text:
    Mikele CARTER, Appellant, v. Jose R. GARCIA-PEDROSA and City of Miami, Appellees.
    No. 83-1023.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 20, 1984.

      Papy, Poole, Weissenborn & Papy and Sheridan Weissenborn, Coral Gables, for appellant.
    Jose R. Garcia-Pedrosa, City Atty., pro se, and Gisela Cardonne, Miami, Asst. City Atty., for appellees.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Appellant, an assistant city attorney, was an unclassified employee under the City’s Civil Service Rules. Appellee, the City Attorney, was not required to show good cause at an administrative hearing before revoking her appointment. Section 62(1), City of Miami Charter.

Affirmed.

      . Section 62(1)' of the Charter provides in part: The civil service of the city is hereby divided into the unclassified and the classified service.
      (1) The unclassified service shall include:
      (d) All attorneys employed by the city. The city attorney shall be the supervisor of all attorneys employed by the city. The city attorney shall have exclusive authority regarding, but not limited to appointment, removal and salary as to assistant city attorneys.


source: Caselaw Access Project

author: ORFINGER, Chief Judge.

license: Public Domain

text:
    Kathleen Dietz WINGATE, Appellant, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 82-1096.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    Rehearing Denied Jan. 4, 1984.
    Leslie K. Dougall and Judith E. Koons of Central Fla. Legal Services, Inc., Cocoa, for appellant.
    Paul A. Rowell, Gen. Counsel, and Judson M. Chapman, Asst. Gen. Counsel, Dept, of Highway Safety and Motor Vehicles, Tallahassee, for appellee.
   ORFINGER, Chief Judge.

Karlene Wingate petitioned the circuit court for the issuance of a writ of certiora-ri directed to the State of Florida, Department of Highway Safety and Motor Vehicles, seeking to reverse a final order of the Department revoking her driver’s license for medical reasons. Final orders of the Department wherein a license has been cancelled, suspended or revoked are reviewable by writ of certiorari issued by the circuit court in the county of the person’s residence. § 322.31, Fla.Stat. (1981).

The circuit court received the petition, and concluding that it failed to demonstrate a preliminary basis for relief, declined to issue an order directing the respondent Department to show cause why the. writ should not issue. See Fla.R.App.P. 9.100(f). Petitioner appeals from that order.

An appeal is not the proper remedy by which to seek review of a certiorari proceeding in the circuit court which in turn reviews administrative action. The proper remedy in this court is a petition for writ of certiorari. City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). Thus, we treat the “appeal” as a petition for a writ of certiorari. Fla.R.App.P. 9.040(c).

Finding no departure from the essential requirements of law, the petition for writ of certiorari is denied. See Combs v. State, 436 So.2d 93 (Fla.1983).

DAUKSCH and COWART, JJ., concur.


author: SHARP, Judge.

text:
    Roger CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-407.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    Rehearing Denied Jan. 4, 1984.

      Roger Chapman, pro se and Linda Hilsee Coady of Fla. Institutional Legal Services, Inc., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

This is the second time Chapman has sought relief in this court by appealing from a denial of a 3.850 motion after having been tried and convicted of crimes for which he never should have been prosecuted under Florida Rule of Criminal Procedure 3.640(a), and under the constitutional protections against double jeopardy. U.S. Const, art. V.; Art. I, § 9, Fla. Const. This time we grant his request for relief.

In Chapman’s previous appeal, he claimed his constitutional rights had been violated because he was first tried for kidnapping and sexual battery, and convicted of the lesser included offense of false imprisonment and a lesser included sexual battery offense. The trial court granted his motion for new trial. He was thereafter tried on the same information and this time the jury convicted him of the higher offense of kidnapping and the identical lesser included offense of sexual battery. We affirmed on the ground that he had waived his double jeopardy defense by not filing a pre-trial motion attacking the information.

In this proceeding, Chapman filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 claiming the second judgment should be set aside because of ineffective assistance of counsel. His motion was denied by the lower court on April 5, 1983. We ordered a response from the state, and the state asked us to appoint a commissioner to determine Chapman’s claim.

