text:
    Jerry Lee VANVOORST, Appellant, v. RUBLE TRUCKING COMPANY, Appellee.
    No. AX-64.
    District Court of Appeal of Florida, First District.
    Oct. 2, 1984.
    Edward H. Hurt, Jr., of Hurt & Parrish, Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellant.
    F. Bradley Hassell, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellee.
   WENTWORTH, Judge.

Claimant seeks review of a workers’ compensation order by which his claim for benefits was dismissed, the deputy finding that the employer “has not been shown to. have three or more employees” and thus is not required to provide coverage under the Workers’ Compensation Law. We affirm the order appealed.

Claimant and two other individuals performed services as drivers for the employer. One of these drivers was a corporate officer and had elected to be exempt from coverage under the Workers’ Compensation Law by filing a written certification as provided in §§ 440.02(2)(b) and 440.05, Flor-ida Statutes. Section 440.02(2)(d)4 establishes that, in the context of the Workers’ Compensation Law, the term “employee” shall not include:

Any officer of a corporation who elects to be exempt from coverage under this chapter.

The Deputy therefore properly declined to consider the exempted officer in determining that the employer had not been shown to have the requisite number of employees necessary to invoke the mandatory provisions of the Florida Workers’ Compensation Law.

The order appealed is affirmed.

SHIVERS and NIMMONS, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Acting Chief Judge.

license: Public Domain

text:
    HAVEN FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. Rodger W. CARL, Barbara M. Carl, Robert B. Rehse, Louise M. Rehse, Larry J. Hancock, Dennis S. Townsend, and De’Etta C. Townsend, Appellees.
    No. 83-2178.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1984.
    James J. Traviss of Wheeler & Traviss, P.A., Winter Haven, for appellant.
    Samuel G. Crosby of Miller, Sweat & Crosby, Lakeland, for appellees.
   GRIMES, Acting Chief Judge.

Haven Federal unsuccessfully sought to foreclose its April 26, 1966, mortgage for “conveyances” of the property on April 2, 1981, and February 24, 1982, made in violation of the due on sale clause.

This court’s decisions in Pioneer Federal Savings & Loan Association v. Reeder, 453 So.2d 126 (Fla. 2d DCA 1984), and Kiefer v. Fortune Federal Savings & Loan Association, 453 So.2d 430 (Fla. 2d DCA 1984), recently rejected Haven Federal’s argument that a 1948 regulation of the Federal Home Loan Bank Board authorizing federal savings and loan associations to “provide for full protection to the federal association” had the effect of preempting Florida law thereafter. These decisions also held, contrary to Haven Federal’s position, that the Garn-St. Germain Act does not retroactively apply to conveyances occurring before October 15, 1982.

Haven Federal’s remaining argument is that when its mortgage was executed, Florida law authorized the unrestricted exercise of due on sale clauses without regard to impairment of security. It seeks to place itself in the position of the lender in Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). There the United States Supreme Court declined to consider whether the June 8, 1976, Federal Home Loan Bank Board regulation authorizing due on sale clauses would affect two of Fidelity Federal’s mortgages given before that date. The Court concluded that when these mortgages were executed California law permitted foreclosures for violations of due on sale clauses without a showing of impairment of security. However, we find pre-June 8, 1976, Florida law to be decidedly different from that of California.

Admittedly, it was not until 1970 that a Florida appellate court held that a judge could refuse to foreclose a mortgage for violation of a due on sale clause when there was no showing that the security was impaired. Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970). However, Florida decisions have always recognized that a court of equity could refuse to foreclose a mortgage when acceleration of the due date for an unharmful breach of a condition would be inequitable and unjust. Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929); Overholser v. Theroux, 149 So.2d 582 (Fla. 3d DCA 1963); and Groner-Youngerman, Inc. v. Denison, 117 So.2d 210 (Fla. 2d DCA 1959). In St. Martin v. McGee, 82 So.2d 736 (Fla.1955), the supreme court upheld the denial of foreclosure for breach of a covenant to keep the building on the land in proper repair where it was shown that the security as a whole had not been impaired. Even now, there are no Florida cases, except those controlled by the 1976 Federal Home Loan Bank Board preemptive regulation, which hold that a mortgage must be foreclosed for a conveyance in violation of a due on sale clause in spite of the fact that the value of the security has not been diminished. We are convinced that the principles stated in Clark v. Lachenmeier and First Federal Savings & Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980), accurately reflect Florida law as of April 26, 1966, when the mortgage to Haven Federal was executed in this case. Since there was no contention that the property transfers occurring in 1981 and 1982 had unfavorably affected the security of the mortgage, the court properly granted summary judgment against Haven Federal.

Because the issue has already been certified in Pioneer Federal and in Kiefer, and in order to protect Haven Federal’s position, we once again certify to the Florida Supreme Court the following question as one of great public importance:

IS THE GARN-ST. GERMAIN ACT RETROACTIVE IN APPLICATION AS IT PERTAINS TO TRANSFERS MADE PRIOR TO THE EFFECTIVE DATE OF THE ACT?

AFFIRMED.

SCHEB and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    ASBURY ARMS DEVELOPMENT CORPORATION, d/b/a Asbury Arms, II, Appellant, v. FLORIDA DEPARTMENT OF BUSINESS REGULATIONS, DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Appellee.
    No. 83-2246.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1984.

      Anthony J. Abate and Daryl J. Brown of Abel, Band, Brown, Russell & Collier, Chartered, Sarasota, for appellant.
    William A. Hatch and Sandra P. Stock-well, Dept, of Business Regulation, Tallahassee, for appellee.
   OTT, Judge.

Appellee (“the Division”) issued a final order concluding that a condominium unit purchaser may not waive the fifteen-day right to void an agreement for purchase provided in section 718.503, Florida Statutes (1983). We affirm.

Prior to amendment in 1984, section 718.-503 provided, in pertinent part:

718.503. Disclosure prior to sale

(1) Contents of contracts. — Any contract for the sale of a residential unit or a lease thereof for an unexpired term of more than 5 years shall contain:
(a) The following legend in conspicuous type: THIS AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER’S INTENTION TO CANCEL WITHIN 15 DAYS AFTER THE DATE OF EXECUTION OF THIS AGREEMENT BY THE BUYER, AND RECEIPT BY BUYER OF ALL OF THE ITEMS REQUIRED TO BE DELIVERED TO HIM BY THE DEVELOPER UNDER SECTION 718.-503, FLORIDA STATUTES. BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE THAN 15 DAYS AFTER THE BUYER HAS RECEIVED ALL OF THE ITEMS REQUIRED. BUYER’S RIGHT TO VOID THIS AGREEMENT SHALL TERMINATE AT CLOSING.
(2) Copies of documents to be furnished to prospective buyer or lessee.— Until such time as the developer has furnished the documents listed below to a person who has entered into a contract to purchase a residential unit or lease it for more than 5 years, the contract may be voided by that person, entitling the person to a refund of any deposit together with interest thereon as provided in s. 718.202. The contract may be terminated by written notice from the proposed buyer or lessee delivered to the developer within 15 days after the buyer or lessee receives all of the documents required by this section.

Appellant sold certain condominium units at auction. Prior to commencement of the auction, the auctioneer announced that bids would be accepted only if purchasers waived the right to void as provided in section 718.503. A bid by one Wasser was accepted. She executed a contract which included the statement required by section 718.503(l)(a). Attached to the contract was an addendum, also signed by Wasser. The addendum acknowledged that Wasser was familiar with the provisions of section 718.-503(l)(a) and further acknowledged that the contract was not subject to cancellation or rescission.

Thirteen days after execution of the contract, Wasser’s attorney advised appellant in writing that Wasser was exercising her right to void the contract. Appellant refused to refund Wasser’s deposit, and Wasser complained to the Division.

At the conclusion of the administrative hearing procedure, the Division issued its final order finding that the waiver of the fifteen-day right to void was against public policy and that section 718.303(2) prohibits the waiver of the said right. Because we agree with the former conclusion, we do not address the latter.

The Florida legislature, through chapter 718, Florida Statutes, has mandated procedures for the creation, sale, and operation of condominiums. Every condominium created or existing in Florida is governed by the provisions of chapter 718. This chapter, among other things, establishes rights and obligations as between purchasers and developers of condominiums. In our view, the fifteen-day right to void is designed as a cooling off period to protect the public in general from high pressure condominium sales situations. It allows the purchaser to review or check out the contents of the prospectus or offering statement required by section 718.504, to seek the advice of an attorney, or simply to reconsider the decision. The protection of a statute designed to protect the public as well as the individual cannot be waived by the individual.

Section 718.503(l)(a) was amended, effective October 1, 1984, to require additional language to be contained in a contract for sale. Ch. 84-368, § 18, Laws of Fla. Included in the new language is the statement, “Any purported waiver of these voidability rights shall be of no effect.” This amendment concerns only the disclosures required to be made in the contract. The Legislature did not amend the substantive right of voidability found in section 718.503(2). This indicates that the Legislature did not intend to change the law but merely intended for condominium unit purchasers to be aware of the existing law. Also, this change was made before any cases construed the statute. See State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529, 531 (Fla.1973).

In conclusion, we hold that a condominium unit purchaser may not waive the fifteen-day voidability right. The Division’s final order is AFFIRMED.

