text:
    Robert Clark WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. AR-386.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.
    Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee. .
   SHIVERS, Judge.

Wright appeals his conviction for possession of a weapon by a State prisoner. Appellant argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that appellant was not authorized to possess the alleged weapon, a screwdriver, and because there was no evidence that the screwdriver was a weapon. We agree and reverse.

Wright is an inmate at Union Correctional Institution (UCI). His job assignment at UCI was checking manholes for the plumbing shop, and he was allowed to go anywhere inside the institution because of this job. As a part of his job, Wright was assigned a screwdriver which he used to lift the manhole covers.

On June 4, 1982, Officer Anderson was escorting inmate Willie Anglin to an office for questioning. As they were passing the visiting park fence, an unrelated incident occurred between Anglin and another inmate, Smith, who assaulted Anglin and began to pursue him. Correctional officers subdued Smith, and Officer Walmsley stopped Anglin and began frisking him. At this point, appellant, who had been checking manhole covers in front of the visiting park, saw Walmsley searching Anglin. Appellant believed that Anglin was a “snitch” and that Anglin was telling Walmsley something about appellant. Appellant ran up to the pair and attempted to kick Anglin. Unfortunately, however, Walmsley was in between Anglin and appellant, and appellant’s flying kick hit Officer Walmsley in the head. Walmsley fell and grabbed appellant’s legs, and Anglin ran.

Appellant testified that he threw his screwdriver down on the ground as he ran toward Anglin. Officer Barber testified that he found the screwdriver after the incident at about ten feet from the site of the incident. Officer Tomlinson never saw the screwdriver in appellant’s hands, but he testified that it was recovered after the incident from appellant’s back pocket. Officer Kelly testified that appellant had the screwdriver in his hand when he hit Officer Walmsley, but that appellant let the screwdriver drop out of his hand and fall to the ground. Officer Anderson testified that appellant was holding a screwdriver at the time he kicked Walmsley. Inmate Anglin testified that appellant was holding the screwdriver as he approached. During the presentation of both the State’s ease and the defendant’s case, evidence was adduced that appellant was authorized to carry a screwdriver as part of his job.

Appellant was initially charged with attempted first-degree murder, possession of a weapon by a State prisoner, and battery of a correctional officer. The murder charge was reduced to aggravated assault by the trial court at the close of the State’s case. At the close of the State’s case and at the close of all the evidence, appellant moved for a judgment of acquittal on the possession charge, arguing that the screwdriver was not a weapon and that the State failed to prove that the possession was without authorization. The motions were denied. On the aggravated assault charge, the jury found appellant guilty of the lesser included offense of assault. Appellant was also convicted of possession of a weapon by a State prisoner and battery of a correctional officer. Sentence was withheld on the assault and possession convictions, and appellant was sentenced to one year on the battery charge.

Section 944.47(l)(c), Florida Statutes (1981), states:

It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

One of the things declared to be contraband by Section 944.47 is a “weapon of any kind _” Section 944.47(l)(a)5. Appellant argues that one of the elements of section 944.47(l)(c), which must be proven by the State, is that the contraband was not authorized by the officer in charge of the institution. Appellee argues that this exception is an affirmative defense and not an element which the State must prove.

The seminal case in Florida for determining whether an exception in a criminal statute is an element of proof or an affirmative defense is Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890). Under Baeumel, “if there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is a matter of defense, and is to be shown by the other party.” 7 So. at 372 (quoting from Bishop, 1 Crim.P. § 639). The exception contained in section 944.47(l)(c) is analogous to the exception contained in section 790.221(1), Florida Statutes (1977), which was found to be an exception contained in a subsequent clause. State v. Thompson, 390 So.2d 715 (Fla.1980). See also State v. Hicks, 421 So.2d 510 (Fla.1982), interpreting the burglary statute, where the court found that the word “unless,” as used in section 810.02(1), was a qualifier to the primary sentence of the statute, separating the consent phrase from the enacting clause and making consent an affirmative defense to burglary. In Robarge v. State, 432 So.2d 669 (Fla. 5th DCA 1983), relied upon by appellant, the statute there construed clearly contains the exception within the enacting clause and is, therefore, distinguishable from the statute sub judice. Because there is no indication in section 944.-47(l)(c) that the Legislature intended lack of the exception to be an element of the offense, we hold that authorization by the officer in charge of the correctional institution is an affirmative defense to a charge under section 944.47(l)(c).

Simply because the exception is an affirmative defense, however, does not mean that the ultimate burden of proof of the exception shifts to the defendant. We think this exception should be treated like affirmative defenses such as insanity or entrapment. The defendant has the burden of going forward with evidence that the affirmative defense exists. Once the defendant has presented competent evidence of the existence of the defense, the burden of proof remains with the State, and the State must then prove the nonexistence of the defense beyond a reasonable doubt. In Holmes v. State, 374 So.2d 944 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1845, 64 L.Ed.2d 267 (1980), the court stated that where the evidence presents a reasonable doubt of an accused’s sanity in the minds of the jurors, the presumption of sanity vanishes and the sanity of the accused must be proved by the prosecution beyond a reasonable doubt like any other element of the offense. In Moody v. State, 359 So.2d 557 (Fla. 4th DCA 1978), the court adopted the federal view of entrapment that the defendant has the burden of adducing evidence of entrapment. If the evidence of entrapment is sufficient, the jury must be instructed that the State has the burden of disproving entrapment beyond a reasonable doubt.

In the instant case, there was much evidence introduced that appellant was issued the screwdriver in question and that he was authorized to use it in his job of investigating manhole covers. Having thus raised the exception as a defense, the burden of the State was to prove beyond a reasonable doubt appellant’s nonauthorization. The State, however, introduced no evidence from which it could be inferred that appellant was not authorized to possess the screwdriver. Therefore, the evidence failed to exclude every reasonable hypothesis of innocence, and the trial court erred in denying appellant’s motion for a judgment of acquittal on this count.

Additionally, in the instant case the screwdriver was not a weapon. In Jones v. State, 392 So.2d 18 (Fla. 1st DCA 1980), relied upon by appellee, this court found that a lead pipe possessed by an inmate was a weapon. In Jones, however, there was much evidence from which the jury could infer that the intended use of the lead pipe was as a weapon. Jones explained his possession of the pipe by stating that he expected trouble. In the instant case, the only evidence that the screwdriver was a weapon was the evidence that the screwdriver was used by appellant as a weapon. The jury necessarily determined that appellant did not use the screwdriver as a weapon since the jury convicted him of simple assault rather than aggravated assault. Therefore, we hold that under the facts and circumstances of the instant case the State failed to prove that the screwdriver was a weapon, i.e., contraband under section 944.47.

Accordingly, appellant’s conviction for possession of a weapon by a State prisoner is reversed.

MILLS and ZEHMER, JJ., concur.

      . On this subject, 29 Am.Jur.2d, Evidence, section 154 (1967) states at 186:
      It is generally held that the prosecution in a criminal case need not negative, by proof in advance, an exception not contained in the enacting clause of a statute. According to most courts, however, when evidence appears which tends to bring the defendant within an exception not contained in the enacting clause, whether made by a distinct substantive clause or by a separate section or statute, the burden of proof is upon the prosecution, on the whole case, to overcome that evidence beyond a reasonable doubt. Other authority holds that under such circumstances the burden of proof is upon the defendant to establish the exceptive facts by a preponderance of the evidence, particularly where words occur in a defensive exception which indicate legislative intent to place the burden of proof upon the defendant.
      (footnotes omitted). In the instant case, the language of the statute does not indicate a legislative intent to place the ultimate burden of proof upon the defendant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUTHERN WINE & SPIRITS, INC., & Chubb Group of Insurance Companies, Appellants, v. Felipe HERNANDEZ and the Division of Workers’ Compensation, Appellees.
    No. AS-181.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.
    H. Jack Miller, of Miller, Hodges & Ka-gan, Miami, for appellants.
    Osvaldo N. Soto, Miami, for appellees.
   PER CURIAM.

Appellants seek review of a workers’ compensation order by which the deputy commissioner awarded compensation benefits and further reserved jurisdiction to determine “unresolved issues” including entitlement to payment of various medical bills. The order does not resolve all matured issues in controversy, and is therefore an interlocutory order not presently reviewable by appeal. See Sheffield Steel Products v. Tripp, 433 So.2d 46 (Fla. 1st DCA 1983); Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982); Town of Palm Beach v. Watts, 426 So.2d 1312 (Fla. 1st DCA 1983); The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982).

The appeal is sua sponte dismissed. Such dismissal shall not preclude subsequent review upon appeal from a final order.

WENTWORTH, NIMMONS and ZEH-MER, JJ., concur.


text:
    Iris GAUSE, Appellant, v. FIRST BANK OF MARIANNA, Appellee.
    No. AT-199.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.
    F. Philip Blank, Tallahassee, for appellant.
    Charles M. Wynn, Marianna, and Thayer M. Marts, Tallahassee, for appellee.
   PER CURIAM.

