joined as a defendant because she was the assignee of an interest in a $500,000.00 note given by American Capital. Exchange National Bank of Winter Haven (Exchange Bank) was an assign-ee of the same note and was also joined as a defendant. Forshee’s interest was secondary to the interest held by Exchange Bank.

The original judgment was entered in 1976. Two appeals followed. Subsequently, Forshee filed a motion to enter an amended final judgment seeking to have the trial court particularize her rights as adjudicated under the 1976 judgment. In 1983, an amended final judgment and a second amended final judgment were entered. We believe the amendments, as they now stand, merely clarify the vague provisions of the 1976 judgment as required by later events. We find there has been no material alteration of the original final judgment.

American Capital claims that the trial court did not have jurisdiction to amend the final judgment under paragraph five of the 1976 judgment. Paragraph five provides:

5. Defendant EXCHANGE NATIONAL BANK OF WINTER HAVEN and ESTHER FORSHEE, as her interest may appear, (hereinafter referred to as EXCHANGE BANK,) [sic] is due from VIKING GENERAL CORP. $394,400.00 dollars as principal, $82,968.70 dollars as interest to date of this Judgment, $25,-000.00 dollars for attorneys fees, $1,814.67 dollars for court costs now taxed under the note and mortgage in this action, making a total sum of $504,-183.37 dollars. If the EXCHANGE NATIONAL BANK OF WINTER HAVEN receives the amount ($504,183.37), then the bank is ordered to pay into the registry of the Court any surplus over the amount to which they are entitled. The Court retains jurisdiction over said funds and the parties hereto to determine the parties[’] respective rights thereto. (Emphasis supplied.)

Exchange Bank received less than $504,-183.37 from American Capital. Therefore, no surplus funds were paid into the court registry. Appellant claims that because there were no surplus funds, the condition for retained jurisdiction was not met.

However, we find that the 1976 judgment contained more than one reservation of jurisdiction. Paragraph twenty-three of the final judgment states:

The Court retains jurisdiction of this cause in its entirety to enter such further Orders as are proper.

This clause alone reserved jurisdiction for the trial court to enter an amended final judgment. Therefore, as to American Capital’s first point, we affirm.

We find no merit in American Capital’s second argument on appeal.

On cross-appeal, Forshee claims the trial court erred by failing to hold an evidentia-ry hearing to particularize her rights under paragraph five of the 1976 judgment prior to amending the final judgment. We agree.

Paragraph five awarded $394,000.00 in principal, $25,000.00 in attorney’s fees, plus certain other sums to Exchange Bank “and Esther Forshee, as her interest may appear.” We find that paragraph five is unclear because it does not specify how much of the award each of the named parties is entitled to receive.

The amended final judgment provides that Forshee “is entitled to all sums not previously claimed or paid” to Exchange Bank. Exchange Bank settled its claim against American Capital for $256,-000.00 in principal, $25,000.00 in attorney’s fees, plus other costs. No other payments appear to have been made to Exchange Bank or Forshee. We direct the trial court to determine how much of the funds were properly paid to Exchange Bank and, according to her proof, how much, if any, of the remainder of the funds enumerated in paragraph five Forshee is entitled to receive.

Forshee also claims on cross-appeal that the second amended final judgment eliminated her right to post-judgment interest, attorney’s fees and costs. We disagree with Forshee’s argument. We find that in the second amended final judgment, the trial court stated that it had not considered or determined Forshee’s rights to post-judgment interest, attorney’s fees and costs. On remand, the trial court may consider and award post-judgment interest, attorney’s fees and costs from the date of the 1976 judgment insofar as Forshee shows they are justifiable. Forshee is not entitled to prejudgment interest, attorney’s fees and costs, except for the portion of those payments set out in paragraph five to which she might be entitled.

Finally, at oral argument, the parties agreed that the second amended final judgment contained a typographical error; the award of attorney’s fees in paragraph two should read: $25,000.00, not $35,000.00. The trial court should correct this error on remand.

Affirmed on appeal. Reversed in part and affirmed in part on cross-appeal, and remanded with directions.

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


author: HENDRY, Judge.

text:
    Barbara Ann VUKOVICH, Appellant, v. James LEO, Michele Leo, and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 83-1898.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.

      Kaplan & Hodin and Alan J. Hodin, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley and Robert Bouchard, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant Barbara Vukovich appeals from an adverse final summary judgment entered in favor of appellees upon a finding that appellant was the sole proximate cause of the automobile accident which is the basis of the instant action. We affirm.

The accident occurred at the intersection of N.E. 163 Street and N.E. 4th Avenue. Appellant testified that she stopped at the stop sign on N.E. 4th Avenue, observed no oncoming traffic, and proceeded to cross the intersection. As she did so, she struck the rear panel of appellees’ automobile, which had the right of way through the intersection. The accident occurred on a clear afternoon with dry roads. Appellees’ accident reconstructionist, Dr. Charles Ku-rucz, testified that based on the physical evidence, appellees’ vehicle was traveling between 26 and 37 miles per hour and that appellant was traveling between 10 and 25 miles per hour.

Summary judgment should be exercised with special caution in negligence actions. Holl v. Talcott, 191 So.2d 40, 46 (Fla.1966); Smith v. Smith, 413 So.2d 73 (Fla. 1st DCA 1982). Issues of negligence and probable cause are ordinarily questions for the jury if reasonable men can arrive at different conclusions, but these issues can become questions of law if the facts point to but one possible conclusion. Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA), rev. denied, 407 So.2d 1102 (Fla.1981); Seaboard Coast Line Railroad Co. v. Griffis, 381 So.2d 1063 (Fla. 1st DCA 1979). After careful consideration of the record on appeal, briefs filed, and oral arguments, we conclude that appellees met their burden of proving that under the facts of this case, appellant cannot prevail. Florida East Coast Railway Co. v. Metropolitan Dade County, 438 So.2d 978 (Fla. 3d DCA 1983); Citizens Bank of Perry v. Harlie Lynch Construction Co., Inc., 426 So.2d 52 (Fla. 1st DCA 1983); Burkett v. Parker, 410 So.2d 947 (Fla. 1st DCA 1982).

Affirmed.


text:
    Mauricio AMELLER, a minor, By and Through Jorge AMELLER and Maria De Los Angeles Ameller, his parents, and Jorge Ameller and Maria De Los Angeles Ameller, individually, Appellants, v. CITY OF MIAMI, a Municipal corporation of the State of Florida, Appellee.
    No. 83-1966.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Gaston R. Alvarez and Roberto F. Flei-tas, Jr., Miami, for appellants.
    Lanza, Sevier, Womack & O’Connor and Hector J. Lombana, Coral Gables, for ap-pellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This case presents the same question as that addressed in Alegre v. Shurkey, 396 So.2d 247 (Fla. 1st DCA 1981), namely, whether a complaint alleging that the defendant placed monkey bars in its public park over a hard-packed ground surface, states a cause of action for negligence. In Alegre, a majority of the court held that no cause of action was stated; here, a majority of this court, agreeing with the dissenting opinion of Judge Ervin in Alegre, 396 So.2d at 248, holds otherwise.

Accordingly, the order dismissing the appellant’s complaint is reversed and the cause remanded for further proceedings.

Reversed and remanded.