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

      . Section 718.303(2), Florida Statutes (1983), provides:
      (2) A provision of this chapter may not be waived if the waiver would adversely affect the rights of a unit owner or the purpose of the provision, except that unit owners or members of a board of administration may waive notice of specific meetings in writing if provided by the bylaws. Any instrument given in writing by the unit owner to an escrow agent may be relied upon by an escrow agent, whether or not such instruction and the payment of funds thereunder might constitute a waiver of any provision of this chapter.


author: SCHEB, Judge.

text:
    Ivan SZEWCZYK and Lydia Szewczyk, his wife, and George Kaszuba and Ina Kaszuba, his wife, Appellants, v. BAYSHORE PROPERTIES, a Florida general partnership, and A. Sam Coury, Appellees.
    No. 83-2260.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1984.
    Joseph P. McNulty of McNulty, Moritz & Dickey, Largo, for appellants.
    James A. Martin, Jr., of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clear-water, for appellees.
   SCHEB, Judge.

Appellants challenge the trial court’s judgment assessing damages against all appellants for breach of lease. Additionally, they contest the entry of a prior partial final summary judgment in the same litigation canceling a note and mortgage given by appellees to appellants.

We find no merit to appellants’ attack on the award of damages against them for breach of lease; therefore, we affirm that judgment. Furthermore, we find that the prior partial summary judgment was a final appealable order from which no timely appeal was taken by appellants. Therefore, we dismiss the appeal from the prior judgment. ;

In June 1981 appellants agreed to sell Bayshore certain real estate, including a restaurant, lounge, and other appurtenances. Appellants’ property at that time was subject to a first mortgage in favor of Theodore Emerson, which included a “due on sale” clause. When Emerson would not allow Bayshore to assume the mortgage, Bayshore executed and delivered to appellants a mortgage which “wrapped around” the Emerson mortgage. Although the two mortgages secured identical amounts, they differed in terms of interest due and the dates on which the obligations ballooned.

Subsequently, Emerson declared acceleration of his note and mortgage and filed a foreclosure suit against appellants. While this was pending Sam Coury (the sole remaining partner in Bayshore) purchased an assignment of the Emerson mortgage, whereupon Emerson filed a notice of voluntary dismissal of his suit. Bayshore then notified appellants that it was prepaying the wrap-around mortgage by canceling and satisfying the Emerson mortgage, which appellants now owed to Bayshore due to the assignment. Appellants objected and proceeded to accelerate their wraparound mortgage and filed a cross-claim against Bayshore in the foreclosure suit that had been initiated by Emerson. Following this, Bayshore filed a cross-claim against appellants seeking cancellation of the wrap-around mortgage and damages under various agreements arising out of the original contract between the parties.

On April 28, 1983, the trial court entered a partial final summary judgment holding that the two mortgages merged when Bay-shore purchased the Emerson mortgage and that both mortgages were satisfied. Appellants did not file any notice of appeal from this partial final summary judgment. Subsequently, on May 16, 1983, appellants moved to amend their complaint to seek a judgment against Bayshore for sums they claimed were due under the sales agreement as a result of early termination of the note and mortgage held by Emerson. On June 8, 1983, the trial court permitted the amendment to which Bayshore subsequently pled. The case eventually proceeded to a nonjury trial on the amended cross-claim and the issue of damages for breach of a lease agreement entered into between Bay-shore and appellants in connection with the sale of the real estate. On August 30, 1983, the trial court entered its final judgment denying appellants their requested relief in their amended cross-claim and awarding damages against them. Appellants filed a notice of appeal “from the final judgment entered herein on August 30, 1983.”

On appeal appellants raise two issues. First, they contend that the trial court erred in entering a partial final summary judgment because there was no merger of the underlying mortgage given by appellants to Emerson with the subsequent wrap-around mortgage given by Bayshore to appellants. Second, they argue that the court erred in assessing damages of $40,-000 against all appellants for breach of lease where only George Kaszuba was liable for that element of the final judgment. After appellants filed their initial brief with this court, appellees sought to dismiss the appeal on the ground that it was untimely insofar as it attacks the partial summary judgment.

At the outset we address appellees’ motion to dismiss. In Mendez v. West Flagler Family Ass’n, 303 So.2d 1 (Fla.1974), the Florida Supreme Court held that when “a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims, it should be appeala-ble if dismissed with finality at trial level and not delayed of appeal because of the pendency of other claims between the parties.” Id. at 5. See also S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). Since appellants’ notice of appeal was filed several months after the April 28 order, the crucial determination on appellees’ motion to dismiss is whether the April 28 order adjudicated a “distinct and severable” cause of action or whether it was “interrelated” and involved “the same transaction” as that which the court disposed of in the final judgment of August 30.

In determining whether the partial summary judgment was final and appealable, we have examined certain criteria that other courts have found useful in reaching a conclusion: (1) Could the causes of action disposed of in the April 28 and August 30 orders be maintained independently of each other? See Seminole County v. Mertz, 415 So.2d 1286 (Fla. 5th DCA), petition for review denied, 424 So.2d 763 (Fla.1982). (2) Were one or more parties removed from the action when the partial final summary judgment was entered? See S.L.T. Warehouse Co. v. Webb; Pena v. Tampa Federal Savings and Loan Ass’n, 363 So.2d 815 (Fla. 2d DCA 1978), cert. denied, 373 So.2d 461 (Fla.1979). (3) Are the counts separately disposed of based on the same or different facts? See GAF Corp. v. W.R. Grace & Co., 395 So.2d 186 (Fla. 1st DCA 1981). See also McClain Construction Corp. v. Roberts, 351 So.2d 399 (Fla. 2d DCA 1977) (where the same facts were pertinent to each count of a multi-count complaint, and plaintiff implicitly recognized this by incorporating the same basic facts into every count of its complaint).

Here, although no parties were removed when the partial summary judgment was entered, the matters disposed of in the August 30 order were independent of those adjudicated on April 28. We think the trial court’s order of April 28 completely disposed of appellants’ cross-claim. It also settled three counts of Bayshore’s five-count cross-claim. The remaining two counts of Bayshore’s cross-claim were “distinct and severable” from the counts dealing with the two mortgages. The first remaining count sought damages for various breaches under the real estate sales contract; the second sought an accounting of the expenditure of certain funds pursuant to the sales contract. Neither of these remaining counts involved in any way the parties’ obligations under the Emerson mortgage or the wrap-around mortgage.

After the April 28 order was filed and after the time for an appeal had expired, appellants were granted leave to add a count to their cross-claim. This new count sought resolution of a further issue under the sales contract relating to a bonus payment to be shared by the parties in the event the Emerson mortgage was prematurely paid. Appellants argue that this new count was obviously interrelated to the mortgages and remained unresolved by the April 28 partial summary judgment. We do not think that this count raised facts which were related to their prior count, which had already been adjudicated. In any event, such new count (even if related) was not pending on the date that time expired to file a notice of appeal from the partial summary judgment.

We hold that the two orders (of April 28 and August 30) were based on different sets of facts and adjudicated causes of action which were not interdependent with other pleaded claims. Accordingly, since the counts disposed of on April 28 were distinct and severable from the remaining counts and, indeed, would have supported independent actions, the summary judgment as to less than all counts was final and appealable under Mendez. Because appellants failed to timely appeal that order, we dismiss their appeal insofar as it attacks the partial summary judgment. We do have jurisdiction, however, to consider their challenge against the damages awarded on August 30.

Appellants do not challenge the $40,000 element of damages awarded against George Kaszuba. They argue, however, that because the original sales agreement was signed by Ivan Szewczyk and George Kaszuba and not by their wives, and because Kaszuba alone executed the lease with Bayshore, that there was no basis for entry of a judgment against all four appellants. This argument overlooks the fact that all four appellants signed an addendum reciting that all four had entered into the original contract, and that each signed the warranty deed and other closing documents. The effect of these documents was to affix responsibility on all appellants, as sellers, to continue the operation of the restaurant or find a suitable tenant. There is substantial, competent evidence to support that appellants did neither, thus rendering them all liable for damages. Accordingly, we find no merit to appellants’ argument on this point and affirm the trial court’s final judgment of August 30.

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

      . The court denied appellees’ motion to dismiss but without prejudice to considering the issue at the hearing on the merits,

      . The Florida Supreme Court has approved an amendment to Florida Rule of Appellate Procedure 9.110, which becomes effective January 1, 1985. The Florida Bar In Re: Rules of Appellate Procedure, No. 65,082 (Fla. Sept. 13, 1984). New rule 9.110(k) provides that a partial final judgment may be appealed immediately or de-Iayed until the end of the entire case, except that an immediate appeal is required when the partial final judgment disposes of the entire case as to any party. This new rule remedies the so-called Mendez "trap.” See Haddad, Partial "Final" Judgments: A Persistent Problem in Appellate Practice, 53 Fla.B.J. .04 (April 1979).


author: PER CURIAM.

text:
    Raymond Wayne RAMOS and Southland Insurance Company, Appellants, v. STATE of Florida, Appellee.
    No. 84-46.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1984.
    Philip S. Prosch, Lee and Surfus, Sarasota, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This appeal is dismissed as untimely. A motion for rehearing on an order issued under Fla.R.Civ.P. 1.540(b) is not an authorized motion for rehearing. See Smith v. Weede, 433 So.2d 992 (Fla. 5th DCA 1983); Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982). Therefore, no appeal is allowable from the denial of the motion for rehearing, and the purported motion for rehearing did not toll the time to file a notice of appeal from the order denying relief under Fla.R.Civ.P. 1.540(b).

HOBSON, A.C.J., and GRIMES and LE-HAN, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Dewey Fred SHIRLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-1470.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1984.
   SCHOONOVER, Judge.

