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

text:
    HERBERT HALBACK, INC., etc., Appellant, v. Sohrab GERAMI, M.D., Appellee.
    No. 83-1380.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for appellant.
    John Sanders of Hunter, Pattillo, March-man, Mapp & Davis, Winter Park, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

Herbert Halback, Inc., a landscape architecture firm, appeals from a final summary judgment denying recovery for landscaping services allegedly rendered to Dr. Sohrab Gerami. We reverse because there was a genuine issue of material fact regarding whether Gerami requested or tacitly agreed to the performance of additional services by Halback.

The record established that Gerami retained Halback to perform certain landscaping services. The written contract provided that the fee would not exceed $5,000. According to a deposition and affidavit submitted by Halback, Gerami expressed a desire for the firm to handle other aspects of the design not specified in the contract. Halback then sent Gerami a letter outlining the additional services which would be performed at the same rate as specified in the agreement. No written acceptance was received, but Halback contends that Gerami indicated that the work was to proceed and never objected to the work while it was being completed. Halback also claimed that Gerami originally agreed to pay the entire bill, but later changed his mind. In his affidavit, Gerami stated that he did not request that Halback perform any services over those specified in the written agreement.

A summary judgment should not be granted unless, construing all the evidence most favorably to the nonmoving party, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. 5th DCA 1982). If issues of fact exist and the slightest doubt remains, a summary judgment cannot be granted. And, of course, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. See; e.g., Allington Towers North, Inc. v. Teich, 345 So.2d 745 (Fla. 4th DCA 1977).

Here, the deposition and affidavit submitted by Halback raise the question of whether Gerami requested or tacitly agreed to the performance of additional landscaping services. Gerami’s affidavit denying that he requested any additional services contained nothing more than mere conclusions or statements of ultimate fact which did not justify the entry of summary judgment in Gerami’s favor. See Lee-Booth, Inc. v. Fidelity and Deposit Co., 399 So.2d 531 (Fla. 2d DCA 1981); Dean v. Gold Coast Theatres, Inc., 156 So.2d 546 (Fla. 2d DCA 1963).

REVERSED and REMANDED for further proceedings.

ORFINGER and SHARP, JJ., concur.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    Nolan N. OSTEEN, et al., Appellants, v. DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION and the Pequot Land Co., et al., Appellees.
    No. 83-1737.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    William L. Colbert and Kenneth W. McIntosh, of Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A., Sanford, and Marcia K. Lippincott, Orlando, for appellants.
    Alan E. DeSerio, Tallahassee, for appel-lees.
   DAUKSCH, Judge.

Affirmed on the authority of City of Jacksonville v. Griffin, 346 So.2d 988 (Fla. 1977).

ORFINGER and COWART, JJ., concur.


author: COBB, Chief Judge.

text:
    Martin J. VANOY, Appellant, v. Linda S. JOHNSON, formerly known as Linda S. Vanoy, Appellee.
    No. 83-1803.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Ralph Geilich of Williams & Geilich, Melbourne, for appellant.
    No appearance for appellee.
   COBB, Chief Judge.

The appellant, Martin J. Vanoy, appeals an order of the circuit court which held him in indirect civil contempt, and which modified the visitation rights of the appellee, Linda Johnson, formerly Linda Vanoy. It is readily apparent that the contempt order must be reversed. The order was entered pursuant to a hearing that was noticed for consideration of the former wife’s petition for modification of a prior custody order. In that petition, she sought primary physical custody of the minor son of the parties, based on a change of circumstances. The charge of indirect contempt against the appellant was not noticed in the manner required for a valid adjudication of contempt under the dictates of due process. Ex Parte Biggers, 85 Fla. 322, 95 So. 763 (1923); Palmer v. Palmer, 36 Fla. 385, 18 So. 720 (1895); Delves v. Delves, 213 So.2d 895 (Fla. 1st DCA 1968); In The Interest of S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965).

The second issue on appeal concerning modification of the mother’s visitation privileges is more difficult to resolve. The trial court held a valid noticed hearing on the appellee’s motion for change of custody. In appellee’s testimony she revealed that she and her new husband were moving from Melbourne, Florida to Atlanta, Georgia within a matter of days. She. was not seeking enlarged visitation, but rather a change of primary custody. The question is whether the notice of hearing on the greater relief sought by the appellee, i.e., complete change of custody, encompasses notice that the lesser relief, i.e., enhanced visitation, may be considered and granted.

The appellant relies on the cases of Cortina v. Cortina, 98 So.2d 334 (Fla.1957) and Scheer v. Scheer, 132 So.2d 456 (Fla. 3d DCA 1961), for the proposition that the trial court cannot modify a prior judgment except where the issue is presented by the pleadings and litigated by the parties during the noticed hearing. We believe that Cortina and Scheer are distinguishable from the instant situation.

In Cortina the noticed issue before the trial court was the alleged contempt of the custodial parent, the mother. Following the hearing on contempt, the trial judge sua sponte revoked a prior support award as a method of enforcing the father’s visitation privileges. The Florida Supreme Court reversed on the basis that the issue of modifying the prior support order was not presented in appropriate pleadings, on the basis that the affected party, the mother, was not afforded an opportunity to be heard on that issue. In Scheer the noticed issue set for hearing was a father’s post-judgment motion for change of custody. After an evidentiary hearing, the trial judge not only denied the requested relief but also completely withdrew the father’s right to visitation, relief which was not pleaded or requested by the mother. The appellate court felt that the final order which granted such visitation rights to the father should not be amended so as to totally divest those rights in the absence of appropriate pleadings and notice apprising the affected party that the issue will be considered by the court. Moreover, the supreme court found that there was no factual basis to support the drastic action taken below.

In the instant case, the father, Martin Vanoy, was on notice that the extent of his primary custody was being challenged, and that he could lose that primary custody altogether to the appellee. Unlike the situation in Cortina and in Scheer, we are not confronted with a trial court judgment made upon a matter entirely outside of the issue presented in the pleadings. Rather, we are dealing with a situation which is analogous to lesser included offenses in the field of criminal law. It would appear that the lesser deprivation which was granted by the trial court (enhancement of the mother’s visitation privileges) was encompassed in the greater requested deprivation (transfer of primary custody to the mother), which was noticed for hearing.

For the foregoing reasons, we reverse the adjudication of contempt, and affirm the trial court’s modification of the mother’s visitation privileges.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings consistent herewith.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Ronald Kenneth DRAVES, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 84-319.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

The appellant raises two points on appeal. We find that both are without merit. First, this court has ruled in four separate cases that while sending the jury tape recorded instructions is a practice to be discouraged, it is not reversible error in the absence of a showing of prejudice. McCarthy v. State, 446 So.2d 252 (Fla. 5th DCA 1984); Powell v. State, 443 So.2d 433 (Fla. 5th DCA 1984); Fayson v. State, 442 So.2d 1030 (Fla. 5th DCA 1983); DeWitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983). This appellant has made no showing of prejudice.

Second, the appellant argues that his concurrent sentences of five years on count one and seven years on count two should be changed to 3.5 years on each count. Under the guidelines score sheet, the recommended sentence for the appellant ranged from five-and-one-half to seven years. Florida Rule of Criminal Procedure 3.701(d)(12) states:

12. Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guidelines sentence unless a written reason is given.

He claims that his concurrent sentences violate this rule, as they total more than seven years and no written reason was given.

Draves is clearly misapplying this section. The use of the term “total sentence” in Rule 3.701(d)(12) does not refer to the mathematical total of two concurrent sentences, such as the sentences in the instant case, but to the actual time required to be served. The total sentence is seven years, not twelve years, and therefore does not exceed the guideline range.

AFFIRMED.

DAUKSCH and ORFINGER, JJ., concur.


author: PER CURIAM.

text:
    Charles Lavern HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 84-561.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Appeal from Circuit Court, Putnam County; Robert R. Perry, Judge.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984) [9 F.L.W. 1493]; Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

DAUKSCH, ORFINGER and COWART, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Wondle Wayne WIMBERLY, Respondent.
    No. 84-1009.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Howard H. Babb, Jr., Public Defender, and Patricia C. Jenkins, Asst. Public Defender, Ocala, for respondent.
   FRANK D. UPCHURCH, Jr., Judge.

Respondent Wondle Wimberly was charged with trespass on property other than.a structure or conveyance in violation of section 810.09, Florida Statutes (1981). He was convicted in county court and appealed the judgment and sentence to the circuit court. The circuit court reversed the conviction holding that the information failed to allege an essential element of the crime charged. The state has petitioned for a writ of certiorari to review the order of the circuit court. We hold that the circuit court’s order departed from the essential requirements of law resulting in a miscarriage of justice and accordingly grant the petition for writ of certiorari.

