author: BARKDULL, Judge.

text:
    Joseph MURO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1030.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 7, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   BARKDULL, Judge.

The appellant was convicted of escape from lawful custody. He contends on appeal that the trial court erred in refusing to instruct the jury on the defense of “necessity”. The defendant was transported from the Monroe County jail to a hospital for treatment of injuries. The defendant was examined by a doctor and then taken for a series of X-rays. After the X-rays were taken, the defendant requested and was given permission to use the restroom. The defendant had been wearing a hospital gown and was carrying his clothing, and when he emerged from the restroom he was wearing his shirt and trousers and fled from the hospital. The defendant was apprehended approximately three hours later as he emerged from a lake onto the grounds of a golf course adjacent to the hospital. One of the officers who apprehended the defendant testified that he had not resisted when placed under arrest and that he appeared to be “hyper” and “extremely tense”.

The defendant testified that he had been arrested after having been in Key West for approximately two days. He testified that he had been assaulted by other prisoners in the cell block where he was incarcerated:

“... I remember that I was lying on the bench that situated along the bars; and then, the jailers opened up all the gates, so all the prisoners in each cell came out towards me. And the next thing I know, for no reason whatsoever, I was being beaten with pipes, sticks, broom handles, broom sticks and forced into the shower, where they asked me to take off all my clothes because I was bleeding and they didn’t want me to bleed. They didn’t want me bleeding in their cellblock, so they threw me in the shower to take the blood off; and then, they tried to force me to — they tried to stick brooms up my butt and they continued beating me, about 15 of them.
And then, the next thing I know, about 15 minutes later, the guards were pulling me out of the cellblock and I was hurting all over....”

He further testified that the other prisoners had threatened him as he was taken out of the cellblock:

“... And the last thing they said was, ‘As soon as you get back, we’re going to kill you and you won’t be gone too long,’ and they pulled me out of there and they took me to the hospital....”

He also testified that he had told jail personnel that he had been beaten, although he had been in “a haze”, and did not recall to whom he had spoken. He stated that he had described his injuries to the doctor who had examined him at the hospital, and had undergone the X-rays. He described his subsequent actions:

“... So, they took and had x-rays done and as soon as I saw the exit door, I knew where I was heading. I was going right out that door. I didn’t know where I was going, but I — I didn’t know where I was going or where I was; but, I knew that I didn’t want to go back there from where I just came from.
* * # * * *
A. I put my clothes on, went out the exit door and I heard — I heard the officer fire at me. And I just figured he might as well kill me then, didn’t matter, because I wasn’t going back there. It was frigging torture and I knew I couldn’t go back there. I heard him shoot and the next thing I know, everything blacked out. I guess I fainted or something. Then, I started swimming because I couldn’t walk. My back and my butt was hurting so bad, so I just saw the water there later on and I just started swimming for it.”

The defendant testified to his state of mind at the time of his flight from the hospital as follows:

“A. I was thinking that — I was thinking, “Oh, God, if I have to die, let it be some other way, but not with a broomstick up my butt.
A. I was — I was not afraid of anything that might happen to me at the hospital. I was more afraid of — of—of coming — of being subjected to that same type of treatment that I’d received earlier, which was more like I felt like I almost died. Feeling of being beaten by 15 people just for no reason whatsoever, I knew I was heading back to that...
******
a. I was afraid of dying in that type of situation.”

On cross-examination, the defendant was questioned regarding his intentions at the time of his flight:

“Q. And you also said that you didn’t know where you were going, you just knew you were going, right?
A. I just wasn’t coming back here to the treatment I received and to — I thought I was going to die. I thought that then I got back, these people were going to kill me. So, I chose another way out.
Q. You weren’t planning on going to turn yourself in to another agency and report it; were you?
A. At that particular time, without lying to you, I didn’t know exactly what I was going to do. I didn’t know exactly where I was going to go. I didn’t know exactly who I was. I didn’t know very much. But, I did know I was running for my life; that, I did know.”

The administrator of the Monroe County jail testified that he maintains records of jail beatings, which average approximately four each month, but that he had no record of the defendant having been beaten. He stated that the cellblock in which the defendant had been incarcerated was comprised of individual cells, but that the doors of the cells are not locked during daylight hours and that there are periods of time when no guards are present; he further testified that this particular cellblock has a reputation for violent occurrences.

The administrator further testified that the defendant had been transported to the hospital for injuries to his back and hands, but that it had been his impression at the time that the injuries had been suffered at the time of the defendant’s arrest. He stated that he had subsequently learned that the defendant had reported the beating to the doctor at the hospital, and there should have been a report made of the incident.

The defendant submitted a written request for the following jury instruction:

“If you, the jury, find, or have reasonable doubt, that under all the circumstances shown in the evidence presented by both the Defendant and the State that the Defendant had reasonable grounds to believe that there was real, imminent, and impending danger to him of death or serious bodily harm if he did not leave the place from which he was confined and that he left because of such danger, rather than with the intent to elude lawful authority you should find him not guilty of the crime of escape.”

The trial court ruled that the defendant’s testimony did not establish the elements of a “necessity” defense and refused to give the requested instruction. We reverse. Section 944.40, Florida Statutes (1981), proscribes an escape or attempted escape from a jail or correctional facility. The courts have construed it as requiring proof of an intent to avoid lawful confinement and as “recognizing] the ‘narrow but time-honored defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances ...’” Helton v. State, 311 So.2d 381, 383 (Fla. 1st DCA 1975). The application of these principles to Section 944.40 is as follows:

“... [W]hen the State has established its right to legal custody and the conscious and intentional act of defendant of leaving the established area of such custody, the offense of escape is prima facie established. In such circumstances, the only viable defense to such a charge that may be available is necessity involving, as to such defendant, reasonable grounds to believe that he is faced with real, imminent and present danger of death, great bodily harm, or such type of danger to his health, if he does not temporarily leave his place of confinement. Watford v. State, 353 So.2d 1263, 1265 (Fla. 1st DCA 1978).”

See also Bavero v. State, 347 So.2d 781, 783-84 (Fla. 1st DCA 1977); Lewis v. State, 318 So.2d 529, 530 (Fla. 2d DCA 1975), cert. denied, 334 So.2d 608 (Fla.1976).

The defendant testified that he was under such an apprehension, based upon the beating inflicted upon him by fellow prisoners, and their threats to kill him upon his return, after he was rescued by jail guards and that this was his reason for attempting to flee from the hospital. The requested instruction substantially recites the applicable law, see Helton and Watford, supra. The trial court refused to give the instruction, relying upon the decision of the First District in State v. Alcantara, 407 So.2d 922 (Fla. 1st DCA 1981).

The defendant’s testimony established an imminent threat to his safety, absence of time to resort to the courts, no violent acts against others, and that he had not reached a place of safety at the time of his apprehension. The defendant had complained to jail guards, and to the examining physician. The defendant’s flight from the hospital clearly establishes his belief that he was about to be returned to jail, and this testimony, if believed by the jury, would have been sufficient to support a finding that there existed “no time for a complaint” or that a complaint would have been futile, since the defendant was being returned to the site of the previous — and threatened future — attack, after having complained.

When there is any evidence introduced at trial which supports the theory of defense, a defendant is entitled to have the jury instructed on the law applicable to this theory of defense when he so requests. Bryant v. State, 412 So.2d 347, 350 (Fla.1982) (citation omitted); accord Palmes v. State, 397 So.2d 648 (Fla.1981); Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945); Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981); Laythe v. State, 330 So.2d 113 (Fla. 3d DCA) cert. denied, 339 So. 1172 (Fla.1976); Younghans v. State, 97 So.2d 31 (Fla. 3d DCA 1957). The trial court in this case having permitted the introduction of testimony in support of the “necessity” defense — which is admissible only if the criteria justifying an instruction thereon are satisfied, see Holdren v. State, supra —and that evidence being sufficient to raise the defense, the court erred in refusing to give the requested instruction.

Therefore the conviction, adjudication and sentence are reversed and the matter is returned to the trial court for purposes of a new trial.

Reversed and remanded with directions.

      . The parties stipulated that the defendant was in lawful custody.

      . In Alcanta.ro, the court adopted a five-part predicate, established in People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974), for invoking a "necessity" defense;

        “(1) The Prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
      (2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
      (3) There is no time or opportunity to resort to the courts;
      (4) There is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape, and
      (5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.”
      407 So.2d at 925.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Herman ROOT, Appellant, v. The STATE of Florida, Appellee.
    No. 83-160.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 7, 1984.

      Bennett H. Brummer, Public Defender and Chaykin, Karlan & Jacobs, Coral Gables, and Sharon B. Jacobs, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.
   PER CURIAM.

The judgments of conviction and sentences under review are affirmed upon the following grounds: (1) the trial court committed no reversible error in failing to sever the two counts which were joined in the information [and in admitting evidence relevant on one count of the information] because (a) no motion for severance and no objection to the subject evidence was ever made below, (b) the defendant through counsel specifically waived his right to a severance in this case, and (c) no fundamental error otherwise appears on this record; Barbon-Zurita, v. State, 415 So.2d 824 (Fla. 3d DCA 1982); State v. Cole, 413 So.2d 171 (Fla. 2d DCA 1982); (2) the evidence adduced below was sufficient to sustain the conviction for second degree murder, see Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), cert. granted, 454 U.S. 963, 102 S.Ct. 502, 70 L.Ed.2d 378 (1981); Miller v. State, 328 So.2d 544 (Fla. 3d DCA 1976); and (3) no reversible error was committed in denying a defense motion for mistrial because none of the complained-of prosecu-torial comments were so improper as to call for a mistrial. Breedlove v. State, 413 So.2d 1, 7 (Fla.1982), cert. denied, — U.S. —, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Nevels v. State, 351 So.2d 762, 763 (Fla. 1st DCA 1977).