Appellant, counterplaintiff below, appeals a “judgment” granting appel-lee/counterdefendant’s motion for summary judgment as to a three-count counterclaim. The decretal portion of the trial court’s “judgment” reads:

ORDERED, ADJUDGED and DECREED, that Counter-defendant’s Motion for Summary Judgment is hereby granted.

This order is merely authorization for entry of a final judgment; it does not, in and of itself, constitute an appealable final judgment. Shupack v. Allstate Insurance Co., 356 So.2d 1298 (Fla. 3d DCA 1978). Additionally, it appears from a review of the record that appellee’s motion for summary judgment applies only to Count I of appellant’s three-count counterclaim. Because all three of the counts in the counterclaim are interrelated and arise out of the same transaction, a final judgment as to only one count is a nonappeala-ble interlocutory order. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974); McClain Construction Corp. v. C.S. Roberts, 351 So.2d 399 (Fla. 2d DCA 1977).

APPEAL DISMISSED.

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


author: SHIVERS, Judge.

text:
    Harrison PORTERFIELD, Appellant, v. STATE of Florida, Appellee.
    No. AU-461.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.

      Harrison Porterfield, pro se, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

Porterfield moved for post-conviction relief pursuant to Fla.R.Cr.P. 3.850 alleging prosecutorial misconduct on the part of the assistant state attorney for his failure to correct false evidence by a key witness for the prosecution with respect to whether the witness received any promises in return for his testimony. The trial court summarily denied Porterfield’s motion. We reverse.

The law is well established that the willful use of false testimony upon material matters from state witnesses by the prosecutor, known by the latter to be perjured testimony, is a recognized ground for relief from judgment. Bogan v. State, 211 So.2d 74, 77 (Fla. 2d DCA 1968). The same result obtains when the state, although not soliciting false evidence, allows it to go uncorrected when it appears. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The principle that a state may not knowingly use false evidence does not cease to apply merely because the false testimony goes only to the credibility of the witness. Id.

After review of Porterfield’s motion for relief and the evidence in support thereof, i.e., affidavits and letters to the effect that the key witness at Porterfield’s trial did receive promises from the state attorney’s office in return for his testimony, we conclude and hold that Porterfield has made a prima facie showing for relief. See Hernandez v. State, 368 So.2d 606 (Fla. 3d DCA 1979). Accordingly, the cause is remanded to the trial court to either attach that portion of the files and records which would conclusively show that Porterfield is not entitled to relief or to hold an evidentia-ry hearing on this matter. See Pla.R.Cr.P. 3.850.

REVERSED and REMANDED.

BOOTH and LARRY G. SMITH, JJ„ concur.


text:
    John TURNER and Evans Martin, Appellants, v. STATE of Florida, Appellee.
    No. AQ-140.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1983.
    Michael Allen, Public Defender, Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Powers v. State, 422 So.2d 981 (Fla. 1st DCA 1982), and Lynn v. State, 436 So.2d 416 (Fla. 1st DCA 1983).

ROBERT P. SMITH, Jr., SHIVERS and NIMMONS, JJ., concur.


author: NIMMONS, Judge.

text:
    William R. HORTON, Appellant, v. STATE of Florida, Appellee.
    No. AQ-141.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1983.

      Michael Allen, Public Defender, and Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Horton appeals his conviction of the misdemeanor offense of trespass to an unoccupied conveyance. He and his co-defendant, Courtney, had been charged by information with the offense of burglary of a conveyance but at trial the court, upon completion of the State’s case-in-chief, granted both defendants’ motions for judgment of acquittal. However, the court granted the motion only as to burglary and denied it as to the lesser included offense of trespass. No evidence was presented on behalf of either defendant, and the case went to the jury on trespass. The jury returned verdicts of guilty as to both defendants.

As to Horton, the theory of the State’s case was that he was guilty as an aider and abettor under Section 777.011, Florida Statutes (1981). Horton asserts that the evidence was not sufficient to support his conviction. We agree and reverse.

The evidence at trial showed that, during his patrol of Pensacola Beach early one evening, Officer Grubbs, a park ranger with the National Park Service, observed a pick-up truck parked on the beach along the side of the road about fifteen yards in front of a white Buick. As Grubbs approached the truck, he noticed Horton standing on a sand dune approximately 50 to 100 feet from the road. Grubbs also saw another person inside the Buick. Grubbs never observed Horton make any kind of signal but saw Horton commence to walk towards his truck after seeing Grubbs. After Grubbs continued in an easterly direction and passed the area where the two vehicles were parked, he pulled off the road about a quarter of a mile away from the vehicles. A few seconds after Grubbs pulled off the road, he saw the truck pull onto the road and proceed eastbound with Horton driving. Grubbs stopped the truck and took its occupants, Horton and co-defendant Courtney (whom Grubbs recognized as the one previously inside the Buick), back to where the Buick was parked.

Grubbs located the Buick’s owner who stated that her car was in the same condition as when she had left it and that nothing was missing. She said that her car was locked when she had left it; it was also locked when Grubbs returned the suspects to the scene.

Horton and Courtney were arrested and transported to jail. The officers seized from the truck a tool box which, among other things, contained a plumber’s “snake” and a stiff wire with a hooked end. These articles were received in evidence at the trial.

On the way to jail, Officer Grice stated that Horton said that he and Courtney were returning from a plumbing job in Mobile and he (Horton) was standing on the sand dune “to see if the Pompano were running.” Grice said that no fishing equipment was found in the truck.

Another Officer, Escambia County Sheriff’s deputy Howells, testified that he talked with Horton and Courtney at the jail. He said that Horton told him that he and Courtney had been in Holley on a plumbing job. Horton then corrected himself and said that the job was in Mobile. Horton said that he did not know the particular location of the job in Mobile but that it was at the home of Courtney’s father and Horton offered to take the officers there.

Before an accused may be convicted as an aider and abettor, it must be shown not only that he assisted the actual perpetrator but that he intended to participate in the crime. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933); Cox v. State, 394 So.2d 237 (Fla. 1st DCA 1981); J.H. v. State, 370 So.2d 1219 (Fla. 3rd DCA 1979). Even assuming that Horton knew that Courtney had willfully entered the Buick without authority (trespass), mere knowledge that an offense is being committed is not the same as participation with the requisite criminal intent. Collins v. State, 440 So.2d 364 (Fla. 3rd DCA 1983). Moreover, mere presence at the scene, including driving the perpetrator to and from the scene or a display of questionable behavior after the fact, is not sufficient to establish participation. J.L.B. v. State, 396 So.2d 761 (Fla. 3rd DCA 1981); Collins v. State, supra.

Since the evidence of Horton’s guilt in the instant case rests solely upon circumstantial evidence, the proof must be not only consistent with guilt but inconsistent with any other reasonable hypothesis. Cox v. State, supra; Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978); Fisher v. State, 365 So.2d 1055 (Fla. 4th DCA 1978); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Pack v. State, 381 So.2d 1199 (Fla. 2nd DCA 1980).

The circumstantial evidence upon which the State necessarily relies fails to exclude reasonable hypotheses of innocence and is, therefore, insufficient to support Horton’s conviction as an aider and abettor.

Accordingly, the sentence is vacated and the judgment is reversed and the cause is remanded with directions to discharge the appellant.

ROBERT P. SMITH, Jr., and SHIVERS, JJ., concur.


author: MILLS, Judge.

text:
    Vickie Bowen WALLACE and William Thawn Wallace, Appellants, v. STATE of Florida, Appellee.
    No. AR-335.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1983.
    Philip J. Padovano, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   MILLS, Judge.

Vickie and William Wallace appeal their convictions for possession of cocaine with intent to deliver, felony possession of cannabis, and possession of drug paraphernalia. The Wallaces pled nolo contendere to the charges, specifically reserving the right to appeal denial of their motion to suppress. The contention on appeal is that the affidavit forming the basis of the search warrant did not demonstrate probable cause for issuance of the warrant and therefore the evidence seized during a search of the Wallace’s' residence should have been suppressed. We agree and reverse.

