text:
    Mayra URBIETA, Appellant, v. Guillermo URBIETA, Appellee.
    No. 83-618.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Stabinski & Funt and Cristina De Oli-veira, Miami, for appellant.
    No appearance for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This appeal is from orders awarding attorneys’ fees of $1,000.00 to appellant’s former attorneys and denying rehearing on the fee award in an action for dissolution of marriage.

The law firm of Stabinski & Funt, P.A. was employed by the wife to represent her in an action for dissolution of marriage' instituted by the husband, and entered into an agreement which provided that the wife would pay its fees of $100.00 per hour, together with costs and other expenses. After her attorneys had spent many hours in advancing her cause, the wife discharged the Stabinski law firm and hired another attorney. The trial court permitted the substitution and gave the discharged lawyers a charging lien for all fees and costs. Subsequently, the husband and the wife entered into a settlement agreement whereby the husband obligated himself to pay the wife’s attorneys’ fees and other benefits. The substituted attorney filed a motion to tax costs and assess his fees.

Upon hearing, the Stabinski law firm presented expert testimony stating that $5,800.00 was a reasonable fee. However, the court ordered the husband to pay them only $1,000.00 and the substituted attorney, $3,000.00. The Stabinski law firm filed a motion for rehearing requesting the trial court to consider the employment agreement and the firm’s charging lien. Rehearing was denied, but the firm was given leave to file a petition for determination of its fee owed by the wife pursuant to their agreement and the lien. The court denied the petition in view of its prior award of fees to the firm from the husband, and thereafter denied a motion for rehearing.

The wife’s former attorneys urge reversal on the ground that the award of attorneys’ fees of $1,000.00 on this record was so inadequate as to constitute an abuse of discretion. We agree and reverse.

Where an attorney has been discharged by a client the court is required to determine the reasonable value of the services rendered, limited by the maximum contract fee. See Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982); see also Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981); Adams v. Fisher, 390 So.2d 1248 (Fla. 1st DCA 1980).

It is clear in this case that the fee allowed the wife’s former attorneys is not in keeping with the time expended and the importance of the legal services rendered and furthermore, that the evidence, testimonial and documentary, does not support the trial court’s rulings as to the award of legal fees to which said attorneys are entitled. March v. March, 395 So.2d 200 (Fla. 3d DCA 1981); Adams v. Fisher, supra; Marchion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla. 3d DCA 1979). The court additionally erred in failing to adjudicate the charging lien of the Stabinski law firm. See Baucom v. Baucom, 397 So.2d 347 (Fla. 3d DCA 1981), modified sub nom Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla.1983) (wife’s attorneys not entitled to pursue husband for their fees, despite perfected' charging lien, where wife agreed to settlement which made her liable for fees); de la Cruz v. Brown, 338 So.2d 245 (Fla. 3d DCA 1976).

Therefore the orders appealed are reversed and the cause is remanded with directions to enforce the charging lien of the Stabinski law firm and to grant a rehearing on the petition of said attorneys and award them a fee in an amount based upon a further consideration of the record and the controlling principles of law.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rochelle WASSERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-649.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The defendant’s conviction of disorderly conduct, under section 877.03, Florida Statutes (1981), is affirmed on the basis that her conduct, apart from her spoken words, supports the conviction. See White v. State, 330 So.2d 3, 6 (Fla.1976); Williams v. State, 340 So.2d 498 (Fla. 1st DCA), cert. denied, 348 So.2d 954 (Fla.1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d 763 (1978); K.G. v. State, 338 So.2d 72 (Fla. 3d DCA 1976).

The state concedes that the sentencing order must be corrected so as to reflect the specific amount of credit time to which the defendant is entitled. § 921.161(1), Fla. Stat. (1981); Pruitt v. State, 363 So.2d 611 (Fla. 2d DCA 1978). Accordingly, we remand for that purpose.

The conviction is affirmed; the sentence is remanded for correction.


text:
    V.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-668.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

V.S. appeals from an adjudication of delinquency for violation of section 856.021, Florida Statutes (1981), and possession of diazepam in violation of section 893.13, Florida Statutes ,(1981). For the reasons which follow we reverse.

V.S. and a companion were observed by a uniformed motorcycle patrol officer who, acting.on a hunch, accosted the defendant and inquired as to his presence in the area. One of the juveniles stated he was waiting for a friend and the second juvenile stated he was waiting for his brother. The officer could not recall which of those statements was attributable to V.S. When asked for identification V.S. replied that he lived approximately seven blocks away. The officer made no attempt to ascertain the accuracy of this information. V.S. was arrested for loitering and prowling and a subsequent search revealed the presence of the contraband diazepam. This record is devoid of any evidence that satisfies the criteria contained in section 856.021, Florida Statutes (1981), as that statute has been interpreted by our supreme court, see B.A.A. v. State, 356 So.2d 304 (Fla.1978); State v. Ecker, 311 So.2d 104 (Fla.1975); In the Interest of O. W., 423 So.2d 1029 (Fla. 4th DCA 1982).

Because we conclude that the arrest was unlawful the subsequent search is likewise unlawful. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980). The trial court erred in denying V.S.’s motion to suppress.

Based on the foregoing authorities we reverse the adjudication of delinquency and remand to the trial court with directions to discharge the defendant.

Reversed and remanded with, directions.


text:
    Aida Torres OLMO, Appellant, v. Henry Corona MURO, Appellee.
    No. 83-1175.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Taylor, Brion, Buker & Greene and Mario Velez and Amoldo Velez, Miami, for appellant.
    No appearance on behalf of appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

The final order under review dismissing the action below is reversed and the cause is remanded for further proceedings upon a holding that the defendant Henry Corona Muro, a resident of Puerto Rico, was not entitled to have the action below dismissed for improper venue under Section 47.061, Florida Statutes (1981), as the trial court concluded, because the defendant Muro is not a resident of the state of Florida and the above statute is inapplicable to nonresidents of the state of Florida. Cousins Mortgage and Equity Investments v. Florida First National Bank at Pensacola, 324 So.2d 139 (Fla. 1st DCA 1975).

Reversed and remanded.


text:
    Richard THOMPSON, Appellant, v. Reginald MATTOX, as Personal Representative of the Estate of Katherine Baker Thompson, Appellee.
    No. 83-1447.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Schultz & Hollander, Michael Schiffrin and Fred Kellner, Miami, for appellant.
    English, McCaughan & O’Bryan, Fort Lauderdale, and Gary L. Rudolf, Miami Beach, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

This is an appeal from an order of the probate division of the Circuit Court in and for Dade County denying appellant’s petition to set aside homestead.

The evidence adduced at the hearing on the petition showed that appellant was married to Katherine Baker Thompson, the deceased, in November, 1982 and they lived together as husband and wife until she died in January, 1983. There were no children born of this marriage. The wife was the mother of a son born out of wedlock in 1977 who did not live with the Thompsons and was not supported by them. The Thompsons lived in a condominium in Coral Gables, Florida which was owned by a revocable trust established by Mrs. Thompson (then Katherine J. Baker) in 1975 with the sizeable proceeds of a personal injury settlement. She was the sole beneficiary of the trust. There was testimony from appellant that he relied totally upon his wife, i.e., the proceeds of her trust, for support even though he was an able bodied employable man. He testified that this was a lifestyle agreed upon by them at the time of their marriage. By such agreement he contended that he relinquished to his wife his traditional role as head of the family. However, he also testified that he assumed the role of manager of the couple’s finances since the decedent was unable to budget her monetary affairs.

After a full hearing on the petition, the trial judge entered the following order, from which this appeal is taken:

THIS CAUSE came before the Court on June 7, 1983 for a hearing on the Petition to Set Aside Homestead filed by Petitioner, Richard Thompson.
Upon completion of the Petitioner’s case, counsel for the Estate of Katherine Baker Thompson and the Katherine J. Baker Trust moved ore terms for an involuntary dismissal of the Petition, pursuant to Rule 1.420(b), Fla.R.Civ.P.
After consideration of the evidence presented by Petitioner, and having heard argument of counsel, the Court finds that Petitioner failed to sustain his burden of showing that the Decedent was the head of the family at the time of her death. Therefore, even assuming, but not deciding, that Decedent was the owner of the property in question, being Unit # 5 Mariposa Manor Condominiums, since Decedent was not the head of the family, the property in question could not qualify as homestead.
Accordingly, upon consideration of the record in the cause, and being otherwise duly advised, it is
ORDERED AND ADJUDGED that
1. The ore terms motion for involuntary dismissal is granted, and the Petition to Set Aside Homestead be and the same is hereby dismissed with prejudice.
2. Petitioner shall vacate the premises of Unit # 5 Mariposa Manor Condominium on or before July 15, 1983.

On appeal we. are presented with the following two points: (1) Can real estate which is owned by a revocable trust be considered homestead property by the occupants therein(?) and (2) Can a wife, such as the decedent herein, be the head of household for purposes of homestead(?).

We have concluded, after careful consideration of the record, briefs and arguments of counsel, that the trial court correctly ruled upon these questions and that no reversible error has been shown. See generally Holden v. Estate of Gardner, 420 So.2d 1082 (Fla.1982) (prohibition against devise of homestead property applies only where deceased owner, survived by a spouse, is head of family), aff'g 404 So.2d 1169 (Fla. 1st DCA 1981).