Affirmed.


text:
    William Henry HANSON and Kim David Runkel, Appellants, v. The STATE of Florida, Appellee.
    No. 83-265.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 7, 1984.
    Feldman & Eden and Nathan E. Eden, Key West, Bennie Lazzara, Tampa, for appellants.

      Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the defendants’ convictions for conspiracy to traffic in marijuana entered upon their pleas of nolo conten-dere, reserving the right to appeal the denial of their joint motion to suppress the contraband. Although we agree with the defendants’ contention that since the stop of their boat was concededly not made for any authorized administrative purpose of the Marine Patrol Officers, it was therefore necessary that the stop be based on founded suspicion, see State v. Zafra, 444 So.2d 1064 (Fla. 3d DCA 1984); United States v. Herrera, 711 F.2d 1546. (11th Cir.1983), our review of the record demonstrates that founded suspicion for the stop existed. Accordingly, the defendants’ consent to the boarding of the boat, which revealed the contraband in plain view, was not, as the defendants urge, tainted by an unlawful stop.

Affirmed.


text:
    M.I.J. INTERNATIONAL, INC., Appellant, v. The TRAVELERS INSURANCE CO., Appellee.
    No. 83-1101.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 7, 1984.
    Jacobson & Gottlieb and Scott R. Gill, Hollywood, for appellant.
    Joseph A. McGowan, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Southern Home Insurance Co. v. Faulkner, 57 Fla. 194, 49 So. 542 (1909); Hanover Fire Insurance Co. v. B. C. Lewis & Sons, 28 Fla. 209, 10 So. 297 (1891); Preferred Insurance Co. v. Richard Parks Trucking Co., 158 So.2d 817 (Fla. 2d DCA 1963).


author: BERANEK, Judge.

text:
    Joseph M. BRUCE, Appellant, v. Joseph C. O’NEILL and Edith O’Neill, his wife, Appellees. Joseph M. BRUCE, Appellant, v. Joseph C. O’NEILL, Edith O’Neill, his wife, and John Lindquist, Appellees.
    Nos. 83-340, 83-1243.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.

      Denise G. Morris and Burton L. Brug-gemann, P.A., Orlando, for appellant.
    Ralph Diaz of Law Offices of Ralph Diaz, P.A., Coral Springs, for appellees.
   BERANEK, Judge.

Defendant appeals from an adverse summary judgment contending that material issues of fact precluded disposition of the matter in a summary manner. The controversy arises from plaintiff/appellee’s attempt to buy a condominium unit from the defendant/appellant. In 1979, the parties entered into a contract for the purchase of the condominium unit. The initial contract did not contain certain clauses concerning cancellation and oral representations as required by Section 718.503(l)(a) and (b), Florida Statutes (1981). It is the defendant’s contention that these deficiencies in the initial contract were cured by delivery of later documents and by subsequent dealings between the parties. Suit was eventually brought by the purchasers when they were unable to qualify for a mortgage at the rate agreed to by the parties. The purchasers sued in a complaint sounding in breach of contract, fraud, rescission, and conversion. The complaint was later amended to add a further count for statutory rescission pursuant to Section 718.506, Florida Statutes (1981), for failure to include certain statements under the Condominium Act. The court eventually granted summary judgment in the plaintiff’s favor based upon the statutory rescission theory. We find error and reverse.

Initially, we determine that there were issues of fact as to the defendant’s good faith attempts to comply with the requirements of the statutes and his substantial compliance therewith. See Section 718.505, Florida Statutes (1981). Secondly, we are doubtful as to the cause of action for statutory rescission where there is absolutely no demonstration that the plaintiff/purchaser was even slightly prejudiced by the technical statutory noncompliance of the seller. These parties were not involved in a standard real estate condominium transfer. Here, the purchasers were in possession for approximately three years and made various promises and commitments regarding the occupancy of the condominium unit and its eventual purchase. Indeed, the parties here do not even agree on whether a closing ever occurred. Suffice it to say that the matter should not have been disposed of by summary judgment.

The judgment below is vacated and the matter remanded to the trial court for further proceedings which may well include amendments to the pleadings.

JUDGMENT VACATED AND THE MATTER REMANDED.

ANSTEAD, C.J., and WALDEN, J., concur.


text:
    Leon D. KERNEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1459.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Leon Kerney appeals from a conviction and sentence for burglary.

In the judgment, appellant was ordered to pay $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund), and $2 pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Fund). 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 determined that the assessment of costs under section 960.-20 and section 943.25(4) against an indigent defendant was permissible only after the defendant has been given adequate notice of such assessment and full opportunity to object to the assessment. Further the supreme court stated that any enforcement of the collection of those costs must occur only after a judicial finding that the indigent defendant has the ability to pay in accordance with the principles of Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). These costs have no priority over costs owed to the county pursuant to section 939.15, Florida Statutes (1981).

Here, as in Jenkins, no prior notice was given to appellant that costs under section 960.20 and section 943.25(4) would be assessed against him. 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.

In all other respects, the judgment and sentence are AFFIRMED.

OTT, C.J., and BOARDMAN and CAMPBELL, JJ., concur.


text:
    CITY OF VERO BEACH, Florida, Appellant, v. LARRY CATRON INVESTMENTS, INC., a Florida corporation, Appellee.
    No. 83-1447.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Rehearing Denied March 8, 1984.

      Charles P. Vitunac, City Atty., Vero Beach, for appellant.
    James T. Vocelle of Vocelle & Gallagher, and Sullivan, Cobb, Sullivan & Orr, Vero Beach, for appellee.
   PER CURIAM.

Affirmed. See Landers v. Milton, 370 So.2d 368 (Fla.1979).

DOWNEY, HURLEY and DELL, JJ., concur.


author: WIGGINTON, Judge.

text:
    Homer J. CREAMER and Billy J. Adams, Appellants, v. R. Ellis AULTMAN, Appellee.
    Nos. AS-471, AT-194.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1984.
    Gillis E. Powell, Sr., of Powell, Powell & Powell, Niceville, for appellants.
    Dale E. Rice, Crestview, for appellee.
   WIGGINTON, Judge.

This appeal is from an amended final judgment foreclosing a mortgage. The major issue presented is whether appellee, as a joint owner of a mortgage, was entitled upon default to elect to accelerate his proportionate share of principal and accrued interest due on the mortgage without the other mortgage owner joining in the election. We hold that appellee was entitled to unilaterally accelerate, and affirm the final judgment.

The facts leading up to this novel issue began on April 5, 1978, with the purchase of certain property jointly owned by appel-lee Ellis Aultman and his then business partner, Ray McKinney. The purchasers were appellants, Homer Creamer and Billy Adams, who gave Aultman and McKinney a promissory note with a face amount of $70,000, secured by a mortgage on the property. The note and mortgage were jointly payable to Aultman and McKinney in monthly installments of $625, with the first payment to be due on May 1, 1978.

Appellants’ first and second payments were both late. At their request, Aultman and McKinney changed the due date from the first to the tenth of each month, effective July 10, 1978. This was accomplished to accommodate appellants’ receipt of rental income from other properties which would be applied toward payment of their debt to Aultman and McKinney.

While the note and mortgage were jointly payable to Aultman and McKinney, the monthly payments were to McKinney, who physically held the original note and mortgage, and kept the partnership books. McKinney, in turn, would write a check to Aultman for one-half of each payment.

Beginning in May, 1978, and through December, 1980, appellants were late on eighteen of the thirty-two payments. In December, Aultman and McKinney concluded their partnership affairs, with the exception of appellants’ promissory note and mortgage. They orally agreed to have appellants split the monthly payment equally between Aultman and McKinney. Beginning in January, 1981, appellants began to write two monthly checks, each payable for $312.50.

Also in December, 1980, appellants sold the subject property to the present owner, and received back two notes and a wraparound mortgage. One of the notes was for $25,000, payable on December 1,1983, with interest thereon payable in twelve quarterly installments of $937.50 each, the first payment to appellants being due on March 1, 1981. The other note was for $64,567, payable in monthly installments of $625 each, with the first payment due on January 10, 1981.

Despite receipt of the above monies, appellants were habitually late in their payments to Aultman and McKinney through December, 1981. They completely missed the payments to Aultman for November and December, 1981, but brought McKinney’s payments current by the end of the year. Because of this delinquency, Ault-man advised appellants by letter on December 28, that if future payments were not received within ten days of the due date, he would institute foreclosure proceedings. The 10-day grace period allowed appellants to make payments to Aultman by the twentieth of each month.

Upon receipt of the letter, Creamer contacted Aultman and was given thirty days to tender the November and December payments. Several days later, one of the two monthly installments was paid by Creamer to Aultman, who again emphasized that he could no longer continue to accept late payments. Appellants brought the payments current with a payment made on January 30, 1982. Both the February and March payments were timely made to Aultman. Payments to McKinney remained current.

In April, 1982, appellants were late in paying both Aultman and McKinney. Although McKinney accepted his late payment, Aultman did not, and hand delivered to appellants a notice of acceleration. McKinney did not join in the notice. Creamer thereafter offered McKinney another payment of $312.50 on April 30,1982. Although McKinney accepted the payment, he treated it as his own May payment. Indeed, no further half payment was offered him during the month of May, his next half payment being received on June 2; instead Creamer attempted to make a full payment of $625 to McKinney in May, which was refused.

Creamer attempted to tender Aultman’s half payment on several other occasions, but all were refused. Aultman filed a mortgage foreclosure complaint in June, seeking an accounting of the sum due him under the note and mortgage, or a sale of the property to satisfy the claim. The complaint was dismissed for failure to join McKinney. An amended complaint was filed naming as defendants appellants, the current owner, and McKinney.