The affidavit was executed by a police officer and contains the following to demonstrate probable cause:

On June 17, 1982, at approximately 1:15 a.m. your affiant was notified, by a reliable confidential informant who has given reliable information in the past that a transfer of suspected contraband material (more specifically, marijuana) had just taken place in the area of Horse-mans Association Road.
Your affiant went to the area of the suspected transfer to interview the confidential informant who related the following facts.
At approximately 1:00 a.m. the reliable confidential informant observed a bronze colored Oldsmobile 2-Door bearing Fla. tag WBT-162 parked outside of trailer #7. It was further observed that two white male subjects exited the trailer and went to the drivers side door of the Oldsmobile. Subject # 1 w/m 6' 0" medium build opened the drivers side door, pushed the drivers seat forward and removed from the back seat a large rectangular shaped object packaged in dark plastic wrapping. The object appeared to be very heavy. Subject w/m #2 5' 10" med/heavy build also went to the drivers side of the vehicle and removed a package of similar size and description. Both subjects again returned to the vehicle and into trailer #7. A total of four (4) bundles were transported from the vehicle to the trailer.
The description of these bundles as related by the confidential informant are consistent with the way that large quantities of marijuana are packaged for transport and shipment. Your affiant has personally observed marijuana on many occasions and is familiar with its packaging in this manner.
In addition to the packaging method, the exigent circumstance of using the cloak of darkness, during the early hours of the morning when few observers are present, and the hurried and furtive movement exhibited by the subjects lead your affiant to believe' that the subjects did in fact transfer a large quantity of marijuana from the vehicle to the trailer described herein.
The confidential informant took your affiant to the immediate area that the transfer took place and your affiant was able to observe the bronze colored vehicle bearing Fla. tag WBT-162 still parked in front of trailer # 7.
A surveillance was initiated on the trailer, and it is believed that said suspected marijuana is still being contained therein.

Essentially, the affidavit states that an informant told the affiant officer that he had watched two men transfer heavy packages from a car to a trailer. The packages were described as “large rectangular shaped object[s] packaged in dark plastic wrapping” and “large plastic wrapped bundles.” The informant was described as a “reliable confidential informant who has given reliable information in the past.”

Even under the totality of the circumstances test of Illinois v. Gates, — U.S. —-, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the affidavit does not demonstrate probable cause. The description of the packaging is the only factual statement in the affidavit conceivably indicating the presence of contraband in the trailer. This description alone simply does not suggest the presence of contraband. Although the affiant stated that he was familiar with cannabis packaging and that the informant’s description of the packaging was consistent with the manner large quantities of cannabis are packaged for shipment, the affiant neither saw the packages nor did he establish the informant’s credibility. The credibility of the informant and the reliability of his information should be considered as a part of the totality of the circumstances.

There are cases holding that there is probable cause in circumstances involving suspicious packaging. See, e.g., Texas v. Brown, — U.S. -, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Albo v. State, 379 So.2d 648 (Fla.1980); In the Interest of P.L.R., 435 So.2d 850 (Fla. 4th DCA 1983). In those cases, however, probable cause rested on more than the mere observation of suspicious packaging. Other circumstances together with the observation of the packaging indicated the presence of contraband.

In this case, not only was the description of the packaging the only indication of the presence of contraband in the trailer, but that description was furnished by an informant whose credibility was not established. The trial court erred in denying the motion to suppress the evidence seized pursuant to the invalid search warrant.

REVERSED.

THOMPSON and WIGGINTON, JJ., concur.


author: MILLS, Judge. '

text:
    H.S. COVINGTON, et al., Appellants, v. Thomas J. BOWERS, et al., Appellees.
    No. AS-170.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1983.
    Clinton E. Foster and Richard D. Og-burn, Panama City, for appellants.
    J.Robert Hughes of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, Panama City, for appellees.
   MILLS, Judge. '

This appeal stems from a controversy between two factions of the Macedonia Missionary Baptist Church. One faction supports the Reverend H.S. Covington who was, and still claims to be, pastor of the church. The other faction no longer wants Covington as pastor.

At a regularly scheduled church business meeting, with Covington presiding, a deacon raised the issue of Covington’s termination. Covington attempted to ignore the issue. The group became unruly. Coving-ton and several of his supporters left the meeting. Covington asserts that he adjourned the meeting before leaving.

Those remaining at the meeting voted on whether to terminate Covington. The vote was thirty-four to nothing in favor of termination, with seven abstaining. The next day, Covington received a letter informing him that he had been dismissed. The letter was signed by the chairman of the board of deacons, the chairman of the board of trustees, and the church clerk.

On two later occasions, Covington entered the church during services and announced to the congregation that meetings would be held to determine if he was still the pastor of the church. At those meetings, Covington’s supporters voted to retain him as pastor. They also voted to remove the trustees and deacons and purported to install new ones.

Covington and his supporters filed a complaint seeking to enjoin the original trustees and deacons from acting as trustees and deacons and from otherwise interfering with church operations, including Cov-ington’s pastorate. The defendants counterclaimed seeking judicial confirmation that Covington was no longer pastor of the church and an injunction against interference with church operations by Covington and his supporters.

Following two days of testimony, the trial court issued an order finding that the congregation was duly assembled when those presented voted to fire Covington. The trial court granted the relief sought by the anti-Covington faction and denied the relief sought by Covington and his supporters.

The essential question is whether the vote to terminate Covington was binding as action of the church. The parties agree that church custom governs church procedures. There are no church by-laws. If the meeting at which Covington was fired was duly assembled according to church custom, and if those assembled had the authority according to church custom to terminate the pastor, the trial court acted properly by refusing to interfere with the actions taken by the group. Such interference would impinge upon the fundamental separation between church and state. Partin v. Tucker, 126 Fla. 817, 172 So. 89 (1937).

Covington and his supporters argue that according to church custom, the pastor has the authority to unilaterally adjourn a church meeting if he believes it is unruly and dangerous. They contend that Coving-ton did indeed unilaterally adjourn the meeting for this reason before those present voted on his termination. They contend that any actions taken after the adjournment were the actions of a “rump faction” and were of no effect. See, Epperson v. Myers, 58 So.2d 150 (Fla.1952). Moreover, Covington and his supporters argue that church custom requires conciliation talks with the board of deacons and a special meeting of the congregation called for the sole purpose of voting on termination before a pastor can be terminated.

After reviewing the conflicting testimony, we think the trial court as fact-finder could find that the procedure used for Covington’s dismissal accorded with church custom. Covington was the only witness who unequivocably testified that custom allowed a pastor to unilaterally adjourn a church meeting. Others who testified indicated that Covington had no authority to unilaterally adjourn a church meeting. Still others were confused about the matter. The trial court listened to the conflicting testimony and made a determination which we will not disturb on review.

The assertion that church custom requires that a pastor be terminated only after conciliation talks with the board of deacons and after a special meeting of the congregation is also based on conflicting testimony which the trial court resolved in favor of the anti-Covington faction. We will not second guess the trial court’s determination.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


text:
    Carlos Lorenzo JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1877.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., and G. Bart Bill-brough, Jr., Miami, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant was charged with three counts of kidnapping, two counts of sexual battery, two counts of robbery, burglary of a conveyance, petty theft and possession of a firearm during the commission of a felony. He entered a guilty plea to all the charges except one count of sexual battery, to which he entered a no contest plea. The trial court sentenced appellant to consecutive terms of imprisonment, as follows: seven life terms, four three-year minimum mandatory terms, and one five year term. Appellant filed a motion for post-conviction relief pursuant to Rule 3.850, Fla.R. Crim.P., on grounds that his pleas were involuntarily entered pursuant to his understanding that he would not receive consecutive sentences. This appeal is from the trial court’s summary denial of the motion without an evidentiary hearing.

Rule 9.140(g), Fla.R.App.P., governs this appeal and under said rule this court is required to reverse for an evidentiary hearing “unless the record shows conclusively that the appellant is entitled to no relief.” After having considered the record and the specially permitted briefs and arguments of counsel, we find that an evidentiary hearing was necessary in this case. See Clark v. State, 256 So.2d 551 (Fla. 4th DCA 1972); Williams v. State, 245 So.2d 680 (Fla. 4th DCA 1971). This cause is therefore remanded for a hearing.

Remanded.


author: FERGUSON, Judge.

text:
    Jill Robin Lasko KOENIG, Appellant, v. Nathaniel H. KOENIG, Appellee.
    No. 83-123.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Paul R. Lipton, North Miami Beach, for appellant.
    No appearance for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

In 1980 a Tennessee trial court entered a judgment of dissolution of marriage awarding custody of the parties’ minor child to appellant and granting visitation rights to appellee. Later that year the wife and child moved to Florida and have been continually residing here since September, 1980. In April, 1981, the Tennessee court modified the husband’s visitation rights, so as to allow the child to visit his father in Tennessee during certain periods of each year. In September, 1982, an amended petition to establish foreign judgment and to modify child support and visitation provisions was filed by the wife in the Circuit Court for Dade County, Florida. After a hearing on the petition, the Florida court entered an order which held that although it has jurisdiction in the matter (presumably on the basis of Section 61.1308(l)(a)l, Florida Statutes (1981)), it declines to exercise that jurisdiction “until such time as said Court in Tennessee declines to entertain jurisdiction over the issues of custody and child support.” That order is the subject of this appeal.

On the same day that the Florida court entered its order on jurisdiction, the husband filed a petition for contempt of court and change of custody in the Tennessee circuit court. In response, the wife filed a motion to dismiss the petition for lack of subject matter jurisdiction. The Tennessee court’s order denying the motion to dismiss became the subject of an interlocutory appeal in which the Tennessee appellate court held that Florida is now the home state of the wife and child, and that Tennessee would no longer have jurisdiction for the purpose of modifying the original child custody order if the Florida court’s order declining to exercise jurisdiction were reversed.