Dewey Fred Shirley appeals the trial court’s denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant raised several points in his motion, only two of which have merit. First, appellant alleged that he was sentenced to prison without an evidentiary hearing after being released from a rehabilitative mental hospital. Second, appellant alleged that his plea of guilty was improper because the court was aware he was mentally unable to aid himself. These allegations, if true, might entitle appellant to relief. The trial court, however, failed to conduct an eviden-tiary hearing or to attach portions of the record that refute these allegations. We, therefore, reverse the trial court’s order and remand the case. The trial court may either again summarily deny the motion and attach to its order those portions of the record that conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the grounds alleged in the motion. See Fla.R. Crim.P. 3.850; see also, Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

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


text:
    Peter REPETTI, Appellant, v. STATE of Florida, Appellee.
    No. 84-327.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 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.
   SCHOONOVER, Judge.

Appellant, Peter Repetti, appeals his convictions for burglary, grand theft, and two counts of dealing in stolen property and the judgments and sentences entered on the charges of burglary and dealing in stolen property. We affirm in part and reverse in part.

After reviewing the briefs and record on appeal, we find no reversible error in connection with the convictions for burglary and the two counts of dealing in stolen property. We find, however, that the trial court erred in allowing the jury to return guilty verdicts on both count III (grand theft) and count IV (dealing in stolen property) of the information filed against appellant.

Count III charged appellant with grand theft of Kathleen Gianferrara’s jewelry. Count IV charged him with dealing in the stolen jewelry. Although section 812.025, Florida Statutes (1981), permits a single information, under proper circumstances, to charge in separate counts both theft and dealing in stolen property in connection with one scheme or course of conduct, the statute only allows the jury to return a guilty verdict on one or the other, but not both, of the counts. We, therefore, uphold appellant’s conviction for dealing in stolen property under count IV of the information and reverse the conviction for grand theft under count III. Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981).

Since appellant’s conviction for grand theft was included in the scoresheet used in determining his sentence under the guidelines, we must reverse and remand for resentencing on the three remaining convictions.

Affirmed in part, reversed in part, and remanded.

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


text:
    William D. FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 84-459.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.
    Jerry Hill, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Tampa, for appellee.
   SCHEB, Judge.

Defendant, William D. Fleming, contends that the court improperly sentenced him for robbery by imposing a sentence in excess of that recommended by the new sentencing guidelines.

Defendant pled guilty to the offense of robbery under section 812.13(2), Florida Statutes (1981). He also pled guilty to charges of dealing in stolen property and grand theft.

The trial judge decided to sentence the defendant outside the guidelines’ recommendations. He sentenced him to seven and one-half years on the robbery charge and placed him on probation on the other two charges for fifteen and five-year terms consecutive to the robbery sentence but concurrent with each other.

The trial judge did not sign a written order citing his reasons for exceeding the presumptive sentence recommended by the guidelines. However, on the record he stated that he aggravated defendant’s sentence for two reasons: (1) the defendant committed the dealing in stolen property and grand theft offenses while awaiting sentencing on the robbery charge, and (2) the robbery was an aggravated robbery.

Defendant argues that the trial court erred in sentencing him on the robbery conviction in excess of the sanctions recommended by the guidelines. He raises two points.

First, he argues that the trial court should not have considered factors used in scoring under the guidelines as a basis for aggravating his sentence. We reject this argument, because there is nothing in Flor-ida Rule of Criminal Procedure 3.701 which says that factors used in scoring cannot also be considered to justify departure from the guidelines. See Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984), and Hendrix v. State, 453 So.2d 515 (Fla. 5th DCA 1984). Cf. Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984).

By committing the dealing in stolen property and grand theft offenses while awaiting sentencing on the robbery charge, the defendant established a pattern of committing new crimes. See Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984). Thus, the trial court could properly consider the timing of the commission of these offenses as a basis for departing from the guidelines. See Swain. See also Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984). Further, the trial court could properly consider the aggravating circumstances surrounding defendant’s commission of the robbery offense. See Smith and rule 3.701(b)(3).

Second, defendant argues that the trial court erred in not entering a written order delineating the reasons why it departed from the guidelines. We urge trial courts to include written reasons with the sentencing order. Rule 3.701(d)(ll). Nevertheless, we have previously rejected defendant’s argument where, as here, the trial court sets forth clear and convincing reasons in the transcript of the sentencing hearing. Smith Accord, Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984). Contra, Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); and Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984).

Accordingly, we affirm defendant’s conviction and sentence.

GRIMES, A.C.J., and DANAHY, J., concur.

      . We note that at the time of the filing of the briefs, counsel did not have available to them our opinion in Smith.


text:
    Scott Dale WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 84-1594.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.
   OTT, Judge.

Defendant appeals from summary denial of his motion for postconviction relief under rule 3.850 of the Florida Rules of Criminal Procedure. We affirm.

Defendant asserts four grounds for relief: (1) the trial court erred in denying his discovery request; (2) the trial court erred in refusing to exclude the testimony of a court-appointed psychiatrist; (3) the trial court erred in admitting testimony of prior bad acts committed by defendant as a juvenile; and (4) ineffective assistance of appellate counsel. Defendant’s claim based on ineffective assistance of trial counsel was withdrawn in the trial court.

Allegations (1), (2), and (3) could have been raised on direct appeal and therefore will not support a subsequent claim for collateral relief under rule 3.850. See Palmes v. State, 425 So.2d 4 (Fla.1983).

The trial court also properly denied defendant’s claim of ineffective assistance of appellate counsel, as the proper method by which to raise this issue is by petition for writ of habeas corpus directed to the appellate court which considered the direct appeal. Irby v. State, 454 So.2d 757 (Fla. 1st DCA 1984); see generally Smith v. State, 400 So.2d 956 (Fla.1981).

AFFIRMED.

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


text:
    Amado L. PEDROSO, Appellant, v. STATE of Florida, Appellee.
    No. 84-1618.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1984.
   PER CURIAM.

This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant’s singular point in his motion alleges that he was denied effective assistance of counsel. He asserts that trial counsel failed to object to the court’s retention of jurisdiction over one-third of appellant’s sentence without stating with particularity the reasons for doing so. If this allegation is true, appellant might be entitled to postconviction relief. The trial court, however, failed to conduct an eviden-tiary hearing or attach portions of the record which refute this allegation.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion, and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegation raised in appellant’s motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); and Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

REVERSED and REMANDED.

GRIMES, A.C.J., and SCHEB and DAN-AHY, JJ., concur.


author: SHIVERS, Judge.

text:
    Arthur Lee MANNING, Appellant, v. STATE of Florida, Appellee.
    No. AT-147.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.

      Michael E. Allen, Public Defender; Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant/defendant appeals his judgment of conviction and sentence for felony petit theft. Sub judice, the trial court found a sufficient number of prior convictions of petit theft committed by appellant to qualify for enhanced sentencing pursuant to section 812.014(l)(c), Florida Statutes. The trial court’s finding on this point was based on certified copies of informa-tions and convictions for petit theft, petit larceny, and shoplifting, by appellant, also known as James Stokes, in 1982, 1977, and 1973, respectively, together with expert witness fingerprint testimony linking appellant to these crimes. We find no error in the trial court’s finding based on this evidence. See generally State v. Harris, 356 So.2d 315 (Fla.1978); Jones v. State, 384 So.2d 956 (Fla. 5th DCA), petition for rev. denied, 392 So.2d 1375 (Fla.1980); cf Harris v. State, 400 So.2d 1296 (Fla. 1st DCA 1981); Harris v. State, 352 So.2d 1264 (Fla. 2d DCA 1977). Therefore, having reviewed this case pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and finding no reversible error, appellant’s judgment of conviction and sentence is AFFIRMED.

WENTWORTH and NIMMONS, JJ., concur.


text:
    Alan E. HARWOOD, Appellant, v. STATE of Florida, Appellee.
    Nos. AV-179, AV-447.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See M.L.K. v. State, 454 So.2d 753 (Fla. 1st DCA 1984); State v. Graham, 238 So.2d 618 (Fla.1970); Blake v. State, 444 So.2d 1054 (Fla. 1st DCA 1984).

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


text:
    Samuel MILNER, Appellant, v. STATE of Florida, Appellee.
    No. AW-144.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.

      Brian Norton, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Dunbar v. State, 220 So.2d 366 (Fla.1969); Wright v. State, 423 So.2d 633 (Fla. 5th DCA 1982); Hall v. State, 316 So.2d 279 (Fla.1975).

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


text:
    William BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. AW-329.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.
    L. Sanford Selvey, II, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Appellant seeks review of a sentence imposed for armed robbery of a convenience store, asserting that the trial court erred in departing from the sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure. We find the trial court did not err and we affirm. See Brooks v. State, 456 So.2d 1305, (Fla. 1st DCA 1984). We certify the same question we did in that case.

AFFIRMED.

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: SMITH, Judge.

text:
    William BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. AW-337.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.

      L. Sanford Selvey, II, Tallahassee, for appellant.
    Gregory G. Costas, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant appeals his conviction for the armed robbery of a business establishment in Tallahassee, Florida. Appellant raises three points on appeal, only one of which requires extended discussion, that being his assertion that the trial court erred in departing from the sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure. Finding no merit to any of his grounds for appeal, we affirm, appellant’s conviction.