McKinney filed an answer asserting that the half payments to him were current and that he had no reason to foreclose. Appellants answered denying that they had defaulted and denying that the note and mortgage specify a pro rata ownership interest between Aultman and McKinney. Affirmative defenses were raised alleging unconscionability, lack of legal consideration to permit division of the mortgage payments, and tender of the amount due. Aultman filed an answer to the affirmative defenses, denying them and asserting that appellants were estopped from challenging the split payment arrangement.

The trial court found in Aultman’s favor and adjudged that Aultman was due $30,-647.14, amounting to his proportionate share due on the note and mortgage, attorney’s fees and costs, and ordered the property sold at a public auction. On Ault-man’s motion, an amended final judgment was filed recognizing McKinney’s remaining lienhold interest in the property and ordering the subsequent purchaser’s right to possession to be subject to that superior interest.

On appeal, four points are raised challenging the amended final judgment. However, our discussion and resolution of the first point will necessarily include and resolve the remaining three points.

In their point I, appellants argue the trial court erred in allowing Aultman to accelerate and foreclose the mortgage when McKinney testified the obligation was current as to him and did not seek foreclosure. Appellants maintain that a mortgage is either current or in default and cannot, as a matter of law be half current and half in default. For this proposition, appellants rely on four New York eases which hold that joint owners of a mortgage must join in electing to declare the whole mortgage due on default. See Seligman v. Burg, 233 A.D. 221, 251 N.Y.S. 689 (App.Div.1931); Beach v. Tangier Hotel Co., 110 Misc. 41, 179 N.Y.S. 657 (Sup.Ct.1920); Frank v. Jaffa, 181 Misc. 517, 41 N.Y.S.2d 104 (App.Div.1943); Kline v. 275 Madison Avenue Corporation, 149 Misc. 747, 268 N.Y.S. 582 (Sup.Ct.1933).

First, we distinguish the above-cited New York cases as involving attempts by joint owners of mortgages to unilaterally declare the whole mortgage due. In the instant case, our joint mortgagee sought only his portion of the debt owed. This question has gone virtually unanswered since apparently the turn of this century, but appellants have cited two ancient English cases which have influenced our decision. Lowe against Morgan, 28 Eng.Rep. 1183 (Ch.1784), and Dame Mary Palmer, Widow v. The Right Hon. Frederick Earl of Carlisle and Others, 57 Eng.Rep. 169 (Ch.1833), both stand for the proposition that a joint mortgagee may seek foreclosure for his proportionate share as long as the other joint mortgagees are joined in the action as parties. In so holding, the English court recognized but rejected the argument that to allow the joint mortgagee to unilaterally foreclose might subject the mortgagors to harassment by as many different suits as there were interested parties. Clearly, by requiring joinder of interested parties, any degree of possible harassment to be suffered by the defaulting mortgagor would be reduced.

However, we are also particularly mindful of protecting the interest of the mortgagee. It cannot be disputed that “[t]he obligation of the mortgagor to pay and the right of the mortgagee to foreclose in accordance with the terms of the note and mortgage are absolute and are not contingent on the mortgagor’s health, good fortune, ill fortune, or other personal circumstances affecting his ability to pay.” Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203, 207 (Fla. 1st DCA 1975); Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970). We question the equity of the rule that appellants propose under the circumstances of this case. Were Aultman to be precluded from seeking his proportionate share of the monthly installments of principal and interest in default unless joined by McKinney, what remedy would he have should McKinney decline ever to accelerate and foreclose? The payments to McKinney were current, and as long as that state of affairs existed, Aultman would be forced to suffer delinquency as to his share. We decline to engraft such an inequitable rule onto the generous remedies accorded aggrieved parties of this state.

Appellants would argue that there is only one debt, one note and one mortgage, and Aultman’s and McKinney’s attempt to divide the interest in the note and mortgage verbally and without legal consideration violated the Statute of Frauds and was ineffective. Appellants cite no authority in support of this argument. Support is unnecessary, however, and begs the question. Appellants have been, and remain, indebted to Aultman and McKinney. However, by course of conduct they split their payments between Aultman and McKinney and thereby became indebted to each, individually; for one-half of the principal and interest. Appellants defaulted in their obligation. In view of the default, Aultman was entitled by the terms of the note to opt to accelerate and seek his proportionate share under the mortgage. Aultman was thereafter obligated to join McKinney as a party to the foreclosure, action, and that he did.

Although a court in its discretion may refuse to grant a prayer for foreclosure for equitable reasons, those cases relied on by appellants for that proposition are clearly distinguishable. See e.g., Clark v. Lachenmeier; Federal Home Loan Corporation v. Taylor. Here appellants have a record of late payments; Aultman repeatedly granted reprieves, and finally gave notice of his intent to foreclose should any further payments be late, which notice we observe was not required under the terms of either the note or mortgage. Under the circumstances of repeated and unjustified delinquency in appellants’ meeting the mortgage obligation, the trial court did not abuse its discretion in this instance.

The final judgment is AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ., concur.

      . The record indicates, however, that these payments to Aultman and McKinney were not made on the same dates. The due date for McKinney’s half payment remained the tenth of the month, as he had not joined in Aultman’s December 28 letter.

      . The current owner's answer and cross claim for indemnity are not pertinent to, nor a part of, this appeal.

      . Thus, the acceleration being valid, we need not reach appellants’ argument that the trial court overemphasized the holding in Cook v. Merrifield, 335 So.2d 297 (Fla. 1st DCA 1976), regarding the issue of whether the mortgagee’s right to accelerate was optional or automatic under the terms of the note and mortgage.


author: THOMPSON, Judge.

text:
    HAYWARD TRUCKING, INC., and Nationwide Insurance Company, Appellants, v. AETNA INSURANCE COMPANY and Clifford A. Joyner, Appellees.
    No. AT-180.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.

      John P. Brooks of Jones & Langdon, Gainesville, for appellants.
    Bruce R. Raster of Green, Simmons, Green, Hightower & Gray, Ocala, for appel-lees.
   THOMPSON, Judge.

Nationwide Insurance Company (Nationwide) and Hayward Trucking, Inc. (Hayward) appeal a workers’ compensation order requiring Nationwide, inter alia, to reimburse appellee-Aetna Insurance Company (Aetna) for all benefits it paid to claimant subsequent to May 25, 1982, to institute temporary total disability (TTD) benefits to claimant as of January 31, 1983, and to provide claimant with appropriate medical benefits. We reverse.

Claimant, a driver and general maintenance man for Hayward, sustained a com-pensable back injury on September 15, 1981, while changing a tire. On September 17, 1981, claimant was seen by Dr. Koer-ner, an osteopath, who diagnosed “right shoulder bursitis, left sciatic neuritis, a lumbar strain” and the possibility of a herniated disc. Claimant returned to work for Hayward, although he said he was still having trouble with his leg. He continued driving a truck, but using the clutch particularly bothered him. He tried to stay away from changing tires and sweeping. Nationwide was Hayward’s workers’ compensation carrier at the time of this accident.

Claimant continued working for Hayward, with the exception of days which he occasionally missed because of back trouble, until May 24, 1982, when he experienced pain in his low back, hip, and leg while he and a co-worker were changing a tire. Aetna was Hayward’s workers’ compensation carrier in May 1982. Dr. Jones, an orthopedic surgeon who saw claimant following the second accident, stated in his deposition that “the second set of symptoms or the second incident or accident or whatever you want to call it, was simply a reinjury of a pre-existing old one.”

After a claim for benefits was filed, Aet-na took the position that claimant’s back injury was the result of the September 15, 1981 accident, and that Nationwide was solely responsible to claimant for any benefits. Accordingly, Aetna sought reimbursement from Nationwide for benefits paid to claimant. Nationwide took the position that claimant’s back injury was the result of the second accident and that Aet-na was solely responsible for any benefits. The deputy commissioner (deputy) found that the May 24,1982 “incident constituted, at most, a temporary aggravation of the [claimant’s] pre-existing condition.” The deputy further found that claimant was entitled to TTD from May 24, 1982 and continuing and that Aetna was entitled to reimbursement from Nationwide for benefits paid to or on claimant’s behalf since September 9, 1982, the date Aetna informed Nationwide of its potential liability. However, we note that the decretal portion of the order requires Nationwide to reimburse Aetna for all benefits paid to and on claimant’s behalf subsequent to May 25, 1982.

■ Under the circumstances Aetna, not Nationwide, is responsible for claimant’s temporary disability and medical benefits subsequent to the second accident. Following the first accident claimant was able to return to his former position, although he indicated he avoided sweeping and changing tires and that he experienced pain. Although he sought medical treatment for dehydration between the time he saw Dr. Koerner on September 17, 1981, and the time of the May 24, 1982 accident, it does not appear that claimant sought medical treatment for his back during this time. At the time of the hearing there was no indication that claimant had reached maximum medical improvement (MMI) from the second accident. Accordingly, the deputy erred in requiring Nationwide to reimburse Aetna for the temporary disability and medical benefits paid to claimant subsequent to the May 24, 1982 accident. Likewise the finding that Nationwide is responsible for claimant’s attorney’s fees and costs for obtaining TTD benefits and medical treatment is erroneous.

Once claimant attains MMI, the deputy may properly be requested to apportion any permanency claimant may have between Nationwide and Aetna, according to their respective responsibilities. The order appealed is REVERSED and REMANDED for proceedings consistent with this opinion.

SHIVERS and JOANOS, JJ., concur.


text:
    E.T. USHER and Professional Administrators, Inc., Appellants, v. Larry J. COTHRON, Appellee.
    No. AT-241.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellants.
    Patrick H. Perry of William N. Avera, P.A., Gainesville, for appellee.
   THOMPSON, Judge.