The cooperative spirit expressed by both the Florida and Tennessee courts is commendable and is precisely what the Uniform Child Custody Jurisdiction Act seeks to engender. § 61.1304,. Fla.Stat. (1981). It is now clear, particularly owing to the ruling of the Tennessee appellate court, that there is no statutory impediment to the Florida court’s exercise of its jurisdiction to modify the child custody provision of the now domesticated Tennessee judgment. See § 61.1308(l)(a)l and § 61.-1314(1), Fla.Stat. (1981).

Remanded for further proceedings accordingly.


author: SCHWARTZ, Chief Judge.

text:
    Joe COUNCIL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-157.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

In broad daylight, Council took from a mailbox some all-white capsules which appeared to the experienced officer who was watching him to contain “suspect cocaine;” he put them in a towel which he “stuck down in his pants;” and then told the policeman that he had “nothing in the towel.” We agree with the trial court that his conduct established probable cause for the officer to believe that the defendant was in possession of a controlled substance. Albo v. State, 379 So.2d 648 (Fla.1980); In the Interest of P.L.R., 435 So.2d 850 (Fla. 4th DCA 1983); State v. Byham, 394 So.2d 1142 (Fla. 4th DCA 1981); Foxx v. State, 392 So.2d 48 (Fla. 3d DCA 1981); Bush v. State, 369 So.2d 674 (Fla. 3d DCA 1979); Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977). The warrantless search of Council’s person which secured what indeed turned out to have been cocaine was therefore constitutionally permissible. Acosta v. State, 431 So.2d 715 (Fla. 3d DCA 1983); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977).

Affirmed.

      . Like P.L.R., we do not agree with Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981); Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978); and Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977). We think that these decisions, as well as Kelly v. State, 407 So.2d 1011 (Fla. 5th DCA 1981), which is contrary to our opinion in Foxx; Brown v. State, 313 So.2d 52 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976); and Brown v. State, 330 So.2d 861 (Fla. 4th DCA 1976) embody a highly legalistic, indeed myopic, approach to the probable cause issue in these situations which cannot pass muster under the applicable tests of common sense and reality. See Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).


text:
    The STATE of Florida, Appellant, v. Eunice Marie OLIVER, Appellee.
    No. 83-827.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.

      Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellant.
    Michael Zelman, Miami, for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

The state appeals an order of the trial court which sets aside a seven year old conviction and grants a new trial on a Rule 3.850 post-trial motion alleging ineffective assistance of trial counsel.

Appellee and her “boyfriend” Drayton were convicted of manslaughter after a trial by jury. The facts at trial were in pertinent part as follows. Appellee Oliver and the victim were involved in a street altercation instigated by the co-defendant, Drayton. Drayton held the arms of the deceased, pointed a gun at the deceased while arguing with her, then pushed her. Appellee then entered the fray. The evidence is conflicting, but one of the state’s eyewitnesses testified that, simultaneous with the acts of Drayton, the appellee stabbed the deceased in the back with a knife. Another witness testified that ap-pellee struck the deceased in the back with “balled fists” which gripped a shiny protruding object. A third witness stated that appellee was the only person who had a knife in her hands. The fight between appellee and the victim continued until the two were separated by the police. It was then discovered that the deceased had suffered a stab-like wound in the back which proved fatal. The police recovered from the scene a blood-stained knife with a shiny steel blade and black handle.

At trial, appellee and the co-defendant were represented by a single attorney, Marvin Emory. The defense theory relied upon by counsel, and rejected by the jury, was that the fatal wound resulted from an accidental puncture by broken glass as the victim and the appellee struggled on a trash pile.

Appellee’s motion to vacate the judgment and sentence alleges a conflict of interest by trial counsel in the joint representation of both defendants. A paragraph and footnote at Page 5 of the motion and supporting memorandum sums up the theory:

This case presents perhaps the classic problem of joint representation. Counsel was hampered by tactical decisions which forced him to choose either a common defense or one which shifted blame from one of his clients to the other. It is of course impossible to speculate on which defense would have been stronger. The Defendant must be afforded a new trial because counsel’s joint representation foreclosed any defense, no matter how strong, which implicated the Defendant and Co-defendant.

The trial court’s determination that a conflict of interest arose from defense counsel’s joint representation of the appel-lee and Drayton in a single trial, rests on the following conclusions:

a. Mr. Emory was obligated to argue the ‘broken glass’ theory solely because joint representation precluded all argument that the deceased was stabbed by someone other than the defendant.
b. The ‘broken glass’ theory was inherently weaker than the defense that the deceased was stabbed with a knife by someone other than the defendant because there was uncontro-verted physical evidence that the wound was inflicted by a knife-like implement.
c. There was evidence that Drayton had the motive and opportunity to have stabbed the deceased and there was no eyewitness testimony in the State’s case to preclude the defense that Drayton was the perpetrator.
d. Mr. Emory’s preoccupation with the ‘broken glass’ theory resulted in his neglect to advocate that the testimony of Johnny Roundtree, the State’s most credible eyewitness, was substantially discredited by his statement that the shiny object which the defendant had as she struck the deceased could have been jewelry on her wrist.
e. Mr. Emory’s decision to call Drayton to testify on his own behalf, not predicated upon consultation with the defendant, resulted in devastating cross-examination revealing that in Drayton’s pre-arrest statement to police he had declared that the defendant picked up the deceased and threw her into a pile of trash containing the broken glass.
f. Mr. Emory’s strategy to defend Drayton by contrasting the police officers’ assessment of his guilt with that of the defendant — demonstrated by the defendant’s immediate arrest compared to the belated arrest of Drayton — was a decision adversely affecting his representation of the defendant.

The issue presented is whether there is any record support for the court’s finding that trial counsel had an actual conflict of interest in representing both appellee and the co-defendant to the extent that his effectiveness in representing the appellee was materially compromised.

The starting point in the legal analysis is a recognition of the principle that representation by counsel of co-defendants in a single trial is not per se violative of constitutional guarantees. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Belton v. State, 217 So.2d 97 (Fla.1968), cert. denied, 395 U.S. 915, 89 S.Ct. 1764, 23 L.Ed.2d 229 (1969); Washington v. State, 419 So.2d 1100 (Fla. 3d DCA 1982). An actual, not merely hypothetical or speculative conflict must be demonstrated before it can be said that an accused has been deprived of her sixth amendment right to effective assistance of counsel. United States v. Fox, 613 F.2d 99 (5th Cir.1980); United States v. Risi, 603 F.2d 1193 (5th Cir.1979).

The Florida Supreme Court in Webb v. State, 433 So.2d 496 (Fla.1983) recently adopted the definition of conflict of interest as set forth in Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.1975):

A conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing. 516 F.2d at 1076.

The Foxworth test for conflict is not an abstract one, but calls for an examination of the evidence presented at trial or at the hearing on the motion to vacate the judgment. Thus, appellee’s claim of actual conflict will succeed only if the record affirmatively indicates that, due to the joint representation, the co-defendant gained significantly at her expense, and that appellee was damaged by the common defense.

Appellee, in her motion to the trial court, theorized that Drayton could have inflicted the fatal wound, and suggests that that would have been a better defense. At the hearing on the motion, however, she adhered to the testimony which she had given at trial in support of the common defense “broken glass” theory, and produced no evidence to show that the victim could have been stabbed by Drayton or any third person. Further, no evidence was presented to show that the substance and effect of the state’s proof, which pointed convincingly to the defendant as the person inflicting the injury, would have been changed by a defense antagonistic to the co-defendant. The evidence adduced at trial shows that Drayton either held the arm of the deceased, or pushed her into the fight with appellee, or both. These facts do not support the hypothesis that the victim was stabbed by Drayton rather than by the appellee.

Drayton’s trial testimony on cross-examination that appellee “threw” the victim, or that they both fell on the trash pile in the course of the struggle, was consistent with the common defense and did not significantly promote Drayton’s defense to the detriment of appellee’s. Nor is there a showing that counsel’s arguments regarding Drayton’s arrest subsequent to the arrest of the appellee, alone, or in combination with other facts of record, compelled counsel to abandon the “united front.” The immediate arrest of appellee at the scene was the result of what the officers witnessed when they arrived' on the scene; the investigation which followed led to the arrest of Drayton. The later arrest of Drayton, in addition to being another unalterable fact, may have made Drayton appear a little less guilty, but added nothing to the state’s case against appellee.

What was said by this court in Washington v. State is apposite here:

The claims of conflict here are based entirely on appellate counsel’s theories— developed with the benefit of the entire record — on what [the] defendant’s most effective response to the government’s evidence would have been. If actual conflict can be established on this basis, it will be a rare case in which an untested strategy will not look better than an unsuccessful one. 419 So.2d at 1102 (quoting United States v. Benavidez, 664 F.2d 1255, 1260-61 (5th Cir.1982), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1352 (1982)).