The amended information charged that Wimberly:

[D]id unlawfully and willfully enter or remain Without being authorized, licensed or invited on the property of T and W MANAGEMENT CORPORATION, d/b/a SHEFFIELD’S TRUCK STOP, in the are, [sic care] custody and control of CHARLES WHITED located in the vicinity of 4032 N.W. CR-326, Oca-la, having notice against trespass, in the violation of Florida Statute 810.09; First Degree Misdemeanor ....

Relying on State v. Dye, 346 So.2d 538 (Fla.1977), the circuit court held that the information filed against Wimberly was fatally defective. In Dye, the defendant was charged with trespass on school property in violation of section 810.09, Florida Statutes (1975). The 1975 statute read in part as follows:

810.09 Trespass on property other than structure or conveyance.—
(1) A person commits an offense if, without being authorized, licensed, or invited, he willfully enters upon or remains in any property other than a structure or conveyance as to which notice against entering or remaining is given by:
(a) Actual communication to the defendant.
Sfc 5}i * ⅜ * *
(2) An offense under this subsection is a misdemeanor of the first degree ... if: (a) The offender defies an order to leave, personally communicated to him by the owner of the premises or other authorized person.
* Sfc * * sfc *
Otherwise, it is a misdemeanor of the second degree ....

The information in Dye charged that the defendant:

[D]id then and there willfully enter upon or remain upon property other than a structure or conveyance, to wit: school campus ... without being authorized, licensed or invited to be upon said property, contrary to F.S. 810.09_

In concluding that the information in Dye was fatally defective, the Florida Supreme Court explained as follows:

An information must allege each of the essential elements of a crime to be valid. 17 FlaJur. Indictments & Informations § 104 (1958). No essential element should be left to inference, (citations omitted)
In the instant case, the information is defective because it does not allege that ‘the offender defied an order to leave, communicated to him by an authorized person.’ Not only does it fail to state that a person with requisite authority demanded he leave, it does not even state that anyone ordered him to leave. See Section 810.09(2)(a), Florida Statutes (1975). An essential element of the offense is therefore omitted. Such an omission must be fatal, especially where the premises are public and not the home of a named person, and it is apparent that appellee’s initial entry upon the premises was lawful, (citation omitted)

346 So.2d at 541.

The opinion in Dye does not state under which subsection the defendant was charged. The result, however, would appear to be correct under either subsection. If the defendant had been charged under subsection 2(a) (as he appears to have been), the omission of any reference to defiance of an order to leave given to him by the owner or other authorized person would render the information fatally defective. And, even if the defendant had been charged under subsection (1), the information failed to refer to any notice and thus was fatally defective.

However, unlike the situation in Dye, the information here did refer to notice, specifically “notice against trespass.” With regard to a charge under subsection (1), perhaps the information should have referred to notice against entering or remaining or specified how the notice was given, i.e., by actual communication or by posting, fencing or cultivation. However, the information did refer to “notice against trespass” and thus the information did not totally omit an essential element, but, at most, imperfectly or imprecisely charged an essential element. As this court has observed:

There is a difference between an information that completely fails to charge a crime and one where the charging allegations are incomplete or imprecise. The former is fundamentally defective. State v. Dye, 346 So.2d 538 (Fla.1977). However, where the information is merely imperfect or imprecise, the failure to timely file a motion to dismiss under Rule 3.190(c) waives the defect and it cannot be raised for the first time on appeal. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982); Kane v. State, 392 So.2d 1012 (Fla. 5th DCA 1981). The test to determine if an information is fatally defective is whether there is a total omission of an essential element of the crime, or whether the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal to the substantial danger of a new prosecution for the same offense. State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980). If the information recites the appropriate statute alleged to be violated, and if the statute clearly includes the omitted words, it cannot be said that the imperfection of the information prejudiced the defendant in his defense.

Jones v. State, 415 So.2d 852, 853 (Fla. 5th DCA), rev. denied, 424 So.2d 761 (Fla.1982).

Writ of certiorari GRANTED, and the order of the circuit court reversing the judgment and sentence of the county court is QUASHED.

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

      . This section provides in part as follows:
      Trespass on property other than structure or conveyance.
      (1) Whoever, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance as to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s.810.011, commits the offense of trespass on property other than a structure or conveyance.
      (2)(a) Except as provided in this subsection, trespass on property other than a structure or conveyance is a misdemenaor of the first degree, ...
      (b) If the offender defies an order to leave, personally communicated to him by the owner of the premises or by an authorized person, or if the offender willfully opens any door, fence, or gate or does any act which exposes animals, crops, or other property to waste, destruction, or freedom, or trespasses on property other than a structure or conveyance, he is guilty of a misdemeanor of the first degree, ...

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


text:
    Daniel Bryan BOWLING, Appellant, v. STATE of Florida, Appellee.
    No. 84-1315.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Daniel Bryan Bowling, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Chief Judge.

The defendant, Daniel Bryan Bowling, filed a 3.850 motion below to correct his sentences in two cases (No. 80-3276 for grand theft and No. 80-3746 for robbery) so that they run concurrently. The basis asserted in his motion for relief is that it was “stipulated” that the robbery sentence of fifteen years was to run concurrently with the previously imposed theft sentence of four years.

The trial court denied the motion on the basis that “Florida Statutes 921.16 ... provided that sentences for offenses not charged in the same indictment, information or affidavit shall be served consecutively unless the Court (otherwise) directs.” The trial court’s order correctly states the law, but did not address the pertinent allegation that the fifteen-year sentence was “stipulated” to run concurrently, even though the written sentence did not reflect that directive.

The transcript of the sentencing hearing supports the movant/appellant. The sentencing judge verbally stated that the robbery sentence was to run concurrently with the previous grand theft sentence. The state concedes error, citing Mays v. State, 349 So.2d 792 (Fla. 2d DCA 1977). Accordingly, we reverse and remand for correction of the sentence in Case No. 80-3746 to show that it shall run concurrently with the sentence in Case No. 80-3276.

REVERSED and REMANDED.

DAUKSCH and ORFINGER, JJ., concur.


text:
    Raul BORGES, Appellant, v. The STATE of Florida, Appellee.
    No. 84-350.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.

      Gold & Fox and Myron M. Gold, for appellant.
    Jim Smith, Atty. Gen. and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Even if, arguendo, it can be said that a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), was required when it appeared that the State had not produced for the defendant’s examination and inspection an item of physical evidence, the existence, location and availability of which was at all times well known to the defendant, the inquiry conducted by the trial court met the requirements of Richardson, and its implicit ruling that the defendant was not prejudiced by the “discovery violation” is amply supported by the record, and the admission into evidence of this practically non-probative and totally cumulative item was clearly justified.

Affirmed.


author: JORGENSON, Judge.

text:
    Dennis E. SHEPARD, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1598.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.

      Dennis E. Shepard, in pro. per.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

Shepard raises several points on appeal from the denial of his Florida Rule of Criminal Procedure 3.850 motion. We find that only one of these points merits discussion.

Shepard spent 110 days in the county jail prior to being sentenced on two counts of sexual battery. The trial court awarded Shepard 55 days credit on each sentence. The sentences were set to run concurrently. It is Shepard’s contention that the trial court erred in not crediting the full amount of time served to each sentence. Shepard’s contention finds support in recent decisions of the First and Second District Courts of Appeal. Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984); Nedd v. Wainwright, 449 So.2d 982 (Fla. 1st DCA 1984); Blackwell v. State, 449 So.2d 1296 (Fla. 2d DCA 1984). In each of those decisions our sister courts held that it was error for the trial court to award jail time credit on only one of two or more concurrent sentences and that full jail time should be credited to each of the sentences.

The state relies on recent decisions of the Fifth District Court of Appeal which have rejected the holding in the above-mentioned decisions. Green v. State, 450 So.2d 1275 (Fla. 5th DCA 1984); Amlotte v. State, 435 So.2d 249 (Fla. 5th DCA 1983), affd on other grounds, 456 So.2d 448 (Fla.1984). In Amlotte the court stated:

We cannot agree with the appellant that concurrent sentences for identical terms of years compel presentence [sic] jail time credit on each sentence. Nothing in section 921.161, Florida Statutes (1981), requires, or even suggests, this construction. We held in Fenn v. State, 418 So.2d 286 (Fla. 5th DCA 1982), that where there are two sentences for two crimes, the credit for pre-sentence jail time need not be allocated to both of those sentences. We made no attempt in Fenn to distinguish between consecutive and concurrent sentences.
The appellant’s reliance on the Florida Supreme Court case of Jenkins v. Wainwright, 285 So.2d 5 (Fla.1973), is misplaced. The sentence in that case, which was imposed at a time where the granting of credit for time served was discretionary with the trial judge, was ambiguous, and the Supreme Court’s opinion merely dealt with the reasonable interpretation of the intent of the sentencing judge.