This is an appeal from a. compensation order authorizing medical treatment by the physician of claimant’s choice and awarding payment of the past medical bills of the physician chosen by claimant. The employer and carrier (E/C) contend that the deputy commissioner (deputy) erred because the factual findings which form the basis of the order are unsupported by competent substantial evidence. We agree and reverse.

The claimant was injured in a compensa-ble traffic accident which occurred on January 4,1983. Authorized medical treatment, including brief hospitalization and the fitting of a back brace, was furnished at Shands Teaching Hospital in Gainesville (Shands). Claimant became dissatisfied with the authorized treatment being afforded at Shands and, on February 16,1983, his attorney telephoned the E/C to request authorization of Dr. Jones, a physician recommended by claimant’s attorney. On the same date the E/C declined the request for authorization of Dr. Jones, but reaffirmed their authorization of the Shands physicians and offered additional alternative care by two private physicians. On February 18, 1983, the claimant, without having attempted to obtain an appointment with either of the authorized alternative physicians, proceeded to obtain treatment from Dr. Jones.

In the order on appeal, the deputy found, inter alia:

6. That, in an effort to obtain relief from his pain ... the Claimant made an appointment with Dr. Harry Jones ... who upon obtaining a history from and examining the Claimant, changed the Claimant’s back-brace and method of treatment.
7. That the Claimant, upon experiencing considerable relief from the change in treatment and an increasing ability to function, requested the consent of the Employer/Carrier to change his primary treating physician ... to Dr. Harry Jones.
8. That the Employer/ Carrier refused the requested change of physician, and instead added [the two private physicians] to the list of approved physicians.
9.That the Claimant, having experienced a significant decrease in his pain and discomfort and an increase in his functional ability as a result of the treatment of Dr. Harry Jones, was justified in refusing the treatment of any of the listed physicians.

The quoted finding that the E/C did not offer alternative care until after the claimant received treatment from Dr. Jones is not supported by any competent substantial evidence. On the contrary, the record affirmatively shows claimant first received treatment from Dr. Jones two days after the E/C offered alternative care and that the claimant made no effort to see either of the authorized alternative physicians.

Except in an emergency, a claimant who has been offered alternative medical care is not entitled to unilaterally obtain treatment from an unauthorized physician of his choice and then obtain reimbursement from the E/C. City of Fort Lauderdale v. Flanders, 416 So.2d 1234 (Fla. 1st DCA 1982); § 440.13, Fla.Stat. Here, the deputy did not find, and the record includes no evidence which could have supported a finding, that claimant sought the care of Dr. Jones on an emergency basis. Because alternative medical care was authorized, and because no emergency existed, it was the obligation of the claimant to request a hearing and secure a ruling by the deputy authorizing Dr. Jones before obtaining treatment from him. Because the claimant failed to meet this obligation, the order on appeal is REVERSED.

SHIVERS and JOANOS, JJ., concur.


author: SHIVERS, Judge.

text:
    VETERANS SEPTIC TANK SERVICE, and Aetna Insurance Company, Appellants, v. Carl WALLACE, Appellee.
    No. AT-159.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.
    James M. Hess of Driscoll, Langston & Kane, Orlando, for appellants.
    R.W. Simmermon, Orlando, for appellee.
   SHIVERS, Judge.

The employer/carrier appeal the order of the deputy commissioner awarding claimant wage loss benefits, costs, and directing the employer/carrier to pay claimant’s attorney a reasonable attorney’s fee. We affirm as to the issues raised on appeal with respect to the deputy’s findings that claimant made a good faith and adequate work search, that claimant did not voluntarily limit his employment, and that costs of the proceedings should be taxed against the employer/carrier, since we find competent, substantial evidence in the record to support these findings. We reverse and remand with directions as to the award of attorney’s fees and the decretal portion of the order awarding claimant wage loss benefits for the period August 1, 1982 to April 1, 1983 and continuing. We discuss only these latter two points.

Neither in the application for hearing nor at the hearing itself did claimant’s attorney assert that the carrier’s bad faith handling of the claim was the basis for his claim for attorney’s fees. Although this court has interpreted the language contained in section 440.34(3)(b), Florida Statutes (1980), as not requiring the deputy to conduct a completely separate hearing on the question of entitlement to attorney’s fees on the basis of bad faith, but only that the question of bad faith be specifically litigated as a separate issue with factual evidence presented going directly to that issue, Embry-Riddle Aeronautical U. v. Vestal, 399 So.2d 1033, 1035 (Fla. 1st DCA 1981), this court has also held that the deputy may not infer from general testimony that bad faith exists, see, e.g., Closet Maid Corp. v. Wilson, 429 So.2d 419, 421 (Fla. 1st DCA 1983); Jess Parrish Memorial Hospital v. Layer, 420 So.2d 917 (Fla. 1st DCA 1982). Here, the record is devoid of any forthright assertion of bad faith, or any meaningful litigation on that subject at the hearing before the deputy. Accordingly, the deputy’s order as to attorney’s fees is reversed and remanded with directions to the deputy to conduct a separate hearing, necessitated by the failure to meaningfully determine entitlement to attorney’s fees at the regular hearing, on the question of claimant’s entitlement to attorney’s fees.

As to the decretal portion of the order awarding claimant wage loss benefits for the period August 1, 1982 to April 1, 1983, and continuing, we agree with the employer/carrier that the language “and continuing” is error, since by law wage loss benefits are a monthly benefit, section 440.-20(4), Florida Statutes (1980); with the employer/carrier having fourteen days from the date of receipt of the wage loss request to accept or reject the same. See Hattaways, Inc. v. Smith, 414 So.2d 643 (Fla. 1st DCA 1982). Upon remand, the deputy is therefore directed to strike the word “continuing” from the order on review, and substitute in lieu thereof, the language “so long as such benefits are proper” or “so long as claimant is entitled to such benefits.” See Deltona Corp. v. Morris, 418 So.2d 1274, 1276 (Fla. 1st DCA 1982).

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

JOANOS and THOMPSON, JJ., concur.


text:
    RUSSELL, INC., Appellant, v. Norma TRENTO, as Personal Representative of the Estate of Anthony Trento, deceased, for the use and benefit of Norma Trento, as surviving mother of the deceased, Appellee.
    No. 82-1445.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett and Michael J. Murphy and Kathleen Williams, Miami, for appellant.
    Magill, Reid, Kuvin & Lewis and R. Fred Lewis, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   Substituted Opinion

PER CURIAM.

Russell, Inc. contests the final judgment which awarded the surviving mother, Mrs. Trento, $1,125,000. and the estate of Anthony Trento, $2,435.35.

Anthony Trento was a 13 year old boy who was electrocuted while climbing a large ficus tree whose overgrowth hid the powerlines. The tree was located on a municipal right of way and maintained by Florida Power and Light Company (F.P.L.). Mrs. Trento brought a wrongful death action against the City of Miami, Metropolitan Dade County and F.P.L., and subsequently amended the complaint to inelude a claim against Farrens and Russell, Inc., the tree-trimming firms under contract by F.P.L. F.P.L. and Metropolitan Dade County settled with Mrs. Trento for the respective sums of $478,000. and $3,000. Farrens was voluntarily dismissed and the City of Miami obtained a final summary judgment. The matter proceeded to trial against Russell, Inc. and the jury returned a verdict finding Russell, Inc. 100 percent liable and awarded damages. The court ordered Russell, Inc. to pay the difference between the jury award and the settlements.

Russell, Inc. urges error in the lower court’s refusal to grant its motion for a mistrial based upon the improper final argument of Trento’s counsel. It contends that 1) the conduct of Mrs. Trento’s counsel and of Mrs. Trento herself was inappropriate and prejudicial and 2) the argument of counsel was improper in that it placed a value on human life. We agree with appellant’s contentions and reverse for a new trial.

Final argument of Mrs. Trento’s counsel contained fallacious statements that he had “lived with the case and represented” the plaintiff and her family for the past three years and that he had “carried the burden” of this case “for three years in representing the family.” The conduct of counsel continued to be inappropriate with counsel’s emotional breakdown before the jury. It is apparent from the record that the emotion and anguish exhibited by counsel was not spontaneous and unthinking, but was a shrewdly calculated attempt to solicit a sympathetic response from the jury.

A further example of such planned dramatic conduct is seen in the actions of Mrs. Trento at the end of her testimony wherein she made an unsolicited emotional plea to the jury and gave a description of holding her son until his death. This plea was unresponsive to any questions posed by counsel and false in that Mrs. Trento did not see, much less hold, her son after the accident in question.

These sympathetic ploys used by counsel will not be condoned. The purpose of closing argument is for counsel to discuss with the jury their versions of the evidence and the reasonable inferences therefrom, in light of the issues framed by the pleadings. Remarks made solely for the purpose of evoking sympathy for the plaintiff and of such a character that neither rebuke nor retraction will destroy their prejudicial, sinister influence warrant a new trial. Eastern Steamship Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA), cert. denied, 388 So.2d 1115 (Fla.1980); LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA), cert. denied, 359 So.2d 1216 (Fla.1978); Tampa Transit Lines, Inc. v. Corbin, 62 So.2d 10 (Fla.1952). Because we find that the remarks made in the present case fall within this category, we reverse for a new trial.