Appellee did not demonstrate an actual conflict because she failed to show that the co-defendant Drayton gained significantly at her expense, and that she was damaged by the common defense. To the contrary, in light of all the evidence, it would appear that Drayton, more so than appellee, might have benefitted if the common defense had been abandoned.

Reversed and remanded with instructions to reinstate the conviction and sentence.

       It is also unknown at this time whether counsel undertook any investigation which would support the defense that Drayton inflicted the fatal stab wound when he held the victim and struck her in the back. This issue will be fully developed at a future hearing on this motion when counsel’s trial file is located.

      . This court affirmed the conviction. Oliver v. State, 345 So.2d 438 (Fla. 3d DCA 1977).


text:
    David CLARK, Appellant, v. The STATE of Florida, Appellee.
    No. 83-894.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Martin Lemlich, Miami Beach, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

In revoking Clark’s probation the trial court stated that were the allegations of the affidavit of violation of probation all that were involved, she would be inclined not to revoke probation, but then characterized the allegations as the “final straw that breaks the camel’s back.” Because facts not alleged in the affidavit were the sine qua non of Clark’s revocation, the revocation is reversed and remanded with instructions to restore Clark to probation. See Sampson v. State, 375 So.2d 325 (Fla. 2d DCA 1979); Hodges v. State, 370 So.2d 78 (Fla. 2d DCA 1979); Mack v. State, 342 So.2d 562 (Fla. 2d DCA 1977); Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973).

Reversed and remanded with instructions.


text:
    LINEAS AEREAS DE NICARAGUA, S.A., a foreign corporation, Appellant/cross-appellee, v. COMPANIA INTERAMERICANA EXPORT-IMPORT, S.A., a foreign corporation, Appellee/cross-appellant.
    No. 83-994.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Mark V. Silverio, Miami, for appellant/ cross-appellee.
    Howard, Brawner & Lovett, and Philip Brawner, Miami, for appellee/cross-appel-lant.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The General Master’s extensive findings of facts which were adopted by the trial court in resolving the dispute will not be disturbed because those findings are supported by competent and substantial record evidence. See Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Donna Carol McINNIS, Appellee.
    No. 83-1388.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Todd, Rosinek & Blake and Stanford Blake, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981); Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979).


author: DANIEL S. PEARSON, Judge.

text:
    OLD REPUBLIC INSURANCE COMPANY, a foreign corporation, Petitioner, v. The Honorable Lewis B. WHITWORTH, as Circuit Judge of the Eleventh Judicial Circuit, in and for Dade County, Florida, Respondent.
    No. 83-1911.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Greene & Cooper and Joan M. Bolotin and Robyn Greene, Mottlau & Wakefield, Miami, for petitioner.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for respondent.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Old Republic Insurance Company, a compensation carrier, petitions for a writ prohibiting the respondent judge from exercising jurisdiction over a suit brought by a workers’ compensation claimant against it for “gross negligence, outrage and punitive damages” arising out of the carrier’s alleged willful breach of its obligations to make payments due the claimant under the Workers’ Compensation Act. We grant the petition.

The claimant, one Robert Bird, filed compensation claims for work-related disabilities. Hearings before a deputy commissioner were held. The deputy commissioner found that Old Republic had acted in bad faith in delaying disability payments. He awarded Bird extensive benefits and imposed stringent penalties on all overdue benefits, costs and attorneys’ fees, in accord with the Workers’ Compensation Act’s provisions. After unsuccessfully appealing these awards, Old Republic paid all damages and penalties due to Bird.

Thereafter, Bird filed the present Circuit Court action. Old Republic moved to dismiss the action on the ground that the Circuit Court had no jurisdiction to resolve this compensation dispute. When Old Republic’s motion to dismiss was denied and its affirmative defense (asserting that the Circuit Court had no jurisdiction and the claim was barred by Section 440.11, Florida Statutes (1981)) was stricken, it filed its petition for writ of prohibition with this court.

It is well established that because the Workers’ Compensation Act provides a comprehensive, exclusive and adequate administrative remedy for employees’ work-related claims, the circuit court is without jurisdiction over an employee’s action for additional damages for injuries covered by the' Act. Winn-Lovett Tampa, Inc. v. Murphree, 73 So.2d 287 (Fla.1954). Likewise, because the exclusivity and immunity provisions of the Act, § 440.11, Fla.Stat. (1981), apply to the compensation carrier as well as the employer, Sullivan v. Liberty Mutual Insurance Co., 367 So.2d 658 (Fla. 4th DCA 1979), cert. denied, 378 So.2d 350 (1979); Carroll v. Zurich Insurance Co., 286 So.2d 21 (Fla. 1st DCA 1973), dismissed, 297 So.2d 568 (Fla.1974), a circuit court is without jurisdiction over an action against the carrier for injuries covered by the Act. Our inquiry therefore turns to whether the injury for which Bird sought compensation in his Circuit Court action is an injury covered by the Act.

The injury for which Bird sought recovery in the Circuit Court was Old Republic’s alleged bad faith refusal to timely compensate him for his disabilities, an injury which is compensable under the Act, and one for which the deputy commissioner in fact imposed punitive costs and attorneys’ fees in the compensation proceedings. Plainly, then, the injury is covered by the Act, and a compensation claimant cannot avoid the exclusivity of the Act and transform a delay in payments into an actionable tort cognizable in the Circuit Court simply by calling that delay outrageous, fraudulent, deceitful, or an intentional infliction of emotional distress. See, e.g., Sullivan v. Liberty Mutual Insurance Co., 367 So.2d 658 (Fla. 4th DCA 1979).

In Sullivan, a worker brought an action in the circuit court against his employer’s compensation carrier for wrongful termination of medical treatment and intentional injury by willful withdrawal of authorization for treatment. He alleged that the result of the insurer’s intentional withdrawal of authorization was that he suffered an amputation of his foot and other injuries. The trial court dismissed the case. The Fourth District affirmed. Sullivan’s exacerbated injuries, like Bird’s, were incidental to his original injury and compen-sable by his employer’s compensation carrier. The court held that the relief provided under the Act “is his sole remedy against the ... carrier.” 367 So.2d at 660.

The Sullivan court reasoned that if delay in providing services could become the subject of an independent suit, the legislatively designed exclusivity of the Act would be destroyed.

“[Bjeyond the legalistic objection to appellant’s position [i.e., that the Act provided his sole remedy], we must point out that if delay ... attributable to a carrier could give rise to independent third party court actions, the system of workmen’s compensation could be subjected to a process of partial disintegration. In the practical operation of the plan, minor delays in getting medical service, such as for a few days or even a few hours, caused by a carrier, could become the bases of independent suits, and these could be many and manifold indeed. The uniform and exclusive application of the law would become honeycombed with independent and conflicting rulings of the courts. The objective of the Legislature and the whole pattern of workmen’s compensation could thereby be partially nullified.
“Flagrant interference by a carrier with rendition of medical care ... should generate swift relief in the commision. The courts support the commission in affording it.”
367 So.2d at 660-61, quoting Noe v. Travelers Insurance Co., 172 Cal.App.2d 731, 342 P.2d 976 (1959) (claimant’s exclusive remedy for insurer’s wanton misconduct is under workers’ compensation law; no remedy by separate action against insurer) (emphasis supplied).

Other jurisdictions agree. Everfield v. State Compensation Insurance Fund, 115 Cal.App.3d 15, 171 Cal.Rptr. 164 (1981) (allegations that compensation carrier consistently delayed payments, arbitrarily reduced amount paid, and intentionally disregarded subpoena duces tecum resulting in physical and emotional suffering and that these acts were intentional, deceitful, fraudulent, and in bad faith insufficient to warrant departure from basic rule that worker’s sole remedy lay in compensation proceedings under Act); Sandoval v. Salt River Project Agricultural Improvement & Power District, 117 Ariz. 209, 571 P.2d 706 (Ct.App.1977) (regardless of intentional or negligent manner in which insurer failed to provide worker with benefit due, compensation law provides exclusive remedy for alleged tort where essence of claim is deprivation of benefits). See generally United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) (Federal Tort Claims Act); Gill v. United States, 641 F.2d 195 (5th Cir.1981) (same); 2A Larson, Workmen’s Compensation Law § 65 (Supp. July 1983).

The recent revisions to the Workers’ Compensation Act, applicable to Bird’s claim, highlight the Act’s all-encompassing nature. The primary purpose of these revisions was to make the Act self-executing and to give the Division of Workers’ Compensation additional authority to punish recalcitrant insurers and employers. Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). In McDonald, the court held that the Act was broad enough to provide the Workers’ Compensation Division with sufficient authority to punish a carrier for willful and intentional “bad faith” as well as negligent abuse of duty without going outside the parameters of workers’ compensation law.

