author: NESBITT, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. William J. GERMAN and Career Service Commission, Appellee.
    No. 83-2892.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.

      Paul A. Rowell and Michael J. Alderman, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and William H. Ravenell, Asst. Atty. Gen., Tallahassee, for appellee.
    Before NESBITT and FERGUSON, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

The Department of Highway Safety and Motor Vehicles appeals an order of the Career Service Commission which required the reinstatement of a disabled Florida Highway Patrol trooper. We reverse.

William German was first employed by the Department as a Highway Patrol Officer I on March 2, 1981. He was injured while on duty on December 12, 1981. As a result of the injuries, German was unable to adequately perform the duties of a trooper and was subsequently offered a demotion to the position of radio-teletype operator. Although he accepted this offer, he was never actually transferred to the position. On March 31, 1983, German was dismissed from the position of Highway Patrol Officer I because of his inability to perform assigned duties.

German appealed his dismissal to the Career Service Commission. Following a hearing, the Commission found that German was qualified and able to perform the duties of a radio-teletype operator. The Commission thereupon ordered that he be reinstated as a Highway Patrol Officer I, and further ordered the Department to comply with its earlier commitment by offering German the position of radio-teletype operator. The Department appeals this order.

We first note that German, a career service employee, could only be dismissed for cause, which includes inability to perform assigned duties. § 110.227(1), Fla. Stat. (1981). It was the function of the Commission to determine whether just cause existed for the dismissal on March 31, 1983. § 110.309, Fla.Stat. (1981). In doing so, the Commission should have limited the scope of its inquiry to whether German could perform the assigned duties of the position of Highway Patrol Officer I, the position from which he was dismissed. Nothing concerning the purported demotion was before the Commission. It was, therefore, error for the Commission to order the Department to reinstate the trooper to the position of Highway Patrol Officer I upon a finding that he was able to perform the assigned duties of a radio-teletype operator.

In Collins v. Florida Department of Offender Rehabilitation, 355 So.2d 131, 132 (Fla. 1st DCA 1978), the court held:

“[T]he agency has sole discretion to determine whether to dismiss or to suspend an employee, subject only to just cause. On appeal, the [Career Service] Commission may only determine whether there was competent substantial evidence to sustain the agency action or whether the facts establish- just cause.” (quoting from Florida A & M University v. Lewis, 327 So.2d 862 (Fla. 1st DCA 1976))

The record in the present case clearly indicates that German was unable to perform the assigned duties of a Highway Patrol Officer I. The Department, therefore, had just cause to dismiss him from that position, § 110.227, and the Commission was required to affirm the dismissal. § 110.-309(2).

We also find error in the Commission’s order requiring the Department to offer German the position of radio-teletype operator. First, as previously stated, nothing concerning the purported demotion was before the Commission. Additionally, a regulatory body has only that authority delegated to it by statute. Since neither section 110.309 nor any other statute gives the Commission the authority to require the Department to offer German another position, the order was made without lawful authority. Department of Transportation v. James, 403 So.2d 1066 (Fla. 4th DCA 1981).

Accordingly, we reverse the order under review and remand with directions to the Commission to affirm German’s dismissal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CORDIS DOW B.V., C-D Medical Systems, S.A., N.V., Appellants, v. MECRESCO, Appellee.
    No. 83-2948.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Greenberg, Traurig, Askew, Lipoff, Ro-sen & Quentel and Alan T. Dimond and Lawrence S. Gordon, Miami, for appellants.
    Haddad, Josephs & Jacks, Coral Gables, and Denise V. Powers, Miami, for appellee.
    Before HUBBART and FERGUSON, JJ., and PEARSON, TILLMAN, (Ret.) Associate Judge.
   PER CURIAM.

The non-final order denying the motion to dismiss the complaint filed below is affirmed upon a holding that: (a) the sole basis urged below for dismissing the subject complaint as to the non-resident defendants herein was that the complaint failed to allege sufficient facts to invoke Florida’s long-arm statute as to such defendants [defendants’ motion to dismiss, ¶ 4]; (b) plaintiff’s complaint alleges a sufficient basis to invoke the application of Florida’s long-arm statute [§ 48.181, Fla. Stat. (1983) ] as to the non-resident defendants, Fla.R.Civ.P. 1.070(i); and (c) it is unnecessary to reach the other grounds urged herein challenging the trial court’s in per-sonam jurisdiction over the non-resident defendants inasmuch as those grounds were never presented to the trial court. Upon remand, however, these grounds may be raised in the trial court on proper motion by the non-resident defendants.

Affirmed.


text:
    William Charles TROTT, Appellant, v. Hyacinth Beckford TROTT, Appellee.
    No. 84-286.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Michael Lechtman, North Miami Beach, for appellant.
    Ronald E. Dobelstein, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


text:
    Edward C. TIETIG, Individually and as Co-partner, and Villasol Realty Co., a Florida corporation as Co-partner; d/b/a the Park Apartments Ltd., Appellants, v. Henry A. RICCIO, Appellee.
    No. 84-310.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Edward C. Tietig, Miami, for appellants.
    Heitner & Rosenfeld and Alan B. Gest, North Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Because plaintiffs suit seeks primarily foreclosure of a mechanic’s lien on real property, even though damages are sought as an alternative remedy, the action should have been brought in Brevard County where the property is situated. See Georgia Casualty Co. v. O’Donnell, 109 Fla. 290, 147 So. 267 (1933); Sales v. Berzin, 212 So.2d 23 (Fla. 4th DCA 1968) (a suit to foreclose mortgage is local, and must be brought in county where land lies, even though other relief, such as deficiency judgment, may be granted).

Reversed with instructions to transfer venue or dismiss.


text:
    Joseph LATIMORE, Appellant, v. The STATE of Florida, Appellee.
    No. 84-650.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Joseph Latimore, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 371 So.2d 110 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 462 (Fla.1979); Coyner v. State, 177 So.2d 715 (Fla. 3d DCA 1965).


text:
    Garry LATIMORE, a/k/a Gary Latimore, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1220.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Gary Latimore, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Defendant appeals from the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse upon a finding that the defendant’s claim of ineffective assistance of counsel, namely, that his trial counsel failed to object to certain prejudicial comments made by the prosecuting attorney in closing argument before the jury appearing at page 19 and 20 of the transcript, cannot be determined as insufficient without the benefit of these transcript pages, which have not been provided to us. The cause is remanded to the trial court for the purpose of making these portions of the trial record a part of its denial, or conducting an evidentiary hearing on the defendant’s motion.

Reversed and remanded, with directions.


author: MILLS, Judge.

text:
    Laura L. TAYLOR, Appellant, v. HUNTLEY JIFFY STORES, INC. and Corporate Group Services, Inc., Appellees.
    No. AU-114.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Dorothy Clay Sims and J.W. Chalkey, III, Ocala, for appellant.
    Jack A. Langdon, Jones & Langdon, Gainesville, for appellees.
   MILLS, Judge.

In this workers’ compensation action, Taylor appeals from the deputy eommis-sioner’s order denying his petition for modification. We affirm. It appears, however, that the deputy overlooked the employer/ carrier’s admitted liability for the claimant’s visit to Dr. Faris on 9 February 1983.

The order is AFFIRMED with the requirement that the employer/carrier reimburse the claimant for the cost of her visit to Dr. Faris on 9 February 1983.

SHIVERS and WIGGINTON, JJ., concur.


text:
    OMEC AUTO RECYCLING and National Union Fire Insurance Company, Appellants, v. William E. TAYLOR, Appellee.
    No. AV-423.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Walter E. Beisler, Beisler & Beisler, West Palm Beach, for appellants.
    Vincent A. Lloyd, Lloyd, Brown, Hoskins & Becht, Fort Pierce, for appellee.
   MILLS, Judge.

We find competent and substantial evidence in the record supporting the deputy commissioner’s finding that Taylor had not reached maximum medical improvement. Competent and substantial evidence also supports the award of temporary partial disability benefits and authorized treatment by a Florida physician.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: SMITH, Judge.

text:
    SACRED HEART HOSPITAL and United States Fidelity and Guaranty Company, Appellants, v. Jo Anne GRAFTON, Appellee.
    No. AW-489.
    District Court of Appeal of Florida, First District.
    June 19, 1984.

      Larry Hill of Sherrill, Moore, Hill & Westmoreland, Pensacola, for appellants.
    James F. McKenzie, Pensacola, for appel-lee.
   SMITH, Judge.

We are asked to reverse an award entered by the deputy commissioner in the hearing below, awarding claimant reimbursement of funds she expended for construction of a lap pool at her home to enable her to engage in swimming exercise. We affirm.

Claimant suffers from recurring phlebitis and also has had a pulmonary embolus, a life-threatening condition, which occurred shortly after an injury to her left foot at work in April 1979. Treatment for claimant’s phlebitis involves anti-coagulant medication. In the course of her employment on November 12, 1979, claimant slipped and fell on her left knee, with her foot underneath her, injuring her hip, knee, and ankle. As a result of this accident, claimant suffered an ankle injury diagnosed as reflex dystrophy. Claimant testified that her ankle and knee were swollen, her hip was tender, and it hurt her to stand, sit, and lie down. Treatment for claimant’s leg injury consisted of anti-inflammatory medication and exercise. However; since the anti-inflammatory medication presents a danger of bleeding, claimant is unable to take this medication for her leg injury. Therefore, the sole treatment for claimant’s leg injury is exercise. Claimant testified that she had unsuccessfully tried other exercises such as walking and bicycle riding. Walking presented a dangerous situation to claimant since it enhanced her chances of pulmonary embolus and bicycle riding was too painful. Claimant needed to exercise because prolonged periods of immobilization caused by pain would contribute to the development of phlebitis. She testified that she had been swimming since 1982 and that it was the only exercise that relieved her pain. She had been using pools, belonging to friends, which she stated are no longer available to her.