Appellant and a codefendant, Joseph Ford, were charged by information with the December 23, 1982 armed robbery of Barri Fullerton, the robbery occurring at a business establishment called the Yogurt Pump. After being adjudged guilty of armed robbery, appellant was sentenced by the trial court below to twenty years incarceration. The sentencing guidelines, under which appellant timely asserted the right to be sentenced, recommended a guideline sentence between three and one-half and four and one-half years incarceration. In compliance with Rule 3.701(d)(ll), In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 851 (Fla.1983), the trial court indicated the following as being the reasons for departure from the guidelines’ recommended sentence:

First, that the commission of the offense did involve multiple victims.
Secondly, there has been no pretense of moral or legal justification for the commission of the offense.
Third, the court feels and is of the view that this defendant is in need of correctional rehabilitative treatment that can be best provided by commitment to a penal facility.
Next, that he is engaged in a violent pattern of conduct which indicates a serious danger to society.
Next, the sentence is necessary to deter others from the commission of similar offenses.
Next, the emotional trauma suffered by these victims as well as their physical trauma was considered by the court.
Next, that there was participation with others in the commission of the offense.
[And finally] It’s the final view of the court that a lesser sentence is not commensurate with the seriousness of the defendant’s crime.

Appellant contends that an examination of the factors relied upon by the trial court show that none of the reasons given by the court were sufficient as “clear and convincing reasons,” for the departure. We disagree.

Many of the arguments presented by appellant concerning the trial court’s deviation from the guidelines have already been addressed by this court. See, particularly, Manning v. State, 452 So.2d 136 (Fla. 1st DCA 1984); Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984); and Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984). It is apparent from the record that the trial court’s stated reasons for deviation are focused upon the pattern of criminality revealed both by the instant offense and by appellant’s participation in another robbery (which involved multiple victims) with the same co-perpetrators only one month before the commission of the instant offense. Appellant was sentenced by the trial judge for the prior offense at the same time as for the instant offense. See Brooks v. State, 456 So.2d 1305, (Fla. 1st DCA 1984). Viewed in the light of the circumstances of the particular offense, as well as the prior similar offense, the reasons given for deviation are clear and convincing. See, Manning v. State, supra, and Swain v. State, supra.

Certain of the reasons for deviation given by the trial judge were not clear and convincing. The court’s reference to “multiple victims” is factually incorrect, since there was only one victim of the instant offense. The reference to absence of “pretense or moral or legal justification” is inappropriate to the particular crime, and the reference to “need of correctional rehabilitative treatment” is so vague and general as to be both unclear and unconvincing, since it appears to be expressing a choice between incarceration in prison and a non-prison sanction, which is not involved in the deviation decision at issue here. These reasons, selected by the trial judge (as were all reasons given) from a prepared sheet containing a “shopping list” of aggravating and mitigating factors, failed the “clear and convincing” test in our judgment. However, we are also satisfied that elimination of these impermissible reasons for deviation would have no effect upon the trial judge’s sentencing decision. See, Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984). Since we labor under no uncertainty concerning the trial court’s decision to deviate from the guidelines here, we have no occasion to reverse and remand for resen-tencing as we did in Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984), and Carney v. State, supra. However, we certify, as we did in Carney v. State, supra, the same question certified in Young v. State, supra.

We have considered and find without merit appellant’s contentions regarding a discovery violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the admission of other crime evidence under Williams v. State, 110 So.2d 654 (Fla.1959), cert. den., 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), and Section 90.404(2)(a), Florida Statutes (1981).

The judgment and sentence appealed from are AFFIRMED.

WENTWORTH and WIGGINTON, JJ., concur.

      . Appellant Brooks was sentenced at the same time and based on the same criteria for the instant case, number AW-337, and also for case number AW-329. The latter case involved multiple victims while the instant case did not.


author: NIMMONS, Judge.

text:
    Archibald Scott JEFFREY, Appellant, v. STATE of Florida, Appellee.
    No. AY-51.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1984.

      Michael E. Allen, Public Defender, and Kenneth L. Hosford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Henri C. Caw-thon, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

The defendant appeals from his sentence complaining that the trial court failed to give him credit for all of the time which he spent in jail in connection with his case. The defendant had originally received a “split sentence” of incarceration followed by a period of probation. After being released from the incarcerative portion of the split sentence, he violated his probation which was subsequently revoked. When the trial court resentenced the defendant after revocation, he gave the defendant credit for the jail time accrued after his arrest on the probation violation charge but failed to give credit for the time the defendant was incarcerated on the “front end” of the split sentence. This was error as the defendant was entitled to such credit. See State v. Jones, 327 So.2d 18, 25 (Fla. 1976).

The State argues that the trial court did, in fact, give the defendant the requisite credit and relies upon the statements made by the judge at the sentencing hearing. Initially, the judge advised the defendant that he was going to sentence him to 30 months in the state corrections system without credit for the jail time spent on the previous split sentence. After further colloquy between counsel and the court regarding the amount of jail time to which the defendant would be entitled, the judge then stated that he would impose a four and one-half year sentence and credit the defendant with all of the time previously served. However, the judge’s further comments indicate that he decided against allowing such credit. Given the confusing and inconsistent statements made at the sentencing hearing, we conclude that there was never a clearly delineated oral pronouncement of sentence as contemplated by Fla.R.Cr.Pr. 3.700. The fact that the subsequently-entered judgment and sentence form reflects a certain sentence of thirty months is not controlling. It is well settled that the oral pronouncement of sentence governs. E.G. Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980). .

On remand, the court shall impose sentence anew. The maximum sentence which may be imposed is four and one-half years and the defendant shall be credited with all jail time to which he is entitled in accordance with the earlier expressions in this opinion.

Reversed and Remanded.

SHIVERS and WENTWORTH, JJ., concur.

      . The sentencing guidelines called for a range of twelve to thirty months incarceration or community control.

      . Imposition of any sentence exceeding the thirty-month maximum provided for in the sentencing guidelines scoresheet must be justified by a "clear and convincing reason” under Fla.R. Cr.Pr. 3.701 d.ll.


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    The STATE of Florida, Appellant, v. James W. GREEN and Walter J. Vogel, Appellees.
    No. 83-2789.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.

      Clyde A. Willard, Daytona Beach, and Albert T. Gimbel, Tallahassee, for appellant.
    James F. Pollack, Coral Gables and Walter J. Vogel, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

At stake in this appeal are the competing claims of the landlords of an apartment building (Messrs. Green and Vogel) and the State of Florida to certain money seized by City of Miami police officers from a leased apartment in Green and Vogel’s building. The trial court resolved the dispute in favor of the landlords and ordered the City to release the money to them. The State seeks review of that order, convincingly urging that the undisputed facts show that the landlords are without any legally cognizable interest in the money and that pursuant to Chapter 717, Florida Statutes, the money must be turned over to the State. We reverse.

I.

Late in 1975, police officers of the City of Miami responded to reports of a shooting at the apartment of one Carlos Fuentes. Fuentes had been shot and, shortly after the police arrived, was removed to a hospital. In an ensuing search of the apartment, the police found assorted drug paraphernalia, a gun and cash in the amount of $58,591., The property was seized, taken to the police station and placed in the custody of the City’s Property Bureau.

About nine days after these events, the police learned that Fuentes, who was under no legal restraint, had been discharged from the hospital. All efforts by the police to locate Fuentes and his girlfriend, a co-occupant of Fuentes’ apartment, were unsuccessful. Not surprisingly, neither Fuentes nor his girlfriend ever came forward to claim any of the items taken by the police from his apartment.

About four years later, in late 1979, Green and Vogel, Fuentes’ lessors, brought suit against the City of Miami seeking a judgment declaring their right to, and re-plevin of, the money. The City filed a counterclaim for interpleader, joining Fuentes and the State of Florida as defendants. Fuentes defaulted, and in October 1983, after a non-jury trial based exclusively on the above-recited stipulated facts, the trial court rendered its order.

II.

Green and Vogel successfully contended below that they were entitled to the outright ownership of the money on the theory that it was abandoned on their premises. They continue to advance that theory on appeal, along with the alternative theory that they, as owners of the locus in quo, are at least entitled to possession of the money found on their premises, even if it cannot be said that the money was abandoned. Neither contention has merit.

A.

While it is true that under the common law the finder of abandoned property, unlike the finder of lost or mislaid property, or treasure trove, is entitled to claim absolute ownership of the property, see Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562 (S.D.Fla.1983); Campbell v. Cochran, 416 A.2d 211 (Del.Super.Ct.1980), the person making that claim has the burden of proving the true owner’s intent to abandon. Dade County v. City of North Miami Beach, 69 So.2d 780 (Fla.1953); J.C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979 (Fla. 3d DCA 1981).

At common law, abandoned property was defined as:

“that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and with the intention of not reclaiming any future rights therein.”
Campbell v. Cochran, 416 A.2d at 221.

See Favorite v. Miller, 176 Conn. 310, 407 A.2d 974 (1978); Paset v. Old Orchard Bank & Trust Co., 62 Ill.App.3d 534, 19 Ill.Dee. 389, 378 N.E.2d 1264 (1978); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948). Thus, the burden upon the landlords was to prove that Fuentes voluntarily relinquished his right to the money with the intention of terminating his ownership and of not reclaiming any future rights therein at the time he was removed from his apartment suffering from a debilitating case of bullet wounds in his neck and shoulder. Manifestly, that burden was not met, and the trial court’s finding that the money was abandoned in Fuentes’ apartment is totally unsupported by the evidence. See Katsaris v. United States, 684 F.2d 758 (11th Cir.1982) (despite defendant’s disclaimer of ownership of money seized in drug raid, property held not abandoned where disclaimer made for purpose of disavowing any connection with incriminating evidence and thus not voluntary relinquishment); Johnson v. City of Fairfax, 394 F.Supp. 387 (E.D.Va.1972) (money seized during drug raid from arrested occupants of house not abandoned). See also O’Shaughnessy v. State, 420 So.2d 377 (Fla. 3d DCA 1982) (intent to abandon cannot be inferred from fact that property may be incriminating).