“Since the relationship of the parties— employer, employee, and carrier — is unique in workers’ compensation matters, being solely the creature of statute, we conclude that the bad faith language as used and defined in the statute must be given its own unique application .... consistent with the history and objectives of the workers’ compensation law ....
“The legislative intent was and is that the workers’ compensation law should be self-executing ....
“[T]he obligations of the carrier to the claimant are not dependent upon the contract of insurance. They are mandated by the workers’ compensation act itself. The act itself makes it clear that the obligations and duties of the employer and carrier are regarded as inseparable to the extent necessary to carry out the purpose of the law.”
395 So.2d at 209.

Bird’s complaint seeks to evade the exclusivity of the workers’ compensation law by pleading a cause of action for intentional harm. The complaint, however, as the complaint in Sullivan, does no more than allege intentional nonperformance of a statutory duty imposed by the Act. As the Sullivan court stated in affirming the dismissal of the complaint:

“Sullivan also contends that he sufficiently alleged a cause of action against the insurer for intentionally harming him. Section 440.11(2) provides exceptions to the immunity granted in the case of certain willful assaults [physical aggression] and automobile accidents. It would appear that the immunity granted under the statute was not intended to cover instances where a carrier intentionally harms the employee. However, while it is alleged that the insurer intentionally withdrew its authorization for medical treatment, nowhere is it alleged that Liberty Mutual intentionally injured Sullivan. We agree with the trial judge that the allegations were insufficient to come within any exception to the statutory immunity.” 367 So.2d at 661.

In Everfield v. State Compensation Insurance Fund, 171 Cal.Rptr. 164, the California court decided a case virtually identical to the case before us. There, a worker who had received disability payments for his injuries filed a two-count action. In Count I, he alleged consistent delay in compensation payments, arbitrary reductions in amounts paid, and intentional disregard of a subpoena duces tecum, resulting in physical and emotional suffering. In Count II, he added that these acts were intentional, fraudulent, and in bad faith with intent to injure plaintiff. The court ruled that the plaintiff had no cause of action cognizable in the court, as the remedies provided under the workers’ compensation law were both exclusive and sufficient.

“[PJlaintiff has described three things: delay, the change in the amounts paid and disobedience to the subpoena.... These three acts in themselves are not fraudulent, deceitful, outrageous, perfidious or so extreme or abnormal as to fit in the class of misconduct [entitling a worker to bring a third party tort action] .... The addition of these words [“fraudulent, deceitful and intentional”] does not describe the conduct but simply asserts the subjective characterization of them by plaintiff-appellant.
“If every case in which there is a delay, a change of amount ... could be brought into a court by an unhappy worker by merely alleging that the acts were intentional, deceptive, outrageous and fraudulent without alleging the specific conduct and how it was carried out ... it would make shambles of the Worker’s Compensation system ....
“The reasons for the delay, whether intentional or negligent, whether excusable or not, can be well inquired into by the board and where necessary, discipline imposed.
“[A]ppellant’s complaint does no more than allege a nonperformance of a statutory duty to provide temporary disability benefits under the California Labor Code....
“There are good reasons for leaving the matter of Workmen’s Compensation payments in the exclusive control of the Workmen’s Compensation Appeals Board_ [T]he present system ... provides a quick, simple and readily accessible method of claiming and receiving compensation.” 171 Cal.Rptr. at 165-66.

Similarly, in Sandoval v. Salt River Project Agricultural Improvement & Power District, 571 P.2d 706, a worker sought relief in the courts for wrongful denial of benefits in processing his workers’ compensation claim. He described the defendant’s conduct as “intentional wrongful suspension of compensation benefits” causing “undue hardship and great mental suffering and emotional distress.” 571 P.2d at 710. He claimed “injurious falsehood, intentional breach of fiduciary duties, false representations, negligence, recklessness, wilful and wanton and outrageous conduct, and intentional infliction of mental suffering.” The Arizona court wrote:

“[I]t is obvious ... that all of the claims are based entirely upon the assertion that [defendants] either intentionally or negligently failed to provide [claimant] with benefits he was or may be entitled to under the Workmen’s Compensation laws.
“[T]he trial court correctly concluded that claims of this nature lie within the exclusive jurisdiction of the Industrial Commission. The Arizona Workmen’s Compensation Act establishes a comprehensive system for the adjudication of all controversies arising out of the processing of the injured workman’s claim for benefits ... and the jurisdiction of the Industrial Commission is exclusive in that regard.
“We hold that regardless of the intentional or negligent manner in which a decision is made, the Workmen’s Compensation law provides the exclusive remedy for review of any administrative decision made by a carrier ... in which the basic contention of the claimant is that he has been wrongfully deprived of benefits due under the Workmen’s Compensation laws.... [Wjhere the essence of the claim is the alleged wrongful deprivation of benefits, the Industrial Commission has the exclusive jurisdiction to adjudicate that controversy.” 571 P.2d at 710-12 (citations omitted).

Accord, Young v. United States Fidelity & Guaranty Co., 588 S.W.2d 46 (Mo.App. 1979).

We conclude, therefore, that jurisdiction over Bird’s “bad faith” claims rests exclusively in the Division of Workers’ Compensation, which has already asserted that jurisdiction and assessed appropriate penalties against Old Republic. In reaching this conclusion, we have not overlooked Salkay v. Deuschle, 385 So.2d 181 (Fla. 4th DCA 1980), or Reed v. Hartford Accident and Indemnity Co., 367 F.Supp. 134 (E.D.Pa. 1973), heavily relied on by Bird.

In Salkay, an injured workman received a compensation award which determined that his corporate employer owed him benefits. The corporation was not insured. It was not properly qualified as a self-insurer. Salkay did not receive the benefits awarded. The corporation was subsequently liquidated. Salkay sued the individuals who were trustees of the dissolved corporation. He alleged in his complaint that these individuals, in their capacities as trustees, liquidated the corporation, and thereafter, in their individual capacities, converted and concealed the assets in a fraudulent attempt to deprive him of the benefits he had been awarded. The only issues tried or triable in the workers’ compensation proceeding had been Salkay’s status as an employee, the amount of his entitlement, the identity of his employer, and the methods of enforcing his award. The Fourth District held that Salkay was entitled to sue in circuit court because the suit was based on “injuries not encompassed within the expressed provisions or intendments of the Act.” 385 So.2d at 182. Salkay therefore stands for the unremarkable proposition, clearly inapposite to the case at hand, that a suit involving issues not encompassed within the provisions of the Workers’ Compensation Act against parties not insured or properly qualified as self-insurers under the statute was not barred by res judicata or estoppel by judgment arising from a prior determination in workers’ compensation proceedings that the employer owed the claimant benefits.

In Reed v. Hartford Accident and Indemnity Co., 367 F.Supp. 134, the district court, finding nothing in the controlling state law of Pennsylvania which would prevent the bringing of the lawsuit, denied the carrier’s motion to dismiss a complaint which alleged that the carrier had wrongfully terminated workers’ compensation benefits. Reed is readily distinguishable. The Pennsylvania workers’ compensation law applicable at the time Reed made his claim for compensation benefits and brought his federal action substantially differs from the Florida Workers’ Compensation Act applicable here. The Pennsylvania Workers’ Compensation Act provided no mechanism to enforce the prompt payment of legitimate claims., Florida’s compensation lav?1, in contrast, contains mechanisms to insure timely payment and provides an array of sanctions which may be imposed when a carrier wrongfully withholds payment. Because the availability of these sanctions gives to Bird an adequate remedy under the Act, the remedy under the Act is exclusive.

Accordingly, we conclude that the Circuit Court does not have jurisdiction over Bird’s action, and the petition for writ of prohibition is granted. We are confident that it is unnecessary for us to issue the writ, and we therefore remand the cause to the Circuit Court with directions to dismiss the complaint.

      . Section 440.11, Florida Statutes (1981), provides, in essence, that the liability of an employer which, as here, has brought itself within the provisions of the Workers’ Compensation Act "shall be exclusive and in place of all other liability of such employer ... to the employee.”

        . Prohibition is the proper remedy to prevent a court from acting without jurisdiction. English v. McCrary, 348 So.2d 293 (Fla.1977); Department of Natural Resources v. Circuit Court of the Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2d DCA 1975), aff’d, 339 So.2d 1113 (Fla.1976).

      .Indeed, the court noted that the carrier remained liable for any medical services required and that liability could be enforced through an industrial claims judge. 367 So.2d at 659 n. 1.

      . Moreover, the Fourth District, which decided Sullivan in 1979, stated in Salkay in 1980: "We have not found a Florida case precisely on point.” 385 So.2d at 182. If the facts had been similar to those in this case, Sullivan obviously would have controlled.

      . That Reed was either somehow distinguishable or, if not distinguishable, wrong, was recognized by the Arizona court in Sandoval v. Salt River Project Agricultural Improvement & Power District, 571 P.2d at 712:
      “We have found it difficult to assess the persuasive value of these decisions because of the lack of detail which would afford the basis for a comprehensive comparison of the compensation laws of those jurisdictions with the statutory scheme existing in Arizona. Suffice it to say that to the extent that any of these decisions suggest a result different from that set forth in this opinion, we reject it as contrary to the basic philosophy evidenced by Arizona statutory and decisional Workmen’s Compensation law.”