HENDRY, J., dissents

      . There is no contention that there were rocks under the apparatus, and we are thus unable to distinguish Alegre as we did in Atlantic Christian Schools, Inc. v. Salinas, 422 So.2d 362 (Fla.3d DCA 1982).


author: SCHWARTZ, Chief Judge.

text:
    Jo Ann ECHEVARRIA, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 83-1734.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.

      Magill, Reid & Lewis and R. Fred Lewis; Genden & Bach, Miami, for appellant.
    Barnett & Clark and Frank Allocca, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

We adhere to the holding of Johnson v. Prudential Property & Casualty Ins. Co., 365 So.2d 441 (Fla. 3d DCA 1978) that the exclusion of a non-owner of a vehicle from the personal injury protection coverage of the owner’s carrier which arises under Sec. 627.736(4)(d)4 b., Fla.Stat. (1981) when she is “entitled to personal injury benefits from the insurer of the owner ... of ... another] motor vehicle” is not affected by the fact that the latter policy is subject to a deductible as provided by Sec. 627.739. Farley v. Gateway Ins. Co., 302 So.2d 177 (Fla. 2d DCA 1974), Protective Nat’l Ins. Co. of Omaha v. Bergouignan, 335 So.2d 871 (Fla.3d DCA 1976), and Security Ins. Co. v. Howgate, 343 So.2d 641 (Fla.3d DCA 1977), upon which the claimant relies, are entirely distinguishable since, unlike the present situation, no valid Florida policy covered the claimant and neither of the statutory exclusions applied. Any claim of the appellant concerning the impropriety of the deductible itself is properly directed against her own p.i.p. carrier under Industrial Fire & Casualty Co. v. Kwechin, 447 So.2d 1337 (Fla.1983) rather than the present insurer.

Affirmed.

      . § 627.736(4)(d). The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
      4. Accidental bodily injury sustained in this state by any other person while occupying the owner's motor vehicle or, if a resident of this state, while not an occupant of a self-propelled vehicle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself:
      a. The owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405; or
      b. Entitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.

      . And its possible implications. See also, Lumbermens Mutual Casualty Co. v. Herrera, 439 So.2d 301 (Fla. 3d DCA 1983).


text:
    The STATE of Florida, Appellant, v. Celestino GONZALEZ, Appellee.
    No. 83-1631.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.

      Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellant.
    Kogen & Kogen and Loren H. Cohen, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

This is an appeal by the state from an order of the Circuit Court for Dade County suppressing all evidence obtained as the fruits of several searches and seizures and an interrogation in connection with the arrest of appellee for trafficking in illegal drugs.

The searches and seizures were made by officers of the City of Miami Police Department at the Westchester'Shopping Center which is located outside of the City of Miami.

After an extensive evidentiary hearing the trial court entered the order under review. It is the state’s contention that the suppression order was erroneous and should be reversed. We cannot agree, and affirm.

The order of suppression was unusually long and contained detailed findings of fact. The order stated, inter alia, that all of the evidence obtained by the searches and seizures and by interrogation in connection with appellee’s arrest should be suppressed because there was no connection between the subject matter of the investigation and the City of Miami, and all of the activity occurred outside of the City of Miami; that the investigation was strictly supervised and conducted by the City of Miami Police Department; that the Miami police officers had no jurisdiction to act as police officers outside of the City of Miami; that the appellee did not receive his Miranda warnings; and that all of the witnesses presented during the suppression hearing were police officers whose memories were tainted by selective recall. The court further stated in the order that he had paid careful attention to the demeanor of each witness and to the contradictions in their testimony.

In reviewing the ruling of a trial judge on a motion to suppress, the trial court’s findings of fact and conclusions of law come to this court with a presumption of correctness and, in testing the accuracy of the trial judge’s conclusions we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain these conclusions. Shapiro v. State, 390 So.2d 344, 346 (Fla.1980), cert. denied, 450 U.S. 982, 101 S.Ct. 1519, 67 L.Ed.2d 818 (1981); State v. Parker, 399 So.2d 24, 27 n. 2 (Fla. 3d DCA), pet. for rev. denied, 408 So.2d 1095 (Fla.1981); Wigfall v. State, 323 So.2d 587, 589 (Fla. 3d DCA 1975).

Our review of the record convinces us that the trial judge had an evidentiary-basis for his findings and conclusions on the motion to suppress. Accordingly, the order under review is affirmed.

Affirmed.


author: BASKIN, Judge. SCHWARTZ, Chief Judge

text:
    KLOSTERS REDERI A/S d/b/a Norwegian Caribbean Lines, a foreign corporation, Appellant, v. Jeanne M. COWDEN and Charles G. Cowden, Appellees.
    No. 83-1358.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.

      Fowler, White, Burnett, Hurley, Baniek & Strickroot and William C. Norwood, Miami, for appellant.
    Maguire & Friend and Michael P. Ma-guire, Coral Gables, for appellees.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Jeanne Cowden, while a passenger on the Norway, was the victim of an intentional tort committed by one of appellant’s employees. She sued the owner, Klosters Re-deri A/S d/b/a Norwegian Caribbean Lines. A jury awarded compensatory damages of $75,000 and punitive damages of $50,000. In this appeal, Norwegian Caribbean Lines contends that the trial court erred in instructing the jury on the issue of punitive damages under Florida law rather than in accordance with maritime law. Norwegian Caribbean Lines does not challenge the finding of liability or the award of compensatory damages.

In a cross-appeal, Mrs. Cowden’s husband contends that the unrebutted testimony entitled him to recover for loss of consortium and that the trial court should have granted him a new trial when the jury failed to return a verdict in his favor. We agree on both points and remand for a new trial applying maritime law to questions pertaining to punitive damages and to the husband’s claim for loss of consortium.

Torts committed within maritime jurisdiction fall within the purview of maritime law which must be applied even though the action is filed in a state court. Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Florida law differs from maritime law on the burden of proof necessary to establish punitive damages. Compare Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981) with United States Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir.), cert. denied, 398 U.S. 958, 90 S.Ct. 2162, 2163, 26 L.Ed.2d 542 (1969).

Unfortunately, the parties failed to advise the court that maritime law applied until the trial was well under way. It was not until just before closing argument when appellant moved for a directed verdict on the issue of punitive damages that the trial court learned that maritime law applied. Thus, in the Order on Defendant’s Motion for Judgment Notwithstanding the Verdict the trial court specified that Norwegian’s failure to plead or direct any motions to the issue in a timely fashion precluded the application of maritime law. Despite appellant’s failure to plead the appropriate law initially, we believe that once the request to apply maritime law was presented, it was incumbent upon the trial court to proceed under maritime law. See Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922).

With regard to the cross-appeal, we agree with Mr. Cowden that he is entitled to a new trial, under maritime law, on his claim for loss of consortium.

Reversed in part and remanded for a new trial as to punitive damages and claim for loss of consortium.

SCHWARTZ, Chief Judge

(specially concurring).