Affirmed.


text:
    Francisco E. HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1630.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Bennett H. Brummer, Public Defender and Levine, Finger & Zenobi, Miami, and Jay L. Levine, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Finding no error in the admission of defendant’s confession, his convictions on five counts of attempted robbery with a firearm and one count of attempted third-degree murder with a firearm are affirmed. See Barnason v. State, 371 So.2d 680 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 764 (Fla.1980). Despite the defendant’s argument to the contrary, the record does not reflect that the sentence imposed by the trial court after the trial of the case, although more severe than that discussed before trial, was imposed to penalize the defendant for exercising his right to be tried upon the offenses charged. Instead, the record reflects that it was not until the trial of the case that the trial court became aware of the outrageousness of the defendant’s conduct, and not until the receipt of a pre-sentence investigation report that the trial court learned that the defendant affirmatively denied his involvement with the crimes, which denial, deemed by the trial court to be untruthful, could be taken into account in imposing a harsher sentence. See United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Hector v. State, 370 So.2d 447 (Fla. 1st DCA 1979). We must, however, order that the three-year minimum terms of imprisonment imposed pursuant to Section 775.087(2), Florida Statutes (1981), on Counts 2 and 7 be modified to run concurrently with each other and with the three-year minimum term imposed on Count 1, these offenses all arising in the course of a single criminal transaction. ' See Palmer v. State, 438 So.2d 1 (Fla.1983).

Affirmed; remanded for modification of sentence.


text:
    Atsuko Naoe CORY, Appellant, v. John H. CORY, Appellee.
    No. 83-1797.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Atsuko Naoe Cory, in pro. per.
    Austin 0. Bonidy, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The former wife appeals from an order ratifying and approving the report of the general master. This order found, inter alia, that the former wife failed to make certain payments to the former husband required by the final judgment of dissolution and entered judgment against her for these unpaid amounts.

The issue on this appeal arises from that provision of the unmodified final judgment of dissolution which states:

“Each party shall be responsible to pay one-half (½) of the insurance, taxes and major maintenance on said property, and in the event as to a dispute concerning what constitutes major maintenance, the Court hereto reserves jurisdiction to enter an appropriate Order....”

The wife contends that included in the amount found to be owing by her were ordinary upkeep and maintenance costs, as well as charges for the former husband’s labors in maintaining the house, none of which are major maintenance. We agree with this contention.

Although it is true that the trial court reserved jurisdiction to enter an appropriate order in the event of a dispute over what constitutes major maintenance, the report of the general master and the order entered thereon do not even purport to identify these items as major maintenance (nor would the evidence support such a view), but instead requires the wife to pay one-half the expenses of ordinary upkeep and maintenance, in effect retroactively modifying the final judgment of dissolution without any modification request, hearing thereon, or showing that the final judgment should be modified.

Accordingly, Paragraphs 2 and 3 of the order under review are reversed with directions that the amount set forth therein be reduced to the extent that it includes the maintenance costs objected to by the former wife. Paragraph 5 of the order under review is reversed with directions that it be modified to provide that the husband is entitled to assess against the wife labor services provided by him only in connection with major maintenance. In all other respects, the order is affirmed.

Affirmed in part; reversed in part, and remanded with directions.

      . The property referred to in the above provision is the former marital home of the parties in which the husband, given the right to exclusive possession, resides with a minor child of the parties.

      . These maintenance costs appear as Items 5, 6, 11, 12, 13, 16, 21, 24, 30, 36, 38, 42 and 45 on Exhibit A submitted by the former husband.


author: NESBITT, Judge.

text:
    Lucia GONZALEZ, Appellant, v. Erwin GONZALEZ, Appellee.
    Nos. 83-2002, 83-2435.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.

      George T. Ramani and Michael A. Van-detty, Miami, for appellant.
    Markus, Winter & Feldman and Stuart Markus and Sheldon I. Pivnik, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

By interlocutory appeal, the wife challenges: (1) an order entered August 2,1983 denying her temporary alimony and restricting her use of her residence; and (2) an order entered October 12, 1983 which terminated the wife’s right to custody, support and housing.

The parties were married in 1972 and had three children. In 1982, Lucia filed her petition for dissolution of marriage. On April 3, 1983, she filed a motion for temporary alimony, attorneys’ fees and child support. A hearing on this motion was held before a general master. The master’s report recommended that the wife be granted interim child support and partial attorneys’ fees, but denied temporary alimony finding:

that the parties have been separated since August 1981; that the wife had existed without alimony since that time; that the wife admittedly is pregnant by a man not her husband; and that there is a question as to the wife’s assets and her need for temporary alimony.

The trial court ratified the report subject to the parties’ exceptions. The wife filed objections urging that she was entitled to temporary alimony and a more substantial award of child support and attorneys’ fees. The objections were overruled in an order entered by the trial court on August 2, 1983. In addition to providing that the wife’s exceptions would be denied, the order stated that should the wife have any overnight guests at her residence, she would be required to vacate the residence, relinquish custody of the one child residing with her and be held in contempt. The wife filed a notice of appeal from this non-final order on August 19, 1983. We find that several portions of this order were erroneous and must be reversed.

The wife first argues that she should have been granted temporary alimony. In determining whether and to what extent an award of temporary alimony is proper, the court must be governed by the needs of the party as fixed by the parties’ standard of living and the ability to pay. Belcher v. Belcher, 271 So.2d 7 (Fla.1972); Vickers v. Vickers, 413 So.2d 788 (Fla. 3d DCA 1982). The order under review was not based upon the requisite consideration, but rather was improperly based on the wife’s adultery after the parties’ separation. See Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA), cert. denied, 388 So.2d 1118 (Fla.1980); Williamson v. Williamson, 367 So.2d 1016 (Fla.1979). As to the issue which the court was required to address, the master’s report stated: “[Tjhere is a question as to the wife’s assets and her need for temporary alimony.” Having been unable to determine the truthfulness of the wife’s assertions on the record before him, the master should have taken additional testimony to resolve the issue. Because the master’s findings were incomplete, the trial judge improperly denied temporary alimony and the case must be remanded for further proceedings.

The wife also challenges the provisions of the August 2nd order which relates to visitors. On this issue, the court stated:

That if the Wife has anybody in her house sleeping there anytime, beginning with today or thereafter, two things will happen very quickly. One is that the third child, the only one living with the Wife, which is the daughter, will immediately start living with the Husband, and that the apartment, the Husband can do with what he wants, for if the boyfriend is there tonight or any other night thereafter, I’m going to order that the Wife vacate. If she does not vacate that, the Husband will have the assistance of the Dade County Sheriff to put her out and the Husband will get the property. She will not live there if one night she has somebody sleeping there or if she rents it out to a stranger, or the boyfriend is living with her. If she uses the apartment for anybody more than just to come in and out for a few minutes and visit, such as if she entertains anyone there, another man, and cooks him a meal or meals, or has any type of sexual relations with him in that apartment the Husband is providing, she will be in direct contempt of court for this order shall take effect at 10:30 A.M., August 1, 1981.
That the court orders that if the Wife is supporting someone either by food, feeding people meals or if she is having someone sleep there or engaging in any type of sexual relationships, whether the child is in the house or not, the court will have a hearing and the Wife will have to show why she is not to be held in contempt. If she wants to eat with this person she eats some place else. The court finds that he is not regulating her morals, the court finds that the court is regulating what can be done on the Husband’s expenses.

While the trial court may make appropriate orders regarding the care, custody and maintenance of a child, § 61.13, Fla.Stat. (1981); see generally, Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976), the imposition • of conditions in this case was violative of the wife’s due process rights. The hearing which resulted in the trial court’s order was conducted to resolve the wife’s exceptions to the master’s report. Neither the master’s report nor the wife’s exceptions addressed the conditions of custody. It is apodictic that the trial court may not hear and determine matters which were not the subject of appropriate notice and pleadings. Barreiro v. Barreiro, 377 So.2d 999 (Fla. 3d DCA 1979).

Additionally, we find that the conditions imposed were overbroad and without any basis in the record. No evidence was taken before either the master or the trial court as to the best interest of the child and whether the allowance of visitors would have a deleterious effect on the minor. For these reasons, the conditions imposed by the paragraphs quoted above must be vacated.

The October 1, 1983 order which is the subject of the second appeal is readily disposed of. It states in part:

The Court is entering this order upon making specific findings that the Petitioner/Wife has willfully and completely ignored this Court’s instructions regarding allowing her boyfriend to sleep in the same apartment as is being occupied by her and her child. The Court makes its findings based upon hearings before the Court, evidence received before the General Master, and the stipulations of counsel.

Because we have vacated that portion of the August 2nd order which imposed restrictions upon the wife’s allowance of visitors, the trial court’s order enforcing the earlier erroneous ruling must also be reversed.

Reversed and remanded for further proceedings not inconsistent with this decision.

      . Confirmation of the master’s report prior to the parties' having an opportunity to file exceptions is contrary to both the spirit and purpose of Florida Rule of Civil Procedure 1.490(h). If no timely exceptions are filed and served by either party, then the report may be confirmed ex parte. If exceptions are filed, the master's report is settled after notice and hearing.