B.

The landlords’ alternative claim that they, as owners of the premises upon which the money was found, are entitled to possession of the money is equally wanting. The common-law proposition that the owner of the locus in quo has the right to a possessory interest in unclaimed property superior to the finder applies only if the unclaimed property can be deemed to have been lost, mislaid, or treasure trove. Campbell v. Cochran, 416 A.2d 211. See Pyle v. Springfield Marine Bank, 330 Ill. App. 1, 70 N.E.2d 257 (1946); Ray v. Flower Hospital, 1 Ohio App.3d 127, 439 N.E.2d 942 (1981); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948); Flax v. Monticello Realty Co., 185 Ya. 474, 39 S.E.2d 308 (1946); but see Erickson v. Sinykin, 223 Minn. 232, 26 N.W.2d 172 (1947) (finder held to have superior interest to owner of locus in quo). At common law, lost property was defined as:

“that which the owner has involuntarily parted with through neglect, carelessness or inadvertence and the whereabouts of which is unknown to the owner,”

mislaid property as:

“that which the owner has intentionally laid down in a place where he can again resort to it, and then forgets where he put it,”

and treasure trove as:

“money, which has been concealed by the owner in a private place for safekeeping; treasure trove carries the thought of antiquity, i.e., it must have been concealed sufficiently long so as to indicate that the owner is probably dead or unknown.”
Campbell v. Cochran, 416 A.2d at 221.

It is obvious from the facts and circumstances of the present case that Fuentes’ money, when taken from his apartment by the police, was not lost, mislaid or treasure trove. Therefore, ownership of the locus in quo is a legally insignificant fact in the present case.

III.

Having concluded that as between the lessors and the City of Miami, the lessors had no legally cognizable interest in the money, much less an interest superior to the City’s, we turn to examine the City’s interest vis-a-vis Fuentes.

There is little doubt that the City’s seizure of the money made the City, as its counterclaim admits, a gratuitous bailee and placed upon it the responsibility of holding the money for the benefit of Fuentes and redelivering the property to him, as the true owner, upon demand. However, with the advent of the Florida Disposition of Unclaimed Property Act, § 717.01, et seq., Fla.Stat. (1961), a slightly modified version of the Uniform Disposition of Unclaimed Property Act, bailees of unclaimed property are relieved of their responsibilities after the property has remained unclaimed by the owner for more than seven years. Thus, the Act provides that “[a]ll intangible personal property ... that has remained unclaimed by the owner for more than 7 years ... is presumed abandoned,” § 717.10, Fla.Stat. (1981); that every person holding property which is presumed abandoned under the Act must make a report to the State Department of Banking and Finance with respect to such property, § 717.12, Fla.Stat. (1981); and that such reported property must then be paid or delivered to the State, § 717.14, Fla.Stat. (1981). The objectives of the Flor-ida Act are quite obviously identical to the objectives of the Uniform Act which are said to be:

“to protect the interests of owners, to relieve the holders from annoyance, expense and liability, to preclude multiple liability, and to give the adopting state the use of some considerable sums of money that otherwise would, in effect, become a windfall to the holders thereof.”
Uniform Disposition of Unclaimed Property Act (1954), Prefatory Note, 8A U.L.A. 215-17 (1983).

See Travelers Express Co. v. State of Minnesota, 506 F.Supp. 1379 (D.Minn.), affd, 664 F.2d 691 (8th Cir.1981), cert. dismissed, 456 U.S. 920, 102 S.Ct. 1780, 72 L.Ed.2d 181 (1982); Douglas Aircraft Co. v. Cranston, 24 Cal.Rptr. 851, 58 Cal.2d 462, 374 P.2d 819 (1962).

Although the landlords argue that money, that is, as here, cash, is not within the purview of Chapter 717, we need not address this argument in light of our determination that the landlords have no legally cognizable claim to the money and the fact that the City of Miami, the bailee of the money, has made no such argument. That being the case, as between the only parties with a remaining interest in the litigation, that is, the City and the State, the question of whether the disposition of unclaimed cash is governed by Chapter 717 is not before us.

Accordingly, the moneys seized by the City and unclaimed by the owner for more than seven years must, after appropriate compliance with the provisions of Sections 717.12 and 717.13, be paid over to the State Department of Finance and Banking. The judgment of the trial court is reversed with directions to enter judgment against the plaintiffs-lessors, and the cause is remanded for further proceedings as are consistent herewith.

Reversed and remanded with directions.

BASKIN, Judge

(dissenting).

I dissent from the majority opinion which holds that the landlord of the apartment from which Miami police removed money has no legal interest in the funds and that the city, as a gratuitous bailee of the property, is required by section 714.14, Florida Statutes (1981), to deliver the money to the state. I see no reason to permit the city to exercise a superior interest merely because it took property to which it had no legitimate claim. Under the law in effect at the time, the money was not contraband subject to forfeiture, § 943.44, Fla.Stat. (1975), and was not seized or held for use as evidence in either a civil or a criminal proceeding. Technically, the city acted as a wrongdoer. When the finder of unclaimed property is a wrongdoer, its interest is inferior to that of the owner of the locus in quo. Favorite v. Miller, 176 Conn. 310, 407 A.2d 974, 977 (1978). “The basis of the rule is that a wrongdoer should not be allowed to profit by his wrongdoing.” Favorite, 407 A.2d at 978.

There is an additional reason for my dissent. The money taken by the police from the private residence does not constitute unclaimed property within the purview of chapter 717, Florida Statutes, the Florida Disposition of Unclaimed Property Act. For the most part, the act applies to property held by banks, insurance companies, utility companies, fiduciaries, state courts, and to undistributed dividends held by business associations. Its provisions pertain to intangible personal property, and tangible personal property excluding cash. The funds in question are not intangible personal property. See Shistack, Disposition of Unclaimed Property — A Proposed Model Act, 46 Ul.Law Rev. 48 (1952). Although money is defined as intangible personal property in section 199.023, Florida Statutes (1981), that definition is limited to the Intangible Personal Property Tax Act.

For these reasons, I would hold that the rights of the owner of the locus in quo are superior to the rights of the city and state. Favorite, 407 A.2d at 977. Accordingly, I would affirm.

      . It is fairly inferable from the record that Fuentes was unconscious when the police arrived.

      . The legality vel non of the search is not pertinent to any issue in this case.

      . The amount of the money seized is stated as $58,591 in the police report attached as an exhibit to a pretrial stipulation between the parties. The order under review refers to the amount as "in excess of $58,000.”

      . At the time of the seizure in question, money — even if found to have been employed as an instrumentality in the commission of, or in aiding and abetting in the commission of, any felony — was not a contraband article subject to forfeiture. Compare § 943.41, Fla.Stat. (1975), with § 932.701, Fla.Stat. (1983).

      . In Latin, "the place in which."

      .A finding that the money was abandoned at a place other than Fuentes’ apartment (e.g., at the police station when Fuentes voluntarily departed the hospital and made no effort to claim the money from the police), although it might have some support in the evidence, is of no help to Green and Vogel whose claim to ownership of the money vis-a-vis the finder is necessarily bottomed on the money having been abandoned on, not simply taken from, premises owned by them. See, e.g., Favorite v. Miller, 407 A.2d 974; Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F.Supp. 1562.

      . Since the money was not abandoned in Fuentes’ apartment, we need not consider whether Fuentes’ apartment (in which, as a then current lessee, he had a legally recognized interest, see DeVore v. Lee, 158 Fla. 608, 30 So.2d 924 (1927)) could be considered the landlords’ property so as to make colorable their claim to the money seized therein.

      . But inferior to the true owner of the unclaimed property for whom the property is held as bailee. See Campbell v. Cochran, 416 A.2d at 221-22. Thus, the adage "finders keepers, losers weepers” does not represent an accurate statement of the common law.

      . At the time the money was seized in 1975, the statutory period for presumed abandonment was fifteen years. See § 717.10, Fla.Stat. (1975). In 1977, the period was reduced to seven years. See Ch. 77-236, Laws of Fla. This reduction affected the holder’s responsibility so that in seven years, that is, in 1982, the holder was required to act. Cf. Fuentes v. Wendt, 106 Misc.2d 1030, 436 N.Y.S.2d 801, 803 (N.Y.Sup. Ct.1981) ("[i]t is the law in effect at the time of the expiration of the appropriate waiting period which governs the rights of the finder not the law in effect at the time of the finding” (emphasis in original)); State ex rel. Mallicoat v. Coe, 254 Or. 365, 460 P.2d 357 (1969) (disposition of property statute applies to property already in custody of holder, since owner’s property rights unaffected and statute only changes holder from whom property can be redeemed).

      . Had we determined that the money was in fact abandoned to the landlords, they would have been entitled to outright ownership, and the applicability of Chapter 717, which presupposes no factual abandonment under common law principles, would be irrelevant. Had we determined that the landlords as owners of the locus upon which lost or mislaid property or treasure trove was found were entitled to a possessory interest in the money, then the applicability of Chapter 717 would be relevant, since the question of whether the lessors, as holders, would be required to turn over the money to the State after the seven-year presumption of abandonment attached would be before us.

      . The statute presently in effect, section 932.701, Florida Statutes (1983) provides that money may be considered contraband subject to forfeiture.