I think it should be made clear that the evidence did not entitle the plaintiff to punitive damages under maritime law, which the court properly holds is applicable to this case. E.g., United States Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir.1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2162, 26 L.Ed.2d 542 (1970) (punitive damages available only when employer participates in, authorizes, or ratifies seaman’s wrongful act). In Re: Marine Sulphur Queen, 460 F.2d 89 (2d Cir.1972), cert. denied, 409 U.S. 982, 93 S.Ct. 326, 34 L.Ed.2d 246 (1972) (same). Ordinarily, therefore, we would simply strike the punitive damages award from the judgment below. I agree with the majority that remand is instead in order in this instance only because the defendant did not dispute the fact that Florida law controlled until both sides had rested at the trial. Since the plaintiff may well have been misled by this mutual misunderstanding into a failure to develop by investigation and discovery anything more than was required to meet the standard of Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981) — which was in fact satisfied — she should now be given that opportunity. If she is able, however, to establish nothing beyond what appears in the present record, a summary judgment or directed verdict for the defendant on the punitive damages issue will be required.

FERGUSON, J., concurs in the opinions of both SCHWARTZ, C.J. and BASKIN, J.


text:
    Sharyn ZIMMERMAN, Appellant, v. Jeffrey ZIMMERMAN and Nationwide Mutual Insurance Company, Appellees.
    No. 83-2122.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Tobin, Bayer & Jacobson and Theodore Bayer, Miami, for appellant.
    Richard M. Gale, Weinstein & Bavly, Miami, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

In accordance with Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980), which we think remains viable, see Burgess v. Burgess, 447 So.2d 220 (Fla.1984); Hill v. Hill, 415 So.2d 20 (Fla.1982), and which is therefore binding, Hoffman v. Jones, 280 So.2d 431 (Fla.1973), we hold, affirming the trial court, that interspousal immunity bars the maintenance of an automobile negligence case notwithstanding that the defendant spouse is covered by liability insurance.

Although we thus do not follow the contrary language in Tubbs v. Dressier, 419 So.2d 1151 (Fla. 5th DCA 1982), affirmed on other grounds, 435 So.2d 792 (Fla.1983), we do agree that the issue is appropriate for reconsideration by the Supreme Court in the light of Ard v. Ard, 414 So.2d 1066 (Fla.1982), in which the court held that parental immunity was inapplicable when insurance was available. Consequently, as in Tubbs, we certify to the Supreme Court of Florida that this decision passes upon the following question of great public importance:

Is the doctrine of interspousal immunity, like the doctrine of parental immunity, waived to the extent of available liability insurance, when the action is for a negligent tort?

Affirmed, question certified.


text:
    David Lee HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-758.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Bennett H. Brummer, Public Defender, Gitlitz, Keegan & Dittmar, Miami, and James D. Keegan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

We reverse the appellant’s second degree murder conviction for a new trial because of the prosecutor’s totally irrelevant and highly prejudicial cross-examination of the defendant and his girlfriend-witness to the effect that he was a procurer and she, his prostitute. Bennett v. State, 316 So.2d 41 (Fla.1975); Harris v. State, 427 So.2d 234 (Fla. 3d DCA 1983); Malcolm v. State, 415 So.2d 891 (Fla. 3d DCA 1982); Glantz v. State, 343 So.2d 88 (Fla. 3d DCA 1977). In the light of the relative closeness of the self-defense claim asserted by the defendant, we cannot find that this clear error was harmless. Wright v. State, 446 So.2d 208 (Fla. 3d DCA 1984), and cases cited; compare State v. Murray, 443 So.2d 955 (Fla.1984).

Reversed.

      . In addition, the state attorney did not proffer evidence sufficient even to show that there was any truth to these allegations. See Smith v. State, 414 So.2d 7 (Fla. 3d DCA 1982), and cases cited.


text:
    Lazaro MACIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-447.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.

      Bennett H. Brummer, Public Defender and May L. Cain, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The action of the prosecutor in questioning whether the murder victim had ever seen his posthumously born child was an extremely improper appeal to the sympathy of the jury. Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983); Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982); Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982). In contrast to Edwards, Gomez and Harper, however, the trial court here sustained an objection to the question and instructed the jury to disregard it. See Tacoronte v. State, 419 So.2d 789 (Fla. 3d DCA 1982). More important, considering the overwhelming evidence against the defendant, we must conclude that any error was harmless. State v. Murray, 443 So.2d 955 (Fla.1984); Hall v. State, 444 So.2d 1019 (Fla. 3d DCA 1984).

We find no merit in the other points presented. Rodriguez v. State, 413 So.2d 1303 (Fla. 3d DCA 1982); Costales v. State, 438 So.2d 981 (Fla. 3d DCA 1983); Cundiff v. United States, 501 F.2d 188 (8th Cir.1974).

Affirmed.


text:
    Anthony BATTAGLIA, the Compare Corporation, and Comair Properties, Inc., Appellants, v. Louise I. BATTAGLIA, Appellee.
    No. 84-352.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    David A. Freedman, Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack, Miami, for appellants.
    Daniels & Hicks and Sam Daniels, Bar-ranco & Kellough, Miami, for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Andrew NICKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1092.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.

      Bennett H. Brummer, Public Defender, and Harold T. Fields, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied mem,., 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Garrard v. State, 335 So.2d 603 (Fla. 3d DCA 1976), cert. denied mem., 342 So.2d 1101 (Fla.1977); Fernandez v. State, 328 So.2d 508 (Fla. 3d DCA), cert. denied mem., 341 So.2d 1081 (Fla.1976).


text:
    Ferris E. TRAYLOR and Irene V. Traylor, Appellants, v. Richard Andrew YOUNG, Appellee.
    No. 83-254.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Smith & Mandler and Steven L. Schwartzberg, Miami Beach, for appellants.
    Howard, Brawner & Lovett and Frank Howard, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1109 (Fla.1980); State of Florida, Department of National Resources v. Gables-By-The-Sea, Inc., 374 So.2d 582 (Fla. 3d DCA 1979), and cases cited.


text:
    Nina Golkin CASSUTO, Appellant, v. Salomone CASSUTO, Appellee.
    No. 83-1038.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Edward C. Vining, Jr., Miami, for appellant.
    Buchbinder & Elegant and Steven A. Col-sky, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Horn v. Horn, 398 So.2d 935 (Fla. 3d DCA 1981).


text:
    FIREMAN’S FUND INSURANCE COMPANIES, Appellant, v. Ada ROJAS, Appellee.
    No. 83-2310.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Kathleen M. Williams and Michael Murphy, Miami, for appellant.
    Carlos B. Fernandez, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

After our reversal and remand in Fireman’s Fund Ins. Co. v. Rojas, 409 So.2d 1166 (Fla.3d DCA 1982), the plaintiff took a voluntary dismissal and the trial court thereupon awarded attorney’s fees to the defendant under Section 57.105, Florida Statutes (1981). The order is reversed because the record does not demonstrate, as the statute requires, that “there was a complete absence of a justiciable issue of law or fact raised by the losing party.” [e.s.] See Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501 (Fla.1982). The prior appellate proceeding alone mandates the determination that the plaintiff’s position was not an entirely frivolous one. Hernandez v. Leiva, 391 So.2d 292 (Fla.3d DCA 1980).