In light of this result, we need not consider appellant’s contention that counsel made inappropriate arguments to the jury as to damages; however, we do so to avoid the same error from occurring in a new trial. In addressing this contention, we note the following inappropriate and prejudicial comments contained in counsel’s final argument:

“I have lived with this case and now it is your turn to go back there and live with this case. But in our society, we value life very preciously ... I have agonized over trying to put a figure to you that would be a figure that you would be satisfied with. I have been asked to do that by Mrs. Trento, when she hired me ... You six people have the ultimate say-so on what a life is worth and what Anthony’s life was worth to Mrs. Trento.” * * *

And, on rebuttal,

“It is interesting, I think, that [defendant’s counsel] failed to suggest a figure to you, failed to give the guidance that is needed. The inference to me that he knows a life, such as Anthony’s, was worth three million dollars.” * * *

Parents of a deceased minor child may recover for loss of support, loss of services, and mental pain and suffering from the date of death. Section 768.21, Florida Statutes (1981). However, the value of a human life is not an element of damages and is not a proper subject for final argument. Seshadri v. Morales, 412 So.2d 39 (Fla. 3d DCA 1982); Erie Insurance Co. v. Bushy, 394 So.2d 228 (Fla. 5th DCA 1981); Martin v. State Farm Mutual Auto. Insurance Co., 392 So.2d 11 (Fla. 5th DCA 1980).

After reviewing the record, briefs and arguments of counsel in light of the controlling principles of law, we have concluded that the remaining points on appeal are without merit. Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial as to liability and damages.

Reversed and remanded.

      . The retainer agreement indicated that Mrs. Trento had been a client for 16 months.

      . “Please, having a life of yours, a son, and an only child, holding the child in your arms and feeling the life go out of your child, the death and the feeling him going cold, you cannot express the pain and you cannot express the hurt that goes through the mother’s heart.”


text:
    Tod C. CLEVELAND, Appellant, v. Beverly J. CLEVELAND, Appellee.
    No. 83-1601.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.

      Lawrence M. Shoot, Miami, for appellant.
    Bender, Bender & Chandler and Harry Bender and Christopher P. Kelley, Coral Gables, for appellee.
    Before NESBITT, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

Paragraph 2 of the final judgment dissolving the parties’ marriage is clarified to reflect that the award of permanent periodic alimony shall terminate upon the death of either party or upon remarriage of petitioner-wife. An obligation to pay periodic alimony ceases upon the death of the obli-gor unless that person expressly agrees that the estate shall be bound to continue to pay alimony after his death. O’Malley v. Pan American Bank of Orlando, 384 So.2d 1258 (Fla.1980). Otherwise the judgment is affirmed as no abuse of discretion has been demonstrated. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Lopez v. Lopez, 438 So.2d 984 (Fla. 3d DCA 1983).

Affirmed as modified.


text:
    Waldemar MORALES, Appellant, v. Edelma PEREZ, as Personal Representative of the Estate of Jose Miguel Perez, Deceased, et al., Appellees.
    No. 83-2684.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Curtis L. Jones, Jr., Miami, for appellant.
    Sweetapple & Kamilar and Mark Kami-lar, Miami, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Morales, the defendant below, appeals from a default judgment determining the issue of liability in favor of the plaintiff. The trial court entered the default at a pretrial conference as a sanction for the defendant’s repeated and willful violations of the discovery rules. We affirm.

The record reveals numerous failures on the part of Morales to comply with orders relating to discovery, concluding with the failure of his attorney to appear at a scheduled pretrial conference. It was within the discretion of the trial court to enter a default as a sanction for these discovery violations. Fla.R.Civ.P. 1.200(b). See Mercer v. Raine, 443 So.2d 944 (Fla.1983); A.H. Robins Co. v. Devereaux, 415 So.2d 30 (Fla. 3d DCA 1982), pet. for review denied, 426 So.2d 25 (Fla.1983); City of Miami Beach v. Chadderton, 306 So.2d 558, dismissed mem., 312 So.2d 757 (Fla.1975). Such orders will not be reversed on appeal unless there was clearly an abuse of discretion by the trial court. Chamberlin v. Mid Century Insurance Co., 350 So.2d 364 (Fla. 2d DCA 1977). The trial court was entitled to interpret Morales’ repeated failures to comply with discovery orders as willful and intentional, justifying the severe sanction of default. Compare Johnson v. Allstate Insurance Co., 410 So.2d 978 (Fla. 5th DCA 1982) with W.G.C., Inc. v. The Man Co., 360 So.2d 1152 (Fla. 3d DCA 1978). We find no abuse of discretion and the default judgment is accordingly affirmed.

      . Counsel for appellant — the third or fourth in the case — was not involved in the discovery violations, which caused striking of the defenses.


author: ORFINGER, Chief Judge.

text:
    James CALLAHAN, Appellant, v. Arlene CAMBRON, f/k/a Arlene Callahan, Appellee.
    No. 82-1548.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    James K. Freeland, Orlando, for appellant.
    J. Thomas Bowden, Orlando, for appel-lee.
   ORFINGER, Chief Judge.

The father appeals an order modifying an earlier award of custody, and granting custody of two minor children to the mother. We affirm because there is substantial competent evidence, although somewhat conflicting, to support the trial judge’s finding that there was a substantial change in circumstances of the parties and that it would be in the best interest of the children to change custody to the mother. There is evidence to support the finding that since the original custody award based on the stipulation of the parties, the mother’s circumstances have improved considerably while the father’s physical and financial circumstances have sharply deteriorated. Cf. Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA 1964). Additionally, while certainly not binding, the trial court had the right to consider, along with other evidence, testimony of the children expressing their wish to live with their mother.

We find no abuse of the trial court’s discretion and the order appealed from is therefore

AFFIRMED.

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


author: COBB, Judge.

text:
    SUNSHINE DODGE, INC., a Florida corporation, Appellant, v. Ingeborg M. KETCHEM and Lisa Ketchem, a Minor, by and through said Ingeborg M. Ketchem, as next friend and natural guardian of said Lisa Ketchem; Michael Steven Davis; Danny O’Bryan’s Flowers & Things, Inc., a Florida corporation; and State Farm Insurance Company, a foreign insurance company, Appellees.
    No. 83-18.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.

      George E. McCarthy and William J. Nea-le, Melbourne, for appellant.
    Thomas G. Kane of Driscoll, Langston & Kane, P.A., Cocoa Beach, for appellees.
   COBB, Judge.

Sunshine Dodge, Inc. (Sunshine), leased an automobile in its possession to Danny O’Bryan’s Flowers & Things, Inc. (O’Bryan’s). The titled owner of the car is Chrysler Corporation. The lease agreement contained the following relevant provisions:

2. Under no circumstances shall vehicle be used, operated or driven
(b) by any person who is less than 22 years of age....
(f) by any person except renter, or a qualified licensed driver 22 years of age or older named by renter on page 1; ...
# ⅛ 4< # # *
4. Lessor agrees to maintain automobile liability insurance coverage for the benefit of renter and others of age 22 or older driving with renter’s prior consent,
5. Renter shall defend, indemnify and hold harmless lessor ... which are not covered by the insurance provided hereunder by lessor, ...

Subsequently, the leased car, while operated by one Michael Steven Davis, collided with another vehicle operated by the Ket-chems. The Ketchems sued Davis, O’Bryan’s (and its insurer, State Farm) and Sunshine. O’Bryan’s cross-claim against Sunshine alleged that it was obligated to defend the action on behalf of Davis, O'Bryan's and State Farm, and to indemnify them up to the limits ($100,000/$300,-000) of the policy referred to in the lease agreement. In its answer to the cross-claim, Sunshine alleged that O’Bryan’s had breached the lease agreement by allowing Davis, an unlicensed driver under 22 years of age, to operate the car. O’Bryan’s and Davis did not dispute these facts.

The trial court entered a summary judgment against Sunshine on the indemnification claim, and this judgment is the subject matter of the instant “appeal.” Based upon the recent Florida Supreme Court case of Travelers Ins. Co. v. Bruns, 443 So.2d 959 (Fla.1984), we recognize that a trial court’s determination of a disputed issue of coverage which precedes a determination of liability owing to the claimant (in this case the Ketchems) cannot serve as the basis for a plenary appeal under Rule 9.100 or for an appeal of a nonfinal order under Florida Rule of Appellate Procedure, 9.130(a)(3)(C)(IV). We, therefore, treat this application as a petition for writ of certiora-ri. See Fla.R.App.P. 9.040(c), and Combs v. State, 436 So.2d 93 (Fla.1983).

The issue is whether or not Sunshine, as a “conduit” between the owner (Chrysler) and the driver (Davis), is liable for indemnification to its lessee (O’Bryan’s) and the lessee’s permittee (Davis). If Sunshine were the owner, it would clearly be required to indemnify the appellees under Roth v. Old Republic Ins. Co., 269 So.2d 3 (Fla.1972), and Susco Car Rental System of Florida, Inc. v. Leonard, 112 So.2d 832 (Fla.1959). However, Sunshine is Chrysler's bailee.

In Martin v. Lloyd Motor Co., 119 So.2d 413 (Fla. 1st DCA 1960), the First District Court of Appeal answered the question raised in the instant case. In Judge Wig-gington’s majority opinion in that case, he wrote:

The basic law of Florida respecting the liability of a person having possession of and dominion and control over a motor vehicle for its negligent operation upon the roads and highways of the state was first enunciated by our Supreme Court in the Southern Cotton Oil Co. case.1 It was there held that an automobile is a dangerous instrumentality, and that a special liability is imposed upon the owner for the operation of such an instrumentality upon the public highways of this state.
The latest affirmation of the fundamental philosophy underlying the dangerous instrumentality doctrine is the decision of the Supreme Court in the Susco Car Rental System case.2 It was there held that the logical rule, as gleaned from the prevailing rationale of the cases dealing with the dangerous instrumentality doctrine, is that when control of a motor vehicle is voluntarily relinquished to another, only the breach of custody amounting to a specie of conversion or theft will relieve an owner of the responsibility for its use or misuse. It was held that this rule arises from the absolute duty which is owing to the public by those who employ in their business a dangerous instrumentality whose negligent operation might result in great danger to others. We see no justifiable reason why the liability imposed upon an owner of a motor vehicle under the dangerous instrumentality doctrine is not equally applicable to a bailee, whether the bailment be gratuitous, for hire, or for the mutual benefit of both parties. Nor can we agree that the bailee’s liability is dependent upon a showing of bad faith or gross negligence on his part in allowing the vehicle to be operated with his permission by another party. Such prerequisite to liability may be the rule of law followed in other jurisdictions, but not in Florida under the doctrine prevailing here.
⅝ ⅜ * * ⅝ *
... [T]he question of liability of a bailee for the negligent operation of a motor vehicle in its possession and under its domination and control, even though by a person to whom possession had been entrusted by the bailee, is not dependent upon ownership nor the particular legal relationship which exists between the possessor and the owner.
1 Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 16 A.L.R. 255.
2 Susco Car Rental System of Florida v. Leonard, Fla. 1959, 112 So.2d 832; Fla.App.1958, 103 So.2d 243.