      . Black’s Law Dictionary 946 (4th ed. 1968):
      INTANGIBLE PROPERTY. Used chiefly in the law of taxation, this term means such property as has no intrinsic and marketable value, but is merely the representative or evidence of value, such as certificates of stock, bonds, promissory notes, and franchises, (citations omitted)


author: FERGUSON, Judge.

text:
    Luis C. MORSE, Petitioner, v. The DADE COUNTY CANVASSING BOARD; George Firestone, Secretary of the State of Florida; Humberto Cortina; and Evaristo L. Marina, Respondents.
    No. 84-2052.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Barnett, Alagia, Zamora & Suarez, Miami and Joseph J. Portuondo, Salinas, Cal., for petitioner.
    Robert A. Ginsburg, County Atty. and Murray A. Greenberg, Asst. County Atty., Ellis Ruben, Miami, for respondents.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Luis C. Morse, a candidate for election to the Florida House of Representatives, seeks review of a trial court order which invalidated a primary election in a single district.

The question presented is whether the trial court may entertain a petition brought by the county canvassing board seeking to void an election, and then order a new election on a showing only that there is a significant statistical variance between an original count and a recount. We reverse, holding that (1) the canvassing board had no standing to challenge the election results, and (2) in the absence of a protest to an election result filed by a candidate or an elector qualified to .vote in the election related to such candidacy, the circuit court was without jurisdiction to act.

The pertinent facts are as follows. On September 4, 1984, the election for the Republican nomination for state representative in District 113 was held as part of the county-wide elections. The initial electronic tabulation of the voting showed Luis Morse as the winner with 2,314 votes; Humberto Cortina, the incumbent, in second place with 1,665 votes; and Evaristo Marina in third place with 1,614 votes. Morse and Cortina thus qualified for a runoff. Marina filed a request for, and was granted a recount. By the recount held on September 11, 1984, Morse lost four votes (2,310), Marina gained 19 votes (1,633), and Cortina lost 58 votes (1,607), which changed the outcome, placing Marina in the run-off and eliminating Cortina. This recount was electronically computed in the same manner as the initial vote. Marina, with permission of the Dade County Canvassing Board (hereafter “the board”) and under its supervision, personally counted the ballots. As a result of this hand count Morse lost another 13 votes (2,297), Marina’s votes remained the same as the first recount (1,633), and Cortina lost another three votes (1,604). The board, on its own initiative, began to count the votes by hand but never finished that count. Tests ordered by the board indicated that all equipment was tabulating and functioning normally in both the initial tabulation and the first recount. An investigation by the State Attorney’s office was ordered by the board just prior to the hearing, and was ongoing when the matter came before the court. The Metro-Dade Police Department conducted a laboratory test to examine the perforations in the ballots and to determine whether there were any irregularities. Those tests were inconclusive as to tampering.

The board commenced a declaratory action in the circuit court, pursuant to Section 86.011, Florida Statutes (1983), and obtained an emergency hearing to determine whether a new election between all three candidates should be held. At the hearing the board asserted that it was “uncomfortable” in certifying the initial count or the recount because of an inexplicable and significant variance between the two counts. The supervisor of elections, who is also a member of the board, testified that he could not say with absolute certainty that the ballot cards had not been altered in some way between the first and second counts. The board’s position at the hearing was that there was no accusation, allegation, or indication of tampering, but that ballot tampering was one possible explanation for the variance.

Without factual findings, the trial court entered its final order of September 14, 1984 which (1) declared the results of the initial September 4th election and the September 11th recount in the Republican primary election for the Florida House of Representatives, District 113, null and void, and (2) ordered a new election to take place on October 2nd, between all three candidates, with a possible run-off election to be held on October 9th.

The duties of the county canvassing board are set out in Section 102.141, Florida Statutes (1983). Subsections (3) and (4) impose upon the board the duty to examine the counters on voting machines or the tabulation of ballots cast and to determine whether the returns correctly reflect the number of votes cast. Even where there is a discrepancy between the tabulation of ballots and the returns, the statute requires that tabulation of ballots be presumed correct and that the board canvass the votes accordingly. After completion of the canvassing pursuant to Section 102.141 the board is obligated, in the absence of a protest, to certify the results to the Department of State, the clerk of the circuit court, and the supervisor of elections. § 102.151, Fla.Stat. (1983).

It is not the court’s business to determine which candidate should be certified or to otherwise relieve the board of its certification responsibility absent a well-founded protest. Further, the canvassing board is a neutral body whose functions are ministerial in nature. The role of a petitioner or plaintiff in a circuit court action where the relief sought is invalidation of an election is an adversarial stance entirely inconsistent with the board’s duties.

It makes no difference that the canvassing board sought to void the election by the vehicle of declaratory judgment rather than by the mechanism of Chapter 102. Our conclusion here is that, on either theory, the board is without standing to question the results of an election.

The canvassing board contends that because it is a proper defendant under Section 102.168, it should also have standing to challenge the election in this case. If it were necessary, we, in all probability, would reject that argument, but since Section 102.168 is not applicable we do not reach the question. That section may be invoked only after election results have been certified by the canvassing board and a complaint has been filed in the circuit court by an unsuccessful candidate or nominee. Here, the election results have not been certified so there is no “unsuccessful candidate.” The circuit court’s jurisdiction could have been invoked here pursuant to Section 102.166 only by a protest alleging fraud filed by a “candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy.” The protest must be (1) filed in approved form, (2) sworn to as having a factual basis, and (3) presented to the circuit court. The circuit court is then empowered to conduct hearings and order that the sworn allegations in the protest be investigated, examined, or checked. In the absence of a properly filed protest, sufficient in form and substance, the circuit court is without jurisdiction to order any relief.

Reversed and remanded with instructions to dismiss the board’s petition with prejudice.

      . It is not clear whether candidate Marina physically handled the ballots prior to the first recount.

      . Our decision was announced after oral argument on September 20, 1984. The parties were advised that this written opinion would soon follow.


text:
    EDWARD J. GERRITS, INC., Appellant, v. ROYAL MARINE SERVICE CO., INC., et al., Appellees. ROYAL MARINE SERVICE CO., INC., Appellant, v. LEXINGTON INSURANCE CO., et al., Appellees.
    Nos. 83-2780, 83-2818.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.

      Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Gary B. Sack, Miami, for appellants.
    Underwood, Gillis, Karcher & Valle and Richard B. Wingate, Jr., Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the amended final judgment in favor of the appellees and remand the cause to the trial court for the entry of a judgment for the appellants. The trial court determined that Gerrits’ crane, which was used to load cargo onto a barge, which travelled on the barge for the sole purpose of off-loading the cargo at the point of destination, and which itself was not to be delivered or off-loaded, was nonetheless cargo so as to exclude the crane from coverage under the insurance policy in question. In our view, that determination, upon which the judgment stands or falls, is contrary to the well-settled rule that where a term of an insurance policy is susceptible of two interpretations, the interpretation which sustains the claim for indemnity must be adopted. See, e.g., Poole v. Travelers Insurance Co., 130 Fla. 806, 179 So. 138 (1938); National Merchandise Co. v. United Service Automobile Association, 400 So.2d 526 (Fla. 1st DCA 1981); Dorfman v. Aetna Life Insurance Co., 342 So.2d 91 (Fla. 3d DCA 1977). Here the term “cargo” most certainly does not unambiguously include the crane. That being the case, the judgment below cannot stand.

Reversed and remanded.

      . The protection and indemnity policy covering Royal Marine Service Co., Inc., the company hired by Gerrits to transport certain building materials by barge, would cover damages to the crane unless the crane were considered cargo and thus within an exclusion to the policy.

      . Indeed, it is arguable that the commonly understood meaning of the word "cargo" is goods and merchandise — freight—intended for delivery. See The Manila Prize Cases, 188 U.S. 254, 269-70, 23 S.Ct. 415, 421, 47 L.Ed. 463 (1902) (cargo defined as that "which was intended to be disposed of at the foreign port.").


author: BASKIN, Judge.

text:
    METROPOLITAN DADE COUNTY, Appellant, v. Harold ALFORD, Appellee.
    No. 84-661.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.

      Robert A. Ginsburg, County Atty. and Ira Daniel Tokayer, Asst. County Atty., for appellant.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Alan T. Dimond and Lawrence S. Gordon, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   BASKIN, Judge.

This is an appeal from an amended peremptory writ of mandamus directing the Construction Trades Qualifying Board of Metropolitan Dade County (the Board) to issue to appellee Harold Alford a certificate of competency in the “Specialty Electrical Category of ‘Sound & Intercom.’ ”

The record reflects that the Board approved Alford’s application pending receipt of documentary proof of his work experience. The trial court correctly concluded that once the requested documentation was provided, the Board lacked the discretion to reconsider its previous approval. See State ex rel. Greenberg v. Dade County, 120 So.2d 625 (Fla. 3d DCA 1960). We therefore hold that mandamus is an appropriate remedy to compel the Board to exercise its duty in issuing the requested certificate of competency. See York v. State ex rel. Jones, 144 Fla. 216, 197 So. 766 (1940).

Affirmed.


text:
    James Phillip WOZNIAK, Appellant, v. Lynne Carr WOZNIAK, Appellee.
    No. 84-418.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Fletcher & Langer and Robert A. Solove, Homestead, Marks, Aronovitz & Leinoff, Miami, for appellant.
    No appearance for appellee.

      Before SCHWARTZ, C.J, and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

In the absence of a petition and evidence showing a substantial change of circumstances of either party, the trial court may not modify the terms of a child custody and support order. Morgan v. Morgan, 429 So.2d 432 (Fla. 1st DCA 1983); Koken v. Neubauer, 374 So.2d 49 (Fla. 3d DCA 1979); Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 460 (Fla.1979).