The sole, uncontroverted medical testimony presented at the hearing below was that of claimant’s treating physician, Dr. Lorraine Flatt. Dr. Flatt’s testimony was that claimant is in significant, genuine pain. Dr. Flatt recommended swimming as treatment for claimant’s leg injury, not only to relieve her pain, but to prevent a recurrence of phlebitis and possible pulmonary embolus. Dr. Flatt testified that without swimming, claimant would have to perform weight-bearing exercises which would make her ankle injury worse. The closest pool to claimant’s home is 56 miles away. Dr. Flatt stated that long distance driving would enhance the possibility of recurring phlebitis. Therefore, it was Dr. Flatt’s conclusion that a swimming pool at claimant’s home was medically necessary for treatment of claimant’s leg injury.

Claimant first requested the E/C to furnish a pool, and when this was denied she mortgaged her home and had a lap pool (16' X 32' x 4' deep) installed in her yard. The contract price for the pool is $8,328.20, which includes, among other things, installation, steps, handrails, plumbing, a heater, and decks.

The deputy commissioner found that claimant’s history of pulmonary embo-lus makes routine exercise essential to claimant’s health, that her painful ankle injury makes most other forms of exercise unrealistic, and that her daily use of a swimming pool is a medical necessity. These findings are supported by competent, substantial, and uncontroverted evidence in the record. The deputy commissioner concluded that a swimming pool was a medical necessity for her recovery from injuries resulting from her accident, and ordered the employer/carrier to reimburse claimant for the expenses involved in construction of the pool.

In urging reversal of this award, the employer/carrier argue that claimant’s medical condition does not constitute a set of extremely unique circumstances justifying exceptional relief, citing Haga v. Clay Hyder Trucking Lines, 397 So.2d 428 (Fla. 1st DCA 1981), and Firestone Tire and Rubber Co. v. Vaughn, 381 So.2d 740 (Fla. 1st DCA 1980). We must view this appeal, of course, in the light of the circumstance that the E/C submitted no medical evidence below, and presented no evidence that the pool could have been provided at less expense. Most significantly, in the face of uncontroverted medical evidence that swimming exercise was medically necessary for claimant’s recovery and even for the preservation of her life, the E/C offered no alternative to the drastic measures ultimately undertaken by the claimant to supply the means whereby her life-sustaining exercise could be accomplished.

We find, based upon our examination of the record, that the deputy commissioner was justified in concluding that award of reimbursement for the pool was proper under the restrictive standards enunciated by the court in Haga v. Clay Hyder Trucking Lines and Firestone Tire and Rubber Co. v. Vaughn, supra, both of these cases being cited in the deputy commissioner’s order and obviously considered by him in arriving at his decision. In the absence of a significant contest on the issue before the deputy commissioner, see, Chain Store Warehouses v. Picard, 431 So.2d 685 (Fla. 1st DCA 1983), we are compelled to accept the conclusion, implicit in the deputy commissioner’s order as well as apparent from the record itself, that claimant’s condition presented a “set of extremely unique circumstances” warranting the granting of “highly extraordinary relief.” Haga, 397 So.2d at 429.

AFFIRMED.

JO ANOS- and ZEHMER, JJ., concur.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    Frederick LEPPER, Appellant, v. STATE of Florida, Appellee.
    No. AW-463.
    District Court of Appeal of Florida, First District.
    June 19, 1984.

      William H. Maness, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Lepper appeals from the' denial of his motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. The only issue which warrants discussion is the one regarding the trial court’s failure to provide Lepper an opportunity to withdraw his nolo contendere plea. We affirm.

Pursuant to the terms of a negotiated plea, Lepper agreed to enter a nolo conten-dere plea to the charges of grand theft and failure to appear and the State agreed to recommend five years probation, with the special condition that Lepper serve 364 days, and make restitution for grand theft, to recommend a consecutive five year probationary term for failure to appear, and to nolle prosse all known eases against Lep-per in that circuit in exchange for restitution in those cases. Lepper’s nolo plea was accepted by the trial court. Lepper ultimately received a five year sentence for grand theft and a concurrent five year sentence for failure to appear and was required to make restitution.

Although the record does not contain a transcript, if any, of the plea hearing, there is no suggestion the trial court promised Lepper the sentence recommended by the State, or any other sentence, or that the trial court was a party to the plea negotiations. To the contrary, Lepper asserted in his 3.850 motion that when he entered his plea the trial judge said he wanted a P.S.I. prior to sentencing and said he would not be bound by the plea agreement. This indicates the trial court did not or might not concur in the sentence recommended by the State in the plea agreement. Lepper’s signed petition to enter a nolo plea contains the following statement: “I recognize that if I have been told by my lawyer that I might receive probation or a light sentence this is merely his prediction and is not binding on the Court.” Additionally, there is no assertion that the trial court refused a request by Lepper to withdraw his plea or that such a request was ever made.

Under these circumstances, the trial court was under no duty to provide Lepper a clear opportunity to withdraw his plea at sentencing. The instant situation is clearly distinguishable from a situation, such as that in State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA), cert. denied, 359 So.2d 1222 (Fla.1978), where the defendant tendered a plea in reliance on the trial .court’s expression of sentencing intentions. A defendant cannot withdraw a voluntary nolo plea solely because the sentence does not conform to what his attorney led him to expect. See Morgan v. State, 414 So.2d 593 (Fla. 3d DCA 1982).

AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge,

dissenting.

In appellant’s former appeal from the judgment and sentence, now sought to be vacated, we per curiam affirmed Lepper’s conviction without prejudice to his right to seek relief pursuant to Florida Rule Criminal Procedure 3.850. Lepper v. State, 431 So.2d 295 (Fla. 1st DCA 1983). Having reviewed the record in the former appeal, which we are permitted to notice judicially, I find that although our opinion gave no reasons for its decision, the judgment and sentence were affirmed because Lepper had entered a plea of nolo contendere without reserving his right to appeal any dis-positive issue, thereby waiving a general review of the plea. Following the directions in our earlier opinion, he attacked the sentence imposed, alleging in his motion to vacate sentence that he was not given the opportunity to withdraw his plea of nolo contendere. This allegation is unre-futed by the transcript of the sentencing proceeding.

It is true, as stated by the majority, that there is also nothing in the record revealing that Lepper ever made a request to withdraw his plea; nevertheless my understanding of Florida Rules of Criminal Procedure 3.171(d) and 3.172(g) is that they place first an affirmative duty on the trial judge to offer the defendant the opportunity to withdraw his plea. It is not enough for the trial court to represent, as in the present case, that it may not be bound by the plea agreement. The duty abides with the trial judge to extend the offer to the defendant to withdraw, otherwise it cannot be said that the plea was voluntarily obtained. This, I think, is the principle of law which State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978), cert. denied, 359 So.2d 1222 (Fla.1978), espouses. There the trial judge, as here, advised the defendant that he would not be bound by the plea bargain agreement, but, unlike the judge in the case below, he specifically advised defendant that he would allow him later, if his concurrence became impossible, the option of withdrawing the plea. Such an eventuality took place and the court in fact vacated the plea and set the case for trial. Wilhoit, among other things, sought specific performance of the plea bargain agreement, which was disallowed at both the trial and appellate levels. We concluded, in answer to Wilhoit’s arguments:

Where as here a nolo contendere or guilty plea is tendered in reliance on the court’s expression of sentencing intentions, and the plea is accepted, the sentencing judge must grant the defendant a clear opportunity to withdraw the plea if the judge cannot in conscience impose the sentence indicated; but that is the limit of the trial court’s obligation. Davis v. State, 308 So.2d 27 (Fla.1975); State v. Adams, 342 So.2d 818 (Fla.1977). See also ABA Standards, Pleas of Guilty § 3.3(b) (1968):
[The trial judge] may ... indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him. If the trial judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo contendere.

356 So.2d at 824.

Thus, Wilhoit recognizes that regardless of whether a trial judge disavows any intention to be bound by a plea agreement, he must nevertheless grant the defendant a clear opportunity to withdraw his plea if the judge determines he cannot later accept the recommended disposition. This rule has been repeated in numerous cases. See, e.g., Coleman v. State, 433 So.2d 627 (Fla. 2d DCA 1983); Dunkel v. State, 432 So.2d 201 (Fla. 2d DCA 1983); Gumbiner v. State, 429 So.2d 828 (Fla. 2d DCA 1983); Nichols v. State, 403 So.2d 1089 (Fla. 1st DCA 1981); Freeman v. State, 376 So.2d 294 (Fla. 2nd DCA 1979); Coy v. State, 404 So.2d 135 (Fla. 4th DCA 1981).