Martin v. Lloyd Motor Co., 119 So.2d at 414-15.

It should also be noted that section 627.7263, Florida Statutes (1981), provides that an automobile lessor’s insurer is primarily liable unless the lease agreement states in bold type that the lessee has the responsibility for primary insurance coverage. Sunshine is the named lessor under the lease agreement charged with primary coverage. Cf. National Indemnity Co. v. Home Ins. Co., 345 So.2d 1077 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 514 (Fla.1978). As the lower court noted in its summary judgment, Sunshine does not have to indemnify Davis and O’Bryan’s for amounts above the policy limits. Sunshine could seek indemnification from them if it has to pay above the policy limits. See Insurance Co. of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977); Racecon Inc. v. Mead, 388 So.2d 266, 268 (Fla. 5th DCA 1980). Of course, neither Sunshine nor its carrier can maintain an indemnification action against its insureds, Davis and O’Bryan’s, for any amount within the policy coverage. Ray v. Earl, 277 So.2d 73 (Fla.2d DCA), cert. denied, 280 So.2d 685 (Fla.1973).

Based on Martin, Sunshine, even as a bailee, is liable and its carrier has primary coverage. The partial summary judgment herein did not depart from essential requirements of law and, therefore, we deny the petition for certiorari.

PETITION DENIED.

DAUKSCH, J., and DIAMANTIS, G.N., Associate Judge, concur.

      . Section 627.7263, Florida Statutes (1981), provides in relevant part:
      (1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by ss. 324.021(7) and 627.736. (Emphasis added.)


author: COBB, Judge. COWART, Judge,

text:
    Richard Allen COCHENET, Appellant, v. STATE of Florida, Appellee.
    No. 83-162.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The appellant, Richard Allen Cochenet was convicted of each count in a three-count information: count one for burglary of a dwelling with intent ,to commit aggravated assault; count two for aggravated assault of Karl Graf; and count three for aggravated assault of Kathleen Hunt. He raises three points on appeal. We find no merit in points two and three relating to the trial court’s denial of a motion for mistrial and the exclusion of proffered testimony regarding the prior use of drugs by one of the assault victims. The first point on appeal, however, compels reversal of Cochenet’s conviction of a first-degree felony for count one.

The amended information under which Cochenet was tried in count one read:

RICHARD ALLAN COCHENET in said County and State, did, in violation of Florida Statute 810.02(2)(a)(b), enter or remain in a certain structure, to-wit: a dwelling located in the vicinity of Lot 147 Country Club Village, 1080 South Airport Road, Kissimmee, in the County and State aforesaid, the property of Karl Gilbert Graf, Jr. and Kathleen Hunt as owners or custodians thereof, with the intent to commit an offense therein, to-wit: aggravated assault upon Karl Gilbert Graf, Jr. by pointing a rifle at Karl Gilbert Graf, Jr. and placing him in fear, and that at the time the said premises were not open to the public and the said RICHARD ALLAN COCHENET was not licensed, invited, or authorized to enter or remain.

Section 810.02(2)(a), Florida Statutes (1981), provides for enhancement of burglary to a felony of the first degree if, in the course of committing the offense, the offender makes an assault upon any person. As the appellant argues in his brief, the amended information charged Co-chenet entered the trailer with the intent to commit aggravated assault; it did not allege that the assault actually occurred. Although the fact of the assault is clearly alleged in another count, that count cannot be used to supply an added element for count one. Averheart v. State, 358 So.2d 609 (Fla.lst DCA 1978). The conviction should therefore have been for a second-degree felony rather than a first-degree felony. Although the appellant failed to object to this error at the time of entry of judgment, the error is fundamental and may be raised for the first time on appeal. This is so because the offense for which Cochenet was convicted is greater in degree and penalty than the offense with which he was charged. Ray v. State, 403 So.2d 956 (Fla.1981); see also, Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978). The ten-year sentence imposed is proper for a second-degree felony, but the trial court in its discretion may reduce the sentence upon proper application in light of the lesser degree of the conviction. See Fla.R.Crim.P. 3.800(b).

We also note that the trial court “stacked” two mandatory minimum sentences under section 775.087(2), Florida Statutes (1981), in regard to the conviction for counts two and three. The Florida Supreme Court in Palmer v. State, 438 So.2d 1 (Fla.1983), issued subsequent to the imposition of sentence herein, held that such “stacking” is improper unless the offenses arose out of separate incidents occurring at separate times and places. This point has not been raised on appeal, but may be addressed hereafter by a motion directed to the trial court, pursuant to Florida Rule of Criminal Procedure 3.850.

We reverse the entry of judgment of conviction against Cochenet under count one for a first-degree felony, and remand for entry of judgment for a second-degree felony pursuant to section 810.02(3), Florida Statutes (1981). Otherwise, the judgments and sentences are affirmed.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

DAUKSCH, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I concur with all that is stated and held in the majority opinion with one exception.

The error involved in charging Cochenet with burglary in a count of an information that did not allege that he made an assault and convicting him of an enhanced burglary offense that does require that he make an assault is fundamental error not because the crime for which he was convicted was greater in degree and penalty than the offense charged but because it is always fundamental error violative of constitutional due process to convict one of a crime not charged and a crime is not charged unless all of its essential constituent elements are alleged in the charging document. See the cases collected in the dissent in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983).

      . The information was amended during trial by express agreement of the parties to delete the allegation that Cochenet was armed with a dangerous weapon during the course of committing said burglary. See § 810.02(2)(b), Fla.Stat. (1981).

      . The maximum sentence for a felony of the second degree is fifteen years. § 775.082(3)(c).


author: PER CURIAM. COBB, Judge,

text:
    Leland LOYD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-219.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH and COWART, JJ„ concur.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

I dissent based upon the following cases: Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, — U.S. —, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983); Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Hodges v. State, 403 So.2d 1375 (Fla. 5th DCA 1981), review denied, 413 So.2d 877 (Fla.1982). In the latter case we said:

Most cases permitting the use of similar fact evidence in criminal sexual assault cases relate to the issue of identity. The concepts of “modus operandi” or “common scheme or plan” relate to identification by recognition of unusual, thus identifying, aspects of the method that a particular individual uses to accomplish a particular act. See Dean v. State, 277 So.2d 13 (Fla.1973); Williams v. State, 110 So.2d 654 (Fla.1959); Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Sweet v. State, 313 So.2d 130 (Fla. 2d DCA 1975); Fivecoat v. State, 244 So.2d 188 (Fla. 2d DCA 1971); Hines v. State, 243 So.2d 434 (Fla. 2d DCA 1971); Mims v. State, 241 So.2d 715 (Fla. 1st DCA 1970); Blackburn v. State, 208 So.2d 625 (Fla. 3d DCA 1968); Coney v. State, 193 So.2d 57 (Fla. 3d DCA 1966). See generally Annot., 2 A.L.R. 4th 330, § 5 (1980) (“Admissibility, in Rape Case, of Evidence That Accused Raped or Attempted to Rape Person Other Than Prosecu-trix”).

403 So.2d at 1378 n. 5.

In the instant case there was no unusual aspect of the method used by the defendant in two separate lewd acts involving different victims. The introduction of evidence of the incident with which the defendant was not charged was solely for the purpose of showing propensity, a purpose clearly disallowed by the Williams rule.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    William R. LACY, Appellant, v. Herbert SEEGERS, Jr., and Mary Seegers, his wife, Appellee.
    No. 83-234.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.

      Robert F. Vason, Jr., of Potter & Vason, Mount Dora, for appellant.
    Frank T. Gaylord of Gaylord, Gaylord & Osborne, P.A., Eustis, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant William Lacy appeals from a summary judgment rendered against him and in favor of appellees Herbert and Mary Seegers holding that an easement was extinguished and merged with the fee title when the Jeknavorians, the former owners, became owners of the entire property.

An easement, by definition, is a right to land which is in the possession of another. 3 Powell, Real Property, ch. 34, § 425. It is extinguished through merger when ownership of the dominant and ser-vient estates become united in one person. 28 C.J.S. Easements § 57; 25 Am.Jur.2d Easement and Licenses § 108; Castle Associates v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717 (1978).

Certain requirements must be met to find merger. First, there must be unity of ownership of the dominant and servient estates. The ownership of the two estates must be co-extensive and equal in validity, quality, and all other circumstances of right. 25 Am.Jur.2d Easements and Licenses § 108. This rule has been construed to mean that in order to extinguish a right-of-way, there must be unity of ownership between the servient estate and every dominant state. Piazza v. Schaefer, 255 Cal.App.2d 328, 63 Cal.Rptr. 246 (Cal.1st App.1967). Additionally, unity of title has been defined as unity of valid title, title in the name of the same person, and, of course, simultaneous ownership. 28 C.J.S. Easements § 57.