      . Of course, the trial court need not consider the wife’s request for temporary alimony to the extent that her needs have become enhanced by reason of her pregnancy. Both common sense and equity dictate that a husband not be so burdened by the wife’s misdeed.

      . To the extent that this order may be construed as modifying the August ruling which was on appeal, the trial court was without jurisdiction to proceed; see State ex rel. Schwartz v. Lantz, 440 So.2d 446 (Fla. 3d DCA 1981); Waltham A. Condominium Ass’n v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976).


text:
    AMERICAN MOTORS CORPORATION and Jeep Corporation, Appellants, v. Armando ABRAHANTES and Maria Abrahantes, his wife, Appellees. AMERICAN MOTORS CORPORATION and Jeep Corporation, Appellants, v. James EXON, Appellee.
    Nos. 83-2644, 83-2645.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Mershon, Sawyer, Johnston, Dunwody & Cole and David A. Bailey, Miami, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack and Larry Stewart and Thomas Meeks, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The record before us discloses that the defendants, American Motors Corporation and Jeep Corporation, were served with process in the manner provided in Section 48.194, Florida Statutes (1981), that is, by personally serving them outside the State of Florida. Having elected to so proceed, the plaintiffs were required to plead and prove, which they failed to do, that the cause of action alleged arose from the doing of any of the acts set forth in Section 48.193, Florida Statutes (1981). See Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977); National League for Nursing v. Bluestone, 388 So.2d 1090 (Fla. 3d DCA 1980). Although the allegations of the plaintiffs’ complaints might support substituted service of process through the office of the Secretary of State as provided in Section 48.181, Florida Statutes (1981), our review of the order denying the defendants’ motions to dismiss on the ground of lack of jurisdiction over the persons of the defendants is limited to whether the jurisdictional requisites of Section 48.193, necessary predicates to service under Section 48.194, have been met. See A.B.L. Realty Corp. v. Cohl, 384 So.2d 1351 (Fla. 4th DCA 1980).

The plaintiffs’ argument that the defendants’ failure to move to dismiss on the ground of insufficiency of service of process waives the defendants’ right to challenge such insufficiency on appeal misapprehends the nature of the defendants’ challenge below and here. A motion to dismiss for lack of jurisdiction based on insufficiency of service of process lies when the service effected does not comport' with the requirements of the statute pertaining to the manner in which such service is to be effected. P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978). A motion to dismiss based on lack of jurisdiction over the person lies when the service effected, as here, although proper in manner, is not authorized by the long-arm statute which confers jurisdiction.

Reversed.


author: MILLS, Judge.

text:
    Eddie James DEAN, Appellant, v. STATE of Florida, Appellee.
    No. AS-79.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Eddie James Dean, pro se.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record and Dean’s pro se brief in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH and BARFIELD, JJ„ concur.


text:
    Earl Kym DARBY, Appellant, v. STATE of Florida, Appellee.
    No. AT-49.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

After reviewing the record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we find no reversible error.

AFFIRMED.

WENTWORTH, J., and MeCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


text:
    Donald K. SPICER, Appellant, v. STATE of Florida, Appellee.
    No. AU-103.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


author: JOANOS, Judge.

text:
    C. & B. INTERIORS and Johns Eastern Company, Inc., Appellants, v. Ralph CRISPINO, Appellee.
    No. AU-162.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    David M. Mitchell of Harkavy, Moxley, Mitchell & Stewart, Sarasota, for appellants.
    Alex Lancaster, Sarasota, for appellee.
   JOANOS, Judge.

In this workers’ compensation appeal, employer and carrier (“E/C”) contend there is no competent substantial evidence to support the award of wage loss benefits, specifically because claimant suffered no physical limitations upon his ability to work after he reached maximum medical improvement (“MMI”). We agree and reverse.

Crispino sustained a compression fracture as a result of a work related accident. The only medical opinion rendered as to Crispino’s post-MMI condition was that of Dr. Lascelle. Dr. Lascelle opined claimant has a 6% permanent impairment based on the AMA Guidelines due simply to the existence of the healed compression fracture. He said claimant has no loss of range of motion as a result of the fracture, he placed no physical restrictions on claimant, and he thought claimant could return to his previous work as a carpenter.

With regard to claimant’s testimony as to his present physical limitations, this case is similar to Kyle v. Davis, 435 So.2d 918 (Fla. 1st DCA 1983), and Oak Crest Enterprises, Inc. v. Ford, 411 So.2d 927 (Fla. 1st DCA 1982). In Davis, claimant’s doctors said he was capable of light duty work, but claimant said he was unable to perform such work due to pain. This court repeated the well-established principle that “[a] claimant’s ‘bare complaints of continued pain so that the claimant feels unable to work’ is not a condition that is ‘readily observable by lay people.’ Such evidence is insufficient to override medical testimony to the contrary and to prove inability to work.” In Ford, the court noted, “[i]n view of the fact that both physicians who testified in the case were of the opinion that claimant could work without limitation and was in need of no additional medical treatment, the claimant’s testimony that she could not work is wholly inadequate to prove her entitlement to wage loss benefits.” Claimant did not show' that his inability to obtain work was due to physical disability related to the industrial accident, and the award of wage loss benefits must be reversed.

REVERSED.

SHIVERS and THOMPSON, JJ., concur.


text:
    Melvin JONES, Appellant, v. STATE of Florida, Appellee.
    No. AV-68.
    District Court of Appeal of Florida, First District.
    March 6, 1984.
    Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., John W. Tiede-mann, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record in this case pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


author: WENTWORTH, Judge.

text:
    Edward S. LAMBERT, Appellant, v. STATE of Florida, Appellee.
    No. AW-9.
    District Court of Appeal of Florida, First District.
    March 6, 1984.

      Edward S. Lambert, III, pro se.
    Jim Smith, Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order denying his Fla.R.Crim.P. 3.850 motion for post-conviction relief. We find that the allegations of appellant’s motion are facially sufficient to state a claim for relief, and the trial court erred in failing to either conduct an evidentiary hearing or attach to its order those portions of the record which refute the pertinent allegations. On remand, should the trial court again summarily deny appellant’s motion it must attach to its order the relevant portions of the record; otherwise, appellant must be afforded an evidentiary hearing. In either event, to thereafter obtain further review appellant must then appeal the new ruling of the trial court. See generally, Lofton v. State, 442 So.2d 1091 (Fla. 2d DCA 1983).

The order appealed is reversed and the cause remanded for further proceedings.

MILLS, J., and McCORD, Jr. (Ret.), Associate Judge, concur.


text:
    David DUNLOP and M. Jeanette Dunlop, Appellants/Cross Appellees, v. JACK ECKERD CORPORATION, et al., Appellees/Cross Appellants.
    No. 82-2022.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Nancy Little Hoffmann of Hoffmann & Burris, P.A., and Scott A. DiSalvo of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellants/cross appellees.
    Michael J. Ferrin of Beverly & Freeman, West Palm Beach, for Consolidated Aluminum.
    Paul R. Regensdorf and Jonathan L. Gaines of Fleming, O’Bryan & Fleming, Fort Lauderdale for appellees/cross appellants Eckerd and Chubb.
   PER CURIAM.

This cause is per curiam affirmed. We are not united on what we individually would have done at the trial level, but we are all firmly of the opinion that the granting of a new trial was within the trial court’s discretion and therefore not reversible. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978).

Before a new trial is had on this cause, we would urge the trial court to ensure full discovery on the question of accidents involving comparable stepladders. Once again, while we do not feel we can reverse the finding of a good faith effort to comply with the discovery orders, we are concerned with the adequacy of the answers given.

LETTS, BERANEK and HERSEY, JJ., concur.


text:
    TREE CONSTRUCTION CORPORATION, a Florida corporation, Appellant, v. Charles W. CAPLINGER and Charlece Caplinger, his wife, Appellees.
    No. 83-871.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Rehearing Denied March 23, 1984.
    John Edgar Sherrard, Fort Pierce, for appellant.
    Karen O’Brien Steger of McManus, Stewart & Ferraro, P.A., Stuart, for appel-lees.
   PER CURIAM.

This is an appeal from a final judgment entered on a counterclaim in a-construction defects case. The counterclaimant was the homeowner and the counterdefendant was the builder and seller of the home. The main action, as originally filed between the parties, also involved a mortgage foreclosure. The trial court denied foreclosure and this ruling is not contested on appeal. The trial court assessed damages in favor of the homeowner and the builder/seller appeals. We reverse and remand for further proceedings.

The trial court was presented with evidence from appellees’ expert that the repair costs and the consequential damages to the home would exceed $20,000. The appellant’s version was to the effect that repairs could be accomplished for approximately $1500. On appeal, both sides argue adamantly as to the believability of the witnesses, their competence and lack of competence, and the reasonableness and unreasonableness of the needed and allegedly unneeded repairs to the home. There was substantial conflict before the trial court about almost everything in the lawsuit.