      . Posl-Reed, the Pennsylvania Legislature remedied this deficiency by amending its statute to provide for the assessment of interest and penalties when claims were not promptly paid. See, e.g., 11 Pa.Stat.Ann. §§ 717.1, 774.1 (Purdon) (1972). The preamble to the amendments stated:
      "[Tjhe act fails to equip the department with essential powers and mechanisms to require observance of reasonable time standards in processing and payment operations, and totally omits any provision for the department to hear and determine ... the entitlement of employees or their dependents where entitlement is contested, or as more frequently occurs, where compensation is withheld for unexplained reasons.
      "Accordingly, the General Assembly declares that the purpose of [these] amendments ... is to correct these procedural deficiencies and assure the full payment of compensation when due." 1972 Pa.Laws 25, No. 12 (Feb. 8, 1972).


text:
    CABRIOLET PORSCHE-AUDI, INC., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 83-2097.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Anthony Reinert and Debra Kornbluh, Miami, for appellant.
    Barnett & Clark and Ralph W. Symons, Coral Gables, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Acme Fast Freight, Inc. v. Bell, 318 So.2d 212 (Fla. 3d DCA 1975).


text:
    William PHILLIPS, et al., Appellants, v. Louis C. OSTRER, et al., Appellees.
    No. 83-2686.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Rehearing Denied Jan. 20, 1984.
    Kurzban, Kurzban & Weinger and Steven M. Weinger, Miami, for appellants.
    Truett & Watkins and Harold Heller, Miami, for appellee John Nord.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   On Motion to Dismiss Appeal as to Appellee Nord

SCHWARTZ, Chief Judge.

After a jury trial, judgment was entered on May 4,1983 for the defendant Nord, but against the other co-defendants in the action. While those defendants filed timely post-trial motions, neither the plaintiffs nor, of course, Nord himself challenged the judgment in his favor. On November 10, 1983, the plaintiffs filed this appeal from an October 15, 1983 order granting the co-defendants’ motions in part; the notice of appeal also stated that it sought review of the final judgment for Nord. He has now moved to dismiss the appeal as to him as untimely filed. We grant the motion.

There is no doubt that an order or judgment such as that entered for Nord on May 4, 1983, which disposes of a cause with respect to a single party is final and appeal-able even if the action remains pending against others. Let’s Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla. 3d DCA 1980); Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Schneider v. Manheimer, 170 So.2d 75 (Fla. 3d DCA 1964). It follows that while the other parties’ post-trial motions clearly suspended the rendition and finality of the judgments against them under Fla.R. App.P. 9.020(g), they had no such effect upon the separate judgment for Nord which remained entirely undisturbed until the notice of appeal was filed more than six months after its entry.

Motion granted.


text:
    Larry MEINSTEIN, June Meinstein, Parman Florida, Inc., and Protean Investors, Inc., Appellants, v. TRAVEL ETC., INC., Appellee.
    No. 83-1770.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1983.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager, and Joseph J. Huss and Jack F. Weins, Hollywood, for appellants.
    Wilber G. Silverman, Hollywood, for ap-pellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellee’s Motion for Rehearing, we withdraw the opinion of November 1, 1983, and substitute the following opinion.

We reverse the trial court’s order permitting appellee to hold over as tenant until sixty days after determination of the action upon a holding that the order appealed provided injunctive relief, see Florida Jurisprudence, Injunctions, section 32 (1981) and cases cited therein, requiring the trial court to apply Florida Rule of Civil Procedure 1.610. While the equitable remedy is proper in this case, see Shaw Brothers Oil Co. v. Parrish, 99 So.2d 610 (Fla.1958); Knight v. Global Contact Lens, 220 So.2d 693 (Fla. 3d DCA 1969); 43A C.J.S. Injunctions § 66 (1978), we reverse because the trial court failed to require the posting of bond, Florida Rule of Civil Procedure 1.610(c), and because the order fails to specify the court’s reasons for entering the order, Florida Rule of Civil Procedure 1.610(a).

Reversed and remanded for further proceedings.


author: BOARDMAN, Acting Chief Judge.

text:
    Lee Roy PURVIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2274.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.

      Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Lee Roy Purvis was charged by information with the second degree murder of his wife with a firearm. He appeals an order rendered pursuant to a plea agreement with the state which adjudicated him guilty of the lesser-included offense of manslaughter and placed him on a five-year term of probation. He challenges only the validity of a condition of probation which requires that he pay the mother of his deceased wife $1500 in restitution as a compromise figure for $3000 which she either loaned or gave to Purvis and his wife for the purchase of furniture. We strike the condition as being improper.

A review of the transcript of the plea hearing reveals that the trial court adjudicated Purvis guilty and imposed the restitution condition at issue because it wanted to foreclose the possibility of his reaping a windfall on a recovery on an insurance claim for his wife’s death. When Purvis objected to imposition of this condition, the court offered to allow him to either withdraw his guilty plea or accept the condition. Purvis opted to accept the condition, reserving the right to appeal the imposition of the condition.

Section 948.03(l)(g), Florida Statutes (1981), mandates that restitution as a condition of probation is to be made “to the aggrieved party” for the “loss caused by his [the probationer’s] offense.” Purvis’ mother-in-law cannot be considered an “aggrieved party” within the meaning of subsection (l)(g) with respect to the money for furniture because this money was not expended by the mother-in-law as a result of the fatal shooting of her daughter. Moreover, even assuming that the money from the mother-in-law was a loan, not a gift, Purvis’ debt was not “caused by his offense” within the meaning of subsection (l)(g). See Fresneda v. State, 347 So.2d 1021 (Fla.1977).

We are aware that section 948.03(3) provides that a court may add a condition of probation which “it considers proper.” One might conclude at first glance that the restitution condition in question is within the purview of subsection (3) under the facts of this case. However, a condition of probation must reasonably relate to (1) the offense involved, (2) the rehabilitation of the probationer, or (3) the protection of the public. See, e.g., Bodden v. State, 411 So.2d 1391 (Fla. 1st DCA 1982); Brown v. State, 406 So.2d 1262 (Fla. 4th DCA 1981); Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979). Notwithstanding the trial court’s well-intended purpose for imposing this condition of restitution, it clearly does not fall within any of these three criteria.

Accordingly, we remand with directions to strike the restitution condition in question. In all other respects we affirm.

AFFIRMED as modified and REMANDED with instructions.

GRIMES and LEHAN, JJ., concur.


author: BOARDMAN, Judge.

text:
    Rita E. AMBORY, Jacqueline A. Ambory, and Donald E. Ambory, who sues by his next friend and guardian, Rita E. Ambory, Appellants, v. Vivian L. AMBORY, Appellee.
    No. 83-640.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
    Daniel D. Peck of Peck & Peck, Naples, for appellants.
    Michael J. Yolpe of Monaco, Cardillo, Keith & Yolpe, Naples, for appellee.
   BOARDMAN, Judge.

Appellants appeal a final order entered by the trial court dismissing with prejudice their amended complaint. We reverse.

After a hearing held on February 14, 1983, on appellee’s motion to dismiss, the trial judge orally announced that he was granting the motion. The next day the attorney for appellee received a letter from appellants advising that they had filed a ' notice of voluntary dismissal. On March 1, 1983, the trial court entered its formal order dismissing the cause with prejudice.

Appellants contend, and correctly, that it was error for the trial court to take any further action after the notice of voluntary dismissal was filed. A strict interpretation of Rule 1.420(a)(i), Florida Rules of Civil Procedure, supports their contention as does the applicable case law. See Gonzalez v. Mulreany, 375 So.2d 621 (Fla. 3d DCA 1979) (wherein our sister court relied on the Florida Supreme Court’s interpretation of Rule 1.420 in Fears v. Lunsford, 314 So.2d 578 (Fla.1975)). In Fears the court held:

The rule is specific on this point. It states in unusual language, “the action may be dismissed by plaintiff without order of court ” by (1) service before trial or (2) stating on the record a notice of dismissal. No action is required by the court under the rule. Hence, a statement by the court that the notice is approved, or a motion to dismiss, if made, is granted, adds nothing to the finality of the dismissal. The only remaining action required by the court contemplated by the rule would be to advise the jury thereof in a jury case.

Id. at 579.

Accordingly, the order appealed is REVERSED.

OTT, C.J., and DANAHY, J., concur.


author: LEHAN, Judge.

text:
    In re FORFEITURE OF ONE 1978 HYDROSTE BOAT, SERIAL # HSP548VTM78, REGISTRATION # FL3683CD.
    No. 83-902.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
    Jeffrey C. Quinn, Naples, for appellant.
    Richard J. Aaron of Richard J. Aaron, P.A., Naples, for appellee.
   LEHAN, Judge.