435 So.2d at 252 (footnote added).

We agree with the reasoning of the Fifth District Court of Appeal and hold that pre-sentence jail time can be allocated to two or more concurrent sentences in any manner as the trial court sees fit as long as the full jail time is credited. Accordingly, the trial court’s order denying Shepard’s Florida Rule of Criminal Procedure 3.850 motion is affirmed. We note conflict with the First and Second District Courts of Appeal.

Affirmed.

      . Section 921.161, Florida Statutes (1983) states, in pertinent part:
      (1) A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

      . The trial court may properly credit the full jail time to one of the concurrent sentences, to all of the concurrent sentences, or may allocate the jail time among the sentences as was done in the instant case.


text:
    Jeffrey SMITH and First Impression Industries, Inc., Petitioners, v. Daniel MONES, P.A., Respondent.
    No. 84-2023.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 1984.
    Levine & Drucker and Robert Levine, Miami, for petitioners.
    Frank M. Marks, Miami, for respondent.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

After the respondent had instituted a common law action for damages, he instituted a creditor’s bill pursuant to Section 68.05 of the Florida Statutes (1983). The causes were consolidated and the trial court entered the order under review which required the defendants to give an inventory of their assets prior to any judgment being rendered in the common law action. Certiorari of this order has been sought under the authority of Malt v. Simmons, 405 So.2d 1018 (Fla. 4th DCA 1981); Accord Manatee County v. Estech General Chemicals Gory., 402 So.2d 75 (Fla. 2nd DCA 1981); Everglades Protective Syndicate, Inc. v. MaKinney, 391 So.2d 262 (Fla. 4th DCA 1980).

We hereby quash the order requiring the inventory. There is no right accorded a plaintiff in a common law action to require a defendant to account for his goods and chattels prejudgment and there is no right in a creditor’s bill to seek relief against assets that are titled in the name of an individual defendant. Stewart v. Manget, 132 Fla. 498, 181 So. 370 (1938); George E. Sebring Company v. O’Rourke, 101 Fla. 885, 134 So. 556 (1931); Hollywood Beach Hotel & Golf Club, Inc. v. Gilliland, 140 Fla. 24, 191 So. 30 (1939). A creditor’s bill can only seek relief against a specific asset which is not in the judgment debtor’s name.' Stewart v. Manget, supra; George E. Sebring Company v. O’Rourke, supra. Of course, any transfer of assets in fraud of creditors is reachable by execution. Riley v. Fatt, 47 So.2d 769 (Fla.1950); Section 56.29 Florida Statutes (1983).

Therefore, for the reasons stated above, the order requiring the inventory is hereby quashed.


text:
    J.J. WICKER, II and Susan L. Wicker, Appellants, v. MERRILL LYNCH RELOCATION MANAGEMENT, INC., a foreign corporation, Ratner Associates, Inc., a Florida corporation, and Barbara Ratner, Appellees.
    Nos. 83-1738, 83-2412.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1984.
    Rehearing Denied Dec. 21, 1984.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellants.
    John T. Morrison, Boca Raton, and Larry Klein, West Palm Beach, for appellees, Ratner.
   PER CURIAM.

We affirm the dismissal of appellants’ complaint. However, we reverse the award of attorney fees. Although appellants’ complaint failed to withstand dismissal, it was not frivolous or entirely devoid of even arguable substance. See Whitten v. Progressive Casualty Ins. Co., 410 So.2d 501 (Fla.1982).

AFFIRMED IN PART, REVERSED IN PART.

DOWNEY, DELL and BARKETT, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Mary Elizabeth BENESTAD, Appellant, v. Torleaf H. BENESTAD, Appellee.
    No. 84-685.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1984.
    Matt D. Heilman of Shaffner, Shaffner & Heilman, P.A., Fort Lauderdale, for appellant.
    Steven Squire of Miller & Squire, Chartered, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a post-judgment order entered in 1984 in a dissolution action in which final judgment had been entered in 1980. We affirm in part; reverse in part.

In 1979, appellee husband filed a petition for dissolution in Broward County, alleging the parties’ marriage in 1939 and their termination of cohabitation in 1972. The record reflects appellee’s 1979 affidavit, stating appellant’s residence to have been New York, which fact is further evidenced by a letter from her to her Florida attorney wherein she refers to an existing “Separation Decree” and her intent to establish the fact that her husband was not a resident of Florida. The attorney to whom she wrote filed only a motion for extension of time in which to plead, alluding to the court’s lack of jurisdiction over the subject matter and the parties, then withdrew. Upon entry of default against appellant, final judgment was entered wherein the trial court said:

This Court shall retain jurisdiction of the parties and the subject matter of this action in order to enter any further order as it may deem appropriate and for such other relief as is necessary and warranted under the circumstances.

Four years later, apparently out of the blue, appellant filed a motion for permanent, periodic and lump sum alimony, alluding to a New York order entered prior to the final judgment in Florida, requiring appellee to pay maintenance of $400.00 per week. Appellee’s motion to dismiss was based on two grounds, both of which he argues here; namely, the trial court’s failure to reserve specifically the issue of alimony, and the invalidity of the reservation of jurisdiction in the final judgment. Ap-pellee’s motion to dismiss was granted by the trial judge who inherited the case from his predecessor. However, the trial judge’s order, granting the motion, relied upon only one ground; namely, his predecessor’s failure to specifically reserve jurisdiction to award alimony subsequent to entry of the final judgment.

In our decision, we rely upon two propositions. The first is from Claughton v. Claughton, 393 So.2d 1061, 1062 (Fla.1980):

Although we approve the granting of this final dissolution with a reservation of jurisdiction to subsequently determine property, custody, and support issues, we believe trial judges should avoid this split procedure. The general law and our procedural rules at both the trial and appellate levels are designed for one final judgment and one appeal. Splitting the process can cause multiple legal and procedural problems which result in delay and additional expense to the litigants. This split procedure should be used only when it is clearly necessary for the best interests of the parties or their children. The convenience of one of the parties for an early remarriage does not justify its use.

The second, consistent with the first, is that a self-executing final judgment in an action wherein no further judicial labor is required or contemplated, ends the litigation between the parties. It is truly a final judgment. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974); Mason v. Mason, 371 So.2d 226 (Fla. 3d DCA 1979).

Taking the two together, we conclude that the language of the final judgment here, reserving jurisdiction, was legally meaningless, as the only issues before the court were the residence of the petitioning husband and the irretrievable break in the marriage. Accordingly, it was correct for the successor trial,,judge to dismiss the post-judgment motion.

However, as Yogi Berra has observed: “It ain’t over till it’s over.” Applied to the present case, the successor trial judge was without authority to dismiss the motion with prejudice. If appellant wishes to initiate a new action for alimony, she is in the same position as anyone with counsel and the appropriate filing fee. We do not voice our opinion upon what she may allege in the new, independent proceeding and merely conclude that the trial court was without jurisdiction to consider, in the same action, a post-mortem motion after the death of the proceeding. We therefore reverse that portion of the subject order which dismissed appellant’s motion with prejudice.

HERSEY and BARKETT, JJ., concur.

      . For a discussion of res judicata in post-judgment proceedings between ex-spouses, see this court’s opinion in Diejuste v. Davis, 400 So.2d 981 (Fla. 4th DCA 1981). The Florida appellate courts have not had occasion to rule in cases whose facts closely parallel those we surmise exist here. Other jurisdictions vary on whether a separate maintenance order, issued in the wife’s domiciliary state, is extinguished by an ex parte marriage dissolution in a different state, the law of the domiciliary state appearing to control the result. We do not give legal advice; we are not about to give a disquisition on conflict of laws, and we do not know whether such an avenue presents itself to appellant. We note, nevertheless, that the Rhode Island Supreme Court dealt with a set of circumstances that may resemble those of appellant in Rymanowski v. Rymanowski, 105 R.I. 89, 249 A.2d 407 (1969).


author: ERVIN, Chief Judge.

text:
    107 GROUP, INC., Appellant, v. GULF COAST PAVING & GRADING, INC., Appellee.
    No. AV-37.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    Dennis K. Larry of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellant.
    No appearance for appellee.
   ERVIN, Chief Judge.