I would, accordingly, reverse the conviction and remand appellant’s case with directions that he be given an opportunity to withdraw his plea of nolo contendere, if he desires, and enter a plea of not guilty to the offense charged.


text:
    Peter NOEL and Legeia Noel, his wife, Appellants, v. M. ECKER & COMPANY and Carpentry Collaborative, Inc., Appellees.
    No. 82-1276.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1984.
    David L. Kahn of David L. Kahn, P.A., Fort Lauderdale, for appellants.
    Steven Kronenberg of Adams, Kelley, Kronenberg & Rutledge, Miami, for appel-lees.
   PER CURIAM.

Appellants seek review of an order of the trial court granting their motion to tax appellate costs to the extent of only one-half of the costs incurred.

We agree with appellants that all of the costs incurred were necessary to perfect this appeal and thus were properly taxable against the appellee, M. Ecker & Company.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to the trial court to enter an order taxing the costs of $1509.90 against appellee, M. Ecker & Company.

REVERSED AND REMANDED, with directions.

DOWNEY, HERSEY and DELL, JJ., concur.


text:
    Michael D. KOONTZ and Pamela K. Koontz, Appellants, v. John KOVAR, Appellee.
    No. AW-20.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Woodburn S. Wesley, Jr. and Michael R. Gates of Cotton, Wesley & Poche, Shali-mar, for appellants.
    C. LeDon Anchors of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.
   PER CURIAM.

This cause is before us on appeal from a final judgment in favor of appellee, holding that, although appellee was at fault in breaching the terms of the contract between the parties and in violation of the covenant not to compete, the covenant not to compete was unreasonable as to time and area. The reasonableness of the covenant not to compete was not raised by the parties as an issue at trial, nor was it tried by express or implied consent. Tomasello, Inc. v. Ce Los Santos, 394 So.2d 1069 (Fla. 4th DCA 1981).

Accordingly, the judgment, to the extent dependent upon that determination, is reversed and the cause remanded for such further proceedings in accordance herewith as may be required to carry out the agreement between the parties.

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.


text:
    Wilbur H. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AW-239.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Wilbur Johnson appeals from a judgment and sentence for dealing in stolen property. The appellant contends' that the trial court erred in admitting over his objection his wife’s testimony as to a conversation between herself and appellant. The admission of this testimony was prejudicial to the appellant in that it established that he knew the property in question was stolen. We agree with the appellant and reverse.

The objection of appellant’s counsel to the testimony on the basis that the appellant’s statement to his wife was subject to the husband-wife privilege was overruled by the court on the ground that the privilege did not apply to a husband and wife who were committing a crime. That ruling, though consistent with federal law, is contrary to Florida’s statutory and case law. Section 90.504, Florida Statutes (1988), does not except from the husband-wife privilege confidential communications between husband and wife made in furtherance of a crime. In the recent case of State v. Arata, 438 So.2d 1032 (Fla. 1st DCA 1983), this court affirmed a trial court’s order granting a wife’s motion to suppress intercepted telephone conversations between her and her husband concerning joint criminal activity, which conversations had been obtained by a court-authorized order. The order was affirmed on the authority of Smith v. State, 344 So.2d 915 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977). In Smith, the wife had been allowed to testify regarding certain statements made by her husband to her. The husband had shot and killed a man who had been visiting the wife. Over the husband’s objection, the wife was allowed to testify that, after the killing, the husband, when asked by his wife what he had done, replied, “I killed him.” The wife also testified as to a conversation with her husband during which the removal and burial of the victim’s body were discussed. The State argued, inter alia, that the marital privilege did not apply to communications made in the furtherance of a crime. The appellate court refused “to engraft such an exception upon the marital privilege, again because of the harm it would inflict upon the strong policy underlying the privilege.”

Accordingly, we reverse and remand for a new trial upon the foregoing authority.

ERVIN, C.J., and BOOTH and WENT-WORTH, JJ., concur.

      . C. Ehrhardt, 5 Fla.Prac.Evidence, Sec. 504.5 (1982 pocket part at p. 60).


author: WIGGINTON, Judge.

text:
    The COCA-COLA COMPANY-FOODS DIVISION and General Adjustment Bureau, Appellants, v. James A. HAWK & Department of Labor and Employment Security Division of Workers’ Compensation, Appellees.
    No. AW-497.
    District Court of Appeal of Florida, First District.
    June 21, 1984.
    Jesse F. Sparks, of Sparks, Cooper & Leklem, P.A., Orlando, for appellants.
    Thomas Cassidy, of Smith, Cassidy, Platt & Harris, P.A., Lakeland, for appellees.
   WIGGINTON, Judge.

In this workers’ compensation appeal, the employer/carrier challenge the deputy commissioner’s award of temporary partial disability and wage loss benefits to claimant for his compensable back injury which occurred on July 27, 1982. We affirm.

The only competent evidence of claimant’s maximum medical improvement date is found in Dr. Mahan’s report and deposition, Ardmore Farms, Inc. v. Squires, 395 So.2d 268, 270 (Fla. 1st DCA 1981), such date given as February 25, 1983. That finding, coupled with sufficient competent record evidence of an adequate job search, requires our approval of the deputy’s award of TPD benefits for the period February 8, 1983, through February 25, 1983.

The E/C’s claim of error by the deputy in finding permanent impairment based on Dr. Mahan’s testimony is without merit. The doctor testified that although he applied the AMA Guides to claimant’s injury, the Guides did not take into consideration claimant’s physical condition consisting of a bulging disc that was definitely-connected with the accident and injury. He therefore relied on his training, experience and expertise in assigning claimant a permanent impairment rating. The testimony went unrebutted by the E/C. Under Trindade v. Abbey Road Beef ’N Booze, 443 So.2d 1007 (Fla. 1st DCA 1983), and Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982), Dr. Mahan’s testimony was competent to establish the requisite permanent impairment for wage loss. Cf. Maggard v. Simpson Motors, et al., 451 So.2d 529 (1984) (physician’s permanent impairment rating based solely on claimant’s subjective complaints of chronic pain not competent substantial evidence on which the deputy could base a finding of permanent impairment cognizable under provisions of chapter 440).

Finally, we find no error in the deputy commissioner’s award of wage loss benefits following claimant’s reaching MMI. There is competent substantial evidence establishing claimant’s work search as required by this Court’s holding in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984).

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


text:
    Jerry WORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-85.
    District Court of Appeal of Florida, Second District.
    June 22, 1984.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.-
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment and sentence is affirmed. Appellant was assessed a clerk cost of $50 pursuant to section 27.56, Florida Statutes (1981). Costs can properly be recovered from an indigent defendant under this statute. Anderson v. State, 415 So.2d 49 (Fla.2d DCA 1982). The record, however, does not reflect compliance with the notice and hearing provisions of section 27.56(7), Florida Statutes (1981). Drumm v. State, 432 So.2d 765 (Fla.2d DCA 1983); Gaylord v. State, 413 So.2d 72, 73 (Fla.2d DCA 1982). We, therefore, vacate the $50 cost judgment. Nothing herein shall pre-elude the retaxing of these costs through the proper procedure.

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


author: DANAHY, Judge.

text:
    Cornelius SHERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2524.
    District Court of Appeal of Florida, Second District.
    June 22, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

After reviewing the briefs and record on appeal in this case, we find that the appellant has failed to demonstrate any reversible error, and, therefore, the order withholding adjudication of guilt and placing appellant on probation appealed from is affirmed. At sentencing in open court the court orally pronounced a term of probation for a period of two years. However, the written order provides for a three-year period of probation. Accordingly, the cause is remanded to the trial court for correction of the apparent clerical error in the order of probation. Yates v. State, 429 So.2d 815 (Fla.2d DCA 1983).

The order is AFFIRMED in all other respects.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


author: GRIMES, Judge.

text:
    Isaac WEEMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-219.
    District Court of Appeal of Florida, Second District.
    June 22, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This case involves the review of a sentence imposed outside the recommended guidelines.

Appellant pled guilty to charges of burglary of a structure, battery on a law enforcement officer, and resisting arrest without violence. All of the crimes occurred on September 3, 1983. However, sentencing took place after October 1, 1983, and pursuant to section 921.001(4)(a), Florida- Statutes (1983), appellant affirmatively elected to be sentenced under the guidelines. Appellant’s recommended sentence under the guidelines was “any non-state prison sanction.” The court, however, determined to depart from the guidelines and imposed concurrent two year sentences on the two felonies and a concurrent six month term for resisting arrest without violence.

On the guideline form, the court gave as reasons for the departure:

Had this man been scored under burglary, he would come under 12-30 months because of the previous burglaries which can be counted. This man has been to State Prison twice before for burglaries — it apparently taught him nothing. This is his 11th burglary, although we can only “count” two. It is apparent he cannot make it on probation since he violated his last probation & his last parole. See attached.

The court attached a record of appellant’s prior offenses which included thirteen juvenile dispositions that were the equivalent of convictions had they been committed by an adult.

Appellant, who was twenty-seven years old at sentencing, argues that the court improperly relied upon his juvenile record to depart from the guidelines since Florida Rule of Criminal Procedure 3.701(d)(5)(c) excludes from the computation all prior juvenile dispositions more than three years old. In making this argument we believe that the appellant misconceives the theory of sentencing guidelines.

The purpose of sentencing guidelines is to promote more uniformity in sentencing without usurping judicial discretion. While it was contemplated that most sentences would fall within the guidelines, it was also anticipated that from fifteen to twenty per cent of the sentencing decisions routinely would fall outside the recommended range. To prevent an abuse of discretion, provision was made for an appellate review of the reasons given for departing from the guidelines. Fla.R. Crim.P. 3.701(d)(ll).