Reversed.


text:
    Richard CARRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2226.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Bennett H. Brummer, Public Defender, and Gelber, Glass, Durant, Canal & Grande and N. Joseph Durant, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Bell v. State, 437 So.2d 1057 (Fla.1983); McCamphell v. State, 421 So.2d 1072 (Fla.1982).


text:
    Theodore FISCHER and Neil Braverman, Appellants, v. Edward W. EASTON, Carter W. Hopkins, Kenneth D. Rosen and Wood Associates, a Florida General Partnership d/b/a Kings Bay Yacht and Country Club, Appellees.
    No. 83-2075.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Bercuson, Cahan, Weksler & Lasky and Steven D. Kaufman and David Bercuson, Coconut Grove, for appellants.
    Rosenberg, Reisman & Glass and Steve Reisman, Miami, for appellees.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Hartman Services, Inc. v. Southeast First National Bank of Miami, 399 So.2d 404 (Fla. 3d DCA 1981); Shafer & Miller v. Miami Heart Institute, Inc., 237 So.2d 310 (Fla. 3d DCA 1970).


text:
    The STATE of Florida, Appellant, v. Walter WILLIAMS, Appellee.
    No. 83-1412.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The appellee, through counsel, concedes that the trial court erred in granting the defendant’s sworn motion to dismiss the information charging him with second degree grand theft. See State v. Pena-Salazar, 405 So.2d 254 (Fla. 3d DCA 1981); Quarterman v. State, 401 So.2d 1159 (Fla. 3d DCA 1981).

Following the confession of error the ap-pellee, through counsel, certified a conflict and moved to withdraw. This court took under advisement the motion to withdraw and granted the appellee an additional thirty days in which to file a supplemental brief, either personally or through counsel. No brief has been forthcoming.

We deny appellee’s motion to withdraw, reverse the trial court’s order dismissing the information charging Williams with second degree grand theft, and remand to the trial court for further proceedings.

Reversed and remanded for further proceedings.


text:
    Mitchell KEITZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-1932.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.

      Claude H. Tison, Jr., of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen and Max Rudmann, Asst. Attys. Gen., West Palm Beach, for appel-lee.
   PER CURIAM.

Appellant was convicted of second degree murder and sentenced to a 99 year term. Appellant contends that the evidence adduced below was not sufficient to support the judgment of conviction. In Rose v. State, 425 So.2d 521, 523 (Fla.1983), the supreme court stated:

Whether, as defendant asserts, the evidence failed to exclude all reasonable hypotheses of innocence is for the jury to determine, and we will not reverse a judgment based upon a verdict returned by a jury where there is substantial, competent evidence to support the jury verdict. Welty v. State, 402 So.2d 1159 (Fla.1981); Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981).

In our view there was substantial, competent evidence from which the jury could reasonably exclude all reasonable hypotheses of innocence and return the verdict below. Cf. Peavy v. State, 442 So.2d 200 (Fla.1983) (jury could reasonably have believed circumstantial evidence presented by the state rather than defendant’s testimony)-

We have carefully considered appellant’s other points on appeal and similarly hold that no reversible error is demonstrated.

AFFIRMED.

DOWNEY, LETTS and HERSEY, JJ., concur.


text:
    Craig SCHILLER, Appellant, v. STATE of Florida, Appellee.
    No. 82-2535.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Douglas N. Duncan of Foley, Colton & Duncan, P.A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Hayes, 446 So.2d 1185 (Fla. 4th DCA 1984). Pursuant to the Supreme Court’s recommendation in Jollie v. State, 405 So.2d 418, 420 (Fla.1981), the mandate in this case will be withheld pending final disposition of the petition for review, if any, filed in State v. Hayes, supra.

HURLEY, DELL and WALDEN, JJ., concur.


author: DOWNEY, Judge.

text:
    Donna Jean McCLAY, Appellant, v. Michael Arnold McCLAY, Appellee.
    No. 82-2590.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Edna L. Caruso of Edna L, Caruso, P.A., West Palm Beach, for appellant.
    No appearance for appellee.
   DOWNEY, Judge.

The wife seeks reversal of a final judgment of dissolution.

This ten year marriage produced five children, ages two to nine. The home was jointly owned and the wife was given actual custody of the children under a shared responsibility arrangement. The husband has income of over $3,000 per month while the wife earns about $100 per week from babysitting additional children along with her own. The wife held a teacher’s certificate but has not used it since beginning her family, which has taken her full time during the marriage.

The final judgment awarded the wife child support of $300 per month per child, required the husband to pay numerous outstanding bills, awarded her one half of her attorney’s fees, and no alimony. The wife contends she should have been awarded the husband’s interest in the marital home as lump sum alimony as well as permanent periodic alimony and all of her attorney’s fees. In addition, she argues that the provision of the judgment which terminated her exclusive possession of the marital home “if an adult male takes up residence therein,” is erroneous.

Our study of the record and appellant’s brief (appellee did not favor us with a brief) convinces us that the appellant’s contentions are correct.

We appreciate that under the husband’s present financial burden, what with large child support and debt payments, he may not be in a position to pay any significant alimony; however, those things will pass and eventually he will have the ability to do so and meet her needs. Therefore, we believe the court should have made some small award of permanent alimony to preserve her future right to such assistance, see Munger v. Munger, 249 So.2d 772, 773 (Fla. 4th DCA 1971), or at least have reserved jurisdiction to do so at a later day, see Moore v. Moore, 401 So.2d 841 (Fla. 5th DCA 1981).

Furthermore, in view of the disparity between the incomes of the parties the husband should have been required to pay appellant’s reasonable counsel fees.

Finally, we reverse the prohibition on adult males living in the marital residence during the wife’s exclusive possession thereof. Such a provision would preclude one of their sons living there after he passes his eighteenth birthday. Like the Second District Court of Appeal in Tyler v. Tyler, 427 So.2d 1027 (Fla. 2d DCA 1983), we believe the better way to handle this situation is by way of future modification. Should a situation arise whereby the husband feels that either the welfare of his children or his rights are being harmed by a male resident, he can seek modification of the possessory rights of the wife. This holding does not conflict with our decision in Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976), because there the husband’s counsel had stipulated in the trial court to such a provision.

Accordingly, the judgment appealed from is reversed in part and the cause is remanded for further proceedings consistent with this opinion.

REVERSED IN PART AND REMANDED, with directions,

LETTS and DELL, JJ., concur.


author: BERANEK, Judge. LETTS, Judge,

text:
    In re the ESTATE OF Frank J. HANNON, Deceased.
    No. 83-198.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.

      James J. Linus of Scott, Dickenson & Linus, Boca Raton, and Edna L. Caruso, West Palm Beach, for appellants, residual beneficiaries.
    P.J. Brannen, Jr., Boca Raton, for appel-lee, Boca Raton Community Hosp., Inc.
    David P. Wood, Jr., and Bryon B. Mathews, Jr., Miami, for appellee, St. Joan of Arc Catholic Church.
   BERANEK, Judge.

The personal representative of the estate of Frank J. Hannon filed a petition for construction of the fifth article of his last will and testament. The fifth article provided:

In the event my said wife survives me, then upon her' death, (or if she shall predecease me, then upon my death), I give, devise and bequeath ... 1,000 shares of Murray Ohio common stock, computed on the basis of present value, to Boca Raton Community Hospital to be used as the directors or trustees of said organization shall deem appropriate. (Emphasis supplied.)

The testator held in excess of 60,000 shares of Murray Ohio stock at the time the will was executed on February 16, 1968. Between the execution of the will and the testator’s death on November 30, 1971, the stock split twice, once in a two-for-one split and once in a three-for-two split. Subsequent to the death of the testator, three stock dividends were declared, two being 4% stock dividends in 1972 and 1973 and one being a 50% stock dividend in 1977. As a result of the stock splits and stock dividends, the original 1,000 shares each of Murray Ohio stock bequeathed in the fifth article now represent 4867.2 shares of stock.