The court awarded damages of $11,600 based on the testimony of an assistant county property appraiser that the house had sustained a 20% diminution in value. The appellant contends that this was erroneous under Grossman Holdings Limited v. Hourihan, 414 So.2d 1037 (Fla.1982), and Temple Beth Sholom v. Thyne Construction Corp., 399 So.2d 525 (Fla. 2d DCA 1981). Appellant contends the only appropriate measure of damages in this ease was the cost of repair and that this amount was clearly shown to be in the neighborhood of $1500. We agree that the court here used an improper measure of damages in resorting to the diminution in value rather than employing the cost of repair. This is not a situation where the repair cost would have constituted economic waste. As such, we conclude that the court employed the wrong measure of damages and remand the matter to the trial court for a further trial solely on the issue of damages. We do not agree with appellant’s argument as to the amount of damages proven. On remand, the court may receive further evidence in its discretion.

The awards of attorneys’ fees and costs are also reversed to be reassessed on remand.

AFFIRMED AS TO LIABILITY AND REVERSED FOR A FURTHER TRIAL ON DAMAGES.

BERANEK, DELL and WALDEN, JJ., concur.


author: LEHAN, Judge.

text:
    TAMPA BAY CAB COMPANY, INC., Appellant. v. YELLOW CAB COMPANY OF TAMPA, INC., a Florida corporation, and United Cab of Tampa, Inc., a Florida corporation, Appellees.
    No. 83-828.
    District Court of Appeal of Florida, Second District.
    March 7, 1984.
    J.B. Hooper, Tampa, for appellant.
    J. Clint Brown and Rhea F. Law, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Yellow Cab Co.
   LEHAN, Judge.

Tampa Bay Cab Company, Inc., appeals from the denial of its petition to intervene in a proceeding for writ of common law certiorari in the circuit court. Finding no jurisdictional basis for such an appeal, we have elected to treat the proceeding in this court as a petition for writ of certiorari alleging a departure from the essential requirements of law. See Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), petition for review denied, 397 So.2d 779 (Fla.1981), cert. denied, 454 U.S. 815, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981); Fla.R.App.P. 9.040(c). We deny the writ.

On May 27, 1982, Tampa Bay Cab Company, Inc., hereinafter called petitioner, applied to the Hillsborough County Consolidated Taxicab Commission for authority to operate thirty taxicabs in Hillsborough County. Pursuant to chapter 76-383, section 4, Laws of Florida, and the rules of the Commission, notice of petitioner’s application, and of the date and time of the public hearing thereon, was given to other taxicab companies operating in the county. The two respondent taxicab companies were represented at the public hearing by attorneys and witnesses.

After the Commission granted petitioner’s application, respondents filed their petition for writ of common law certiorari in the circuit court, seeking to have the court declare null and void the Commission’s issuance to petitioner of a Certificate of Public Conveyance and Necessity. The Commission was named as a party respondent to the petition, but petitioner was not. Petitioner subsequently filed a motion to intervene in the proceedings, which the circuit court denied, saying that petitioner could appear as amicus curiae. On reconsideration, the court again denied petitioner’s request to intervene, stating that the common law certiorari proceeding was an appellate proceeding and that the court found no basis for intervention. Petitioner seeks review of that denial.

The Florida Supreme Court has held that in proceedings to review completed administrative action where it is claimed that the essential requirements of law have not been followed, it is not absolutely necessary that interested third parties be joined as respondents. Brigham v. Dade County, 305 So.2d 756 (Fla.1975); Great American Insurance Co. of New York v. Peters, 105 Fla. 380, 141 So. 322 (1932).

In Brigham v. Dade County, the petitioner sought a writ of certiorari in the circuit court directed to the respondent, Dade County. The petition attacked the validity of a zoning regulation change made by Dade County as requested by Minema Corporation. The circuit court dismissed the petition because petitioner had not joined Minema Corporation, which the circuit court considered to be an indispensable party. The district court of appeal upheld the dismissal of the petition. The supreme court quashed the order of the district court of appeal and directed that the circuit court’s order of dismissal be vacated.

The case before us is very similar to, and is controlled by, Brigham v. Dade County. Applying the holding of that case, we cannot say that the circuit court departed from the essential requirements of law when it denied petitioner’s motion to intervene.

We recognize that petitioner has a very important interest in the matter. But, just as the Florida Supreme Court said in Brigham (quoting Peters) that “the real respondent is the tribunal whose judgment is sought to be quashed,” 305 So.2d at 757, in the case before us the real respondent is the Taxicab Commission. Just as in Brigham, the writ of common law certiorari in the circuit court in the case before us “is sought to review completed administrative action wherein it is claimed that the essential requirements of law have not been followed.” 305 So.2d at 758. Referring to those circumstances, the Florida Supreme Court said, “In such situation it is not absolutely necessary that interested third party persons be named as respondents.” 305 So.2d at 758. The interest of the “third party” in Brigham was that its property had been affected by the zoning change which was being challenged in the circuit court. In the case before us petitioner’s interest is of course no less direct since its business was affected by the Taxicab Commission’s action. But, as in Brigham where an order of the circuit court, which was affirmed by the district court of appeal, requiring the joinder of the third party was found to be “improper,” 305 So.2d at 758, any such order in this case requiring the joinder of petitioner would be improper.

In Brigham and Peters, supra, the supreme court made note of the fact that the party who was not joined had at least received notice of the proceedings (in Brigham) or was being given an opportunity to be heard (in Peters) although joinder was not required. We note that the circuit court in this case has stated that it will allow petitioner to be heard as amicus curiae.

Accordingly, the petition to this court for writ of certiorari is DENIED.

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


author: PER CURIAM. COWART, Judge,

text:
    W.J.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 82-1105.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

We affirm on the authority of Ray v. State, 403 So.2d 956 (Fla.1981), and Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). Discharge of a firearm in public, section 790.15, Florida Statutes (1981), is not a necessarily lesser included offense of aggravated battery, section 784.-045(l)(b), Florida Statutes (1981). However, defense counsel withdrew her objection and affirmatively represented to the court that in this case discharge of a firearm in public was a permissibly lesser included offense of aggravated battery. She argued her client should only be found guilty of the lesser offense:

I submit to the analogy, if the court finds that Mr. Whetstone intentionally fired, that it’s insufficient as a matter of law to sustain a conviction of aggravated battery or simple battery but I believe the facts as adduced at trial, the Court may find the evidence was sufficient to sustain a conviction for discharging a firearm in public. (R 94).

After the judge found W.J.W. guilty of the lesser offense, counsel offered no objection. A clearer case of waiver would be difficult to imagine.

AFFIRMED.

ORFINGER, C.J., and SHARP, J., concur.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Appellant, a child charged with delinquency in a petition alleging that the delinquent act was the commission of an aggravated battery in violation of section 784.-045(l)(b), Florida Statutes, (1981), was found delinquent by virtue of discharging a firearm in public in violation of section 790.15, Florida Statutes, (1981), as a lesser included offense of the offense charged.

An offense under section 790.15, Florida Statutes, (1981), is not a lesser included offense of the charged offense of aggravated battery (section 784.045(l)(b), Florida Statutes, (1981)).

First, the statutory offense of discharging a firearm in public (§ 790.15, Fla.Stat. (1981)) is not a true or necessary lesser included offense of statutory aggravated battery (§ 784.045(l)(b), Fla.Stat. (1981)) because the 790.15 offense has many elements not necessarily included in the elements of the 784.045(l)(b) offense. Section 790.15 requires the existence and presence of a firearm while section 784.045(l)(b) requires a deadly weapon. A firearm (as defined in section 790.001(6), Fla.Stat. (1981)), may, or may not, be a deadly weapon but not every deadly weapon is a firearm. Section 790.15 requires the firearm to be discharged; 784.045(l)(b) requires only that the deadly weapon be “used”. A deadly weapon, even a firearm, may be “used” without being discharged. Section 790.15 requires the firearm be discharged in a public place or on or over certain rights-of-way or occupied premises while section 784.045(l)(b) contains no element relating to a necessary particular place of the offense. Section 790.15 requires the prohibited act to be done with certain knowledge relating, presumably, to the firearm and to the character of the place where the firearm is discharged, while section 784.045(l)(b) requires no such particular knowledge as to the character of the place of the offense.

Secondly, the violation of section 790.15, Florida Statutes (1981), was not a permissive lesser included offense in this case (as a category four lesser included offense under Brown v. State, 206 So.2d 377 (Fla.1968)) because the charging document wholly failed to allege the above elements of the 790.15 offense prohibited by section 790.15, Florida Statutes, (1981).

In an Anders brief petitioner’s public defender erroneously concedes this point saying, “Discharging firearms in public is a lesser included offense of aggravated assault according to the Florida Standard Jury Instructions.” This reference is apparently to the schedule of lesser included offenses approved by the Supreme Court in In re Standard Jury Instructions in Criminal Cases, Nos. 56,734, 58,799 (Fla. April 16, 1981) [1981 FLW 305], See note 39 to the dissent in Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982). No inclusion of an offense under the name of another offense on any list or schedule or in any jury instructions can serve as an alternative or substitute for the fundamental constitutional requirement that the charging document in all criminal cases and delinquency eases must allege all of the essential elements of a particular criminal offense or delinquent act or the charging document is so fatally defective that it will not support a conviction or finding of delinquency because it violates due process and does not properly invoke the jurisdiction of a court to adjudicate the unalleged facts and uncharged offense or uncharged act of delinquency.