Reversed.


author: DOWNEY, Judge.

text:
    In re The ESTATE OF Lillian H. PENNEY, Deceased.
    No. 83-474.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    James M. Stuckey of James M. Stuckey, P.A. Stuart, for appellant-Marie W. Akins.
    James L.S. Bowdish of Crary, Buchanan, Bowdish & Bovie, Chartered, Stuart, for appellee-Flora Penney.
   DOWNEY, Judge.

Appellant, Marie Akins, appeals from an “order determining last will,” which found invalid the decedent’s last will and testament, dated September 16, 1982.

Briefly, the facts of the case are that Lillian H. Penney died leaving a will dated February 4, 1972, and another dated September 16, 1982. The decedent’s son filed a petition for administration appending both instruments and seeking to have the earlier will admitted to probate. The petition asserted that the later will was not valid because it was not properly executed, the testatrix lacked testamentary capacity, and the will was the result of undue influence exercised by Marie Akins. A caveat was filed by Akins asserting the validity of the later will. A trial on the issue of the validity of the later will resulted in a judgment finding the later will invalid for all of the reasons asserted in the petition for administration.

The evidence reflects that Lillian Penney was 82 years of age at her death. She owned and resided in a condominium which was next door to that of her good friend, Marie Akins. Over the years the two women became confidants and on occasion discussed trading apartments because Lillian wanted Akins to have her apartment. These plans fell through. Lillian became ill with cancer, and after several hospitalizations she was moved to a convalescent center. There her health began to fail more markedly until her demise on September 18, 1982. Prior thereto, on September 13, 1982, Akins testified that Lillian asked her to prepare a will directing that Lillian’s condominium apartment (estimated value approximately $60,000) and her Buick automobile were to be sold to Akins for the sum of $10,000. Akins called a lawyer’s office to inquire about the cost of preparing a will, but deciding the $75 fee was too high, she purchased a will form at an office supply store and drew the will herself with the help of a book, Everyday Law Made Simple, authored by a New York lawyer. Not only did Akins prepare the will, she also supervised its execution. Suffice to say, nearly all of the criteria listed in In Re: Estate of Carpenter, 253 So.2d 697 (Fla.1971), as indicia of undue influence existed in this case. Furthermore, there was evidence that, if believed by the trier of fact, would support a finding that the will was not properly executed; the same holds true for the determination of lack of testamentary capacity.

Appellant poses three points on appeal that question the execution of the deposed will and the sufficiency of the evidence to support the trial judge’s findings that the decedent lacked testamentary capacity and the will was procured by undue influence. After carefully studying the appellate presentation by counsel, it appears to us that there is more than sufficient evidence to support the trial court’s judgment invalidating the September 16, 1982 will. Thus, the only question that required any extensive comment was the contention that our decisions were in conflict regarding the burden of proof in cases involving undue influence and the shifting of that burden. Since oral argument in this case we have rendered an en banc opinion in In Re: Estate of Arthur E. Davis, Deceased, Case No. 81-2241, opinion filed September 19, 1984, which acknowledges that the correct law on the subject is set forth in opinion of the Supreme Court of Florida in In Re: Estate of Carpenter, 253 So.2d 697 (Fla.1971). That case holds that the burden of proof remains with the will contestant and the presumption of undue influence can vanish.

Now that this court’s views regarding the presumption of undue influence and its proper relation to the burden of proof has been clarified, we affirm the judgment appealed from.

AFFIRMED.

HERSEY and BARKETT, JJ., concur.


author: ANSTEAD, Chief Judge. GLICKSTEIN, Judge,

text:
    Karen GIBSON, Petitioner, v. Stephen Carlyle GIBSON, Respondent.
    No. 83-2144.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.

      Catherine Rafferty of Miller & Squire, Chartered, Fort Lauderdale, for petitioner.
    Richard L. Polin, Lauderhill, and Beverly L. Vesel, Margate, for respondent.
   ANSTEAD, Chief Judge.

We treat the notice of appeal as a petition for writ of certiorari and grant the petition. In doing so, we direct the trial court to permit the attendance of a court reporter at the court-ordered psychiatric examination of the petitioner. Since the trial court has already authorized the attendance of counsel for both sides at the examination, we can see no basis for refusing petitioner’s request to have a reporter in attendance.

In overturning the trial court’s decision, we find ourselves more in agreement with the dissent rather than the majority opinion set out in Edwards v. Superior Court of Santa Clara County, 16 Cal.3d 905, 549 P.2d 846, 130 Cal.Rptr. 14 (1976), the primary authority relied upon by the respondent to deny the petitioner the right to have a court reporter, or some other suitable recording device, available at the compulsory psychiatric examination ordered by the trial court on motion by the respondent. In our view the petitioner should have the right, where the means are available as they are here, to preserve by objective means the precise communications that occur during the course of the examination. Any concerns about rapport and candor should give way to this right since otherwise the petitioner will be compelled to challenge the credibility of the examiner should a dispute later arise as to what took place. Such a dispute would be obviated by the presence of a means of recording the interview. Both the examiner and patient should benefit by the objective recording of the proceedings, and the integrity and value of the examination as evidence in the judicial proceedings should be enhanced.

It is important to note also, that it is the privacy of the petitioner that is involved, not that of the examiner, and if the petitioner wants to be certain that this compelled, although admittedly reasonable, intrusion into her privacy be accurately preserved, then she should be so entitled. There is no reason why the reporter, like a mechanical device used for the same purpose, should interfere with the process. Indeed, the presence of the reporter should relieve any anxiety the petitioner may have as to her responses to the inquiries made being received and recorded accurately by the examining physician.

The petition for writ of certiorari is granted and the trial court is directed to enter an order in accord with this opinion.

DOWNEY, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting.

This is an appeal from that part of a non-final order disallowing the presence of a court reporter during the psychological examination of the appellant wife involved in a dissolution action. We have appropriately treated the matter as a petition for writ of certiorari; however, I would deny the petition, thus occasioning this respectful dissent.

My position would undoubtedly be stronger if the two lawyers were not authorized to be present during the psychological examination. Judges Anstead and Downey conclude that so long as there is intrusion, it is better that there also be present someone to take down verbatim everything that is said. I disagree in that I feel (1) the discretion of the trial judge is and ought to be broad enough to decide who if anyone other than physician and examinee may be present, and (2) a court reporter taking down everything being said is more intrusive than the presence of both counsel.

It occurs to me that a verbatim report in a situation like this may be likened to a trial transcript before an appellate court. An appellate court can determine procedural error and the like from a transcript, but may not reweigh the evidence, because un-vocalized aspects of the trial — e.g., demean- or of witnesses — have not been recorded. Here, the expert may be likened to the trial judge. The expert’s determination of the emotional condition of the examinee is based not merely on what she says but also on her demeanor and perhaps on what she does not say. Is the trial court to second guess whether the expert’s testimony or report is trustworthy on the basis of what the examination transcript states? If so, the trial court must be a mental health expert, more competent than the psychiatrist or psychologist, for the trial court can evaluate the test results without witnessing the examinee’s conduct. If the trial court should not use the transcript of the examination this way, what will the reporter’s presence accomplish that the presence of counsel will not?

I think it would be better if no third persons were present during the examination, but it is not wise to suppose that to admit two extra people without admitting a third is arbitrary. Each additional person is an added intrusion, changing the climate of the examination; and the presence of one who is obviously making a verbatim record may invalidate the examination entirely. The reporter’s presence would be both intrusive and obtrusive.

Although there is no analysis by a Florida court of this question, Florida Rule of Civil Procedure 1.340 is virtually identical with Section 2030(a), California Civil Procedure Code on which Edwards v. Superior Court of Santa Clara County, 16 Cal.3d 905, 549 P.2d 846, 130 Cal.Rptr. 14 (1976) is based. The issue before the California Supreme Court in Edwards was whether the plaintiff in a personal injury action may insist on the presence of his attorney during a psychiatric examination by the defendant’s psychiatrist. The court ruled that only the examinee and the examiner should be present during such an examination. In response to the plaintiff’s insistence on her attorney’s presence the defendant’s psychiatrist maintained he could not conduct a proper and accurate psychiatric examination if plaintiff’s attorney were present, for the attorney’s presence would necessarily distort and impair the clinical picture. The trial court granted the defendant’s motion for an order to compel the plaintiff’s examination with her attorney absent. In a majority opinion the California Supreme Court distinguished cases such as Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896 (1955) (en banc) (plaintiff in personal injury case need not submit to physical examination by defendant’s physician without presence of plaintiff’s attorney), and Gonzi v. Superior Court, 51 Cal.2d 586, 335 P.2d 97 (1959) (plaintiff entitled to presence of reporter during physical examination by defendant’s physician to insure accurate reporting of the examination) on the ground those cases involved physical examinations rather than a psychiatric examination. Id., 16 Cal.3d at 909, 549 P.2d at 848, 130 Cal.Rptr. at 16. The Edwards court said because a psychiatric examination requires a special and private rapport it is better not to have persons present other than the examiner and the examinee. Id. at 910, 549 P.2d at 849, 130 Cal.Rptr. at 17. The presence of someone the examinee knew was making a verbatim recording of her statements could make the examinee defensive and might thus interfere with the examination’s effectiveness. Id. The court pointed out the plaintiff/examinee had available numerous procedural safeguards to assure accuracy in the reporting of the examination or otherwise protect the plaintiffs legitimate interests: (1) Through pretrial discovery, her counsel could obtain in full the examiner’s notes and records of the examination (2) the examiner could be deposed, and at deposition her counsel could (a) exhaustively challenge questions and answers that were included in the examination as well as the examiner’s conclusions, and (b) have present her own psychiatric expert to prompt items of inquiry; and (3) at trial, her counsel could (a) by voir dire and motions exclude or limit statements of the client to be put into evidence, (b) introduce contrary evidence, and (c) cross-examine the expert — again, if desired, with the advice of plaintiff’s own expert. Id. at 912, 549 P.2d at 850, 130 Cal.Rptr. at 18. The Edwards court’s holding was influenced by the procedural posture of the case, where plaintiff’s psychiatrist had worked with her for months or years whereas the defendant had to get an evaluation in a short period of time, but this was evidently not the predominant factor behind the holding; the court said fairness in relation to this circumstance fortified the court’s conclusions. Id. The Edwards court noted, in the context of a different issue, that under the pertinent California rule of procedure the fixing of conditions for the conduct of a pretrial psychiatric examination was entrusted to the sound discretion of the trial court. Id. at 913, 549 P.2d at 851, 130 Cal.Rptr. at 29. Logically, said the court, a psychiatric examination of a party in a civil case should ordinarily be conducted without counsel if the examination is to be an effective and meaningful device for ascertaining the truth. Id. at 910, 549 P.2d at 849, 130 Cal.Rptr. at 17.