The personal representative alleged that it had allocated 1,000 shares to each of the named charitable beneficiaries on the federal estate tax return, rejecting an interpretation of the will which would include stock splits or stock dividends after the execution of the will. The personal representative interpreted “present value” as indicating an intention to devise a fixed value as known to the testator when he executed the will.

At trial, the hospital and church took the position that they were entitled to 1,000 shares each, plus stock splits and stock dividends. The residual beneficiaries took the position that the church and hospital were to be distributed 1,000 shares, without stock splits or stock dividends. The trial court entered a final judgment finding that the testator had intended the hospital and church to be beneficiaries of 1,000 shares of stock each, plus all stock splits and stock dividends occurring from the date of his will to the date of the death of his wife which was the date the bequest vested. The court found that each of the charities was entitled to 4,876.2 shares, or its value of $95,573.52. The residual beneficiaries appeal contending that the trial court erred in finding that the church and hospital were entitled to the stock splits and stock dividends. We agree and reverse.

The only witness at the hearing was Leo Fox, the attorney who prepared the will. Fox testified that the language “1,000 shares computed on the basis of present value” was placed in the will in order to clearly indicate that the testator wished to bequeath 1,000 shares of stock to each beneficiary at the stock’s value ($35.00 per share) on the date the will was executed, thus giving each charity $35,000. The trial court totally ignored this testimony although it was uncontradicted and the only testimony heard. The trial court cannot arbitrarily ignore unrebutted testimony. See Ackerly Communications, Inc. v. City of West Palm Beach, 427 So.2d 245 (Fla. 4th DCA 1983), and Laragione v. Hagan, 195 So.2d 246 (Fla. 2d DCA 1967). The court erred in this regard. The matter is thus remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

HERSEY, J., concurs.

LETTS, J., concurs specially.

LETTS, Judge,

specially concurring:

I concur in the majority opinion but lest the opinion be later cited for something more than it stands for, I find it worthy of note that another ground for reversal would be that this was a general bequest.

      . A similar additional provision provided for 1,000 shares to a specifically named church.

      . All parties agree that this is a clerical error and the correct amount is 4867.2 shares.


text:
    Andres ALONSO, Appellant, v. STATE of Florida, Appellee.
    No. 83-435.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Andres Alonso appeals his conviction for extortion. He contends that the trial court gave an incorrect instruction on “malice” and that the intention to extort money was not proved. The latter point is totally lacking in merit. The former issue, while more persuasive, is also lacking in merit.

Appellant was charged under Section 836.05, Florida Statutes (1981), which requires a showing of a threat made maliciously and accompanied by a demand for money or other pecuniary advantage. At trial it was argued by appellant that an instruction to the jury on malice should be based upon the standard jury instruction defining the crime of shooting or throwing missiles into a dwelling. That instruction includes the requirement that the state show the defendant acted “with the knowledge that injury or damage will or may be caused to another person or the property of another person.” Such an instruction would have been inappropriate here because of its potential for confusing the jury. The extortionist must intend to damage the victim by coercing him to take some action, such as the payment of money, against his will. There is no requirement, however, that the extortionist intend (or even have the ability) to carry out his threat. Suppose the extortionist at one time possessed photographs showing a public figure in a compromising situation. He writes a letter threatening exposure unless an amount of money is paid. The photographs are lost in a fire. The injury actually caused the victim by the extortionist is the extraction of an amount of money. It is no longer possible for him to injure or damage the reputation of the victim by publishing the photographs. Under the requested instruction the jury might be led to suppose that since the threat was impossible of fulfillment there could realistically be no malicious intent to injure or damage the victim. That would be an appropriate exercise of reasoning under the instruction requested. It is an inappropriate interpretation of the law. Thus the proffered instruction was properly rejected by the trial court.

Further, the extortionist need not hate his victim. That kind of malice is not contemplated by the crime of extortion. The basic statutory ingredients are a threat made maliciously with the intent to require another to perform an act against his will. The malice requirement is satisfied if the threat is made “willfully and purposely to the prejudice and injury of another, .... ” Black’s Law Dictionary, 4th Ed.

The extortion statute prohibits only those utterances or communications which constitute malicious threats to do injury to another’s person, reputation, or property. Furthermore, the threats must be made with the intent to extort money or the intent to compel another to act or refrain from acting against his will.

Carricarte v. State, 384 So.2d 1261 (Fla.1980). A threat is malicious if it is made intentionally and without any lawful justification. Coupled with the requisite intent it constitutes the crime of extortion. The trial court’s instructions conveyed these requirements to the jury' in appropriate instructions.

Finding no error, we affirm.

AFFIRMED.

ANSTEAD, C.J., and LETTS, J., concur.


author: ANSTEAD, Chief Judge.

text:
    In re FORFEITURE OF: ONE 1978 CHEVROLET CORVETTE V.I.N. 1Z87L85401439.
    No. 83-985.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Thomas A. Thomas, Jr., of Thomas & Thomas, Hollywood, and Walter Kyle, Fort Lauderdale, for appellant-James Hall.
    Bruce W. Jolly of Shailer, Purdy & Jolly, Fort Lauderdale, for appellee-Broward County Sheriff’s Dept.
   ANSTEAD, Chief Judge.

On April 29, 1982, James Hall was arrested, and his Corvette seized. While he was in jail awaiting trial, forfeiture proceedings were undertaken. Notice of these proceedings was sent to Hall’s home address, and notice was also published in a local newspaper. The notice addressed to Hall was returned unclaimed. After Hall failed to appear at the forfeiture hearing, the trial court ordered the car forfeited to Broward County. Hall’s motion to set aside this order was denied. We reverse the order of forfeiture on the basis of Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972).

In Robinson, the State of Illinois instituted forfeiture proceedings against property owned by Robinson, who was awaiting trial in a Cook County jail. The state mailed notice of the proceedings to Robinson’s home, not the jail. The United States Supreme Court held that such procedures deprived Robinson of his due process right to notice:

In the instant case, the State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was “reasonably calculated” to apprise appellant of the pendency of the forfeiture proceedings.

Id.., 409 U.S. at 39, 93 S.Ct. at 31-32, 34 L.Ed.2d at 49 (footnote omitted).

Therefore, we reverse and remand for proceedings not inconsistent with this opinion.

LETTS and GLICKSTEIN, JJ., concur.


author: LETTS, Judge.

text:
    U.S. FIRE INSURANCE COMPANY, f/u/b/o Mondo Terra Development Corporation, Appellant, v. TED SATTER ENTERPRISES, INC., Appellee.
    No. 83-1519.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Leslie King O’Neal of Markel, McDo-nough & O’Neal, Orlando, for appellant.
    James C. Barry of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for appellee.
   LETTS, Judge.

This cause emanates from an insurance company’s unsuccessful attempt to set aside a default judgment entered against its insured after the insurance company’s refusal to defend. We reverse.

The successful judgment creditor maintains that the insurance company has no standing to intervene nearly one year after judgment and so convinced the trial judge. The intervention is sought because the same judgment creditor is now suing the Insurance Company for bad faith refusal to defend.

The trial judge in effect adopted an es-toppel argument and stated that since the insurance company had refused to defend the original claim it had no standing and she would not permit an attempt to set aside the default. Based on the facts of this case, we disagree.