After final judgment, 107 Group appealed an interlocutory order which reinstated Gulf Coast’s action. The issue presented is whether the trial court erred in reinstating the action based on a finding of good cause, pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse with directions.

On July 22, 1980, Gulf Coast filed suit against 107 Group for the unpaid balance on a contract between the parties. 107 Group answered and counterclaimed on August 15, 1980, and Gulf Coast answered the counterclaim seven days later. Three depositions were taken in August and October of 1980, but were not filed until November of 1983. On November 13, 1981, the trial court served on the parties a motion, notice and judgment of dismissal, requiring Gulf Coast to show good cause, or suffer dismissal of its action for failure to prosecute. Gulf Coast filed a “showing of good cause”, stating that it had considerable difficulty in locating certain witnesses. The court found good cause and reinstated the action on December 18, 1981.

After another year of no record activity, the court again served, on January 12, 1983, a motion, notice and judgment of dismissal. Gulf Coast again filed a “showing of good cause”, acknowledging no record activity, but stating that it had been “interviewing witnesses and contacting experts to testify in this matter. That interviewing and discovery by the plaintiff has been completed and the matter is now ready to be set for trial.” After a hearing on February 14, 1983, the court again reinstated the action, stating in its order only that “it appealed] to the court that good cause has been shown why this action should not be dismissed.” A non-jury trial resulted in a verdict and final judgment in favor of Gulf Coast.

Florida Rule of Civil Procedure 1.420(e) states in pertinent part:

Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion ..., after reasonable notice to the parties, unless ... a party shows good cause in writing at least five days before the hearing on the motion why the action should remain pending.

A ruling on a motion for an order of dismissal for failure to prosecute “is subject to attack only on the ground that it constitutes an abuse of discretion” and the losing party must bear this heavy burden. Harris v. Winn-Dixie Stores, Inc., 378 So.2d 90, 92 (Fla. 1st DCA 1979). If, as in this case, there is clearly no record activity, then dismissal can be avoided only by showing “good cause”.

Because the record on appeal did not include the transcription of the February 14, 1983 hearing, we gave the parties an opportunity to supplement the record on appeal by filing a stipulated statement of the issues before the trial court and the basis for the ruling thereon at that hearing. The parties submitted a stipulated statement, disclosing that Gulf Coast had argued before the lower court that the action should not be dismissed as it had been interviewing witnesses and contacting experts to testify. 107 Group had responded that such activity fails to constitute grounds for “good cause”. The stipulated statement further reflects that after hearing arguments of counsel, the trial judge, without stating particular grounds, decided to reinstate the action. Initially, we decide that even though there is no transcription of the February 14,1983 hearing, the stipulated statement as to what occurred at that hearing allows 107 Group the opportunity to meet its burden to show an abuse of discretion. The instant case is distinguishable from Metropolitan Transit Authority v. Kaneva, 351 So.2d 748 (Fla. 3d DCA 1977), where appellant failed to meet its burden by not providing the appellate court with a record of the hearing on appellant’s motion to dismiss for failure to prosecute.

Next, we consider whether interviewing witnesses and contacting experts constitutes good cause. In F.M.C. Corp. v. Chatman, 368 So.2d 1307, 1308 (Fla. 4th DCA 1979), the non-record activity consisted of “telephone calls, conferences and letters between the plaintiffs attorney, his client and potential witnesses, without any contact with the opposing party.” The court reversed the trial judge’s order holding that plaintiff had shown good cause, stating:

[G]ood cause must include contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines. In the case before us there may have been extensive non-record conferences with a “... necessary and vital expert witness,” but such do not prevent, or hinder, compliance with the rules.

368 So.2d at 1308 (emphasis in original). Accord Katoski v. Florida Power and Light Company, 455 So.2d 1327, 1329 (Fla. 4th DCA 1984). Upon authority of F.M. C, we hold that the good cause here asserted — interviewing witnesses and contacting potential expert witnesses — was insufficient, and that 107 Group has met its burden to show an abuse of discretion. We note that Gulf Coast did not allege any physical disability, during the relevant period, to itself or to its attorney. Under Douglas v. Eiriksson, 347 So.2d 1074 (Fla. 1st DCA 1977), such disability would constitute good cause.

The lower court’s order reinstating Gulf Coast’s action is reversed with directions that judgment of dismissal be entered against Gulf Coast.

BOOTH and WENTWORTH, JJ„ concur.


author: SMITH, Judge.

text:
    Aniceto P. SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. AW-418.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    Ted A. Stokes, Milton, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant appeals the sentence imposed by the trial court after conviction by a jury of possession of, with the intent to sell, Lysergic Acid Diethylamid (LSD). Appellant contends here that the trial court erred in departing from the recommended sentencing guidelines, Florida Rules of Criminal Procedure 3.701, In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). Under the guidelines, appellant’s score would have resulted in a recommended sentence of probation to a maximum of twelve months imprisonment, a non-state prison sanction. The trial court, however, chose to depart from the guidelines and sentenced appellant to an indeterminate sentence of between six months to three years imprisonment in a state institution. We affirm.

After conviction of the offense, which was committed in Gulf Breeze, Florida, appellant filed a timely election to be sentenced under the sentencing guidelines, Florida Rules of Criminal Procedure 3.701. At the sentencing hearing, both the state and defense counsel recommended that appellant’s sentence be time served, which to that point amounted to approximately eleven months incarceration. Such a sentence would have fallen within the recommended guidelines sentence. However, the trial court chose to depart from the guidelines, and sentenced the appellant to an indeterminate sentence of between six months to three years in state prison, with credit for 311 days time served to date. As reasons for the departure, which were set forth in a meticulously prepared six-page order, the trial judge found, among other things, “that the nature of the drug LSD and its damage to the citizens of the First Judicial Circuit warrants a sentence outside of the sentencing guidelines.” The trial judge also cited the need to satisfy the “dispassionate enlightened conscience of the community” of Santa Rosa County. The trial judge felt that a departure from the guidelines in appellant’s case would “have a substantial deterrent effect on such criminal conduct.” The trial judge further cited what he found to be the “nature and perceived dangers to the community and the community interest in deterring the possession with intent to sell Lysergic Acid Diethylamid” in Santa Rosa County, an area he characterized through judicial notice as a predominantly rural, agricultural economy and culture. After the trial judge gave his reasons for departure, appellant’s counsel and the state stipulated that the area where appellant had been arrested, Gulf Breeze, was an urban area, not rural.

Appellant asserts that Rule 3.701 delineates the presumptively correct bounds of judicial discretion, and that the trial court’s reasons for departure were not clear and convincing in that there is no evidence in the record to support the trial judge’s findings, other than judicial notice of the character of the area and the extent of illicit drug activity in the area where appellant was arrested. Appellant suggests that the trial judge’s real concern was in his disagreement with the legislature in categorizing LSD with other Schedule I substances as set forth in Section 893.03, Florida Statutes. Appellant contends these reasons are insufficient to establish the “clear and convincing” standard set forth in Rule 3.701(d)(ll), as justifying departure from the recommended sentence. We find these contentions unavailing.

We have held in Garcia, v. State, 454 So.2d 714 (Fla. 1st DCA 1984), that the trial judges should “... continue to have the same broad sentencing discretion conferred upon them under the general law, subject only to certain limitations or conditions imposed by the guidelines, which are to be narrowly construed so as to encroach as little as possible on the sentencing judge’s discretion, but whose specific directives we are required to recognize in a manner consistent with the guidelines stated goals and purposes.” Id. at 717. Accordingly, we must recognize a judge’s discretion to sentence outside the recommended guideline sentence, provided clear and convincing reasons are given in writing. Moreover, these reasons should be reviewed broadly so as to not “usurp judicial discretion.” Rule 3.701(b)(6). We are in agreement with the standard of review in Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984), which held that the reviewing court should not “reevaluate” the trial court’s exercise of discretion. Rather, the reviewing court should “assure that there is no abuse of that discretion.”