On May 24, 1983, we appointed the Honorable Jackson O. Brownlee as commissioner. He held a hearing and filed his report with us on October 12, 1983. He found that Chapman’s attorney in the second trial committed “grave error” in failing to raise the defense of double jeopardy in a pre-trial motion. Otherwise he found that trial counsel had not performed below the standard required to provide Chapman with effective representation. He did not find defense counsel incompetent. However, in the interest of justice he recommended that the second judgment and sentence be set aside, and that the trial court be ordered to reduce the conviction to the maximum for which Chapman was convicted in the first trial.

In determining whether or not trial counsel provided services to a defendant at a level of competency which passes constitutional muster, the Florida Supreme Court set forth a four-pronged test:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading. Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel.... Third, the defendant has the burden to show that the specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.... Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut those assertions as showing beyond a reasonable doubt that there was no prejudice in fact.

Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

The error of trial counsel in this case appears to us to satisfy the test in Knight for a finding of incompetent counsel. The omission of failing to raise double jeopardy as a defense was an error clearly established by the pleadings and record. It was a substantial error on counsel’s part, since he thought he could later, via a post-trial motion or proceeding, raise Chapman’s double jeopardy defenses. Knowledge of the rules of evidence and basic procedure is required in order to provide effective assistance of counsel. Torna v. Wainwright, 649 F.2d 290 (5th Cir.1981); Hopkins v. State, 413 So.2d 443 (Fla. 3d DCA 1982); see also Howard v. State, 417 So.2d 1152 (Fla. 1st DCA 1982). Finally, this deficiency clearly resulted in prejudice to Chapman, since he was convicted of the higher offense which would have been barred had the defense been properly asserted. Under these circumstances it is not possible for the state to show no prejudice occurred.

Chapman’s attorney was incompetent under the Knight standard, but only as to that particular error. That error produced Chapman’s conviction for the higher felony offense, and in other regards the attorney afforded adequate representation. Under these circumstances we do not think a new trial is required. Accordingly, we reverse the trial court’s denial of Chapman’s 3.850 motion and remand with directions that Chapman’s judgment and sentence be reduced to the lesser included offense of false imprisonment and the lesser included offense of sexual battery for which he was convicted in the first trial. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Ray v. State, 231 So.2d 813 (Fla.1970); Johnson v. State, 27 Fla. 245, 9 So. 208 (1891).

REVERSED AND REMANDED.

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

      . Fla.R.Crim.P. 3.850.

      . Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980).


author: PER CURIAM.

text:
    Helen SWANIGAN, Appellant, v. DOBBS HOUSE and American Motorists Insurance Co., Appellees.
    No. AQ-377.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.

      Irvin A. Meyers and Sherry L. Davis, of Meyers & Mooney, Orlando, for appellant.
    Robert A. Donahue, of Cooper & Riss-man, Orlando, for appellees.
   PER CURIAM.

Ordinarily, that single word would reflect our disposition of this appeal. Because we find this court reviewing more and more needless appeals presenting similar points for review, however, it seems appropriate to comment on a recurrent error by appellate attorneys stemming from an apparent misconception of the purpose and limited scope of appellate review.

We begin our discussion by quoting the appellant’s point on appeal:

The deputy commissioner erred in finding that the claimant was not entitled to permanent total disability benefits or permanent partial disability benefits in excess of the 15% rating accepted by the employer/carrier as there is competent, substantial evidence in the record to support a showing of change of condition as required by Florida law as a basis for a modification, (emphasis added).

Appellant then argues — rather ably, we note — that there is competent, substantial evidence in the record to support her claim for modification of worker’s compensation benefits. That being so, appellant asks us to reverse the deputy commissioner’s order denying modification. The point on appeal, however, as stated by appellant, is self-defeating under applicable standards of appellate review. We do not review whether there was competent, substantial evidence to support the claim disallowed by the deputy; we only review whether the record contains competent, substantial evidence to support the deputy’s order.

We can readily concede, as argued by appellant, that the record contains competent, substantial evidence to support her claim for modification. Unfortunately, however, the record likewise contains competent, substantial evidence that supports the deputy’s findings and order denying her claim. Factually, this case could have been decided either way, depending on the testimony and evidence accepted and believed by the deputy. The issues presented and decided by him were essentially factual. We do not retry the claim at the appellate level and substitute our judgment for that of the deputy on factual issues supported by competent, substantial evidence, and appeals asking us to do so are frivolous. Catron Beverages, Inc. v. Maynard, 395 So.2d 261, 262 (Fla. 1st DCA 1981). See also, Redding v. Cobia Boat Co., 389 So.2d 1003, 1004 (Fla.1980); Croft v. Pinkerton-Hayes Lumber Co., 386 So.2d 535, 536 (Fla.1980).