The insurance company’s argument that it had standing was predicated on lack of valid service on the insured. Assuming that might be true (and the merits of that argument have not yet been passed on), we are in agreement that the insurance company would have standing and is not estopped to intervene.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

GLICKSTEIN and WALDEN, JJ., concur.

      . The insured is out of business.


text:
    Gerald DOYLE and Marie Doyle, Appellants, v. The PILLSBURY COMPANY, a foreign corporation, Green Giant Company, a foreign corporation, and Publix Super Market, Inc., a Florida corporation, Appellees.
    No. 83-1199.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Robert M. Kahn and Jeffrey D. Mickel-son of Kahn & Gutter, Fort Lauderdale, for appellants.
    Edmund T. Henry, III, and Dorian S. Denburg of Shutts & Bowen, Miami, for appellees.
   PER CURIAM.

We affirm the final summary judgment in favor of appellees Green Giant Company and Publix Super Market, Inc. on the authority of Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). However, since two other districts have considered the question presented as a matter of great public importance, Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982); Cadillac Motor Car Division, General Motors Corp. v. Brown, 428 So.2d 301 (Fla. 3d DCA 1983); Campos v. Demetree, 438 So.2d 1033 (Fla. 5th DCA 1983), we join with them and certify the following question of law to the Florida Supreme Court:

SHOULD FLORIDA ABROGATE THE “IMPACT RULE” AND ALLOW RECOVERY FOR PHYSICAL INJURIES CAUSED BY A DEFENDANT’S NEGLIGENCE IN THE ABSENCE OF PHYSICAL IMPACT UPON THE PLAINTIFF?

Affirmed.

DOWNEY, HERSEY and DELL, JJ., concur.


text:
    Gary L. GIARRAPUTO, Appellant, v. STATE of Florida, Appellee.
    No. 83-1540.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

In this case, a trial judge sentenced the defendant to 364 days in “Florida State Prison;” on appeal, the state concedes that a sentence for less than one year cannot be served in any state penitentiary. See Section 775.08(1), Florida Statutes (1983).

However, the state argues that it is harmless error and points out as a practical matter that the judge has no authority to choose the place of incarceration. In fact, the state suggests that the defendant now before us languished in the Broward County jail and never went near Raiford. While that may be true, and the defendant does not argue to the contrary, we nevertheless remand for the purpose of a housekeeping correction to the sentencing order.

In all other respects, the cause is affirmed.

AFFIRMED AND REMANDED.

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


text:
    Louise MITCHELL, Willie Mae Fleming and Joseph Fleming, Appellants, v. Rufus ROBBINS, Gator Freightways, Inc., and Transport Insurance Company, Appellees.
    No. 83-1551.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Linnes Finney, Jr., of Gary, Williams & Walker, Fort Pierce, for appellants.
    James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., Fort Pierce, for appellees.
   PER CURIAM.

Summary judgment was entered against appellants’ suit for damages which stemmed from injuries suffered in an automobile accident. We reverse and hold the foreseeability of theft and any subsequent accident, following a delivery truck operator’s failure to remove keys from the ignition, presents a jury question, notwithstanding section 316.1975, Florida Statutes (1981). See Vining v. Avis Rent-A-Car System, Inc., 354 So.2d 54 (Fla.1977).

Accordingly, we reverse and remand for a trial on the merits.

HURLEY, DELL and WALDEN, JJ„ concur.


text:
    Mindy O’CONNOR, n/k/a Mindy Yokom, Appellant, v. Thomas O’CONNOR, Appellee.
    No. 83-1953.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.

      Douglas J. Glaid of Glaid & DiMauro, P.A., Fort Lauderdale, and Michael L. Gates of Kaplan, Jaffe & Gates, P.A., Hollywood, for appellant.
    No appearance for appellee.
   ANSTEAD, Chief Judge.

This is an appeal of a non-final order denying the mother’s motion to dismiss the father’s petition for modification of child custody. We treat the matter as a petition for writ of certiorari but deny the petition. Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982).

The parties were divorced in Florida in 1981 and evidently had a marital domicile here. The wife obtained custody of the children and moved with them to Tennessee soon after the divorce. The husband continued to live in Florida. The children lived with him from December, 1981, until June, 1982, and visited with him in March, 1983, and June, 1983. When the husband refused to return the children in June, 1983, he was served with a motion for contempt in the Florida courts. The husband retaliated with a petition for modification. The children were allowed to reside with the husband until August 4, 1983. They then returned to Tennessee with their mother pending the outcome of the modification hearing. The wife moved to dismiss the petition for modification on the grounds that the trial court should not exercise jurisdiction under section 61.1308, Florida Statutes (1981).

The wife claims that this court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), concerning non-final orders which determine the right to child custody. No custody claim, however, was decided. Thus, the court does not have jurisdiction under this rule. Bedingfield v. Bedingfield, 417 So.2d 1047, 1048 n. 2 (Fla. 4th DCA 1982). We have also declined to review such orders as ones determining venue under Florida Rule of Appellate Procedure 9.130(a)(3)(A). Id. In Bedingfield, we treated an identical appeal as a petition for writ of certiorari. The Fifth District apparently considers such appeals to be petitions for writs of prohibition. King v. Roda, 405 So.2d 1069 (Fla. 5th DCA 1981). We believe certiorari to be the appropriate remedy.

The trial court may only assert subject matter jurisdiction pursuant to the following statute:

61.1308 Jurisdiction.—
(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state:
1. Is the home state of the child at the time of commencement of the proceeding, or
2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(c) The child is physically present in this state and:
1. The child has been abandoned, or
2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
(d)l. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
2. It is in the best interest of the child that a court of this state assume jurisdiction.
(2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(3)Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Fla.Stat. (1981). The evidence before the trial judge indicated that the children’s present home state was Tennessee, not Florida. Thus, section 61.1308(l)(a) is not an appropriate basis for jurisdiction. The court also heard no testimony from which it could conclude that the children were under a present physical threat. In fact, testimony indicated that no threat existed. Thus, the court cannot base jurisdiction upon section 61.1308(l)(c). The wife also introduced evidence that Tennessee followed the Uniform Child Custody Jurisdiction Act. No evidence suggested that Tennessee had declined jurisdiction. Thus, section 61.1308(l)(d) is not available. Accordingly, jurisdiction must be based upon section 61.1308(l)(b). This section requires the trial judge to find that the children and at least one parent have a significant connection with Florida and that substantial evidence relevant to custody exist in Florida.

In Reeve v. Reeve, 391 So.2d 789 (Fla. 1st DCA 1980), the parties had lived and were divorced in Florida. Temporary custody was awarded to the husband, who had moved with the child to New Jersey. Five years later, the wife petitioned in Florida for a permanent custody determination. The appellate court upheld the trial court’s assertion of jurisdiction under section 61.-1308(l)(b) because the child had visited the mother in Florida, establishing a significant connection with the state, and because the presence of the wife in Florida constituted substantial evidence relative to custody, notwithstanding that more information might exist in New Jersey. Reeve relied on the following comment by Professor Bo-denheimer, the reporter for the committee which prepared the Uniform Child Custody Jurisdiction Act:

A typical example is the case of the couple who are divorced in state A, their matrimonial home state, and whose children are awarded to the wife, subject to visitation rights of the husband. Wife and children move to state B, with or without permission of the court to remove the children. State A has continuing jurisdiction and the courts in state B may not hear the wife’s petition to make her the sole custodian, eliminate visitation rights, or make any other modification of the decree, even though state B has in the meantime become the “home state” under section 3. The jurisdiction of state A continues and is exclusive as long as the husband lives in state A unless he loses contact with the children, for example, by not using his visitation privileges for three years. (Bodenheimer, Uniform Child Custody Jurisdiction Act (1969) 22 Vanderbilt L.Rev. 1207, 1237.)