Due process requires that petitions alleging delinquency in juvenile cases allege all essential facts necessary to be proved in order to establish the criminal cause of action or offense which is alleged to constitute the alleged act of delinquency. The delinquency petition in this case may have adequately charged the offense of aggravated battery but it wholly fails to allege the elements of the offense of discharging a firearm in public and it is the juvenile judge’s finding of acts violative of that offense upon which appellant’s adjudication of delinquency is based. The fact that all of the elements of an uncharged offense are in fact proved never solves the due process problem because that always occurs when one is tried and convicted on an uncharged offense. If defense counsel misrepresented the law of lesser included offenses it evidences ineffective assistance of competent counsel (see Chapman v. State, 442 So.2d 1024 (Fla. 5th DCA 1983), but it does not cure or waive due process violations or estop an accused from asserting due process rights one of which is to not be convicted of an uncharged crime and another of which is to have competent counsel. The trial court cannot really be said to have convicted appellant on an uncharged lesser included offense because of the representations of defense counsel as to the law in a criminal or delinquency case when defense counsel cannot even affirmatively waive the constitutional right to have lesser included offenses considered on the issue of guilt. See Harris v. State, 438 So.2d 787 (Fla.1983). The adjudication of delinquency, therefore, should be reversed because it was based on a finding of delinquency as to an act not charged.

The majority disposition cites Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). In addition to the dissent in that case note that the criminal jury instruction contemporaneous objection rule (Fla.R.Crim.P. 3.390(d)) relied on by the majority in Tor-rence to imply a waiver does not relate to the non-jury delinquency proceeding in this case. In a juvenile non-jury adjudicatory hearing there being no jury instructions as to possible jury verdict alternatives, there is neither duty nor opportunity to object to the possibility that one may be found guilty of an uncharged act of delinquency until after it happens. Therefore, no waiver of the error of being found guilty as to an uncharged act of delinquency can be implied from a failure to object to jury instructions and should not be implied from acts of defense counsel. Harris v. State. Furthermore, the lesser included offense concept based on a difference in “degree and penalty,” relied on by the majority in Torrence, does not apply in juvenile proceedings where all delinquency charges are of the same “degree and penalty” without regard to any difference in the degree or penalty of any penal statute or ordinance or contempt relied on as a delinquent act. See §§ 39.01(8) and 39.09(3), Fla.Stat. (1981).

      . The record sustains the judge’s conclusion that all the elements of the offense of discharge of a firearm in public were in fact proved.


author: LEE, R.E., Associate Judge.

text:
    Richard Brooks PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 83-371.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   LEE, R.E., Associate Judge.

Richard Brooks Parker appeals from a sentence to three years in prison, following the denial of his motion to be allowed to withdraw his previously entered plea of nolo contendere. We find that the court did not err, and the appeal is denied.

Parker was charged under section 893.-13(l)(a), Florida Statutes (1981), with delivery of cannabis. On July 15, 1982, he pleaded nolo contendere to the charge. The plea was entered pursuant to negotiations between his attorney and the state, which provided that adjudication be withheld, and that the appellant be placed on probation following a presentence investigation. At the plea hearing, this dialogue occurred:

THE COURT: The tenor of my sentence would be to put you on probation. I’ll give you credit for the time that you have spent in jail. You spent about three months in there.
DEFENDANT: Over four months.
THE COURT: I will give you credit for all of that and require you to take some mental health counselling, and we’ll see if we can get you transferred back to North Carolina. I don’t know that Dade County is going to do this but this is what I’m going to try to do. Now, you have got to help me. If I do this, you are going to have to keep us notified where you live. Also, don’t get arrested for a new felony charge between now and the time of your sentencing, and you had better be back here in Court when it says on that piece of paper because if you don’t, I’m not going to give you that probationary sentence. I’m going to give you some time up in the Department of Corrections. Do you agree to those conditions?
DEFENDANT: Yes, sir, Your Honor.

When the appellant’s sentencing date of October 4, 1982 arrived, the appellant did not. The trial judge issued a capias, and the appellant was subsequently located in Georgia, arrested, and extradited back to Orange County for sentencing.

At the sentencing hearing, the appellant explained that some of his fellow drug traffickers had escorted him out of the state and warned him not to come back, but this explanation failed to impress the trial judge, since the appellant had not previously notified either the court or his own attorney of these facts.

The judge then adjudicated the appellant guilty of the charge of delivery of cannabis, and suggested that the appellant’s attorney move for withdrawal of the nolo plea in order to preserve the record. This was done and the court denied the motion and sentenced appellant to serve three years in the Florida Department of Corrections. The appellant then appealed the trial court’s denial of the motion to withdraw the previously entered plea of nolo conten-dere.

Appellant cites Reaves v. State, 417 So.2d 1000 (Fla. 4th DCA 1982), but we do not feel that Reaves 'applies here. In Reaves, the court stated:

The only exception to the rule should be that a defendant, who through his own fault has made it inappropriate for the Court to comply with the bargain, will not be allowed to withdraw his plea if some prejudice has accrued to the State in the interim.

We hold that the state was sufficiently prejudiced by having to go through the appellant’s arrest and extradition from another state that such would be sufficient to satisfy the Reaves test.

Coleman v. State, 433 So.2d 627 (Fla. 2d DCA 1983), upheld the general rule that the court should allow the plea to be withdrawn if the court cannot comply with its agreement; however, the court stated:

We suggest that one way to avoid this is for the trial court to state before the plea is formally tendered and accepted that sentencing concessions will not be honored at sentencing if material misrepresentations are later found to have been made to induce those concessions.

If material misrepresentations on the part of the defendant are of sufficient materiality and importance to allow the court to avoid the general rule, then so much more important should be the facts of the instant matter where the court stood, on October 4, 1982, ready, willing and able to live up to its side of the agreement, but the defendant was sojourning in the Great State of Georgia.

Finally, we would distinguish this case from Folske v. State, 430 So.2d 574 (Fla. 5th DCA 1983). In Folske, we held that the defendant’s failure to appear for sentencing may have been due to “his reasonable reliance on his attorney’s advice, which in turn may have been based on the attorney’s actual misunderstanding or mistake." In the matter before us, there was no mistake. The court clearly stated to the appellant, “[A]nd you had better be back here in Court when it says on that piece of paper because if you don’t, I’m not going to give you that probationary sentence; I’m going to give you time in the Department of Corrections.” The appellant, asked if he agreed with these conditions, answered, “Yes, sir, Your Honor.”

We hold that the appellant clearly understood the conditions with which he had to comply. When he said, “Yes, sir, Your Honor,” indicating that he agreed to the conditions, he assisted in the construction of his own petard. Having done so, he has no grounds for complaint when he is hoisted by it.

AFFIRMED.

ORFINGER, C.J., and COBB, J., concur.


author: COBB, Judge.

text:
    Laurie Elaine McCARTHY, Appellant, v. STATE of Florida, Appellee.
    No. 83-501.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty.- Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

This is another case which challenges the propriety of submitting a tape recording of jury instructions to the jury for consideration during deliberation. Although we previously have expressed our concern about the problems attendant upon this practice, we have declined to reverse where no prejudice has been shown to result. Powell v. State, 443 So.2d 433 (Fla. 5th DCA 1984); Fayson v. State, 442 So.2d 1030 (Fla. 5th DCA 1983); DeWitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983).

In a more recent case, Woodring v. State, 448 So.2d 529 (Fla. 5th DCA 1984), we reversed when the trial judge, upon the jury’s request for reinstruction, declined to verbally reinstruct and, instead, attempted to rely upon the jury’s ability to find the relevant instructions on the tape. We determined this procedure to be violative of Florida Rule of Criminal Procedure 3.410, and prejudicial to the defendant.

The instant case does not reveal prejudice to the defendant. Despite our previously expressed concerns, we affirm.

AFFIRMED.

ORFINGER, C.J., and SHARP, J., concur.


author: ORFINGER, Chief Judge.

text:
    O’Connor B. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-516.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

The State concedes that in sentencing appellant following his conviction, the court’s written sentence does not comport with the oral pronouncement of sentence in open court. We therefore affirm the judgment of conviction, but remand this ease to the trial court for correction of sentence. See Venuti v. State, 437 So.2d 238 (Fla. 5th DCA 1983); Byrd v. State, 388 So.2d 1362 (Fla. 5th DCA 1980); Shieder v. State, 430 So.2d 537 (Fla. 5th DCA 1983).

AFFIRMED and REMANDED.

COBB, J., and LEE, R.E., Associate Judge, concur.


text:
    Fred James STOKES, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-375, 83-399.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Attorney General, Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Stokes’ judgments are affirmed. However, his sentence is remanded for correction because the lower court did not give Stokes credit for time in the Department as required by section 39.111(5)(b), Florida Statutes (1981), an error the state concedes. See Green v. State, 446 So.2d 253 (Fla. 5th DCA 1984).

AFFIRMED and REMANDED.

ORFINGER, C.J., and SHARP, J., concur.


text:
    In re: The Petition of Frank EZELL for an Order Setting Aside or Modifying Civil Investigative Demand. Frank EZELL, Appellant, v. Jim SMITH, as Attorney General of Florida, Appellee.
    No. 83-650.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.