In reviewing the instant case, we apply the standard set forth in Addison v. State, supra, and find that the trial court did not abuse its sentencing discretion by departing from the guidelines. We conclude that the trial judge’s judicial notice of the character of the area and the harmful nature of LSD, compared to other Schedule I substances, was proper because these are matters uniquely within the trial judge’s knowledge and expertise, and may appropriately guide the judge in exercising his sentencing discretion. To hold otherwise, in our view, would tend to reduce the trial judge — to whom is entrusted probably the most weighty responsibilities of any public official in the local community in other areas — to a mere automaton in sentencing matters. This we decline to do. Accordingly, the sentence appealed is AFFIRMED.

WENTWORTH and WIGGINTON, JJ., concur.


text:
    Danny L. OSBORN, Appellant, v. STATE of Florida, Appellee.
    No. AX-136.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    Danny L. Osborn, in pro. per.
    Jim Smith, Atty. Gen., and Thomas H. Bateman, III, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

We affirm. With respect to the appellant’s claims of ineffective assistance of counsel, we decline to consider the same in the instant appeal, the appellant not having heretofore raised by appropriate motion such matters in the lower court, and the facts giving rise to such claims not being apparent on the face of the record.

Affirmed.

JOANOS, WIGGINTON and NIMMONS, JJ., concur.


author: SHIVERS, Judge. WENTWORTH, Judge,

text:
    Andrew HEIGHT, Appellant, v. STATE of Florida, Appellee.
    No. AX-165.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    Michael E. Allen, Public Defender, Virginia Daire, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., John Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant, a prison inmate, was accused of assaulting a fellow inmate with a knife, given Miranda warnings, questioned concerning the incident and placed in administrative detention. Three months later, the appellant was charged with aggravated battery and possession of a weapon by a State prisoner. Appellant moved for discharge of the information alleging that his right to a speedy trial, pursuant to Fla.R. Crim.P. 3.191(a)(1) had been violated as more than 180 days had passed since he was placed in administrative confinement. The trial court denied the motion. We affirm.

The appellant contends that placement in administrative confinement as a result of the conduct which later gives rise to charges constitutes an arrest for the purposes of commencing the 180 day speedy trial period. This court has consistently rejected this position. See Powers v. State, 422 So.2d 981 (Fla. 1st DCA 1982); Lynn v. State, 436 So.2d 416 (Fla. 1st DCA 1983); Turner v. State, 442 So.2d 1064 (Fla. 1st DCA 1983).

NIMMONS, J., concurs.

WENTWORTH, J., dissents with written opinion.

WENTWORTH, Judge,

dissenting.

I dissent and would reverse based on my conclusion that the administrative confinement in this case resulted solely from the conduct giving rise to charges filed more than 180 days after appellant was “miran-dized,” interrogated, and custodially segregated from the inmate population. See concurring opinion of Judge Ervin in Lynn v. State, 436 So.2d 416 (Fla. 1st DCA 1983).


author: JOANOS, Judge.

text:
    In the Interest of T.T., A Child, Appellant, v. STATE of Florida, Appellee.
    No. AX-451.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    C. Richard Parker, Public Defender and Paul R. Silverman, Asst. Public Defender, Starke, for appellant.
    Jim Smith, Atty. Gen. and Henri C. Caw-thon, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   JOANOS, Judge.

Appellant contends there was insufficient evidence adduced at trial to support a finding of guilt and insufficient evidence to ■ establish that a firearm was used in the robbery for which he was adjudicated delinquent. We do not agree and affirm.

Appellant was identified as the perpetrator of the robbery through voice identification by the two victims, one of whom had known appellant for ten years. Voice identification is direct and positive proof the probative value of which is determined by the finder of fact. Mack v. State, 54 Fla. 55, 44 So. 706 (1907).

Both victims testified that appellant held an object which appeared to be a gun. When appellant accosted the first victim, he threatened, “Give me the money or I’ll blow your brains out.” While being pursued by the second victim, appellant stopped, turned, pointed the object toward the victim and shouted, “Stop or I’ll shoot.” Appellant argues that the trial court erroneously used a subjective test to determine that a firearm was used, citing I.O. v. State, 412 So.2d 42 (Fla. 3rd DCA 1982) [Reasonable belief of victim that weapon was a real gun erroneously used to find aggravated assault] and McCray v. State, 358 So.2d 615 (Fla. 1st DCA 1978) [Cigarette lighter shaped like a gun, with no evidence that death or great bodily harm would result from its use, did not constitute a weapon for the purposes of imposing an aggravated penalty],

We distinguish both cases in that here there was additional evidence of appellant’s stop and threat during his flight. This additional evidence proves more than a subjective belief by the victims that the object was a firearm. Circumstantial evidence is properly used to prove the guilt of an accused. See Toler v. State, 457 So.2d 1115 (Fla. 1st DCA 1984). The standard of proof to adjudge a minor delinquent is the same as that required to convict an adult. J.L.J. v. State, 367 So.2d 699 (Fla. 2nd DCA 1979).

We find that the circumstantial evidence was such that the trial judge, sitting as the trier of fact in this juvenile proceeding, could properly conclude that appellant used a firearm in the robbery.

Accordingly, appellant’s adjudication of delinquency and disposition is AFFIRMED.

WIGGINTON and BARFIELD, JJ., concur.


text:
    TROPICANA PRODUCTS, INC., Appellant, v. James D. HURLBERT, Appellee.
    No. AY-227.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1984.
    James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., Fort Pierce, for appellant.
    Vincent A. Lloyd of Lloyd, Brown, Fowler, Hoskins & Becht, Fort Pierce, and Martha C. Warner, Stuart, for appellee.
   PER CURIAM.

AFFIRMED. Aris v. Big Ten Taxi Corporation, 330 So.2d 465 (Fla.1976).

BOOTH, SMITH and THOMPSON, JJ., concur.


author: DANAHY, Judge.

text:
    Gail H. KREMER, Appellant, v. Paul W. KREMER, Appellee.
    No. 84-446.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.

      Joseph R. Park of Park & Smith, Clear-water, for appellant.
    Marian P. McCulloch and Guy M. Burns of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Cole & Shasteen, Tampa, for appellee.
   DANAHY, Judge.

In this dissolution of marriage proceeding, the wife argues that the trial judge abused his discretion in failing to award her a one-half interest in a major equity asset of the marriage partnership, which was titled solely in the husband’s name. We agree.

The parties were married for twenty-five years, twenty years of which the wife spent at home serving in the role of homemaker and mother to three children born of the marriage, while the husband pursued a successful career in banking and eventually became a bank president. In recent years, the wife went back to school and became a certified public accountant. She is currently employed in that capacity.

During the course of the marriage, the parties acquired substantial assets. One of these was unit 403 in Sand Castle III condominium, purchased in September of 1981. The equity in this property is substantial. It was acquired in part by jointly owned funds and in part by a loan against the husband’s life insurance policy; by a profit sharing check distributed to the husband from his former employer; and by a return of capital from a partnership in which the husband had invested. The investment in the partnership came from the husband’s earnings and the sale of two family cars. The final judgment, while awarding the wife an interest in other less valuable properties, failed to award the wife any interest at all in Sand Castle III unit 403. We believe that the trial judge abused his discretion, using the test that reasonable persons could not differ as to the propriety of awarding the wife an interest in that property. Kuvin v. Kuvin, 442 So.2d 203 (Fla. 1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Accordingly, we reverse the final judgment and remand with directions that the trial judge award the wife a one-half interest in unit 403, Sand Castle III condominium, as lump sum alimony. In all other respects the final judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


text:
    Patricia Granger BASSETT, Appellant, v. Frederick Scott BASSETT, Appellee.
    No. 84-655.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.

      Clinton A. Curtis, Bartow, for appellant.
    Norman White of Bradley, Johnson, Nelson, Young & Horton, Lake Wales, for appellee.
   PER CURIAM.

The appellant, Patricia Granger Bassett, appeals from the final judgment dissolving her ten-year marriage to the appellee, Frederick Scott Bassett. We affirm in part and reverse in part.

By the terms of the final judgment, each party received certain personal property. They became tenants in common to three parcels of real estate jointly owned by them prior to the dissolution. The trial court denied the appellant’s request for alimony and for a special equity in the marital home. The parties were ordered to pay their own attorney’s fees and costs.

We find no abuse of discretion in the denial of attorney’s fees to appellant. However, we agree with appellant’s contention that the court erred in failing to award her a special equity in the marital home and in failing to award her rehabilitative alimony.

In the absence of a showing as to why either spouse should be awarded more than an equal proportion of real property held as tenants by the entireties, record title speaks for itself and the division of property will be equal between the spouses. Ball v. Ball, 335 So.2d 5 (Fla.1976). A spouse, however, may try to establish a special equity in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. Ball.