The fact that appellant’s juvenile record cannot be considered in calculating the applicable sentencing range does not mean that it cannot be considered by the court as a reason for departing from the guidelines. The only limitation on reasons for deviating from the guidelines is found in subsection (d)(ll) which reads:

Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

There is nothing in rule 3.701 to suggest that matters excluded for purposes of guideline computation cannot be considered as reasons for departure from the guidelines.

The stated reasons provided an adequate basis for sentencing appellant above the recommended range.

AFFIRMED.

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

      . This computation took into account two prior felonies and three prior misdemeanors.

      . The court’s reference to scoring under burglary was prompted by the fact that while both the burglary and the battery of a law enforcement officer were third degree felonies, the battery of a law enforcement officer was the primary offense for purposes of calculation. Fla.R.Crim.P. 3.701(d)(3)(b). Under the recent amendment to the guidelines, appellant’s primary offense would have been burglary rather than battery of a law enforcement officer. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988-Sentencing Guidelines), No. 65,216 (Fla. May 8, 1984) (which is subject to legislative approval pursuant to section 921.001(4)(b), Florida Statutes (1983)).

      . Plante, Abernethy, Salokar & Kern, Judicial Sentencing-Help Is On The Way, 55 Fla.B J. 536 (July-Aug.1981).

      . A. Sundberg, Statewide Sentencing Guidelines Implementation and Review, A Report to the Legislature, Jan. 7, 1982, at 22 (available from the Office of State Courts Administrator); Sund-berg, Plante & Braziel, Florida’s Initial Experience With Sentencing Guidelines, 11 Fla.St.L. Rev. 125, 142 (1983).

      . Acknowledging that this wording was being misinterpreted, the Sentencing Guidelines Commission in a memorandum of February 9, 1984, to the bench, bar and others serving in the criminal courts stated:
      The Commission has intended that this language be understood to provide that reasons for deviating from the guidelines shall not include arrests or charges relating to the instant offense for which convictions have not been obtained and shall not include prior arrests for which convictions have not been obtained. Other factors, consistent and not in conflict with the Statement of Purpose may be considered and utilized by the sentencing judge.
      R. Wesley, Director, Sentencing Guidelines Commission, Memorandum on Sentencing Guidelines Modification, Feb. 9, 1984 (available from the Office of State Courts Administrator). The May 8, 1984, amendment to the rule changed the wording of subsection (d)(ll) to further clarify the Commission’s intent.


text:
    Isaac Paul ROBIE, Appellant, v. STATE of Florida, Appellee.
    No. 84-625.
    District Court of Appeal of Florida, Second District.
    June 22, 1984.
   PER CURIAM.

Appellant, Isaac Paul Robie, seeks review of the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Appellant alleges that his sentence is illegal because it did not allow credit for time served in the Spectrum Drug Abuse Program. This issue is properly raised on a rule 3.850 motion. Little v. Wainwright, 161 So.2d 213 (Fla.1964). The trial court denied the motion for post-conviction relief and attached a copy of an order of the trial court which granted appellant’s motion to receive credit for time served in the Spectrum Drug Abuse Program.

We do not address the propriety of the order crediting appellant with time for the period spent in the drug rehabilitation program since that order was not appealed when entered. See Pennington v. State, 398 So.2d 815 (Fla.1981). We note, however, that even though credit for time served has been determined proper by the trial court, the amount of time to be credited to appellant has not been set out in the order. Therefore, we remand to the trial court for determination of the specific amount of time the trial court intended for appellant to receive.

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


text:
    T.L.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-288.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. State v. D.T.W., 425 So.2d 1383 (Fla. 1st DCA 1983).


text:
    Linwood ANDERSON, Appellant, v. Juliann ANDERSON, Appellee.
    No. 83-1084.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.

      Daniels & Hicks and Patrice A. Talisman, Hall & O’Brien, Miami, for appellant.
    Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Linwood Anderson appeals from a final order of the trial court in this dissolution of marriage action which awarded to the wife $2333.00 per month permanent periodic alimony, along with other awards not at issue herein. We affirm.

Appellant’s sole issue on appeal is that the trial court abused its discretion by basing the permanent periodic award on his two highest earnings years without taking into consideration that his income has substantially declined since 1979. He argues that he has been left with only $5,104.00 a year to support himself and his minor son, of whom appellant has custody.

Appellee argues that the award in question was aproper and the court was justified in disregarding certain testimony relative to appellant’s claimed deficit of expenses over income in view of other, contradictory evidence indicating that the husband had ‘funds which were not visible,’ Bucci v. Bucci, 350 So.2d 786, 789 (Fla. 3d DCA 1977).

The trial court’s order states that the court carefully watched and listened to the parties and their witnesses, carefully examined all exhibits offered in evidence and considered all argument of counsel, and used common sense in deciding that which is the duty of the court to determine. It concluded that the financial affidavits filed by appellant appear not to reflect truly his income nor his capacity to earn, nor his true present net worth.

Our review of the permanent periodic alimony award is limited to the reasonableness test of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983). In Conner v. Conner, 439 So.2d 887 (Fla.1983), the Supreme Court held that the question of whether a party has been “shortchanged” is an issue of fact and not one of law and thus, a District Court of Appeal exceeds its scope of appellate review in making such a determination. Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984) (question of scope of review post — Kuvin and Conner certified). On the basis of the record before us and the detailed findings of fact and conclusions of law by the trial court, we cannot say that the trial court abused its discretion in awarding the amount it did as permanent periodic alimony.

Affirmed.

      . The trial court did not, however, make a finding as to appellant's actual income or net worth. In Evans v. Evans, 443 So.2d 233, 235 (Fla. 1st DCA 1983) at n. 1, the court therein explained why it is highly recommended that trial courts make such findings in dissolution cases where the husband’s salary is in dispute.


text:
    V.L.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1281.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.

      Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen. and Lawrence G. Price, Certified Legal Intern, for appel-lee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981).


text:
    Sylvan M. COHEN, Appellant, v. George FRIEDLAND, Appellee.
    No. 83-1957.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Cohen, Shapiro, Polisher, Shiekman & Cohen and A. Budd Cutler, Miami, for appellant.
    Steel, Hector & Davis and Arthur J. England, Jr. and Thomas R. Julin, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

Reversed on the authority of Cohen v. Friedland, 450 So.2d 905 (Fla. 3d DCA 1984).

HUBBART, J., dissents.


text:
    The STATE of Florida, Appellant, v. Alfred DAISE, Appellee.
    No. 83-2253.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellant.
    Joe Lang Kershaw, Jr., Miami, for appel-lee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The state appeals the trial court’s order granting defendant Daise a mistrial and a new trial. We affirm upon a finding that the record fails to disclose any clear abuse of discretion by the trial court. See State v. Woodson, 330 So.2d 152 (Fla. 4th DCA 1976); Jones v. State, 233 So.2d 432 (Fla. 3d DCA 1970); Hanson v. State, 187 So.2d 54 (Fla. 3d DCA 1966).


author: BASKIN, Judge.

text:
    Jessie O’NEILL, Appellant, v. Charles P. SACHER, et al., Appellees.
    No. 83-2414.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.

      Fox, Carpenter, O’Neill & Shannon and Bruce O’Neill, Cunningham, Albritton, Len-zi & Warner, Marathon, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, Imogene M. Synon, Key West, for appellees.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Jessie O’Neill appeals a final order construing her deceased mother’s last will and testament in conjunction with a pour-over trust naming appellant as primary beneficiary. The trial court held that the “general intent and purpose of the testator as gathered from the entire Will” requires the 1974 pour-over trust to pay the expenses of the Plantation Key property as long as the testator’s husband, Robert Austin, lives in the residence. We affirm.

At the heart of this litigation is a conflict among provisions of the daughter’s 1974 trust, the mother’s will and the codicil to the mother’s will concerning the responsibility to pay expenses for the Plantation Key residence while Mr. Austin lives there. The daughter’s 1974 trust authorizes the trustee to manage and preserve the “Sett-lor’s residence in accordance with the provisions of Article [X] of Settlor’s Last Will and Testament....” Article X of the will devised to the husband the right to reside in Mrs. Austin’s Plantation Key residence until his death, remarriage or vacation of the premises “without rent or other charge.” Article X also directed the husband to “pay all expenses relating to the maintenance and upkeep of such resi-dence_” However, this portion of Article X was expressly revoked and replaced by Article V of the subsequent codicil, which provides that the maintenance and upkeep expenses of the Plantation Key residence are to be paid by the decedent’s estate and the “Trust established in accordance with Article XI” of the will. The trust established in accordance with Article XI is a testamentary trust for the husband providing him with a lifetime annuity of $36,000 per year and an unlimited power of appointment as to the trust assets.

Mrs. O’Neill asserts that the irreconcilable conflict between the will and the codicil renders the later-drawn codicil controlling. The husband’s trust, she contends, is therefore responsible for the expenses of the Plantation Key residence. We find no merit in appellant’s contention. We see no reason to consider the codicil as an isolated segment of the decedent’s testamentary scheme, especially when Article VII of the codicil expressly ratifies, confirms and effectively republishes the will. § 732.5105, Fla.Stat. (1977) .