      Robert E. Austin, Jr., Leesburg, Orlando, for appellant; Davis, Litchford, Downing & Christopher, P.A., Orlando, of counsel.
    Jim Smith, Atty. Gen., J. Kendrick Tucker, Deputy Atty. Gen., Bill L, Bryant, Jr., Larry H. Evans, Bayard W. Heath, Asst. Attys. Gen., Tallahassee, and James J. Kenny of Kenny, Nachwalter & Seymour, P.A., Miami, for appellee.
   ORFINGER, Chief Judge.

The issue presented on this appeal is whether section 542.28, Florida Statutes (1981), authorizing the Attorney General of the State of Florida to issue a civil investigative demand (C.I.D.) in an antitrust investigation, is an unconstitutional infringement on the rule-making powers of the Florida Supreme Court. The trial court held that the statute did not so infringe and was a constitutional exercise of legislative powers. We agree and affirm.

Subject to certain limitations and safeguards, section 542.28(1) authorizes the Attorney General to issue a civil investigative demand to any person believed to be in “possession, custody or control of any documentary material relevant to a civil antitrust investigation authorized by section 542.27(3)” and to require such person to:

(a) Appear and be examined under oath;
(b) Answer written interrogatories under oath; or
(c) Produce documents or other tangible evidence for inspection and copying.

Within thirty days after the service of a C.I.D., the person served may apply to the circuit court in the county where such person resides or transacts business for an order modifying or setting aside such demand. § 542.28(5).

On February 3, 1982, the Attorney General served on appellant a C.I.D., which stated that it was

issued pursuant to the Florida Antitrust Act of 1980, Section 542.28, Florida Statutes, in the course of an official investigation to determine whether there is, has been or may be a violation of Section 542.18, F.S. (The Florida Antitrust Act of 1980) and/or 15 U.S.C. § 1 (Section 1 of the Sherman Antitrust Act), by conduct, activities or proposed action of the following nature: A conspiracy, combination or concert of action in restraint of trade with the purpose or effect of submitting non-competitive, collusive bids on public road construction and resurfacing contracts let by the State of Florida Department of Transportation and other public entities in the State of Florida from at least January 1, 1973 to the present.

At the time the C.I.D. was filed, there was no pending civil or criminal action against appellant.

Contending that section 542.28 was a legislatively promulgated rule of practice and procedure, appellant applied to the circuit court for an order setting aside the G.I.D. The trial court correctly held that this section is not an intrusion on the rule-making power of the supreme court, but is a legislatively defined investigative tool through which the attorney general may exercise his obligation as chief legal officer of the state, to investigate, independently of any court proceedings, suspected violations of the state or federal antitrust laws.

Neither does section 542.28 purport to have anything to do with practice and procedure in the courts. It merely provides an investigative tool, prior to any court action, analagous to the investigative powers of state attorneys under section 27.04, Florida Statutes (1981). That those powers exist independent of court action is well recognized. See Imparato v. Spicola, 238 So.2d 503 (Fla. 2d DCA 1970). An investigation to determine whether any of the laws of the state have been violated is not a proceeding in court, and thus does not regulate practice and procedure in the courts so as to conflict with Article V, section 2(a), Florida Constitution. Nothing in the statute or in the record before us reveals any intent to defeat the discovery provisions of either the civil or criminal rules of procedure. Cf. Able Builders Sanitation Co. v. State, 368 So.2d 1340 (Fla. 3d DCA 1979).

The underlying differences between investigative and adjudicatory proceedings have been described as follows:

The purpose of an investigatory proceeding ... “is to discover and procure evidence not to prove a pending charge or complaint, but upon which to make one if, in the [agency’s] judgment, the facts thus discovered should justify doing so.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201, 66 S.Ct. 494, 501, 90 L.Ed. 614 (1946).... [S]uch an investigation serves a function which is directly related to but at the same time, distinct from, the function of an adjudication. An investigation discovers and produces evidence; an adjudication tests such evidence upon a record in an adversary proceeding before an independent hearing examiner to determine whether it sustains whatever charges are based upon it ... An investigation does not determine guilt or innocence ...

Genuine Parts Company v. Federal Trade Commission, 445 F.2d 1382 (5th Cir.1971). We hold, therefore, that the civil investigative demand permitted by section 542.28 is not an adjudicatory proceeding and is not a rule of practice and procedure in court and thus not in conflict with the exclusive rule-making power of the supreme court under Article Y, section 2(a), Florida Constitution.

Appellant’s contention that the C.I.D. provision conflicts with Fla.R.C.P. 1.290(a) is incorrect, because the rule deals with perpetuation of testimony for a court proceeding, which is not the same as the investigative procedure contemplated by the statute. The Attorney General may issue a civil investigative demand only prior to the institution of a civil or criminal proceeding. § 542.28(1). The C.I.D. may not be utilized in lieu of discovery authorized by the rules of procedure once the litigation phase is commenced nor is its purpose the perpetuation of testimony for a court action. The C.I.D. may be directed to witnesses as well as the target of an investigation.

Appellant next contends that the Attorney General may not utilize the C.I.D. to investigate matters which occurred prior to the effective date of the act (October 1, 1980). Section 542.36, Florida Statutes (1981), addresses this point in this language:

Violations commenced prior to the effective date of this act and continuing after the effective date shall be actionable as provided in this chapter. The fact that any conduct occurred prior to the effective date of this act shall not affect its relevance in proving that a violation of this chapter has occurred or is occurring.

Because the act clearly contemplates that conduct prior to the effective date of the act may be relevant in proving violations continuing after its effective date, and because there is no necessary time limit on the relevance of facts which tend to prove violations of law, there appears no factual or legal basis in the record before us which would require that we limit the scope of inquiry to activities that may have occurred only after the effective date of the act. The federal courts have construed the analagous federal statute (the AntiTrust Civil Process Act of 1962, 15 U.S.C. §§ 1311-1314) to permit investigation of acts which occurred prior to the effective date of the federal act. See, e.g., Lightning Rod Manufacturers Association v. Staal, 339 F.2d 346 (7th Cir.1964); Petition of Gold Bond Stamp Company, 221 F.Supp. 391 (D.Minn.1963), affirmed, 325 F.2d 1018 (8th Cir.1964). Neither do we find any constitutionally significant issues regarding retrospective application of the statute. The mere disclosure of information to law enforcement officers does not adversely affect or destroy vested rights, create new obligations or duties or establish additional disabilities. Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978); McCord v. Smith, 43 So.2d 704 (Fla.1950).

Appellant’s constitutional attack on section 542.28(1) is not well founded and the trial court properly overruled his objection on that ground. The judgment below is

AFFIRMED.

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


text:
    In re the Marriage of William F. LYKENS, Jr., Appellant, v. Mary E. LYKENS, Appellee.
    No. 83-694.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.

      Joseph M. Murasko, Fern Park, for appellant.
    Jack T. Bridges of Cleveland & Bridges, Sanford, for appellee.
   ORFINGER, Chief Judge.

The husband appeals from a final judgment dissolving the marriage between the parties and awarding the wife alimony and child support and exclusive possession of the marital residence.

Although the final judgment is silent in this regard, the parties both agreed at oral' argument that it is the wife’s obligation to make the mortgage payments on the marital residence during the period of exclusive possession. We find no abuse of the court’s discretion in awarding the wife permanent periodic alimony and child support, nor in the amount of such award, and we find no abuse of such discretion in the award to the wife of exclusive possession of the marital residence, so on those issues the judgment is affirmed.

The court found that from the support money voluntarily paid by the husband during their separation, the wife had managed to save the sum of $10,000, which she contended was for the college education of the two younger children. The court therefore ordered that the $10,000 be held by the wife in “... trust for the higher education of the remaining unemancipated children, and if not used for that purpose prior to the youngest child attaining the age of twenty-one (21), then ... the funds shall be divided equally between the husband and wife herein.”

The husband contends that the court erred in requiring the $10,000 fund to be held in trust for the college education of the two unemancipated children, and we agree. There is nothing in the record to even suggest that these children are physically or mentally handicapped. Under these circumstances, there is no legal obligation imposed upon a divorced parent to provide his children with a college education. Thomas v. Thomas, 427 So.2d 259 (Fla. 5th DCA 1983). As this court said in Keenan v. Keenan, 440 So.2d 642 (Fla. 5th DCA 1983).

While we firmly believe that parents, divorced or undivorced should provide their children with as much formal education as each child can absorb and the parents can afford, this court cannot create a legal duty to do so where none exists. That power rests in the legislature. Other courts apparently share this view. Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978); Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1st DCA 1976); Krogen v. Krogen, 320 So.2d 483 (Fla. 3d DCA 1975). See also Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976), where the- court struck down a requirement that the father provide support to children past the age of 18 while' such “children continue in school or college ...”

The trial court obviously found the $10,-000 to be a marital asset, because he ordered it to be equally divided if not used to provide the children with a college education. Since the trial court had no legal authority to require the father to use his portion of the fund for that purpose, the requirement that the money be held in trust for that purpose was erroneous and that portion of the final judgment is reversed with directions to divide the fund between the parties. Because the wife will now have outright ownership of one-half of this fund, the trial court in its discretion may wish to reexamine the award of attorney’s fees to the wife in the light of the additional asset which she will now have, and is authorized to do so.