During the marriage, the parties acquired three parcels of property in their joint names. One parcel was the marital home which had an appraised value of $154,000. The second was a vacation home valued at $73,500 but encumbered by an $18,000 mortgage. The third parcel was a lot in a mobile home park worth approximately $14,000.

It is undisputed that $10,000 of the appellant’s funds, from a source totally unconnected to the marital relationship, was used to purchase the lot on which the marital home was built. Appellee did not present evidence that this contribution was intended as a gift. Thus, appellant established her right to a special equity by an unrebutted showing of extraordinary contribution in connection with the purchase of the property from a source clearly unconnected to the marital relationship. Since there was an absence of evidence that a gift was intended, the court erred in failing to award appellant a special equity in the marital home. Ball; Landay v. Landay, 429 So.2d 1197 (Fla.1983).

On the issue of rehabilitative alimony, there is no doubt of the husband’s ability to pay. He is a college graduate who has worked on commission for the same company for nineteen years as a heavy equipment salesman. His gross income for the last four years was $58,000 in 1980, $70,000 in 1981, $26,000 in 1982, and $43,382 in 1983. His employer provides him with an automobile, an expense account, and other fringe benefits.

The wife, a high school graduate, was earning $100 a week as a secretary in 1973 when the parties were married. She terminated this employment at the request of her husband. During the marriage, she did some part-time interior decorating from which she earned as much as $3,000 a year. She also acquired a real estate license but has never sold any property. After the parties’ separation, she unsuccessfully tried to obtain secretarial work. She now works for an interior decorating service at $100 per week. The only other money she receives is $385 per month as support for a minor child of a previous marriage.

The wife’s assets consist of a $1,500 boat, a twelve-year-old Buick, some furniture, and her interest in the three parcels of real estate. Her only access to cash is the dubious right to draw on a $30,000 money market account in the name of her daughter which was accumulated from the child support payments received during the recent marriage.

The only way in which the wife can obtain a standard of living which even approaches that enjoyed by the parties during their marriage is by improving her job skills. She would like to enroll in a two-year program which teaches court reporting for which the total tuition is $7,500. She can hardly attend court reporting school and take care of her other needs without outside assistance. She is entitled to rehabilitative alimony for a two-year period.

Accordingly, we reverse and remand for a hearing to determine the extent of the appellant’s special equity in the marital home based upon the value of her contribution toward the purchase of the lot. Lan-day. We direct the award of reasonable rehabilitative alimony to appellant for two years. We affirm the judgment in all other respects.

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


text:
    Moses JONES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1096.
    District Court of Appeal of Florida, Fifth District.
    Nov. 29, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen.,- Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

We affirm although we hereby certify to the Florida Supreme Court the following question of great public importance:

Harris v. State, 438 So.2d 787 (Fla.1983), recognizes a constitutional right of an accused in a capital case to have the jury instructed as to necessarily lesser included offenses and that the violation of that right constitutes fundamental error, a waiver of which, to be effective, must be made on the record knowingly and intelligently by the accused personally rather than by counsel. Do those charged with non-capital crimes enjoy this constitutional right as well as those charged with capital crimes?

AFFIRMED.

ORFINGER, FRANK'D. UPCHURCH, Jr., and COWART, JJ., concur.


text:
    DAWN DEVELOPERS, INC., Appellant, v. ALCAN ALUMINUM CORPORATION, etc., Appellee.
    No. 83-1590.
    District Court of Appeal of Florida, Fifth District.
    Nov. 29, 1984.
    George L. Winslow, Jr., of Wright, Ful-ford & Winslow, Orlando, for appellant.
    Morton Kosto of Kosto & Rotella, P.A., Orlando, for appellee.
   PER CURIAM.

Affirmed. See B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980), and Moore v. Schraw, 455 So.2d 605 (Fla. 5th DCA 1984).

DAUKSCH; ORFINGER and COWART, JJ., concur.


text:
    Annette Z. STRENGTH, Appellant, v. STATE of Florida, Appellee.
    No. 83-1631.
    District Court of Appeal of Florida, Fifth District.
    Nov. 29, 1984.
    Sharon W. Ehrenreich, of Law Firm of Huntley Johnson, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984); Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984); Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984).

COBB, C.J., and FRANK D. UP-CHURCH, Jr., and SHARP, JJ., concur.


text:
    In re Frank Leo KLEMENC, Deceased. Vincent CLEMENCE and Maureen Poppovich, as Personal Representatives, Appellants/Cross-Appellees, v. Billie Burke KLEMENC, Appellee/Cross-Appellant.
    No. 83-1842.
    District Court of Appeal of Florida, Fifth District.
    Nov. 29, 1984.
    Paul E. Rice, Jr., of Becks, Becks & Wickersham, Daytona Beach, for appellants/ cross-appellees.
    Garrett L. Briggs, of Adams & Briggs, Daytona Beach, for appellee/cross-appel-lant.
   PER CURIAM.

AFFIRMED.

See Marsh v. Marsh, 419 So.2d 629 (Fla.1982).

COBB, C.J., and FRANK D. UP-CHURCH, Jr. and SHARP, JJ., concur.


author: COWART, Judge.

text:
    Eva J. KORTUM, Appellant, v. STATE of Florida, Appellee.
    No. 84-48.
    District Court of Appeal of Florida, Fifth District.
    Nov. 29, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

The facts constituting the probable cause upon which the search warrant in this case was issued were independent and unrelated to an earlier illegal entry of the premises searched under the search warrant. Therefore, the search warrant was valid and the evidence seized under it was not tainted by the illegal entry and not subject to suppression. See Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

AFFIRMED.

ORFINGER, J., and POWELL, R.W., Associate Judge, concur.


text:
    Roy Charles BELL, Appellant, v. STATE of Florida, Appellee.
    No. 84-551.
    District Court of Appeal of Florida, Fifth District.
    Nov. 29, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from a guideline sentence. Appellant was sentenced after a probation violation to a thirty month prison term. That sentence was within the cell next above that which should have been given. Because appellant violated his probation the judge was justified in sentencing him to the greater punishment. Atkinson v. State, 456 So.2d 568 (Fla. 5th DCA 1984); Maged v. State, 455 So.2d 1153 (Fla. 5th DCA 1984); Davis v. State, 455 So.2d 602 (Fla. 5th DCA 1984); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984); Neely v. State, 453 So.2d 129 (Fla. 5th DCA 1984); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984).

The record is sufficient to support the departure from the lower recommended sentence because the trial judge stated the reason on the record. Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984); Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984).

The principal point appellant raises is that the trial judge erred in relying upon a memorandum of the Sentencing Guidelines Commission which recommended that judges be permitted to sentence a probation violator to punishment within the next higher cell of the guidelines without giving any reason for the greater sentence. Appellant says the recommendation had no effect in law because it had not been adopted by the supreme court or the legislature. While appellant is correct the recommendation had not been adopted, we cannot agree the judge erred. This court has held that a violation of probation constitutes sufficient grounds to depart from the guidelines. If we were to rule otherwise here we would be in conflict with a prior decision of this court.

AFFIRMED.

DAUKSCH, ORFINGER and COWART, JJ., concur.


author: CAMPBELL, Judge. SCHOONOVER, Judge,

text:
    STATE of Florida, Appellant, v. Dan SLY, III, Appellee.
    No. 83-2350.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Michael P. Haymans of Farr, Farr, Hay-mans, Moseley, Emerich & Sifrit, Punta Gorda, for appellee.
   CAMPBELL, Judge.

Appellant, State of Florida, appeals the order of the trial court discharging appellee under the speedy trial rule, Florida Rule of Criminal Procedure 3.191(a)(1). We reverse.

Appellee was arrested on April 12, 1983, and charged with trafficking in cocaine, conspiracy to traffic in cocaine and possession of cocaine. On Tuesday, September 13, 1983, appellee’s trial began.

The first day of trial was consumed by jury selection. A jury was selected and sworn by the conclusion of the first day. At 9:00 a.m., on Wednesday, September 14, 1983, at the beginning of the second day of trial, and before any witnesses were called, counsel for appellee moved to dismiss the charges against appellee. Appellee’s motion was based on allegations of violation of his constitutional rights to due process.