The objective in construing a will is to determine the intent of the testator, Mosgrove v. Mach, 133 Fla. 459, 182 So. 786 (Fla.1938); In re Estate of Johnson, 347 So.2d 785 (Fla. 1st DCA 1977); In re Estate of Parker, 110 So.2d 498 (Fla. 1st DCA), cert. denied, 114 So.2d 3 (Fla.1959), from a consideration of the instrument as a whole. Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA), review denied, 440 So.2d 352 (Fla.1983). When the will contains provisions that seem to conflict, it is the duty of the trial court to harmonize and reconcile the conflicts to give effect to the testamentary intent. Meszaros v. Holsberry, 84 So.2d 565 (Fla.1956); Hulsh. It is axiomatic that where there are inconsistencies between a particular clause of a will and the general intent of the will as a whole, the general intent should prevail over an isolated provision that appears contrary to the testator’s overall purpose and intent. Meszaros; Hulsh.

A review of the record indicates that Mrs. Austin’s intention, evidenced by the testamentary plan in its entirety, was to favor her husband by providing that he live in the Plantation Key residence without paying rent or other expenses associated with the house. The trial court therefore properly harmonized the trust, the will and the codicil to give effect to Mrs. Austin’s general testamentary intent by determining that the residence expenses must be borne by the daughter’s trust.

Affirmed.

       Section 732.5105 provides:
      The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.


text:
    STORER CABLE T.V. OF FLORIDA, INC., Appellant, v. SUMMERWINDS APARTMENTS ASSOCIATES LTD., a Florida limited partnership, Appellee.
    No. 83-2433.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.

      Daniels & Hicks and Louise H. McMur-ray, Miami, Dixon, Dixon, Hurst & Nicklaus, Tallahassee, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Alan T. Dimond and Lawrence S. Gordon, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This appeal questions the appropriateness of the trial judge declaring Section 83.66 Florida Statutes (Supp.1984) and Section 8A-132(b) of Metropolitan Dade County Code unconstitutional by a judgment on the pleadings.

Storer Cable, acting under the franchise granted it to service Dade County (Section 8A-132(b) Metro Dade Code), responded to the requests of several tenants of Summer-winds Apartments for cable television. The Storer representatives, however, were refused access to the apartment complex by the resident manager. To comply with the tenants’ demands for service, Storer sought an injunction to prohibit further interference by Summerwinds and damages, alleging it had a right to enter upon the premises of Summerwinds for the purpose of installing and maintaining a CATV System. Summerwinds answered raising the affirmative defense that the enactments upon which Storer relied constituted an unconstitutional taking of property without compensation. Summerwinds moved for a judgment on the pleadings, which was granted. The judgment reads as follows:

“THIS CAUSE, having come on to be heard on August 31, 1983, on the Defendant’s Motion for Judgment on the Pleadings, and thereafter, on the Plaintiff’s Motion to Amend Pinal Judgment on October 4, 1983, and the Court after having heard argument of counsel, reviewing the pleadings, and being otherwise fully advised in the premises, it is therefore
ORDERED AND ADJUGED: (sic)
1. That Defendant’s Motion for Judgment on the Pleadings be and the same is hereby granted.
2. The Plaintiff cannot prevail on its Complaint because the statute and ordinance on which it relies, Florida Statute, § 83.66 (1982 Supp.) and § 8A-132(b) of the Code of Metropolitan Dade County, are unconstitutional on their face as a taking of property without just compensation or due process of law, in violation of the Constitution of the State of Florida and the Constitution of the United States. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).
3. In relying on the case of Loretto v. Teleprompter, supra, this Court holds that the Plaintiff’s request in its Complaint filed in this cause for access upon the Defendant’s land would constitute a “permanent physical occupation” of the Defendant’s land, and therefore constitutes a taking. See Loretto v. Teleprompter, supra, at 3171, 3175-76, and 3179.
4. The Plaintiff shall take nothing by this action and Defendant shall go hence without day.”

We find no error in the judgment entered. The trial court was eminently correct in determining that the statute and ordinance involved, which are quoted in footnotes one and two, are unconstitutional as permitting a taking of property in a multi-family complex without compensation as the United States Supreme Court said in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).

“In short, when the ‘character of the governmental action,’ Penn Central [Transportation Co. v. City of New York] 438 US [104] at 124, 57 L Ed 2d 631, 98 S Ct 2646 [at 2659] is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to
[458 U.S. 435, 102 S.Ct. 3176]
whether the action achieves an important public benefit or has only minimal economic impact on the owner.
B'
The historical rule that a permanent physical occupation of another’s property is a taking has more than tradition to commend it. Such an appropriation is perhaps the most serious form of invasion of an owner’s property interests. To borrow a metaphor, cf. Andrus v Allard, 444 US 51, 65-66, 62 L Ed 2d 210, 100 S Ct 318 [326-327] (1979), the government does not simply take a single “strand” from the “bundle” of property rights: it chops through the bundle, taking a slice of every strand.
[9] The traditional rule also avoids otherwise difficult line-drawing problems. Few would disagree that if the State required landlords to permit third parties to install swimming pools on the landlords’ rooftops for the convenience of the tenants, the requirement would be a taking. If the cable installation here occupied as much space, again, few would disagree that the occupation would be a taking. But constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied.”13
Indeed, it is possible that in the future, additional cable installations that more significantly restrict a landlord’s use of the roof of his building will be made.

Affirmed.

      . 83.66 Right of tenant to obtain franchised or licensed cable television service.—
      (1) No tenant having a tenancy of 1 year or greater shall unreasonably be denied access to any available franchised or licensed cable television service, nor shall such tenant or cable television service be required to pay anything of value in order to obtain or provide such service except those charges normally paid for like services by residents of, or providers of such services to, single-family homes within the same franchised or licensed area and except for installation charges as such charges may be agreed to between such tenant and the provider of such services.
      (2) In determining whether to permit cable television service to a rental unit or complex, a landlord shall be authorized:
      (a) To require that the cable television company submit to the landlord for approval detailed plans, specifications, and schematics for the proposed installation.
      (b) To require that the installation of the cable be in harmony with the existing character of the complex and designed to maintain the aesthetic features of the site.
      (3) Nothing herein shall be construed to require a landlord to permit more than one franchised cable television company to service the tenants residing in his rental units.
      (4) Nothing herein shall be construed to require a landlord who has installed an independent television receiving unit, which provides a television signal comparable to cable for use by tenants, to accept installation and provision of cable television services from any cable television company.
      (5) Any cable television company which is authorized to provide service to a rental unit or complex shall be responsible for paying to the landlord any costs, expenses, or property damage that are incurred by the landlord during the installation, repair, or removal of the cable. Payment of such amounts shall not be construed as a payment of value in order to obtain or provide cable television services.
      (6) In the event a cable television company which has been authorized to provide services to a rental unit or complex fails to substantially comply with the plans, specifications and requirements as agreed upon with the landlord, the landlord shall be authorized to require the immediate removal of all cable equipment. Failure to remove the equipment within a reasonable time period shall make the cable television company liable pursuant to the provisions of s. 810.08.
      (7) Nothing herein shall be construed to su-percede or in any way replace local cable television franchise agreements that provide stricter standards than those outlined in this section.
      (8) A landlord may waive, in writing, all or part of the requirements of this section.

      . Section 8A-132, Code of Metropolitan Dade County:
      (a) The licensee shall not engage in the following activities without prior approval of the commission:
      (1) Sale or service of television sets.
      (2) Recommendations, by licensee or his employees, of specific television appliance dealers or servicemen for sales or service.
      (b) No property owner:
      (1) Shall charge any fees for the installation and service of a CATV system without prior approval of the county manager.
      (2) Can deny any individual who occupies said property the right to have installed a system and have it serviced by a licensee.
      (3) Charge any fee to a licensee without prior approval of the county manager. (Ord. No. 74-88, Sections 2, 16, 10-15-74).


author: FERGUSON, Judge.

text:
    Ancel ALCIME and Elucia Alcime, Appellants, v. Frank BYSTROM, as Property Appraiser of Dade County, Florida, Appellee.
    No. 83-2447.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Bennett D. Fultz and Jose I. Perez, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Daniel A. Weiss, Asst. County Atty., for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Notwithstanding the fact that Ancel Alcime has resided in the United States for over twenty years, has resided in the State of Florida for ten years, and has been employed in local government for over six years, because he is an alien without a permanent visa, he cannot, under the prevailing interpretation of the applicable statute, prove an intention to become a permanent resident of the state for homestead tax exemption purposes. See Juarrero v. McNayr, 157 So.2d 79 (Fla.1963); cf. Matter of Cooke, 412 So.2d 340 (Fla.1982) (relying on Juarrero, court ruled that foreigner who does not hold permanent visa cannot be a permanent resident of this state and thus cannot place residence owned in state beyond reach of creditors under homestead exemption from forced sale). Appellants are thus ineligible for a homestead exemption from ad valorem taxes.

Affirmed.

      . Section 196.012(16), (17), Florida Statutes (1981) provides:
      (16) “Permanent resident” means a person who has established a permanent residence as defined in subsection (17).
      (17) “Permanent residence” means that place where a person has his true, fixed, and permanent home and principal establishment to which, whenever absent, he has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is established in a foreign state or country, it is presumed to continue until the person shows that a change has occurred.


text:
    HENRY ANGELO & SONS, INC., and H. Angelo & Co., Inc., a/k/a H. Angelo & Co., Inc., Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 83-2575.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Carey, Dwyer, Cole, Eckhart, Mason & Spring and Michael Spring, Miami, for appellants.
    Dixon, Dixon, Hurst & Nicklaus and William R. Wicks, III, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellants appeal an order dismissing a counterclaim because they had filed, as plaintiffs, a prior action in the State of North Carolina upon the same subject matter which is the subject matter of their counterclaim in the instant proceeding.