In Florida, too, the trial court has discretion to decide whether or not to permit a court reporter’s presence at a psychiatric examination. The California Supreme Court’s rationale for its holding in Edwards is very persuasive, and seems equally appropriate to a case where psychological examination is to assist in determining with which parent children of a dissolved marriage should be primarily domiciled.

It is noted that the California Supreme Court said only that ordinarily there should be no third persons present during a psychiatric examination. There are circumstances under which the trial court, exercising its sound discretion, could find such a presence desirable. In the instant case the trial court found it appropriate for the attorneys to be present. In my opinion, it did not abuse that discretion by excluding the court reporter.

      . In the present case the trial court has permitted the parties’ attorneys to be present during the examination.


text:
    Donna M. HOLMES, Debra Ann Fereday and Randy Fereday, Appellants, v. Lillian A. TAYLOR, Appellee.
    No. 83-2162.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Rehearing Denied Nov. 9, 1984.
    William D. Beamer, Fort Lauderdale, for appellant-Donna M. Holmes.
    Dorothy V. Maier of Bruce E. Wagner, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant challenges the propriety of an adverse summary judgment. Our review of the record leads us to conclude that the appellee/movant failed to negate the existence of genuine issues of material fact. Consequently the final summary judgment is reversed and the cause is remanded for further proceedings. See Landers v. Milton, 370 So.2d 368 (Fla.1979); McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

Reversed and remanded for further proceedings.

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


author:
PER CURIAM.
      GLICKSTEIN, Judge,

text:
    Philip Bertrand BRUNELLE, Appellant, v. STATE of Florida, Appellee.
    No. 83-2298.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant, charged with aggravated assault, was found guilty of the lesser included offense of assault. He was adjudged guilty and placed on probation for a period of six months with the special conditions that he serve thirty days in jail and pay a $300.00 fine. We affirm.

The major contention on appeal is that the trial court erred by admitting certain hearsay testimony from the victim’s father. We agree that the testimony was inadmissible hearsay. However, it amounted to nothing more than a brief duplication of the victim’s admissible testimony which was subject to full cross-examination. As such, we are satisfied that the evidentiary error did not affect the verdict and, thus, can be classified as harmless error. See Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). We are guided by the principle that “a defendant is entitled to a fair trial but not a perfect one,” for there are no perfect trials. Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968) (quoting Lut-wak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953)). Since the error in the case at bar was harmless and did not impair the fairness of the trial, the defendant’s conviction and sentence are

AFFIRMED.

HURLEY and WALDEN, JJ., concur.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting.

I would reverse because of harmful evidence that may have counterbalanced the almost even swearing contest between appellant and his alleged victim, Joseph Davis. Conceivably, appellant would have been found not guilty of anything but for the trial court’s admission of the testimony of Joseph Davis’ father, who was allowed to testify over objection to the following harmful hearsay:

Q. And what did you tell the Sheriff’s Department?
A. I told them that my son had told me—
Defense Counsel: Objection, Your Hon- or.
The Court: Objection overruled. This is what he is telling the sheriff.
Prosecutor:
Q. You may continue, Mr. Davis.
A. He said Phil had come over to the house and had asked him to turn the stereo down and which he agreed to do.
And then thereafter he pulled a gun on him and he was really scared. He didn’t know what to do and he wanted to know what I should do and I said I would call the sheriff’s department.

Admission of this testimony was reversible error. The vital issue at trial was who threatened whom. Resolution of that issue rested on the credibility of Joseph Davis and the appellant, whose respective testimony was in direct conflict.

By admitting the hearsay testimony of Joseph Davis’ father, the court violated the rule against a witness’ prior consistent statement being used to corroborate his trial testimony. Van Gallon v. State, 50 So.2d 882 (Fla.1951); Lamb v. State, 357 So.2d 437 (Fla. 2d DCA 1978); Brown v. State, 344 So.2d 641 (Fla. 2d DCA 1977); Roti v. State, 334 So.2d 146 (Fla. 2d DCA 1976).

The statement cannot be classified “non-hearsay” under Section 90.801(2)(b), Florida Statutes (1981) as it was not offered to rebut an express or implied charge against the witness of improper influence, motive, or recent fabrication. Nor can it be viewed as an excited utterance which was part of the res gestae, as the son’s phone call to his father was placed well after the incident had occurred from a different location. Finally, the State’s contention that the statement was not offered for the truth of what was said is wholly unpersuasive.

The error cannot be considered harmless as it clearly could have “tipped the scales” in favor of Joseph Davis’ story and a finding that it was appellant, and not Davis, who committed an assault. In Libertucci v. State, 395 So.2d 1223 (Fla. 3d DCA 1981), inadmissible hearsay was introduced where the case against the defendant was less than strong. Noting that “[t]he weaker the case, the greater the danger that the inadmissible evidence unfairly tipped the scales against the defendant,” the court observed that the hearsay provided an important part of what little evidence there was against the defendant. Id. at 1226 & n. 6.

      . (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
      (b) Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication.

      . In footnote 7 of that opinion, the court opined that there is no meaningful difference between the "injuriously affects substantial rights” standard and "results in a miscarriage of justice” standard. The first is found in Section 924.33, Florida Statutes (1983), and is applicable to criminal cases only, and the second is Section 59.041, Florida Statutes (1983). The latter, the court implied, may no longer be applicable to a criminal appeal.


author: DELL, Judge.

text:
    MACK INDUSTRIES DIVISION OF HOLLYWOOD LAND COMPANY, INC., a Florida corporation, Appellant, v. FRANK J. BAKER GENERAL CONTRACTOR, INC., a Florida corporation, Appellee.
    No. 84-193.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    William S. Spencer and John P. Duda of Ellis, Spencer, Butler & Kisslan, Hollywood, for appellant.
    Donald C. Dowling and Steven J. Vann of Gringle, Spinner, Dittman, Federspiel, Dowling & Manning, Delray Beach, for ap-pellee.
   DELL, Judge.

Appellant supplied materials which ap-pellee used in the construction of a building for Sunshine Meadows, Inc. (Sunshine). Appellee failed to pay for the materials and appellant sued for breach of contract. The trial court entered summary judgment in favor of appellant for the full amount of the unpaid debt plus interest, costs and attorney’s fees.

Appellant also perfected a mechanic’s lien against Sunshine’s property for the materials supplied. Sunshine declared bankruptcy, and appellant filed its Proof of Claim in Sunshine’s bankruptcy proceeding. Pursuant to a plan of reorganization, appellant elected to take 42% of the value of its lien and received $30,487.62 from Sunshine. Appellant executed a release and satisfaction of lien against Sunshine’s real property which declared the lien fully satisfied.

Thereafter appellee moved for an order of satisfaction of judgment, on the theory that appellant’s release of Sunshine from liability on the mechanic’s lien operated to release appellee from its judgment debt.

The court granted the motion and entered an order of satisfaction of judgment.

Appellant contends that the release of property from a mechanic’s lien for materials which were furnished pursuant to a contract with a general contractor does not automatically discharge the contractor from a judgment debt resulting from the contractor’s failure to pay. We agree.

We held in Tropical Supply Co. v. Verchio, 402 So.2d 1284 (Fla. 4th DCA 1981):

The mechanic’s lien law does not purport to change, except in a very limited way, the rights and duties arising out of a sale or a contract to pay money. That law does provide a security device in the form of a mechanic’s lien to secure the payment of sums otherwise due and owing. It further isolates a source of funds for such payment, the balance due under the contract, where improper payments as defined in Section 713.06 have been made. It does not and never was intended to affect the debt itself.

Id. at 1286.

Appellee vigorously argues, as it argued below, that release of one joint obligor releases all. This argument presupposes that appellee and Sunshine stood in the relationship of joint obligors, a supposition for which no record support exists. Joint obligors are those who share an obligation arising out of a unitary or related transaction such as a joint contract obligation, a joint judgment obligation, or a tort with more than one tortfeasor. Newsome v. Finch, 375 So.2d 1144 (Fla. 1st DCA 1979). Appellee presented no evidence that Sunshine had undertaken any obligation on the contract for materials, nor is Sunshine a joint judgment debtor — it has never been a party to the action sub judice.

Accordingly, we reverse and remand with directions to vacate the satisfaction of judgment.

REVERSED and REMANDED.

ANSTEAD, C.J., and GEIGER, DWIGHT L., Associate Judge, concur.