We suggest that a convenient and practical means for avoiding this common error is to state, at the outset of each point argued, the legal standard for appellate review relied upon for reversal, i.e., lack of competent, substantial evidence to support the order rendered, abuse of discretion, erroneous application of a rule of law, etc. The argument should then demonstrate not only the existence of the error complained of, but why that error requires reversal under the applicable standard of appellate review. By thus limiting the points on appeal to arguments within the proper scope of appellate review, counsel will avoid frivolous appeals and may well benefit from the more convincing form of argument directed specifically at why this appellate court can and should grant the relief requested.

• WENTWORTH, NIMMONS and ZEH-MER, JJ., concur.


text:
    Donald E. GOLDEN, Appellant, v. METAL FAB, et al., Appellees.
    No. AR-465.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    Donald Golden, pro se.
    Wendell J. Kiser and William G. Berzak, Ackerman, Senterfitt & Eidson, Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

See, Chicken N’ Things v. Murray, 329 So.2d 302 (Fla.1976); Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983).

WENTWORTH, NIMMONS and ZEH-MER, JJ., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    HILLCREST EAST NO. 25, INC., a not-for-profit Florida corporation, Appellant, v. The HOLLYWOOD BEACH HOTEL DEVELOPMENT CO., INC., a Florida corporation, and Ben Tobin d/b/a the Hollywood Beach Hotel Company (not a corporation), Appellees.
    No. 82-692.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    J. Philip Landsman and George I. Platt of Schwartz & Nash, P.A., Fort Lauder-dale, for appellant.
    Vincent E. Damian, Jr., of Williams, Salo-mon, Kanner, Damian, Weissler & Brooks, Miami, for appellees.
   PER CURIAM.

Affirmed.

DOWNEY and HURLEY, JJ., concur.

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

ANSTEAD, Chief Judge,

specially concurring:

I agree that the decision of the trial court should be affirmed because there is no real dispute as to the sufficiency of the language creating the easement challenged by the appellant. Neither is there a claim or proof of fraud or misrepresentation as to the extent or creation of the easement. Although there apparently was a question as to the improper allocation of responsibility for taxes on the easement area, this portion of the litigation was settled by the parties. In short, there is simply no proof in the record which would support a holding that the easement in question is unlawful.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Martin L. WALLACE, Appellant, v. SEARS, ROEBUCK AND CO., Appellee.
    No. 82-1812.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 1983.
    John B. DiChiara of Di Giulian & DiChiara, Fort Lauderdale, for appellant.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Laud-erdale, for appellee.
   PER CURIAM.

AFFIRMED.

WALDEN, J., and GOLDMAN, MURRAY, Associate Judge, concur.

GLICKSTEIN, J., concurs with opinion.

GLICKSTEIN, Judge,

concurring specially:

I concur in the result, affirming the trial court’s granting of a directed verdict, although it was done for the wrong reason. Had appellant established liability, he would have been entitled to nominal damages. See Muroff v. Dill, 386 So.2d 1281 (Fla. 4th DCA 1980), petition for review denied, 392 So.2d 1377 (Fla.1981). However, he failed to make a prima facie case of liability. The trial judge directed the verdict, finding a prima facie case of liability but also finding a failure to properly establish damages.


author: DAUKSCH, Judge.

text:
    Howard Earl DEWITT, Appellant, v. STATE of Florida, Appellee.
    No. 82-1286.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction for grand theft.

The issue on appeal is whether the trial judge erred in permitting a tape-recording of the jury instructions, along with a tape player, to go with the jury to the jury room. We affirm because no prejudice to the accused was demonstrated on the record on account of the alleged error. However, we do express our opinion that the practice should be discouraged. We say “practice” because we have other cases pending on the same issue from this trial court.

Although we are perhaps unable to think of all the possible problems which could occur by this practice we suggest it might encourage improper selective listening to instructions. That can be avoided by providing re-instruction by the judge, after consultation with counsel for the parties, of all appropriate instructions when a question occurs.