The final judgment is affirmed in part and reversed in part and remanded.

AFFIRMED in part, REVERSED in part, and remanded.

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


text:
    Ketron B. BROWN, Appellant, v. Elizabeth R. BROWN, Appellee.
    No. 83-880.
    District Court of Appeal of Florida, Fifth District.
    March 8, 1984.
    " Lawrence W. Solodky of Law Office of Marvin E. Newman, Orlando, for appellant.
    Michael R. Walsh, Orlando, for appellee.
   COBB, Judge.

The trial judge awarded child support herein for two minor children and added the following proviso at the conclusion of paragraph 7 of the final judgment:

[PJrovided, however, that no monthly child support payment shall terminate until the month after each such minor child shall have graduated from high school, but in no event beyond the age of 19 years old.

The appellee concedes that the above proviso contravenes this court’s recent decision in Keenan v. Keenan, 440 So.2d 642 (Fla. 5th DCA 1983). Consequently, we reverse as to the aforesaid provision, which must be stricken. As to the remainder of the judgment below, we affirm.

AFFIRMED IN PART; REVERSED IN PART.

ORFINGER, C.J., and LEE, R.E., Associate Judge, concur.


author: SMITH, Judge.

text:
    Thomas D. MORLEY, Appellant, v. STATE of Florida, Appellee.
    No. AL-448.
    District Court of Appeal of Florida, First District.
    March 8, 1984.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

We reverse appellant’s conviction of the crime of escape on the ground that the trial court’s prior order dismissing the information, appealed to but not reversed by this court, barred the subsequent prosecution of appellant on the same charge.

The facts are simple and not in dispute. An information was filed charging appellant with the offense of escape from Union Correctional Institution. On motion of the defendant, the trial court dismissed the information based upon deprivations of appellant’s rights to speedy trial, right to counsel, due process and equal protection. The state appealed this dismissal order to this court, which was docketed as Case No. LL-44. Thereafter, upon motion of the state, this court granted a stay of appellate proceedings until identical issues upon which the trial court based its dismissal order were decided in the case of State v. Luke, 382 So.2d 1265 (Fla. 1st DCA 1980). This court’s decision in State v. Luke held that the placement of prisoners in administrative confinement pending ultimate disposition of the charges, coupled with prosecu-torial delay, did not violate due process and equal protection rights of prisoners, and that dismissal of pending criminal charges against Luke and others was error.

Subsequent to the rendition of our State v. Luke decision, the state inexplicably filed a motion to dismiss its prior appeal in Morley’s case, which was granted by this court.

Subsequent to dismissal of Morley s prior appeal, the prosecution was resumed in the Circuit Court, under the same information previously dismissed, without objection by appellant on the grounds now asserted on this appeal. The state argues that since the parties in the trial court apparently proceeded on the assumption that this court’s action (in dismissing the state’s appeal following the ruling favorable to the state in State v. Luke, supra) was a ruling adverse to appellant Morley, and had the effect of reinstating the dismissed information, appellant should not now be heard to contend otherwise. Although sensitive to the state’s claim that fundamental fairness dictates a ruling upholding the conviction below, we are nevertheless persuaded that the jurisdictional issues presented on this set of facts are beyond the reach of the state’s fairness argument.

Appellant was brought to trial on charges which had been dismissed by a trial court order that had become a final order of dismissal because never reversed by this court on appeal. Under these circumstances, we are bound to follow the rule that where an appeal is dismissed, “that dismissal leaves the trial court’s judgment in the same status as if no appellate proceeding had ever been taken, and its effectiveness as an estoppel remains unimpaired.” 32 Fla.Jur.2d., Judgments and Decrees § 147; Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934), 99 A.L.R. 1086. “A criminal prosecution presupposes the existence of a valid accusation charging a crime against the defendant. Such an accusation in some form is an essential requisite of jurisdiction which cannot be waived.” Caves v. State, 303 So.2d 658, 659 (Fla. 2nd DCA 1974). We have considered whether jurisdiction of the trial court to proceed with the prosecution might be upheld on the theory that the information, although previously dismissed, was implicitly refiled, but conclude that principles of res judicata, law of the case, and estoppel are applicable. The state may not refile an information if barred by a previous final order of dismissal with prejudice. State v. Anders, 388 So.2d 308 (Fla. 3rd DCA 1980); State v. Schafer,, 376 So.2d 927 (Fla. 2nd DCA 1979); Rawlins v. Kelley, 322 So.2d 10 (Fla.1975); and Pena v. Schultz, 245 So.2d 49 (Fla.1971). The dismissal here was predicated upon grounds which would not permit refiling of another information by the state on the same charges.

The state’s contention that by failing to object on jurisdictional grounds in the trial court appellant is barred from asserting these grounds here is without merit. The state’s failure to proceed with the appeal in this court left the order dismissing the information in effect, thereby terminating the trial court's jurisdiction over the offense charged.

The judgment of conviction is REVERSED.

WIGGINTON and NIMMONS, JJ., concur. •


text:
    Joe FASON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-2301.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

We affirm the appellant’s conviction and sentence for carrying a concealed firearm, a violation of section 790.01(2), Florida Statutes (1981), except in the following respect.

In the judgment, appellant was ordered to pay $250.00 in attorney’s fees and $50.00 in court costs, pursuant to section 27.56, Florida Statutes (1981). Because he is an indigent, appellant argues that the portion of the trial court's order assessing such costs is improper.

In Jenkins v. State, 444 So.2d 947 (Fla.1984), the supreme court stated that the assessment of costs and attorney’s fees under section 27.56 against an indigent defendant is permissible only after the defendant has been given adequate notice of such assessment and full opportunity to object to the assessment. Where no prior notice has been given, this court has stricken the assessment of costs under sections 960.20 and 943.25(4), Florida Statutes (1981), which were also referred to in Jenkins. Kerney v. State, 445 So.2d 381 (Fla. 2d DCA 1984).

The record does not show that the appellant was given notice and an opportunity to object to the assessment of costs under section 27.56. Accordingly the assessment was not appropriate and is hereby stricken. Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

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


author: SCHEB, Judge.

text:
    Alvin Tony SCOTT, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-2342, 82-2343.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant Alvin Tony Scott was found guilty of grand theft and burglary. The trial court imposed an enhanced sentence of twenty-five years imprisonment.

We have examined the three points that defendant raises on appeal and find only one has merit. He contends the trial court failed to make findings of fact in support of the enhanced sentence as required by the habitual offender statute, section 775.-084(3)(d), Florida Statutes (1981). Defendant is correct on that point.

The court only made two statements justifying the enhanced sentence. In the first, the court merely ruled that based on the defendant’s record and the particular facts of the case, it was necessary for the public’s protection to treat the defendant as a subsequent felony offender. In the second, when informed that a drug program was willing to accept the defendant, the court felt such a program was inappropriate, because the defendant had not been honest with the court.

Pursuant to section 775.084(3)(d), the trial court must make findings of fact that demonstrate on their face an extended term of imprisonment is necessary to protect the public from a defendant’s further criminal conduct. Eutsey v. State, 383 So.2d 219 (Fla.1980); Cavallaro v. State, 420 So.2d 927 (Fla.2d DCA 1982). In the instant case, the judge failed to make specific findings of fact sufficient to satisfy the requirements of section 775.084(3)(d).

Accordingly, we affirm defendant's conviction but vacate his sentence and remand this case for a new sentencing hearing. Prior to the hearing, the state should give written notice of its intention to seek sentencing as an habitual offender, and the defendant is entitled to be present at the hearing.

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


text:
    Henry LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 83-614.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Henry Lawrence, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Henry Lawrence appeals a judgment and sentence rendered following entry of an order revoking his probation.

Lawrence’s attorney filed an Anders brief. Upon notification of this fact, Lawrence submitted a pro se brief. After an independent examination of the record on appeal and a review of relevant law, we find no merit to this appeal.

Accordingly, we affirm the judgment and sentence.

AFFIRMED.

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

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


author: RYDER, Judge.

text:
    Leslie B. MERRITT and Marilyn J. Merritt, Appellants, v. Samuel J. SMITH, Jr. and Cathryn A. Smith, Appellees.
    No. 83-913.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    John R. Donahue, Jr., Venice, for appellants.
    William J. Fuller, III, P.A., Sarasota, for appellees.
   RYDER, Judge.

In November 1981, the parties entered into a contract for the sale of the Merritts’ laundry and dry cleaning business to the Smiths. The contract provided that the Merritts would not compete with the Smiths in the drapery and dry cleaning business within Sarasota County for five years. It was indicated that the remedies at law for breach of the covenant “are inadequate” and the Smiths would be entitled to injunctive relief in the event of a breach.

An allocation of assets was included in the contract. The amount of $20,000.00 was listed as the allocation for the covenant not to compete.

In December 1982, the Smiths filed a complaint against the Merritts alleging breach of the covenant not to compete. Subsequently, the clerk of the circuit court entered a default against the Merritts for their failure to serve or file any required paper.

Before final judgment was entered by the trial court, the Merritts filed a motion to vacate default. On February 1, 1983, the trial court entered final judgment for the Smiths in the amount of $20,000.00 plus attorney’s fees and costs. Subsequently, the trial court denied the Merritts’ motion to vacate default. Later motions for reconsideration of the motion to vacate and for relief from judgment were also denied by the trial court.