The motion alleged the unavailability of Linda Bailey, a confidential informant and material defense witness. Outside the presence of the jury, counsel for appellee informed the court that the only address he had for the confidential informant was in care of the Charlotte County Sheriff. It was conceded that she had been produced through that address on prior occasions in the proceeding below for the purpose of defense depositions. Appellee represented to the court that a subpoena for the witness to appear for trial on Tuesday, September 13, 1983, had been delivered to the Charlotte County Sheriff’s Office on Friday morning, September 9, 1983. He further represented, and the state conceded, that the witness was a material defense witness, crucial to appellee. The court acknowledged that because of other proceedings in the case, it was well aware of the critical nature of the witness’s testimony, as well as an awareness of the need and justification that any information as to her whereabouts not be published.

Interestingly, appellee’s motion to dismiss makes an unexplained assertion that an attempt to serve the subpoena on the witness had also been made through the DeSoto County Sheriffs Office.

Appellee alleged that while counsel for the state had been cooperative in an attempt to secure the presence of the witness for trial, the Charlotte County Sheriffs Office had been uncooperative. This allegation against the Charlotte County Sheriffs Office was based on a representation by appellee’s counsel that he had delivered the subpoena to a civil clerk of the sheriff on Friday morning; that the same clerk had presented it to an agent for service on Friday afternoon, and; that agent had indicated something to the effect that since he did not work on Saturdays, he would not attempt service until Monday. Appellee’s counsel concluded his argument for dismissal by stating:

They have an obligation to provide her, they — at least one agent in the Sheriff’s Office was derelict in that obligation, and that — and it’s resulted in a prejudicial situation for this defendant. If we go through trial, all the way through trial and Linda Bailey does not show up, then, Your Honor, I feel that the whole time would have been wasted; I don’t believe there’s any indication that she can or will be found before the end of this trial. The state responded that:
I would conceed [sic] that Linda Bailey— her address has been given to the defense as being the Charlotte County Sheriff’s Department, she has been produced on prior occasions on this particular case to give depositions; since the time of the subpoena being served efforts have been made, those efforts continued until shortly before this court proceeding, Your Honor. Certainly last night three agents from the Special Investigations Division of the Charlotte County Sheriffs Department were out looking for Miss Bailey all evening. Without success.
We at this time candidly cannot tell the Court when she will be' available. However, I would also state, Your Honor, that speedy trial has not yet run in this particular matter. I do not know that— if a Motion to Dismiss is in fact the avenue to be taken instead of, perhaps, a mistrial. But I cannot give the Court any assurances that this individual can be produced tomorrow, the next day, next week, or next month.

The court thereupon announced “[i]n an abundance of caution,” it would “declare a mistrial at this time.”

Thereafter, on October 19, 1983, appellee filed another motion for dismissal and discharge. He asked for discharge pursuant to Rule 3.191(a), on the grounds that on October 9, 1983, the 180-day speedy trial period had elapsed. Appellee’s alternative motion to dismiss was brought pursuant to Florida Rule of Criminal Procedure 3.190(b), on the grounds of double jeopardy. Appellee alleged the previous mistrial was declared due to state misconduct. A hearing on that motion was held on October 24, 1983.

During that hearing, only two witnesses testified very briefly. First to testify was the Charlotte County Sheriff’s agent who received the subpoena from the civil clerk for service. His testimony was that he received the subpoena on Friday afternoon, September 9, 1983, for the witness’s appearance on Tuesday, September 13, 1983. He testified he told the civil clerk he did not work on weekends, but that his reason for doing so was that “I work every weekend; I don’t let everybody know what my business is.” He also testified he tried to serve the subpoena on Saturday by going out-of-town to look for the witness.

The civil clerk also testified. Her testimony was, in essence, no more than she had delivered the subpoena to the agent for service, who informed her he did not work weekends. She further testified that she vaguely remembered telling appellee’s counsel on Monday morning, September 12, 1983, that they were having a “problem getting service.”

We conclude that the court was in error to dismiss the charges against appellee on the basis of the speedy trial rule. Rule 3.191(d)(3)(g) clearly provides that when a mistrial has been granted, the defendant must be brought to trial within ninety days from the date of the mistrial. The time for trial under that provision would not have expired until December 12, 1984.

We cannot conclude that the evidence supports the argument of the appellee that the mistrial was granted because of misconduct of the state. There is no evidence that the sheriffs office did not use reasonable diligence to serve the missing witness. There is no evidence that the state, in any way, was secreting the witness or preventing her from testifying.

The only evidence tends to show the fact to be that no one knew where she was so that she could be served. The witness was not a state’s witness. Her deposition had been previously taken by appellee and she was to be appellee’s witness. All of the cases which declare the impropriety of a mistrial so as to prevent the state from bringing the case to trial again, can be distinguished. First of all, it must be noted that though appellee did not request a mistrial, he did not object to it. Although merely standing silent when a mistrial is improperly granted will not impute consent to a defendant, when the mistrial is for the defendant’s benefit he should either object or be held to have consented.

In this, case, the missing witness was a witness crucial to the defense. Both the state and defendant conceded they did not know her whereabouts or when she could be found. We feel the original mistrial by the trial court here was a wise decision for the benefit of the defense and analogous to the case of State Ex Rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951).

Ostane v. Hickey, 385 So.2d 110 (Fla. 3d DCA 1980), wherein the court declared a mistrial improper and reprosecution barred by double jeopardy, is factually distinguishable. The trial judge in that case had declared a mistrial at the request of the state when an essential state’s witness was stabbed in front of the courthouse after trial had commenced. The trial judge acted without any knowledge as to when the witness would be available. The appellate court concluded that a single inquiry by the trial court would have determined the witness would have been available after a short recess. The mistrial was therefore improper over objections by the defendant.

Ostane relied on the decision of this court in Bryant v. Stickley, 215 So.2d 786 (Fla. 2d DCA 1968). That case is also distinguishable. There, after trial had commenced, the trial judge received a doctor’s statement that the prosecuting attorney had been admitted to the hospital. The state requested a mistrial. This court, in holding that further prosecution was barred by double jeopardy, did so on the basis that the “mistrial was declared by the court without the taking of any testimony, without the consent of the defendant (ap-pellee herein), and without determining whether the circumstances herein infected the trial.” Again, the mistrial was for the benefit of the state, not the defendant. Bryant at 787.

We consider the trial court to have had a valid reason for declaring a mistrial in this case. In State Ex Rel. Mitchell v. Walker, 294 So.2d 124, 127 (Fla. 2d DCA 1974), this court held that the choice of declaring a mistrial over a defendant’s objection must be supported by a “valid reason.” The “ ‘valid reason’ for so declaring a mistrial must be predicated either on some misfortune which, although the fault of neither party, renders continuation of the trial impossible or unreasonably prejudicial to the substantial interests of either the judicial process itself, the defendant, the state or both....”

We find no cause here to alter our conclusions because no witnesses were called to establish the essential facts before the trial judge declared a mistrial. The facts were not in dispute and were acknowledged by both appellee and the state and the trial judge himself expressed familiarity with most of the circumstances. It does not appear that even at the subsequent hearing on October 24, 1983, could anyone present testimony as to the whereabouts of the witness or when she might be available.

Appellee argues a number of cases which have to do with disclosure of confidential informants to the defense. Those cases are not pertinent here. The appellee was well aware of the existence of the witness, had deposed her and issued a subpoena for trial. The state’s misconduct is alleged in not producing her at trial. We think the reasoning of the court in State v. Mesa, 395 So.2d 242 (Fla. 3d DCA 1981), is applicable. The state is not ordinarily obliged, at pain of dismissal, to produce defense witnesses. Even here, where the address was furnished in care of the sheriff, there is no indication that the prosecution improperly concealed the witness’s whereabouts or induced her to disappear.

Reversed and remanded for proceedings consistent herewith.

GRIMES, A.C.J., concurs.

SCHOONOVER, J., concurs specially with opinion.

SCHOONOVER, Judge,

concurs specialty-

I agree with the result reached by the majority. The trial court did not err in denying appellee’s motion to dismiss or in finding a valid reason for declaring a mistrial. Once the mistrial was properly declared, rules 3.191(d)(3) and (g) became applicable and the state had ninety days to bring appellee to trial.

I disagree with the portion of the majority opinion stating that “although merely standing silent when a mistrial is improperly granted will not impute consent to a defendant, when the mistrial is for the defendant’s benefit he should either object or be held to have consented.”