Originally in this case, sixteen lots were owned by a group who will be referred to as the “Boland Interest.” Today, out of these sixteen lots, appellant Lacy owns the south one-half of lots 5, 6, 7, and 8 and all of lots 9 through 16, and the Seegers are the owners of the westerly portion of lot 3, all of lot 4, the north half of lot 5, and the north half of the westerly half of lot 6, as depicted by the following schematic drawing:

State Road 44-A forms the northern boundary of the Seegers’ property and no portion of Lacy’s property abuts either a public or private road.

Lacy contends that the trial court erred both in its finding of fact and its application of the doctrine of merger. Lacy acquired title to lots 9 through 16 in 1960 from the Boland Interest. Lacy’s title to the south one-half of lots 5 through 8 is deraigned through Fred Jeknavorian, individually, who received his deed from Roberts in March, 1974. Roberts’ deed came, in turn, from the Boland Interest. All of the deeds in this chain convey the property “less the west 20 feet for right-of-way and road purposes.”

The chain through which the Seegers acquired their property is a little more complicated. Having received lots 1-4 and the north one-half of lots 5-8 from the common grantor, the Boland Interest, Eriksson conveyed to Stokes who in turn conveyed to Fred and Arlene Jeknavorian. The deeds from the Boland Interest to Eriksson and from Eriksson to Stokes all conveyed the property “less the west 20 feet thereof.” Stokes conveyed to Fred and Arlene Jekna-vorian in January, 1974, reserving a “20-foot right-of-way on the west side of lot 4 and the north one-half of lot 5.” In July 1974, the Jeknavorians conveyed the smaller parcel now belonging to the Seegers to Porter subject to reservations of record. The Porters then deeded the property to Herbert Seeger, Jr. as trustee, who in turn conveyed to Herbert and Mary Seegers. These last two deeds contained no exception or reservation. For clarity, the title chains are illustrated below:

Lacy contends that the trial court erred in applying the merger doctrine because Jeknavorian never acquired title to both the dominant estate (now the Lacy tract) and the servient estate (now the Seegers tract),

In response, the Seegers cite Procacci v. Zacco, 324 So.2d 180 (Fla. 4th DCA 1975). There, an estate sold one parcel of land (tract A) to an heir of the estate and later sold an adjoining tract (tract B) to an oil company with a deed to the latter stating that it was “subject to” an easement for a road right-of-way. The appellate court held that, at best, the use of the words “subject to” in an attempt to create an easement led to unclear and ambiguous results and that to understand the intentions of the parties, recourse must be had to surrounding ■ agreements and circumstances. Id. at 182.

In the instant case, while some of the deeds did use the phrase “subject to,” the court found that the language “less the west 20’ thereof for right-of-way and road purposes” created an easement and this has not been disputed by the Seegers. Regardless, the facts and circumstances surrounding the deeds clearly indicate an intention by Boland, as the original common grantor, as well as subsequent holders, to create the easement.

We agree with Lacy’s contention that there was no merger because unity of title as discussed above never existed. Fred Jeknavorian was deeded the south one-half of lots 5-8 (Lacy’s) individually, while Arlene and he were deeded lots 1-4 and the north one-half of 5-8 as tenants by the entirety. Because title to both tenants was never in the same name (Fred and Arlene), there was no unity of title and no merger. In their deed from Stokes, Fred and Arlene did not obtain title to the west 20’ of lots 4 and 5 and did not attempt to convey that portion but instead, reserved it. Porter’s deed to Herbert Seegers, Jr., conveyed nothing more than “color” of title to the easement.

The court below entered summary judgment for the Seegers. The facts are not in dispute. We therefore reverse and remand for entry of summary judgment for appellant Lacy.

COBB and COWART, JJ., concur.


text:
    DEBRA, INC., Appellant, v. ORANGE COUNTY, Florida, Appellee.
    No. 83-714.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    Miranda Franks of Maguire, Voorhis & Wells, P.A., Orlando, for appellant.
    Thomas J. Wilkes, Jr.,. and Stephen E. Cook of Gray, Harris & Robinson, P.A., Orlando, for appellee.
   ORFINGER, Chief Judge.

The issue on appeal is whether appellant, defendant below, is entitled to an award of attorney’s fees under Section 57.105, Florida Statutes (1981).

In a final order from which no appeal was taken, the trial court dismissed the action with prejudice, finding that “[t]here is a complete absence of a justiciable issue of either law or fact between the parties to this action at this time.” Several months later, the court denied defendant’s motion for attorney’s fees which had been filed on the day the final order was entered. We find that this denial was erroneous and reverse.

Once the determination has been made by the trial court that there is a complete absence of a justiciable issue of law or fact, the award of attorney’s fees to the prevailing party who properly moves for such fees is required. As we pointed out in Wright v. Acierno, 437 So.2d 242 (Fla. 5th DCA 1983), an opinion not available to the trial court when the order appealed from was entered,

... We agree that the use of the word “shall” in the statute evidences the legislative intention to impose a mandatory penalty in the form of a reasonable attorney’s fee once the determination has been made that there was a complete absence of a justiciable issue raised by the losing party....

Id. at 244.

The order appealed from is reversed and the cause is remanded to the trial court for the determination and award of a reasonable attorney’s fee for the services of appellant’s attorney. Appellant’s motion for the allowance of an attorney’s fee on appeal is also granted, the amount thereof to be determined by the trial court on remand. See TIE Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980).

REVERSED and REMANDED.

COWART, J., and DAVIS, S.J., Associate Judge, concur.


text:
    Michael Wayne KEITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-1047.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED.

See Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

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


text:
    STATE of Florida, Petitioner, v. Connie Lou MITCHELL, Respondent.
    No. 83-1287.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Linda Gloeckner of Edward R. Kirkland, P.A., Orlando, for respondent.
   PER CURIAM.

In the exercise of our discretionary certiorari right of review we treat the State’s notice of appeal in this case as a petition for writ of certiorari.

We find that the trial court departed from the essential requirements "of law when it excluded from evidence the identification testimony of the State’s only two eyewitnesses by ruling as a matter of law on the facts of this case that their testimony had been irretrievably tainted by unnecessarily suggestive out-of-court police identification procedures. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Grant v. State, 390 So.2d 341 (Fla.1980); State v. Mendez, 423 So.2d 621 (Fla. 4th DCA 1982); Lecoin v. State, 418 So.2d 336 (Fla. 3d DCA 1982); Baxter v. State, 355 So.2d 1234 (Fla. 2d DCA 1978), cert. denied, 365 So.2d 709 (Fla.1978); State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975), cert. dismissed, 337 So.2d 780 (Fla.1976). The respondent may submit and argue to the jury the factual matters of which he complains for the jury to consider in weighing the identification testimony.

The order of the trial court suppressing the identification testimony of the witnesses Kerley and Allen is

QUASHED.

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.

      . Combs v. State, 436 So.2d 93 (Fla.1983).

      . Fla.R.App.P. 9.040(c).


author: SCHOONOVER, Judge.

text:
    Jeffrey JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2746.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1984.
    Jeffrey Jackson, pro se.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, 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 the judgments and sentences. However, we must remand to the trial court because of a clerical error in the court’s written judgment and sentence form.

Appellant was originally charged with aggravated battery and burglary of a conveyance. He pled guilty to aggravated assault and burglary of a conveyance and was placed on probation. He was subsequently found guilty of violating two conditions of his probation and was sentenced in open court to serve five years in prison for aggravated assault and five years in prison for burglary of a conveyance. These sentences were ordered to be served consecutively. On the same day a written order revoking his probation was signed, and that order conformed to the sentence entered in open court. However, the judgment and sentence form, also signed that same day, adjudicated him guilty of aggravated battery.

A court’s written order of judgment and sentence must not vary from its oral pronouncement. Yates v. State, 429 So.2d 815 (Fla. 2d DCA 1983). Therefore, the judgment and sentence form must be corrected to show that the appellant was adjudicated guilty of aggravated assault and not aggravated battery.

We accordingly remand this cause to the trial court for correction of this error. The judgments and sentences are affirmed in all other respects.

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


author: SCHEB, Judge.

text:
    Alphonso WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-824.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1984.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Alphonso Williams appeals from his judgment and sentence for possession of a controlled substance.

In the judgment, appellant was ordered to pay twenty dollars pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund), and two dollars pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Fund). 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 determined that the assessment of costs under section 960.-20 and section 943.25(4) 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 such costs. Kerney v. State, 445 So.2d 381 (Fla.2d DCA 1984).

Here, nothing in the record indicates that the appellant was given notice and an opportunity to object to the assessment of costs under sections 960.20 and 943.25(4). 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.

In all other respects, the judgment and sentence are affirmed.

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


text:
    Joe W. RAINES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1208.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Joe W. Raines, has appealed from a judgment and sentence entered as a result of an order finding him guilty of violating his probation. We affirm.

The appellant was charged with failing to make certain financial payments in violation of conditions (2), (9), and (10) of his probation and with committing a burglary in violation of condition (5). At the conclusion of the revocation hearing, the court found appellant guilty of violating the aforementioned conditions and revoked his probation. Appellant was adjudicated guilty of the burglary offense for which he was originally placed on probation and sentenced to serve three years in prison.

The evidence at the probation revocation hearing was insufficient to show that appellant had the ability to make the financial payments required by conditions (2), (9), and (10) of his probation. Therefore, it was improper to find him guilty of violating these conditions, and we, accordingly, strike those portions of the revocation order. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979).

However, since there was competent evidence to support the finding of the trial court that appellant had violated condition (5) of the order, and the record reflects that the trial court was concerned with this condition and not with the financial conditions hereinabove stricken, we affirm the order revoking appellant’s probation and the judgment and sentence entered as a result thereof. See Sillett v. State, 393 So.2d 53 (Fla.2d DCA 1981).