We reverse and remand the matter to the trial court to enter an order of abatement as to the counterclaim pending resolution of the North Carolina proceeding. Birnholz v. Steisel, 338 So.2d 862 (Fla.3d DCA 1976); Cicero v. Paradis, 184 So.2d 212 (Fla.2d DCA 1966).

Reversed and remanded with directions.


text:
    Cecile DOUGLAS, Appellant, v. BRAMAN PORSCHE AUDI, INC., Appellee.
    No. 83-2585.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.

      Gilbride, Heller & Brown and William S. Weisman, Miami, for appellant.
    Bercuson, Cahan, Weksler & Lasky and Steven D. Kaufman and David Bercuson, Coconut Grove, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This appeal is from a judgment for the defendant entered on a directed verdict.

Plaintiff entered into a contract with defendant for the purchase of an automobile. When plaintiff paid a $3500 deposit she was not informed by the salesperson that the automobile was already under contract to another customer. We need not reach the question whether plaintiff sufficiently pleaded and proved the torts of fraud in the inducement and negligence in light of the concession, which is supported by the proof, that on those two counts no damage was suffered.

The claim for conversion, the only count which might have included an element of damage, fails as a matter of law and fact. There was never a demand for return of the deposit and in fact the deposit was mailed to plaintiffs attorney before the complaint was amended to include a count for conversion. The deposit was refused by plaintiff’s attorney and returned to defendant. On the point of law, a mere obligation to pay money, generally, may not be enforced by a conversion action. Stated otherwise, an action in tort is inappropriate where the claim is based on a breach of contract. Belford Trucking Company v. Zagar, 243 So.2d 646, 648 (Fla. 4th DCA 1970).

The final judgment on a directed verdict is AFFIRMED.

      . Approximately five days after plaintiff was informed that the automobile was no longer available from Braman, she made a purchase of a similar automobile from another dealer. There is no contention that the subsequent purchase was costlier.

      . The complaint did not state a cause of action based on breach of contract. Plaintiff is nonetheless entitled to a return of her deposit because the seller failed to perform.


text:
    Arthur BROWN, et al., Appellants, v. FLORIDA-GEORGIA TRACTOR COMPANY, INC., etc., et al., Appellees.
    No. 83-2896.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Heller & Kaplan and Lisa Green, Miami, for appellants.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Robert T. Wright, Jr. and J. Kent Brown, Miami, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Because 12 months not having elapsed after the continuance of a trial which had been set pursuant to court order, the order of dismissal for lack of prosecution in this cause is reversed and remanded for trial, pursuant to the reasoning contained in Straubel v. Gobayra, 444 So.2d 1022 (Fla. 3d DCA 1984).


text:
    The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Richard B. GOLDFARB, Appellee.
    No. 83-2961.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Weissman & Straus and Mark Weissman, North Miami Beach, for appellant.
    Joseph S. Paglino, Miami, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.420(e).


text:
    STANDARD WELDING SUPPLY, INC., Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, STATE OF FLORIDA, UNEMPLOYMENT APPEALS COMMISSION and Mary C. Sauls, Appellees.
    No. 84-294.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Muller, Mintz, Kornreich, .Caldwell, Casey, Crosland & Bramnick and Paul C. Heidmann, Miami, for appellant.
    Richard S. Córtese, Tallahassee, for ap-pellees.
    Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Andrus v. Florida Department of Labor and Employment Security, Division of Employment Security, 379 So.2d 468 (Fla. 4th DCA 1980).


text:
    Stephen L. SNYDER, et al., Appellants, v. Alan STERNBERG, etc., et al., Appellees, and Marvin Ellin and Jonathan Schochor, Intervenors/Appellees.
    No. 84-540.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, and David B. Mishael, Gainesville, for appellants.
    Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Sanford L. Bohrer and Brian K. Goodkind, Miami, for intervenors/appel-lees.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Miami Herald Publishing Co. v. Chappell, 403 So.2d 1342 (Fla. 3d DCA 1981); Miami Herald Publishing Co. v. Collazo, 329 So.2d 333 (Fla. 3d DCA), cert. denied, 342 So.2d 1100 (Fla.1976).


text:
    Rafael GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1222.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Gary S. Israel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant seeks review of the trial court’s order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

The contention here is that at the time of trial appellant was under the influence of prescribed medication administered while he was incarcerated which could have caused an alteration in his mental condition to the extent that he was unable to make rational decisions or otherwise assist in the preparation of a defense. He alleges that during the trial he was taking Serentil (a major tranquilizer) 200 mg. twice a day, Cogentin 2 mg. once a day, Benedryl 50 mg. once a day, and Thorazine 200 mg. three times a day. The record reflects that appellant abandoned the defense of not guilty by reason of insanity on November 3, 1980, shortly before trial. Also in the record is a letter written by the physician who treated appellant at South Florida State Hospital confirming that at some time prior to trial he had prescribed and supervised the administration of the same type of medication, and opining that if the Thorazine medication had continued through the time of trial in such dosage as is ordinarily prescribed, then appellant would have been unable to assist in the preparation of a defense. Because the trial court failed to conduct an evidentiary hearing or attach portions of the record which conclusively refute appellant’s assertions, we are unable to determine whether denial of the relief was proper.

On remand, the trial court may either again summarily deny the motion and attach to its order those portions of the record which conclusively show that appellant is entitled to no relief, or hold an evidentiary hearing and then rule on the motion. Wilson v. State, 430 So.2d 554 (Fla. 2d DCA 1983).

Reversed and remanded for further proceedings.


text:
    Abraham SHABSELS and Sylvia Shabsels, his wife, Appellants, v. Jerome MOSKOWITZ, M.D. and Florida Patient’s Compensation Fund, Appellees.
    No. 83-59.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gerald Mager, Hollywood, Cohen & Cohen, Miami Beach, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James Tribble, Miami, for appellees.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   REVISED OPINION

PER CURIAM.

Affirmed. See Tampa Electric Co. v. Jandreau, 93 Fla. 520, 112 So. 558 (1927) (syllabus by court, para. 4); City of Jacksonville v. Vaughn, 92 Fla. 339, 343-44, 110 So. 529, 531 (1926); American National Bank of Jacksonville v. Norris, 368 So.2d 897, 898 (Fla. 1st DCA), cert. denied, 378 So.2d 342 (Fla.1979); § 59.041, Fla. Stat. (1983).


text:
    Dara Tyrone GAMMON, Appellant, v. STATE of Florida, Appellee.
    No. AU-309.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Gammon appeals his judgment and sentence, contending the trial court erred in revoking his probation because it failed to make a specific finding that he had the financial ability to pay certain costs as required conditions of his probation. We agree.

The appellant, who appeared without counsel, admitted that he had failed to make eight monthly reports to his probation officer, had violated the law by passing worthless bank checks and had failed to pay certain costs required by his probation (appellant was in arrears on his cost of supervision payment, his court cost payments, and his restitution payments). Under the rationale of Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978), we hold that the trial court erred in finding the appellant guilty of violating the conditions of his probation requiring financial payment absent a finding that he had the financial ability to pay. Although failure to make the monthly reports and violation of the law would have been sufficient grounds for revoking probation, we cannot determine from the record whether the trial court would have revoked probation and imposed the same sentence on those two grounds alone. Therefore, we reverse the appellant’s probation revocation and remand for a determination as to whether the appellant had the financial ability to pay the costs required as conditions of his probation and, if the trial court determines that he could not pay, whether his probation should be revoked based upon his failure to make eight monthly reports and his violation of the law.

REVERSED and REMANDED.

BOOTH, SHIVERS and JOANOS, JJ., concur.

      . We note that the trial court was put on notice that appellant may not have had the requisite financial ability when appellant made the following statements at the probation revocation hearing: "At the time, I was going through a recession, and I wasn’t working. I did report that I didn’t have the money, I admit.”


author: JOANOS, Judge.

text:
    Robert HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. AV-9.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    Robert Haynes, pro se.
    No appearance for appellee.
   JOANOS, Judge.

Haynes appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion alleged in part that his plea of nolo contendere was coerced by his public defender with a threat of a lengthy sentence. He also alleged that he was denied effective assistance of counsel because he was incarcerated for four months and saw his lawyer only once during that time period; and his lawyer frightened him so that he incriminated himself by pleading to charges based on weak evidence. Finally, appellant alleged that his plea of nolo contendere was not entered voluntarily because his lawyer had not explained to him all the factors involved in the plea bargain. Appellant’s motion is marginal insofar as the inclusion of sufficient facts to support the motion is concerned. Nevertheless, the allegations, if true, might entitle appellant to the .relief sought. Therefore, it was error for the trial court to summarily deny the motion, and this cause is reversed and remanded with directions to the trial court to attach portions of the record which conclusively show that appellant is entitled to no relief or to conduct an evidentiary hearing on the allegations presented in the motion.

REVERSED and REMANDED with instructions.