If, as we have held in this case, there arises a manifest, urgent, or absolute necessity in the interest of justice to declare a mistrial, the defendant’s consent is not required for the declaration of mistrial to be proper. See State ex rel. Larkins. Conversely, when a mistrial is declared without legally sufficient reason or absolute necessity, the discharge of the jury is equivalent to an acquittal, and a subsequent trial for the same offense is precluded if the defendant did not consent to the mistrial. State ex rel. Williams v. Grayson, 90 So.2d 710 (Fla.1956); State ex rel. Larkins. A defendant’s silence or failure to protest against an improperly granted mistrial neither constitutes consent nor operates to waive the constitutional prohibition against double jeopardy. State ex rel. Williams; Spaziano v. State, 429 So.2d 1344 (Fla. 2d DCA 1983). I see no reason to change this rule in cases where a mistrial benefits the defendant. See United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); State ex rel. Larkins; Allen v. State, 52 Fla. 1, 41 So. 593 (1906).

I therefore concur with the result reached by the majority, but disagree with that portion of the opinion hereinabove discussed.


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    Betty R. HOWARD, Appellant, v. Clarence G. HOWARD, Appellee.
    No. AU-464.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Lacy Mahon, Jr. of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Barry Li Zisser and John S. Mordecai of Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984); Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

The court was severely hampered by the lack of an adequate record, which has caused unnecessary judicial labor and delayed disposition unduly. While we have decided the case on the merits based on the record before us, we feel compelled to point out that appellant came perilously close to no review on the merits for failure ta provide an adequate record. See Clayton v. Clayton, 442 So.2d 310 (Fla. 1st DCA 1983).

SHIVERS, THOMPSON and ZEHMER, JJ., concur.


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    Carolyn LEWIS, Appellant, v. Anderson LEWIS, Jr., Appellee.
    No. AW-78.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Joseph J. Bartholdi, Northwest Florida Legal Services, Pensacola, for appellant.
    K. Jeffrey Reynolds of Reynolds & Rhodes, Pensacola, for appellee.
   JOANOS, Judge.

Carolyn Lewis appeals from an order modifying a final judgment of dissolution by reducing Anderson Lewis Jr.’s child support obligation. Carolyn argues that the reduction is improper without pleadings regarding same and evidence of changed circumstances. We agree and reverse.

Modification of child support is improper where there is no pleading requesting a modification of child support and no indication that financial information adduced at the hearing to prove arrearages and ability to pay would be considered by the trial court as a basis for modification. Smith v. Smith, 363 So.2d 832 (Fla. 1st DCA 1978). A party must also show a substantial change of circumstances in order to obtain modification of child support. Andrews v. Andrews, 448 So.2d 551 (Fla. 1st DCA 1984).

The trial court lacked any pleadings relating to modification of child support, there was no indication that financial information would be considered by the trial court as a basis for modification, and there was no showing, by either party, of a substantial change of circumstances.

Anderson’s argument that his petition for general relief would allow the trial court to lower the child support is of no consequence. Even had the petition contained sufficient allegations, it could not be relied upon because it had been dismissed as moot.

Accordingly, the modification order is reversed and this cau'se is remanded for consideration in light of this holding.

WIGGINTON and BARFIELD, JJ., concur.


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    James W. GRAHAM, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. AW-380.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Gerald A. McGill of Kirtz, Southworth & McGill, Pensacola, for appellant.
    Miles Davis of Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

The question presented on this appeal is whether section 627.727, Florida Statutes (1979), required the appellee insurer to obtain an affirmative rejection of uninsured motorist coverage in an amount equal to the bodily injury liability limits after the insured’s initial rejection by reason of the fact that insured automobiles were changed from time to time by endorsement and the appellant’s minor child was added as an additional insured. Appellant claims that such changes constituted the issuance of a new policy of insurance by the insurer, requiring a new affirmative rejection of the uninsured motorist coverage. The record reflects that the policy was renewed annually from its inception in 1975 to 1980, the date of the injury giving rise to this claim. We find that Sentry Insurance A Mutual Company v. McGowan, 425 So.2d 98 (Fla. 5th DCA 1983), is controlling on this issue. We do not consider the decision in Sentry Insurance to be inconsistent with our decision in Maxwell v. United States Fidelity & Guaranty Co., 399 So.2d 1051 (Fla. 1st DCA 1981). The order granting summary judgment for appellee is therefore AFFIRMED.

SMITH, ZEHMER and BARFIELD, JJ., concur.


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    BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Donald NEIL, Appellee.
    No. AY-333.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    C. Randal Morcroft, Fort Lauderdale, for appellant.
    Joseph J. Finkelstein of Pelzner, Schwe-dock, Finkelstein & Klausner, P.A., Miami, for appellee.
   PER CURIAM.

We affirm the deputy commissioner’s order finding claimant’s open heart surgery to be compensable. Claimant had not experienced heart problems prior to August 29, 1983, when he engaged in a rigorous, unsupervised eight hour physical profile program. His participation in this exercise unquestionably met the requirement of unusual strain or overexertion not routine to the type of work he was accustomed to performing. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962).

After August 29, 1983, claimant suffered chest pain, headaches, exhaustion, and numbness in his arms which progressively worsened until claimant sought treatment and had the bypass surgery performed, and thus we find that his heart condition was rendered unstable by the events of August 29, 1983. Nationwide Utilities, Inc. v. Hord, IRC Order 2-3746 (March 23, 1979), cert. den., 381 So.2d 768 (Fla.1980). This court’s decision in Dade Property Management, Inc. v. Lazo, 418 So.2d 393 (Fla. 1st DCA 1982), is distinguishable because in that case, unlike the present one, the claimant’s heart disease was symptomatic prior to the work-related incident, the angina experienced as a result of the work-related incident subsided before the claimant sought medical treatment, and the claimant’s heart surgery was performed when his heart disease was asymptomatic.

AFFIRMED.

BOOTH, SMITH and THOMPSON, JJ., concur.


author: MILLS, Judge.

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    Sandra K. HOOVER, Appellant, v. Robert M. HOOVER, Appellee.
    No. BC-256.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1984.
    Albert H. Mickler, Jacksonville, for appellant.
    Jeff Grainger, Jacksonville, for appellee.
   MILLS, Judge.

Petitioner Sandra K. Hoover (Sandra), by a timely petition for writ of certiorari, seeks review of an interlocutory order compelling her compliance with • a subpoena duces tecum served on her by respondent Robert M. Hoover (Robert). The petition is denied.

Sandra and Robert were divorced by final judgment dated 10 May 1984 which incorporated a settlement agreement into which they had entered. The agreement imposed numerous financial obligations on Robert, both with regard to Sandra and to certain personal and real property belonging to the couple.

On 27 July 1984, Robert filed a motion to modify the final judgment based on his lack of legal counsel regarding the agreement and on a change in circumstances occasioned by the loss of his job and his remarriage. The motion sought relief in the form of “an order modifying the final judgment herein and redistributing the financial obligations of the parties.... ”

On 7 August 1984, Robert served on Sandra a subpoena duces tecum, scheduling her deposition on 22 August 1984 and requesting the production, among other items, of 1) her 1983 W-4 withholding statement, 2) her 1983 tax return, 3) a notarized financial affidavit, 4) her payroll records from 1 January 1984 to 22 August 1984, and 5) her bank statements for the same period. Sandra attended the deposition without these or any of the requested items and refused to answer any questions about them, contending they were irrelevant to the grounds for modification stated by Robert.

On 27 August 1984, Robert filed a motion to compel Sandra’s compliance with the subpoena, which was granted by order filed 5 September 1984. Sandra filed this petition seeking review of that order.

In a petition for writ of certiorari seeking review of an order permitting discovery, a petitioner must show that 1) relief by appeal will be inadequate and 2) that the trial court departed from the essential requirements of the law in entering the order. City of Williston v. Roadlander, 425 So.2d 1175, 1176 n. 1 (Fla. 1st DCA 1983). Because a petitioner will have no adequate relief on appeal if discovery is incorrectly compelled, City of Williston, supra, at 1176 n. 1, it remains to be shown that the order was a departure from the essential requirements of law. Sandra contends that, because of the irrelevance of the documents sought by Robert in his motion, such a departure occurred by the entry of the instant order. We disagree.

Rule 1.280(b)(1), Fla.R.Civ.P., establishes the general scope of discovery:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the parties seeking discovery or the claim or defense of any other party.

Here, the motion clearly states that it seeks relief by way of “an order modifying the final judgment herein and redistributing the financial obligations and responsibilities of the parties.... ” The documents sought by Robert are relevant to Sandra’s ability, if any, to assume such a redistribution, which must be taken into account in ruling on the motion.

It was not error for the trial court to enter the order compelling discovery. The petition for writ of certiorari is denied.

SHIVERS and WENTWORTH, JJ., concur.