AFFIRMED.

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

      . The financial payments were as follows: condition (2) — $10 per month in supervisory fees; condition (9) — $250 in attorney’s fees; and condition (10) — $15 in court costs.


text:
    Jack W. PLAISTED, Appellant, v. Dolores K. PLAISTED, Appellee.
    No. 83-1505.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1984.
    Andrea M. Lang of Carroll & Bolesky, Naples, for appellant.
    John R. Asbell of Asbell, Hains, Doyle & Pickworth, Naples, for appellee.
   PER CURIAM.

The former husband appeals from the final judgment of dissolution in which the trial court allowed his former spouse to “retain one-half of the Merrill-Lynch CM A Account currently in her possession.” The trial court’s ruling which vitiated the former husband’s special equity claim but acknowledged the former wife’s claim of a gift is supported by substantial competent evidence. Marsh v. Marsh, 419 So.2d 629 (Fla.1982). The decision rendered by our sister court in Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 1st DCA 1978), is clearly distinguishable because more than “a word or two of testimony by the recipient spouse, to the effect that the other intended a gift,” was put forth into evidence by the former wife in this case. The former husband’s remaining arguments are without merit; accordingly, we will not disturb the trial court’s decision because no abuse of discretion has been shown. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

AFFIRMED.

HOBSON, A.C.J., and RYDER and DAN-AHY, JJ., concur.


text:
    UNIVERSITY COMMUNITY HOSPITAL, Appellant, v. TAMPA HEART INSTITUTE, Department of Health and Rehabilitative Services, Tampa General Hospital, and St. Joseph’s Hospital, Appellees.
    No. 84-201.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1984.

      Alan C. Sundberg, Cynthia S. Tunnicliff and George N. Meros of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellant.
    Michael J. Cherniga of Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellee Tampa Heart Institute.
   ON MOTION TO DISMISS

PER CURIAM.

This appeal is taken from an order of the hearing officer, Division of Administrative Hearings, denying appellant’s petition for leave to intervene in a proceeding to determine whether to issue a certificate of need for a cardiac care specialty hospital. Ap-pellee, Tampa Heart Institute, has moved to dismiss, contending that the order of the hearing officer is merely a recommended order and can only be finally disposed of by the agency involved, the Department of Health and Rehabilitative Services. We agree. See section 120.52(ll)(c), Florida Statutes (1983), and Department of Professional Regulation v. LeBaron, 443 So.2d 225 (Fla. 1st DCA 1983). Accordingly, the motion is granted and this appeal is hereby dismissed.

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


author: ANSTEAD, Chief Judge. HURLEY, Judge, WALDEN, Judge,

text:
    Richard A. SHAW, Appellant, v. Barbara L. SHAW, Appellee.
    No. 81-1176.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.

      James K. Pedley, Fort Lauderdale, for appellant.
    John L. O’Brien, Boca Raton, for appel-lee.
   ANSTEAD, Chief Judge.

The former husband brings this appeal from a final judgment denying his petition for modification of alimony. The threshold issue at trial was whether the parties’ separation agreement was a genuine property settlement agreement, not subject to modification, or whether its support provision was severable and therefore subject to modification. In its order denying relief the trial court did not specify whether the petition was being denied because the agreement was not subject to modification or, rather, because even though the agreement was subject to modification, the appellant had failed to establish a case for modification. On appeal the husband claims the trial court was wrong in either event, and, of course, the wife claims the trial court was right in either event.

Although we have never imposed a strict requirement that trial courts make written findings of fact, this case represents the perfect example of a case where effective appellate review is made impossible by the absence of specific findings. We could, of course, speculate that the trial court concluded that the agreement was not subject to modification and then review the correctness of that decision. In that event, and, if we agreed with that decision, we would not even address the issue as to the sufficiency of the husband’s proof as to modification. On the other hand, if the trial judge determined that the agreement was not subject to modification he would not even have addressed the sufficiency of the husband’s evidence. However, if we knew that, and subsequently, we were to determine that the agreement was subject to modification, we would remand to the trier of fact to determine the implications of the evidence, not take it upon ourselves to try the issue just because the case was here. Under our system of civil justice the trier of fact must resolve the disputed issue of whether modification is justified. We are limited to reviewing the propriety of that decision.

We simply do not know what the trial judge did, and, not knowing, do not believe we can properly address the issues raised on appeal. Under these circumstances we think the most appropriate thing to do is to request the trial court to specify the grounds for its ruling.

Accordingly, we hereby relinquish jurisdiction to the trial court for a period of thirty days and direct that the trial court enter an amended final judgment reflecting the basis of its decision. Upon receipt of the amended judgment we will be in a position to complete our review.

HURLEY, J., concurs specially with opinion.

WALDEN, J., dissents with opinion.

HURLEY, Judge,

concurring specially.

For the reasons set forth in the majority opinion and for those expressed in my dissenting opinion in Neger v. Wright, 428 So.2d 777 (Fla. 4th DCA 1983), I agree that a relinquishment of jurisdiction is essential to effective appellate review in this case.

WALDEN, Judge,

dissenting:

I would affirm.

In my opinion, the separation agreement was mixed: part property settlement agreement, not modifiable, and part support, subject to modification. There was not a sufficient change in circumstances to warrant modification of the agreed support payment. Thus, the trial court was correct in denying modification.

I do particularly disagree, albeit with respect, to the portion of the majority opinion that commands the trial court to now enter an amended final judgment reflecting the basis of its earlier decision. It is our appellate task to determine if the trial court arrived at a correct conclusion. The process of reasoning whereby the trial court reaches its decision is not controlling. For instance, the trial court will be affirmed if the result is correct, even though based on erroneous reasoning. So this court should accord the appealed order the presumption of correctness and see if there is any legal basis whereby it may be affirmed. See generally 3 Fla.Jur.2d, Appellate Review, Section 296. The foregoing approach was specifically reflected in In re Freeman’s Petition, 84 So.2d 544 (Fla.1955) at page 547:

While, as noted, the order of dismissal did not specify this ground as a basis for the order, we will consider it under our settled practice to affirm a decree of the lower court, even though based on an erroneous ground, if its result is justified on any other ground appearing in the record. [Citation omitted.]

See also Crudele v. Cook, 165 So.2d 424 (Fla. 3d DCA 1963).

I agree that the trial court’s reasoning might be helpful to us. However, since we will not be bound by it, I do not see that it is indispensable. Moreover, I am not acquainted with any rule or authority whereby we are authorized to require the trial court to write an opinion stating reasons for a decision simply because it might be helpful.

Finally, as a matter of policy and respect, I feel that it is unwise for this court to tell a trial court that it must fashion an order or judgment, after the fact, so as to contain the basis for the decision earlier reached. To put the shoe on another foot, I imagine that my colleagues, or some of them, might be somewhat surprised if the Supreme Court should send back one of our affirm-ances without opinion with instructions to write an opinion justifying the affirmance. See Foley v. Weaver Drugs, Inc., 172 So.2d 907 (Fla. 3d DCA 1965), where the Third District Court of Appeal enunciated its reasons for being disinclined to reconsider a cause and prepare an opinion setting forth its theory and reasoning as ordered by the Supreme Court, which reasons I think are applicable to the instant case. See also Williams v. State, 425 So.2d 1163 (Fla. 5th DCA 1983); Time, Inc. v. Firestone, 279 So.2d 389 (Fla. 4th DCA 1973); Hoisington v. Kulchin, 178 So.2d 349 (Fla. 3d DCA 1965).

With this, I respectfully dissent.


text:
    Ray Sam GARNER, Appellant, v. STATE of Florida, Appellee.
    No. 81-2321.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Elton H. Schwarz, Public Defender, and Clifford H. Barnes, Asst. Public Defender, Fort Pierce, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

At issue is whether the trial court erred in denying the public defender’s motion to tax as costs two experts’ fees incurred by counsel on behalf of his indigent client without prior permission of the trial court.

It appears that the two witnesses were expert and were useful to the defense. This is no challenge to the reasonableness of their fees. The State’s position is simply that the public defender’s motion should be denied because no prior application for approval was made to the trial judge as provided in Section 939.07, Florida Statutes (1981).

Upon consideration we reverse upon authority of State v. Board of County Commissioners of Glades County, 370 So.2d 1214 (Fla. 2d DCA 1979), and remand with instructions to grant the public defender’s motion to tax as costs the fees of the two expert witnesses.

REVERSED and REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.

HURLEY, J., dissents without opinion.


text:
    Kenneth LEMOINE, Appellant, v. FLANIGAN’S ENTERPRISES, INC., d/b/a Big Daddy’s, Appellee.
    No. 82-1640.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellant.
    Manuel L. Casabielle and H. Clay Roberts, of Proenza & White, P.A., Miami, for appellee.
   COCALIS, PATRICIA W., . Associate Judge.

Plaintiff appeals from a summary judgment in favor of defendant, a bar owner. The trial court granted summary judgment, finding that plaintiff was an employee of defendant and received a work-related injury while in the course and scope of his employment. On the basis of this conclusion, the court found worker’s compensation to be plaintiff’s exclusive remedy and entered summary judgment in favor of the defendant.

Our review of the record convinces us that an issue of fact existed as to whether plaintiff was in the course and scope of his employment at the time of the injury and the summary judgment is therefore reversed and the matter remanded for further proceedings. We note that other legal issues have been raised on appeal regarding the defense of estoppel and the acceptance of workmen’s compensation benefits. It appears that the trial court has not yet ruled on these issues. The matter is thus remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, C.J., and BERANEK, J., concur.