In this forfeiture case, the respondent contends that the sheriff was guilty of laches in not promptly filing his complaint for a rule to show cause as required by section 932.704, Florida Statutes (1981). The complaint was filed fourteen months after the seizure of the boat and nine months after the resolution of the drug-related criminal charges which resulted from this incident.

The sheriff argues two points regarding respondent’s contention: (1) laches did not exist and (2) respondent did not assert lach-es as an affirmative defense under Florida Rules of Civil Procedure 1.110(d) and 1.140(h). Since respondent did not file any responsive pleading, the sheriff argues that the affirmative defense of laches was waived.

We agree with the sheriff and the trial court that laches did not exist since respondent did not show (or claim) that he was prejudiced from the delay in filing the complaint. Therefore, we do not reach the second point raised by the sheriff.

The Fourth District Court of Appeal, in a very helpful undertaking to clarify the murky subject of governmental forfeiture actions, said that “forfeiture proceedings are essentially civil in nature and, therefore are governed by the rules of civil procedure.” In re Forfeiture of Approximately $48,900 in U.S. Currency and Other Personal Property, 432 So.2d 1382, 1385-86 (Fla. 4th DCA 1983). In that same case the Fourth District also noted that in In re Forfeiture of United States Currency in the Amount of $5,300.00, 429 So.2d 800 (Fla. 4th DCA 1983), it had said that the rule to show cause issued by the trial court

should require those persons claiming an interest in the property to file a responsive pleading ... [which] should admit or deny or explain the petition’s material allegations and should assert any affirmative defenses, all as provided by Florida Rule of Civil Procedure 1.110(c) and (e).

432 So.2d at 1384. Accordingly, although we need not rule on the point, it would appear that the preferred, whether or not the required, procedure to be followed in this type of case by one claiming an interest in seized property would be to file a responsive pleading in accordance with rule 1.140, even if not required by the rule to show cause. At least respondents in forfeiture actions should no longer be in a position to contend that they did not have notice to do so.

We find respondent’s remaining contention on appeal to be without merit.

AFFIRMED.

OTT, C.J., and HOBSON, J., concur.


text:
    Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, Anabel P. Mitchell, Chairperson, Florida Parole and Probation Commission; Kenneth W. Simmons, Maurice G. Crockett, Jack F. Blanton, A.M. Fontana, Charles J. Scriven, and B.A. Greadington, members of the Florida Parole and Probation Commission, Appellants, v. Jake CAMERON, Appellee.
    No. 83-1051.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
    Doris E. Jenkins, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellants.
    No appearance for appellee.
   PER CURIAM.

In this appeal the Department of Corrections challenges the trial court’s granting of appellee’s petition for writ of habeas corpus entered on May 5, 1983.

On May 11, 1983, the same day notice of appeal was filed with this court, appellant filed a motion in the trial court seeking a stay of appellee’s release pending the outcome of the appeal. The trial court denied the motion finding that appellee had been released from custody. Therefore, the trial court found that no useful purpose would be served by granting the motion to stay. We point out that appellant did not seek a stay from this court.

In view of appellee’s release and appellant’s failure to file a motion for stay with this court, we affirm the trial court’s issuance of the writ of habeas corpus.

AFFIRMED.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


text:
    Joseph Reynolds GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 83-1900.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
   PER CURIAM.

Appellant, Joseph Reynolds Garcia, appeals the summary denial of his motion for post-conviction relief. The trial court denied the motion because appellant had already served the sentence. However, appellant remained in prison serving a 199-year sentence and contends he was denied parole because of the conviction he seeks to set aside. In this situation, the reason for denying the motion was improper. Bryan v. State, 345 So.2d 1095 (Fla. 2d DCA 1977); Weir v. State, 319 So.2d 80 (Fla. 2d DCA 1975). Nonetheless, we affirm the denial of the motion for post-conviction relief because the allegations were substantively insufficient.

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Curtis V. WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-2049.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
   PER CURIAM.

This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised two points in the motion. In Point I, he alleged that the prosecuting attorney violated the conditions of the plea agreement by failing to delete the information’s reference to a gun. In Point II, appellant asserted that the trial court erred in failing to disclose the factual portions of his presentence investigation prior to sentencing. If these allegations are true, appellant might be entitled to relief. The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record which conclusively refute appellant’s assertions.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegations and attach to its order those portions of the record which conclusively show that appellant is entitled to no relief or hold an evi-dentiary hearing and then rule on the allegations in the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review in this cause, any aggrieved party must appeal the new ruling of the trial court.

REVERSED and REMANDED.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


author: OTT, Chief Judge.

text:
    Johnnie LOFTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-2057.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1983.
   OTT, Chief Judge.

This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised several points in the motion. The allegations in paragraph 1, that appellant was misinformed about when he could expect to be paroled if he pled guilty, and that he would receive no incarceration time in exchange for a plea of nolo contendere, if true, would entitle appellant to relief. See Ramsey v. State, 408 So.2d 675 (Fla. 4th DCA 1981); Tillman v. State, 203 So.2d 46 (Fla. 2d DCA 1967). Also, the allegation in paragraph 2 that an uncounseled conviction was used to enhance his sentence, if true, would entitle him to relief. Johnson v. State, 362 So.2d 465 (Fla. 2d DCA 1978). The trial court, however, failed to either conduct an eviden-tiary hearing or attach portions of the record which refute those allegations.

Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegations specified, and attach to its order those portions of the record which conclusively show appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the grounds alleged in the above portion of the motion.

To obtain further review, any aggrieved party must appeal the new ruling of the trial court. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982), and Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

The trial judge was correct in denying the appellant’s motion as to the other points raised therein.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

BOARDMAN and DANAHY, JJ., concur.


author: COWART, Judge.

text:
    McCarthy CORPORATION, a Florida corporation, Appellant, v. ATLANTIC SHORES, INC., a Florida corporation, and Bleckman (UK) Ltd., a corporation, Appellees.
    No. 83-235.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 1983.
    William L. Eagan of Arnold, Matheny & Eagan, P.A., Orlando, for appellant.
    Christopher W. Wick'ersham, Sr., and Paul E. Rice, Jr., of Becks, Becks & Wick-ersham, Daytona Beach, for appellees.
   COWART, Judge.

This is an appeal from a final judgment on a directed verdict in the jury trial of a four count complaint brought by a buyer alleging that the seller breached a written contract for the sale of a condominium development. We have examined the complaint, the contract and the evidence adduced by the buyer and find that there was a basis for the trial court holding that, as a matter of law, the evidence was insufficient to go to the jury as to count three, alleging a tortious interference by a third party with the contractual relationship between the buyer and seller. However, there was prima facie evidence of a legal contract and of its breach and those matters necessitated the resolution of disputed questions of fact and should not have been decided adversely to the buyer as a matter of law. Accordingly, as to counts one, two and four of the complaint the final judgment against the buyer is reversed and the cause remanded for trial.

REVERSED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: COBB, Judge. COWART, Judge,

text:
    Elizabeth Ann CARNRIKE, Appellant, v. DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
    No. 83-748.
    District Court of Appeal of Florida, Fifth District.
    Dec. 21, 1983.

      Warren H. Edwards, Orlando, for appellant.
    Donald A. Lykkebak, Orlando, for appel-lee.
   COBB, Judge.

Elizabeth Carnrike appeals from an order permanently committing her two daughters to the Department of Health and Rehabilitative Services (HRS), the effect of which is to terminate her parental rights. The lower court found the children had been “abused, neglected and abandoned.” The record does not support “abandonment” as defined in section 39.01(1), Florida Statutes (1981). However, it reflects that HRS sustained its burden of showing neglect and abuse by clear and convincing evidence. Thus, while we acknowledge the mother’s pathetic plight, our concern for the children’s welfare must prevail. In the Interest of J.L.P., 416 So.2d 1250 (Fla. 4th DCA 1982).

Accordingly, the order of permanent commitment is

AFFIRMED.

ORFINGER, C.J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I do not agree that section 39.01(1), Florida Statutes (1981), correctly defines “abandonment” in terms of the legal meaning of that concept necessary to support a constitutional judicial finding that a parent has abandoned, that is, has voluntarily and intentionally relinquished, all parental rights in and to a child. See the dissent in In the Interest of: K.A.F., a child, Marie Faatz v. State of Florida, Department of HRS, No. 81-1354 (Fla. 5th DCA December 8, 1983) [1983 FLW], particularly note 1. Accordingly, I certainly do not agree that parental rights (as distinguished from custody) are subject to forfeiture because the parent has, in the opinion of a government agency and a judge, neglected or abused the child. § 39.41(l)(f)l.a., Fla.Stat. (1981). Nor do I agree that, when they are perceived to be in conflict, the courts can balance parental rights against the child’s best interests' or welfare and, when it is deemed to be in the child’s best interests, permanently terminate all of the natural parent’s rights and let HRS find the child parents who, in the opinion of HRS, possess better parental qualifications than did the natural parents.

      . Section 39.41(4), Florida Statutes (1981).