Id. at 791 n. 2, quoting from Clark v. Superior Court, 73 Cal.App.3d 298, 140 Cal.Rptr. 709, 713 (1977). Reeve was apparently cited with approval by the Florida Supreme Court in Mondy v. Mondy, 428 So.2d 235, 238 (Fla.1983). See also, Id. at 239-41 (Adkins, J., dissenting). Hofer v. Agner, 373 So.2d 48 (Fla. 1st DCA 1979), affirmed a trial court’s assertion of jurisdiction in a similar situation. The Hofer court noted that the children, although having lived in New Jersey for approximately two years, had visited their father in Florida during this time and had other relatives in Florida.

We believe the cases relied upon by the appellant are distinguishable. In Matteson v. Matteson, 379 So.2d 677 (Fla. 2d DCA 1980), the children and the wife had left Florida and never returned to visit the husband. Thus, the court reversed the trial court’s assertion of jurisdiction. Brown v. Tan, 395 So.2d 1249 (Fla. 3d DCA 1981), denied jurisdiction in a similar situation, noting that the children had not visited the Florida parent. In Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980), no evidence appeared that the children had visited the Florida parent. Therefore, the Florida courts could not assert jurisdiction.

In our view the denial of the wife’s motion to dismiss was proper. Accordingly, we treat the wife’s notice of appeal as a petition for writ of certiorari and deny same.

HERSEY and DELL, JJ., concur.


text:
    Lisa Ann FIEWEGER, Appellant, v. David MADEIROS, State Automobile Mutual Insurance Company, a foreign corporation, Frank Fieweger, Lisa Ann Fieweger and Patsy Moore Fieweger, Appellees.
    No. 83-1993.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    James G. Salerno of Pyszka & Kessler, P.A., Fort Lauderdale, for appellant.
    Horton, Perse & Ginsberg, and Lawrence Rodgers, Miami, for appellee, Madeiros.
   PER CURIAM.

Appellee Madeiros having confessed error, we reverse and remand with directions to grant appellant’s motion to quash substituted service of process.

REVERSED and REMANDED.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    Lee A. RAY and Nancy J. Ray, his wife, Appellants, v. Charles F. KEHOE and Phyliss Kehoe, his wife, Appellees.
    No. 83-2131.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Fred Goldstein, Hollywood, for appellants.
    David J. Chesnut of McManus, Stewart & Ferraro, P.A., Stuart, for appellees.
   PER CURIAM.

This interlocutory appeal challenges the issuance of a preliminary injunction without bond.

Since appellants have failed to establish that the trial court erred with regard to the issuance of the preliminary injunction, we will uphold its issuance. However, the trial court should have required a bond pursuant to Florida Rule of Civil Procedure 1.610(c) which provides that

[n]o restraining order or preliminary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined or restrained.

Accordingly, we reverse and remand with directions to the trial court to require a bond in an amount it deems proper.

AFFIRMED IN PART: REVERSED IN PART and REMANDED.

LETTS, DELL and WALDEN, JJ., concur.


text:
    Russell HOGARTH and Yvonne Hogarth, Appellants, v. James Albert BRYANT, Jerry Wiley, Greenstein Trucking Company, and Protective Indemnity Insurance Company of Florida, Appellees.
    No. 83-2739.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    James R. Green of Levin, Warfield, Mid-dlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellants.
    Stephen J. Cohen of Conrad, Scherer & James, P.A., Fort Lauderdale, for appellee, Greenstein.
   PER CURIAM.

AFFIRMED on the authority of Florida Power & Light Company v. Troutman, 396 So.2d 743 (Fla. 4th DCA 1981).

AFFIRMED.

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: RYDER, Judge.

text:
    Warren CROWDER, Appellant, v. OROWEAT FOODS COMPANY, Gary Otterbach, Claude Guyard and Robert Eisman, Appellees.
    No. 83-799.
    District Court of Appeal of Florida, Second District.
    April 4, 1984.

      Malka Isaak, Tampa and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellant.
    John S. Jaffer of Wilson, Wilson & Jaf-fer, P.A., Sarasota, for appellees.
   RYDER, Judge.

This case arises from the sale of a business by Warren Crowder to Oroweat Foods Company (Oroweat). Ultimately, the trial court entered a final default judgment in favor of Oroweat, and a final judgment involuntarily dismissing Crowder’s counterclaim. We reverse.

Oroweat sought a default judgment based upon Crowder’s failure to file a responsive pleading to Oroweat’s amended complaint. Before a hearing was held on the motion for default judgment, Crowder served an answer denying liability, a counterclaim, and a motion to dismiss one count of the amended complaint.

Oroweat filed several motions including a motion for involuntary dismissal of the counterclaim. All motions were heard by the trial court in February 1983.

The trial court entered a “partial summary judgment” and denied the motions for default and involuntary dismissal “upon the condition that Defendant, Warren Crowder, shall deposit with the Clerk of this Court the sum of $33,525.99 within ten (10) days of the date of this Order.” The court indicated: “If Defendant fails to deposit said sum, the Court will reconsider the motions of plaintiff for default and involuntary dismissal.” (emphasis added).

Subsequently, Crowder filed a motion for rehearing of the trial court’s “partial summary judgment”, asserting that the form of the order was incorrect and misleading, and that the provision directing Crowder to deposit funds with the clerk was not authorized by law.

Oroweat filed a “renewed motion for involuntary dismissal and default” based on Crowder’s failure to deposit funds in the registry of the court. It was asserted that the motion for rehearing filed by Crowder “does not state the time for compliance with the Court’s request to deposit the money with the Clerk.”

Although a hearing was set for the motion for rehearing and the renewed motion for default and involuntary dismissal, the trial court cancelled the hearing. The trial court entered final judgment granting Oroweat’s renewed motion and dismissing Crowder’s counterclaim. Crowder timely filed his notice of appeal.

Entry of the default against Crow-der was improper. Florida Rule of Civil Procedure 1.500(c) allows a party to “plead or otherwise defend at any time before default is entered.” Crowder served an answer, counterclaim and motion to dismiss before a default was entered, thereby preventing entry of the default judgment. Board of Regents v. Hardin, 393 So.2d 1134 (Fla. 1st DCA 1981); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980). Consequently, we hereby vacate the default judgment.

The involuntary dismissal of appellant’s counterclaim must also be reversed. Following the February 1983 hearing, the trial court ordered that it would reconsider the motions for default and involuntary dismissal if Crowder failed to deposit funds with the court. This order was insufficient to convey notice to Crowder that the failure to deposit the funds would result in an automatic involuntary dismissal of his counterclaim without the opportunity to present arguments concerning his failure to deposit the funds or the propriety of dismissal for that failure. Hence, involuntary dismissal of Crowder’s counterclaim without a proper antecedent hearing and without sufficient warning that dismissal would be automatic, was improper. See Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA), petition for review denied, 424 So.2d 763 (Fla.1982); Fla.R.Civ.P. 1.420(b). See also Shannon Motors, Inc. v. Vans & Vehicles, Inc., 423 So.2d 551 (Fla. 1st DCA 1982).