The trial court held that the portion of the allocation of assets of the business listing $20,000.00 for the covenant not to compete was a liquidated damages clause for breach of the covenant. The trial court also held that the Merritts failed to show the existence of a meritorious defense.

Although we decline to disturb the trial court’s holding that no meritorious defense has been shown by the appellants, we cannot agree with the trial court’s holding that the allocation of assets for the covenant not to compete is a liquidated damages clause. Neither the covenant not to compete nor the allocation of assets is couched in terms of a liquidated damages clause. In fact, the language used in the contract appears to' reveal the parties’ belief that damages would be inadequate should a breach of the covenant occur.

The contract was clear and unambiguous. For whatever purpose an allocation of assets was included in the contract, it cannot be fairly said that it was intended to be a liquidated damages provision. See Pembroke v. Caudill, 160 Fla. 948, 37 So.2d 538 (1948), overruled on another point in Hutchinson v. Tompkins, 259 So.2d 129 (Fla.1972); Gulf Cities Gas Corp. v. Tangelo Park Service Co., 253 So.2d 744 (Fla. 4th DCA 1971).

As the trial court abused its discretion in holding that the contract provided for liquidated damages, we remand this cause for a hearing where proof of actual damages may be presented. See Fla.R.Civ.P. 1.500(e).

REVERSED and REMANDED for a hearing on damages and further proceedings consistent with this opinion.

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


author: GRIMES, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Willie BOSTIC, Jr., a/k/a “Slick”, Appellee.
    No. 83-1042.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellee.
   GRIMES, Acting Chief Judge.

The state appeals an order granting ap-pellee’s motion to dismiss an amended information charging him with dealing in stolen property and theft.

The amended information alleged that on or about November 28, 1982, Alonzo Stone Rivers and appellee:

I. did at, near, or in the vicinity of Riverside Drive, Punta Gorda, Charlotte County, Florida, traffic in or endeavored to traffic in property, to-wit: firearms, they knew or should have known were stolen, and during the commission of such felony they carried or displayed a firearm, in violation of Florida Statutes 812.019(1) and 775.087;
II. did knowingly obtain or use or endeavored to obtain or use firearms, property of another, to-wit: DARLENE or WILMER GOLLMAN, as owners or custodians, with the intent to deprive them of a right to the firearms or a benefit therefrom or to appropriate the firearms to their own use or to the use of any person not entitled thereto, in violation of F.S. 812.014;
contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida.

In granting the motion to dismiss, the court expressed concern over the vagueness of both the firearms’ description and the location of the offense.

In order to grant a dismissal of an information for vagueness, the information must be “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” Fla.R. Crim.P. 3.140(o). State v. Dilworth, 397 So.2d 292 (Fla.1981); Martinez v. State, 368 So.2d 338 (Fla.1978); State v. Kopulos, 413 So.2d 1195 (Fla. 2d DCA) appeal dismissed sub nom. Bonk v. State, 419 So.2d 1195 (Fla.1982). An information which tracks the wording of the statute is usually adequate unless the statutory language is so generic that it fails to specifically inform the defendant of the criminal act he is alleged to have committed. State v. Dilworth. The supreme court has also emphasized that “[w]ith the advent of Florida’s liberal discovery rules in criminal cases, along with the availability of a statement of particulars, a defendant is no longer forced to obtain information about the charge only from the charging document.” State v. Dilworth at 294.

The amended information was legally sufficient. The counts track the language of the statute for trafficking in stolen property, section 812.019(1), and the theft statute, section 812.014. The first count also specifies the location of the offense and indicates that “firearms” constituted the stolen property. The second count lists “firearms” as the stolen property and identifies the owners by name. As for the argument of duplicated offenses, the state could properly charge separate counts of theft and dealing in stolen property in connection with one scheme or course of conduct in a single information, so long as the trier of fact returns a guilty verdict on one or the other. McWhirter v. State, 429 So.2d 810 (Fla. 2d DCA 1983); Daniels v. State, 422 So.2d 1024 (Fla. 1st DCA 1982); Hudson v. State, 408 So.2d 224 (Fla. 4th DCA 1981); § 812.025, Fla. Stat. (1981). We conclude that the present information neither misled nor embarrassed appellee in the preparation of his defense nor exposed him to double jeopardy. .

REVERSED AND REMANDED.

SCHEB and CAMPBELL, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Willie Bell ZIGLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1515.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    Eugenie M. Gollup, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

After reviewing the briefs and record on appeal, we find that appellant has failed to demonstrate any reversible error, and accordingly, we affirm. However, because of a clerical error in the court’s written judgment of guilt and order placing appellant on probation, we must remand for correction.

Appellant was originally charged with second degree murder. After a jury trial, he was found guilty of manslaughter and was adjudicated guilty of that offense in open court. He was subsequently placed on probation for fifteen years. Appellant then filed a, notice of appeal alleging that he had been adjudicated guilty of the crime of manslaughter. However, the judgment and order placing him on probation states that he was found guilty of second degree murder and was adjudicated guilty of said offense.

A court’s written order must not vary from its oral pronouncement. Yates v. State, 429 So.2d 815 (Fla. 2d DCA 1983). Therefore, the judgment and order placing appellant on probation must be corrected to show that he was found guilty of manslaughter and was adjudicated guilty of that offense, and not of second degree murder.

We accordingly remand this cause to the trial court for correction of this error. The judgment and order is affirmed in all other respects.

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


text:
    James Lee WARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1662.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The state charged defendant James Lee Ward with forgery, uttering a forged instrument, and grand theft. A jury convicted him of attempted forgery, attempted uttering, and grand theft. The trial court sentenced him to concurrent terms of one year imprisonment for attempted forgery, one year for attempted uttering, and five years for grand theft. Ward challenges his convictions and sentences on all counts.

Ward argues that attempted uttering is not an offense under Florida law. He is correct. King v. State, 339 So.2d 172 (Fla.1976). Imposition of judgment and sentence for attempted uttering is fundamental error requiring reversal. This is true even where, as here, defense counsel requested a verdict form on attempted uttering be given to the jury. See State v. Sykes, 434 So.2d 325 (Fla.1983); Achin v. State, 436 So.2d 30 (Fla.1982).

Accordingly, we vacate defendant’s conviction and sentence for attempted uttering. The state, however, is not barred from retrying defendant on a charge of uttering a forged instrument. See Sykes and Achin.

We find no merit in Ward’s other contention. .Therefore, we affirm defendant’s other two convictions and sentences for attempted forgery and grand theft.

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


author: SCHEB, Acting Chief Judge.

text:
    James COLLINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-2117, 83-2118.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant James Collins attacks the trial court’s orders revoking his probation on the ground that the evidence was insufficient to show that he violated the substantial conditions of his probation. We modify the trial court’s findings but otherwise affirm.

In June 1982 the state charged Collins with burglary of a conveyance and'possession of cocaine. After pleading guilty to both charges, he was placed on concurrent five-year terms of probation. Subsequently, on August 3, 1983, affidavits were filed charging Collins with several violations of his probation. Specifically, he was charged with: (1) submitting late monthly reports; (2) failure to pay his costs of supervision; and (3) failing to live and remain at liberty without violating any law by having committed the offenses of (a) burglary of a conveyance; (b) grand theft; (c) possession of burglary tools; and (d) possession of marijuana. After a hearing, the trial court found that defendant had committed each of the violations charged and entered orders of revocation of probation. Collins was sentenced to five years imprisonment on the original burglary charge and two years on possession of cocaine, with the sentences to run consecutively.

Defendant admits that he did not file timely monthly reports; yet, because he views this as a technical violation of probation, he contends that it is unclear whether the trial court would have revoked probation solely on that ground. He submits that we should remand his ease to afford the trial court an opportunity to determine if his probation would have been revoked solely on that ground. See Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976). However, we find no reason to do that, because we conclude there was sufficient evidence that defendant violated some substantive conditions of his probation, and accordingly, we affirm the orders of revocation of probation.

While recognizing the relaxed standards of proof and the informal nature of a revocation hearing, Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977), the state nevertheless concedes that the evidence was insufficient to show that defendant failed to pay his supervision costs and committed the offense of grand theft and possession of burglary tools. Therefore, those findings must be stricken from the orders of revocation of probation. Additionally, the finding of possession of marijuana was improper inasmuch as the trial court had already directed that charge to be stricken from the warrant.

We conclude there was sufficient evidence before the court that defendant committed the offense of burglary of a conveyance. There was also sufficient evidence that defendant was guilty of petit theft, and, while the finding of grand theft was improper because the state did not prove the value of the property stolen, that does not preclude a finding of petit theft. See Weatherspoon v. State, 419 So.2d 404 (Fla. 2d DCA 1982).

We have considered defendant’s other point on appeal and find it to be without merit.

Accordingly, we strike the court’s findings concerning defendant’s failure to pay costs, possession of burglary tools, and possession of marijuana. We amend the finding that defendant committed grand theft to read that he committed petit theft. We otherwise affirm the orders of revocation of probation.

DANAHY and SCHOONOVER, JJ., concur.