SMITH and ZEHMER, JJ., concur.


author: NIMMONS, Judge.

text:
    Frances M. KELLY, Individually, and S. Scott Kelly, as Personal Representative of Estate of J.Q. Kelly, Appellants, v. W & S SERVICE CENTERS, INC., Paul G. Williams, Paul E. Williams, Taylor B. Williams, Fred G. Shelfer, and Bruce Shelfer, Appellees.
    No. AV-339.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    Nicholas Yonclas and Geoffrey B. Schwartz of Akerman, Senterfitt & Eidson, Orlando, for appellees.
    Dewey M. Johnson and Joseph C. Jacobs, Melissa Allaman and Mary L. Sweet of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
   NIMMONS, Judge.

Appellants appeal from a final judgment in a declaratory judgment action. They also appeal from a partial summary judgment entered prior to the nonjury trial. Upon consideration of the briefs, record and oral arguments, we find the points raised by appellants to be without merit and, therefore, affirm. However, one of the points raised by appellees on cross-appeal is well taken and requires reversal. Our discussion is limited to that point.

In 1977 appellant Frances Kelly and her now-deceased husband (hereafter “sellers”) sold their business consisting of seven convenience stores in Quincy to appellees, Paul G. Williams, Paul E. Williams, Taylor B. Williams, Fred G. Shelfer and Bruce Shelter (hereinafter “buyers”). The sellers leased to the buyers, with an option to purchase, the real property on which the stores were situated. Buyers filed suit against sellers claiming, among other things, that sellers were responsible for continuing to make the rent payments on an existing prior lease (the “Munroe Lease”) on one of the store locations. In its partial summary judgment, the trial court found that the provisions of the lease agreement between sellers and buyers were such that the buyers did not assume and agree to pay the rental under the existing Munroe Lease but that, instead, the sellers continued to be responsible for such rental payments and property taxes under the terms of the lease agreement between sellers and buyers. We affirm that finding. In the final judgment, the court awarded buyers the sum of $15,887.40 which represented rental payments under the Munroe Lease and property tax payments which the buyers had to pay by reason of the sellers’ refusal to do so. These various payments were made by the buyers during the period from December, 1978, through April, 1983. The trial court, pursuant to Section 687.01, Florida Statutes, awarded buyers prejudgment interest on that total sum in the amount of $953.24. It is the manner in which the trial court arrived at such interest that buyers complain on appeal. We agree that the amount of prejudgment interest was erroneously computed.

It appears that the trial court arrived at the interest figure by applying the 6% per annum statutory rate to the total amount awarded ($15,887.40) for one year. The evidence was that appellees made the Munroe Lease rental payments and tax payments over a 4V2 year period. Implicit in the trial court’s final judgment is that appellants were legally obligated to reimburse appellees at the time the appellees made the various payments for rent and taxes. Prejudgment interest should have been awarded on each rental and tax payment until final payment.

We also agree with appellees’ contention that the interest award failed to take into account Chapter 82-42, Laws of Florida, which amended Section 687.01, Florida Statutes, by increasing the rate of interest from 6% to 12%. The effective date of the act was July 1, 1982. We hold that the higher rate of interest is applicable for those payments of rent and taxes made by appellees from and after July 1, 1982. On remand, the trial court will recompute the amount of prejudgment interest by awarding interest on all such payments by appellees of rent and taxes in the following manner: for payments of rent and taxes made by appellees prior to July 1, 1982, interest shall be figured on each such payment at the rate of 6% per annum from the date of payment until the date of the judgment; for payments made from and after July 1, 1982, interest shall be figured on each such payment at the rate of 12% per annum from the date of payment until the date of the judgment. See Board of Public Instruction v. Wright, 77 So.2d 770 (Fla.1955); Meigs & Cope Agency of Florida, Inc. v. Koffey, 435 So.2d 867 (Fla. 3rd DCA 1983).

Affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

THOMPSON and BARFIELD, JJ., concur.

      . The individual buyers assigned their rights under the lease agreement to appellee W & S Service Centers, Inc., a corporation formed by the buyers for the purpose of operating the convenience stores. Although sellers/appellants alleged in the trial court that such assignment was violative of the lease agreement's provisions, the parties stipulated prior to trial that the sellers were entitled to disregard the assignment and deal with the individual lessees and that the individuals would remain personally liable under the lease agreement. The terms of that stipulation were incorporated into the final judgment, and the validity of the assignment is not an issue in this appeal.

      . Appellees, understandably, do not contend that the interest period commenced to run from the date on which each rental payment was due to be paid to the lessor under the Munroe lease. That would be the case if the lessor under that lease were suing to recover for delinquent payments. In the instant case, however, the appellants’ obligation to pay appellees did not arise until appellees made such payments.


text:
    PETER KIEWIT SONS’ & COMPANY and Home Indemnity Company, Appellants, v. Harold BRYANT, Appellee.
    No. AV-479.
    District Court of Appeal of Florida, First District.
    June 26, 1984.
    Harry D. Robinson, P.A., West Palm Beach, and Frank E. Maloney, Jr. of Frank E. Maloney, Jr., P.A., Macclenny, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Reynolds v. Whitney Tank Lines, 279 So.2d 293 (Fla.1973); Wallen v. Salon of Music, Inc., 418 So.2d 421 (Fla. 1st DCA 1982) and Sheraton Bal Harbour v. Platis, 447 So.2d 987 (Fla. 1st DCA 1984).

MILLS, SHIVERS and WIGGINTON, JJ., concur.


author: LETTS, Judge.

text:
    TAGGART CORPORATION, Appellant, v. E. Christopher BENZING, Appellee.
    No. 82-1907.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.

      Louis L. Hamby, III, of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellant.
    Walter N. Colbath, Jr., P.A., West Palm Beach, for appellee.
   ON MOTION TO REVIEW ORDER DENYING ATTORNEY’S FEES

LETTS, Judge.

We have already ruled on the merits of this cause. See Taggart Corporation v. Benzing, 434 So.2d 964 (Fla. 4th DCA 1983).

Pursuant to that opinion, we separately granted the appellant’s request for attorney’s fees on appeal and remanded the cause to the trial court to assess same upon due notice and hearing pursuant to Florida Appellate Rule 9.400(b).

Notwithstanding our unequivocal instruction to the contrary, the trial court refused to award these attorney’s fees because the services on appeal “would not have been required had evidence of attorney’s fees been presented at trial.” However, in our original opinion we considered this very point and reached the conclusion that evidence of attorney’s fees did not have to be presented at trial. Moreover, our order granting attorney’s fees on appeal was obviously entered with our knowledge that no evidence of attorney’s fees had been presented at trial.

We, therefore, remand this cause and direct the trial court to consider and assess attorney’s fees on appeal in accordance with our earlier order.

We decline to award additional attorney’s fees for the time incurred to file the motion to enforce our earlier mandate. We have reviewed the transcripts of the continued hearing and do not find that the pronounced reason for avoiding our earlier directive was the brainchild of the appellee.

■BERANEK and WALDEN, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Larry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2193.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Rehearing Denied July 26, 1984.
    Larry Williams, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Joan F. Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Fayerweather v. State, 332 So.2d 21 (Fla.1976).

DOWNEY and WALDEN, JJ., concur.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Chief Judge,

specially concurring:

Although it appears that the result in this case is controlled by Fayerweather v. State, 332 So.2d 21 (Fla.1976), I do not believe the legislature intended for such a harsh result to occur in enacting the statutes in question here. The appellant wrongfully used another person’s credit card to make four purchases of $25.99, 23.87, 37.96 and 32.23. Section 817.61, Florida Statutes (1981) outlaws the fraudulent use of credit cards. A single violation of this section is punishable as a misdemeanor. If the purchases exceed $100.00 in total under the use of a single credit card over a six month j period the crime becomes a felony punishable by a maximum of five years in prison. Appellant’s four purchases all occurred in one day and in total exceeded $100.00. So appellant is faced with a maximum sentence of five years, right? Wrong.

Appellant was prosecuted in four counts under section 831.01, the general forgery statute which was originally enacted in 1868 before credit cards and their misuse was even imagined. Under 836.01 each count, or each purchase (and attendant forgery of the credit card receipt), is punishable by a maximum of five years imprisonment. Appellant was, indeed, sentenced to four consecutive five year sentences for his four unlawful uses of the credit card. The bottom line is that he received a 20 year sentence for what amounts to four counts of petit larceny that, if prosecuted under the credit card statute, would have been punishable by a maximum of five years. Realizing that appellant may well be a genuine bad guy and justly deserving of having the book thrown at him, it simply seems grossly unfair to sanction a 20 year sentence for stealing $120.05 when it appears fairly certain that the legislature intended such conduct to be punished by a maximum five year sentence. This is especially true in light of the provisions of section 775.02, Florida Statutes, which provide that the provisions of the criminal statutes shall be construed most favorably to the accused.


text:
    Tony Michael NULL, Appellant, v. STATE of Florida, Appellee.
    No. 82-2522.