Other arguments presented by the parties have been considered and do not require further discussion herein. In light of our conclusion, the decision below is REVERSED and this case REMANDED for further proceedings.

HOBSON, A.C.J., and CAMPBELL, J„ concur.


author: LEHAN, Judge.

text:
    Carl L. BALLARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-46.
    District Court of Appeal of Florida, Second District.
    April 6, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals from his conviction for shooting into an occupied dwelling in violation of section 790.19, Florida Statutes (1981), contending that the trial court erred in denying his motion to dismiss the charge. We affirm.

In denying the motion to dismiss, the trial court disagreed with Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960). We agree with the trial court that on a motion to dismiss the element of wantonly shooting at or into a building is not negated by the pleaded facts that defendant fired at a man who was in front of the building. “Wantonly” does not require that the building be the target.

AFFIRMED.

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


text:
    Bobby Louis SPRIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 83-932.
    District Court of Appeal of Florida, Second District.
    April 6, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Bobby Louis Spriggs seeks review of his conviction and sentence for first degree murder and robbery with a deadly weapon. We affirm.

An Anders brief was filed on behalf of Spriggs by the public defender’s office. A supplemental brief was not filed by Spriggs. The Anders brief raises two issues, neither of which supports reversal.

The first issue considers whether the trial court erred by admitting as evidence a photograph of the deceased victim. Spriggs had objected that the photograph was “gory” and irrelevant. We find that the trial court did not abuse its discretion by overruling Spriggs’ objection and allowing the photograph into evidence. Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); Edwards v. State, 414 So.2d 1174 (Fla. 5th DCA 1982).

The second issue asserts that it may have been error for the trial court to deny Spriggs’ motion for judgment of acquittal, and to sentence Spriggs for first degree murder and robbery. Again, there was no error; the record supports the denial of the motion as well as the convictions and sentences. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). See also Ad ams v. State, 412 So.2d 850 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982); McEver v. State, 352 So.2d 1213 (Fla. 2d DCA 1977), cert. denied, 364 So.2d 885, 888 (Fla.1978).

AFFIRMED.

HOBSON, A.C.J., and LEHAN, J., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Calvin FRANTZ, Appellant, v. Audrey FRANTZ, Appellee.
    No. 83-353.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Charles J. Crowder, Coral Gables, for appellant.
    Marks, Aronovitz & Leinoff and Andrew Leinoff, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.
   PER CURIAM.

The husband/appellant in this dissolution of marriage proceeding appeals from a final order of the trial court awarding the wife/appellee lump sum alimony in the form of money and property, permanent alimony in the amount of $300.00 per month, and reserving jurisdiction to require the husband to maintain a major medical/hospitalization insurance policy for the wife, should such become necessary. We affirm upon the holding that 1). the trial court has the power to fashion, by reciprocal lump sum awards, an equitable distribution of the parties’ property. De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983); Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982); Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981), 2). permanent alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The award in this case is based upon the needs of one spouse and the ability of the other spouse to provide the necessary funds. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Nichols v. Nichols, 418 So.2d 1198 (Fla. 5th DCA 1982); O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982), and 3). no abuse of discretion was shown in the reservation of jurisdiction to consider the wife’s future health care needs. Such an award can be considered as part of her permanent alimony award. Inglett v. Inglett, 439 So.2d 1389 (Fla. 1st DCA 1983); Cyphers v. Cyphers, 373 So.2d 442 (Fla. 2d DCA 1979); Segal v. Segal, 353 So.2d 894 (Fla. 3d DCA 1977); Blass v. Blass, 316 So.2d 308 (Fla. 3d DCA 1975).

Affirmed.


text:
    Horace CALLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-635.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Bennett. H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   PER CURIAM.

We affirm the judgments of conviction and sentences entered upon the defendant’s nolo contendere plea reserving his right to appeal the denial of his motion for discharge.

On October 30, 1981, the defendant, then a juvenile, was arrested for burglary and grand theft. Shortly thereafter, the Public Defender was appointed to represent him. On December 3, 1981, the defendant failed to appear for a scheduled hearing in the juvenile court and a pick-up order issued. About a year later, the defendant was located and brought before the court. After his case was transferred to the Criminal Division of the Circuit Court for prosecution as an adult, the defendant moved for discharge on the ground that his right to speedy trial under Florida Rule of Criminal Procedure 3.191 had been violated.

Relying on L.G. v. State, 405 So.2d 252 (Fla. 3d DCA 1981), the defendant contends that since his only non-appearance was at a hearing in Juvenile Court, the State’s failure to establish that he, rather than his counsel, was notified of this hearing is fatal to the State’s effort to show the defendant’s non-availability for trial. Although it is true L. G. held that the general rule that notice to counsel is the equivalent of notice to the defendant, see Sherrod v. Franza, 427 So.2d 161 (Fla.1983); State v. Grooms, 389 So.2d 313 (Fla. 2d DCA 1980), is inapplicable to juvenile adjudication hearings by virtue of former Florida Rule of Juvenile Procedure 8.190(a), which expressly required the juvenile to be noticed by summons of the adjudication hearing, we find L.G. inapposite to the case at bar, because, first, the hearing at which the defendant did not appear was not an adjudicatory hearing; and, second, after January 1, 1981, the effective date of the amendment to Rule 8.190(a), notice by summons was not a requirement of the rule. See In re Florida Rules of Juvenile Procedure, 393 So.2d 1077 (Fla.1980). Thus, the rule that notice to defense counsel is imputed to the defendant controls here, and the defendant’s non-appearance after notice to counsel was sufficient evidence that he was not continuously available for trial so as to warrant the denial of his motion for discharge. The defendant’s remaining point on appeal is without merit. See Dixon v. State, 451 So.2d 485 (Fla. 3d DCA 1984).

Affirmed.


text:
    George A. MAASS, Appellant, v. Sigurd CHRISTENSEN, Dola Christensen, his wife, and Royal Mariner of Fort Lauderdale, Inc., a Florida corporation not for profit, Appellees.
    Nos. 81-422, 83-938.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Curtin R. Coleman of Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.
    Gregg W. McClosky and Barry A. Man-delkorn of Ruden, Barnett, McClosky, Schuster & Russell, P.A., Fort Lauderdale, for appellees Christensen.
   PER CURIAM.

This appeal questions the sufficiency of attorney’s fees awarded pursuant to our mandate in Maass v. Christensen, 414 So.2d 255 (Fla. 4th DCA 1982). Bearing in mind “that the reasonableness of attorney's fees is ... an issue of fact, to be determined by the trial court,” Conner v. Conner, 439 So.2d 887 (Fla.1983), we have carefully reviewed the record and find that the trial court’s award is supported by substantial, competent evidence. In the same vein, we find that appellant has failed to demonstrate that the trial court abused its discretion by awarding $200.00 for appellant’s expert witness. See Section 92.-231(2), Florida Statutes (1983); Murphy v. Tallardy, 422 So.2d 1098 (Fla. 4th DCA 1982); but see B & L Motors, Inc. v. Big-notti, 427 So.2d 1070 (Fla. 2d DCA 1983). Accordingly, the judgment is

AFFIRMED.

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.