    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant pled nolo contendere to three charges arising out of the death of the passenger in the automobile appellant was driving. The tragedy happened in a vehicular collision occurring because of appellant’s intoxication. The proceedings immediately preceding the entry of appellant’s plea dwelt on the question of the appealability, following a plea of nolo con-tendere, of the trial court’s decision denying appellant’s motion to suppress the results of his blood test. Specifically, the question in everyone’s mind was whether the denial was dispositive of the case. The following colloquy occurred:

Defense Counsel: Your Honor, after further conferring with the defendant about this case, the defendant has a lot of remorse about this tragedy and he wants to plead no contest pursuant to our latest discussion with the court here in court by reserving the right to appeal the Motion to Suppress Physical Evidence which was denied today and to be sentenced after a PSI.
Prosecutor: The State would ask that the defendant plead guilty on an open plea.
Defense Counsel: Your Honor, I don’t believe — I’m not sure — I don’t believe we can appeal the Motion to Suppress Physical Evidence if we plead guilty. I’m pretty sure we can’t.
THE COURT: You have to enter a no contest. He can enter a no contest. Prosecutor: It’s open to the Court.
THE COURT: I think you have to agree that the evidence may be dispositive of the case. [Emphasis added.]
Defense Counsel: We have agree to that. I haven’t engaged in this procedure before. [Emphasis added.]
THE COURT: Well, the evidence that you asked to be suppressed were the results of the blood test; correct?
Defense Counsel: Yes. Yes.
THE COURT: The question is whether or not that might be dispositive of the case.
Prosecutor: Is it, Your Honor?
Defense Counsel: Is it dispositive of the case, Your Honor? It’s the physical evidence.
THE COURT: Raise your right hand. I’ll swear you in.
(Whereupon, the defendant was sworn by the court.)
Defense Counsel: Your Honor, we’re pleading no contest to Counts I, II, and III of the information, reserving specifically our right to appeal the Motion to Suppress Physical Evidence, which is dis-positive of the case in all three counts.

One can objectively say that the assistant state attorney wavered between muteness and uncertainty. On appeal the attorney general confidently now takes the position that denial of the motion to suppress was not dispositive. Without commenting on the timeliness of this present assertion, we opt not to interfere with the trial judge’s actions on this specific point in'reliance upon Brown v. State, 376 So.2d 382 (Fla. 1979):

Under this rule, the trial judge will have wide discretion to accept or reject an Ashby nolo plea based upon his perception of the dispositive nature vel non of the legal issue reserved for appeal. His decision will be overturned only upon a showing of a clear abuse of discretion.

Id. at 385 (footnote omitted).

Turning to the merits, we conclude that the trial judge properly denied appellant’s motion to suppress. Accordingly, we affirm.

The facts establish that at the hospital appellant was informed that he was under arrest for DWI and of his Miranda rights; and that he consented to a blood test. The emergency room physician refused to remove blood from appellant, requested the officer contact the sheriffs mobile testing unit, and then proceeded to remove blood for medical reasons only. The officer acquiesced in the doctor’s “Simon says”; but when the mobile unit arrived at the hospital, appellant refused a second blood test. Thereafter the State obtained the results of the first test by subpoena.

Appellant consented to the blood test after being informed of his arrest and his Miranda rights. We see similarity in these facts and those in State v. Coffey, 212 So.2d 632 (Fla.1968). More importantly, we fail to see a logical reason not to admit the results of the test or a basis in the cases upon which appellant relies for concluding otherwise.

GLICKSTEIN and HURLEY, JJ., and SMITH, CHARLES E., Associate Judge, concur.


text:
    Terry Michael WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-426.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction. We remand for correction of sentencing in that (1) the maximum fine is $25,000 rather than $50,000 (and no fine of any amount appears on the written Sentence); (2) the three year minimum mandatory sentence should be imposed under Section 893.135(l)(a)l rather than Section 775.087(2) Florida Statutes (1983).

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

HERSEY, GLICKSTEIN and DELL, JJ., concur.


text:
    Dr. Roberto COQUIS, Consuelo Coquis, his wife, Richard Magner and Marie Magner, his wife, Appellants, v. MERRILL LYNCH REALTY/MCK, INC., Jose Segura and Consuelo Segura, his wife, Appellees.
    No. 83-1525.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Edward R. Rumin, and Harry G. Carratt of Morgan, Carratt & O’Connor, Fort Laud-erdale for appellants, Coquis, and appel-lees, Magner.
    Frederick Rench of Heston & Rotella, P.A., Tamarac for appellee, Merrill Lynch Realty/MCK, Inc.
   PER CURIAM.

We reverse the summary final judgment and remand, as the record reflects genuine issues of material facts as to the plaintiffs claims against the defendants.

HERSEY, GLICKSTEIN and DELL, JJ., concur.


author: ANSTEAD, Chief Judge.

text:
    Virginia Anne DAVIDGE, Appellant, v. Ronald Vaughn DAVIDGE, Appellee.
    No. 83-1761.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Andrew M. Chansen, Boca Raton, and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Michael A. Viseomi of Farish, Farish & Romani, West Palm Beach, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal by the wife, Virginia Davidge, of an order granting the husband, Ronald Davidge’s motion to vacate a prior judgment approving a property settlement agreement. Among other issues, the wife contests the preclusion of testimony of an expert witness as to the husband’s mental condition. We reverse.

In post-dissolution proceedings, the husband sought to set aside a prior settlement agreement alleging as one of the grounds that he had been emotionally and mentally incapable of entering into a valid contract. At the trial, the husband presented substantial expert and lay testimony concerning his mental condition before, during and after the time of execution of the agreement. However, the court refused to allow the wife to present the testimony of a psychiatrist who had treated both the parties shortly before the agreement was executed.

In Roper v. Roper, 336 So.2d 654 (Fla. 4th DCA 1976), this court held that a parent, by seeking child custody in a dissolution proceeding, did not automatically thereby waive the psychiatrist-patient privilege contained in section 90.242, Florida Statutes (1975). In that case, we held that the testimony of a treating psychiatrist could not be compelled, but that the court retained the authority to order a psychiatric examination of a parent seeking custody because the mental health of a parent is a proper factor to be considered in a custody determination. Significantly, the majority opinion also noted:

The trial court would be faced with an entirely different situation if the wife should offer the testimony of her treating psychiatrist to prove her mental condition. In that event the door would have been opened and the privilege waived.

336 So.2d at 657.

Section 90.503, Florida Statutes (1983), the successor statute to the one under consideration in Roper, provides in subsection (4)(c) that there is no privilege from disclosure:

(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense....

We believe the exception envisioned by section 90.503(4)(c) and noted in Roper is before us now.

The husband specifically relied on his mental or emotional condition as the grounds for seeking relief from the prior marital settlement agreement. He presented substantial expert and lay evidence on his mental condition, including the testimony of treating experts. Under these circumstances, we believe the waiver provisions of section 90.503(4)(c) apply. Under this section, the husband cannot on the one hand specifically utilize his impaired mental condition as grounds to set aside an agreement, and, on the other, invoke a privilege to prevent his wife from eliciting testimony as to that condition from the psychiatrist who was actually treating him nearest in time to the event in question, i.e., the execution of the agreement. The fact that the wife here, as the husband in Roper, had the right to seek a court-ordered psychiatric examination of the husband, does not alter the fact that a waiver has been demonstrated.

Because we believe a new trial must be conducted, we do not rule on the other errors asserted. We do note, however, that the trial court erroneously awarded attorney’s fees to the husband predicated upon the fact that he was the prevailing party. That is not the proper test in dissolution or post-dissolution proceedings, and should not be utilized to resolve the issue upon retrial.

Accordingly, we reverse and remand for further proceedings in accord herewith.

DOWNEY and DELL, JJ., concur.

      . The trial court also refused to allow the wife to make a proffer of the treating psychiatrist’s testimony.


text:
    Michael TAMBURRO, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 83-1849.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.

      Craig S. Dyer, Fort Lauderdale, for appellant.
    Kenneth H. Hart, Jr., Gen. Counsel, Florida Dept, of Labor and Employment Sec., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. We find no merit in appellant’s contention that the Unemployment Appeals Commission should be automatically disqualified from hearing cases involving former employees of the Florida Bureau of Unemployment Compensation and this case in particular. The statutory authority creating and controlling the Commission’s makeup and procedures clearly provide for the Commission’s separate and independent existence and authority. See, e.g., Section 20.171(4)(e), Florida Statutes (1983), and other related statutes. We also reject appellant’s claim that the hearing officer erred in the manner in which he provided subpoenas to the appellant. Cf Estep v. United States, 251 F.2d 579 (5th Cir.1958).

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    Charles KING, Appellant, v. The CITY OF LAUDERHILL, Walter E. Ramsdell, et al., Appellees.
    No. 83-2199.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    Charles T. Whitelock, Fort Lauderdale, for appellant.
    David F. Cooney of Conrad, Scherer & James, Fort Lauderdale, for appellee, City of Lauderhill.
   PER CURIAM.

Affirmed on the authority of Migliore v. City of Lauderhill, 415 So.2d 62 (Fla. 4th DCA 1982).

LETTS, HURLEY and DELL, JJ., concur.


text:
    Douglas Bret WHIPPLE, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 83-2494.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1984.
    H. Dohn Williams, Jr. of Varón, Bogen-schutz, Williams & Gulkin, P.A., Hollywood, for appellant.
    Joseph W. Lawrence, II, Dept, of Professional Regulation, Tallahassee, for appel-lee.
   PER CURIAM.

Affirmed on the authority of Rush v. Department of Professional Regulation, Board of Podiatry, 448 So.2d 26, (Fla. 1st DCA, 1984).

LETTS, HURLEY and DELL, JJ., concur.