Mechanical difficulties are not uncommon and could result in confusion and less than satisfactory re-instruction by this method and it is hardly more difficult to have live re-instruction (best) or send in a complete set of instructions given (not best, but better).

Florida Rule of Criminal Procedure 3.400(c) permits, but does not require, the sending to the jury the set of instructions. It does not say “in writing,” nor are we so holding, but that would seem the preferred way so that all parties are sure the questions on the law the members of the jury have are answered fully and properly and more easily. It is patently easier to read from a set of instructions and even easier and safer to have the judge do it himself.

Because no error has been demonstrated in this case the conviction is affirmed.

AFFIRMED.

ORFINGER, C.J., and COWART, J., concur.


text:
    Larry Lantez FAYSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 82-1472.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Dewitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983).

DAUKSCH, COBB and SHARP, JJ., concur.


author: SHIVERS, Judge.

text:
    Albert Lee SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. AM-325.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.

      Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    No response for appellee.
   SHIVERS, Judge.

Solomon appeals his convictions and sentence based on two counts of improper exhibition of a dangerous weapon, section 790.10, Florida Statutes (1981). Appellant’s appellate counsel, unable to make a good faith argument that reversible error occurred in the trial court, has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has not filed a pro se brief. Because we find fundamental error in appellant’s conviction on more than one count of improper exhibition of a dangerous weapon, we affirm in part and reverse in part.

Solomon was originally charged with two counts of aggravated assault, one count of carrying a concealed firearm, and one count of resisting an officer without violence. All charges stemmed from an incident on or about October 10, 1981. At trial, Ms. Piccolo Solomon, appellant’s ex-wife, testified that she was in a car being driven by Reginald Brown when she heard the car behind her blow its horn. Appellant, who was in the car behind Ms. Solomon, passed her car and attempted to run her and Brown off the road. Appellant then stopped his car, and Brown parked behind him. Appellant got out, came up to the driver’s side of Ms. Solomon’s car, reached in his pocket, took out a pistol and placed the gun to Brown’s ear. Ms. Solomon testified that appellant said he was going to kill her and Brown. Brown’s testimony substantially corroborated Ms. Solomon’s.

Sgt. Don Porter of the Tallahassee Police Department testified that he was issuing a traffic citation when a passerby informed him that two people were fighting further down the road. Upon arriving at the scene, Porter observed appellant standing at the driver’s side of Ms. Solomon’s car with a gun in his hand. Porter testified that appellant pointed the gun first at Ms. Solomon and then at Brown. He further testified that he could hear appellant making threats to do bodily harm and to kill both the occupants of the automobile. As Porter stepped out of his patrol car, appellant turned and saw him, and appellant then put the gun into his right hand front pocket. Porter grabbed appellant, identified himself as a police officer, and a struggle ensued.' The pistol was not loaded when Porter took it from appellant.

Appellant testified that Ms. Solomon had made several attacks upon him with a knife in the past. Appellant admitted that he passed Ms. Solomon’s car, stopped his own car, got his pistol, and went back to Ms. Solomon’s ear. Appellant testified, however, that he took the gun based on his previous encounters with Ms. Solomon and to keep her from causing him any further harm. Appellant stated that he did not threaten or point the gun at Brown or Ms. Solomon.

At the close of the State’s case and at the close of all the evidence appellant moved for judgment of acquittal. The motions were denied. On the two counts of aggravated assault (one count relating to Brown and one count relating to Ms. Solomon), the jury found appellant guilty of the lesser included offense of improper exhibition of a dangerous weapon on both counts. Appellant was found not guilty of carrying a concealed firearm and resisting an officer without violence. The trial court adjudged appellant guilty of two counts of improper exhibition of a dangerous weapon and sentenced appellant to one year incarceration on Count One. No sentence was imposed on Count Two.

Upon review of the entire record, we find that no reversible error occurred in the conduct of the trial sub judice. The evidence adduced, taken in a light most favorable to the State, was sufficient to have sustained convictions upon the crimes charged. However, since the jury found appellant guilty of improper exhibition of a dangerous weapon (a lesser included offense of aggravated assault), the trial court erred by adjudicating appellant guilty of two counts as opposed to merely one. Section 790.10, Florida Statutes (1981), states:

790.10. Improper exhibition of dangerous weapons or firearms. — If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(emphasis added). We interpret the emphasized phrase as indicative of a legislative intent that a single act of exhibition in the presence of more than one person should not result in multiple convictions.

In Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), the Court held that where a defendant assaulted two federal officers with a single discharge from a shotgun, the relevant statute, 18 U.S.C. § 254 (1940), would not support a separate offense against each officer. The Ladner Court found that because neither the wording of the statute nor its legislative history pointed clearly to a meaning which would support multiple convictions, the Court should apply a policy of lenity and adopt the less harsh meaning. Further, the Court noted that an interpretation favoring multiple convictions would produce incongruous results.

Punishments totally disproportionate to the act of assault could be imposed because it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act. For an assault is ordinarily held to be committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm. Thus under the meaning for which the Government contends, one who shoots and seriously wounds an officer would commit one offense punishable by 10 years’ imprisonment, but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years’ imprisonment, even though he does not fire the gun and no officer actually suffers injury. It is difficult, without a clearer indication than the materials before us provide, to find that Congress intended this result.

358 U.S. at 177, 79 S.Ct. at 213 (footnote omitted).

An interpretation of section 790.10, Florida Statutes, which favors multiple convictions for a single act of exhibition could also produce incongruous results. How many convictions could legally be obtained from the single act of exhibiting a weapon in a crowded stadium? As in Ladner, it is difficult to find that the Legislature intended for multiple convictions to result from such situations.

Accordingly, appellant’s conviction and sentence based on Count One is AFFIRMED, and the conviction based on Count Two is REVERSED.

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


author: MILLS, Judge.

text:
    SUWANNEE RIVER GOVERNMENT EMPLOYEES FEDERAL CREDIT UNION, Appellant, v. Clarence M. RHUDE and wife, Connie J. Rhude, and Ratliff Motor Company, Appellees.
    Nos. AR-137, AR-138.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    Rehearing Denied Jan. 13, 1984.
    Ernest A. Sellers and Andrew J. Decker, III, of Airth, Sellers, Lewis & Decker, Live Oak, for appellant.
    John H. Parker, III, Live Oak, for appel-lee Ratliff Motor Co.
   MILLS, Judge.

Suwannee River Government Employees Federal Credit Union (Suwannee River) appeals from a final judgment and from an “Order on Enforcement of Lien” which rule that Ratliff Motor Company’s mechanic’s lien is superior to Suwannee River’s prior security interest in an automobile owned by the Rhudes.

We affirm on authority of Eastern Airlines Employees Federal Credit Union v. Lauderdale Yacht Basin, Inc., 334 So.2d 175 (Fla. 4th DCA 1976).

THOMPSON and WIGGINTON, JJ., concur.


text:
    James Ricky STIDHUM, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-786, 83-1844.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Bennett H. Brummer, Public Defender and N. Joseph Durant, Sp. Asst. Public Defender, for' appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Dealto v. State, 392 So.2d 61 (Fla. 5th DCA 1981); see also State v. Fitzpatrick, 430 So.2d 444, 445 at footnote (Fla.1983).


text:
    Martha GELLER, as Personal Representative of the Estate of Sheldon Geller, Deceased, Appellant, v. G & G CORPORATION, d/b/a Table Talk, and Kent Insurance Company, jointly and severally, Appellees.
    No. 83-944.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Koppen & Watkins and George J. Lott, Miami, for appellant.
    Kathleen V. McCarthy, Miami, for appel-lees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final order dismissing appellee Kent Insurance Company as a party defendant on the basis of section 627.7262, Florida Statutes (Supp.1982) (the “non-joinder” statute), is reversed, as was a similar order in Kaminsky v. Travelers Indemnity Co., 443 So.2d 206 (Fla. 3d DCA 1983) upon the authority of VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), since the incident giving rise to this action was alleged to have occurred prior to October 1,1982, the effective date of the statute.

Reversed.


text:
    Alfred J. CINQUE and Gay Cinque, his wife, Appellants, v. Timothy BUSCHLEN, Appellee.
    No. 83-976.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      George, Hartz, Burt & Lundeen and Richard A. Burt, Miami, for appellants.
    S. Scott Choos, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Buschlen, a tenant of certain commercial space under a lease agreement, sold his leasehold interest to a purchaser under a written agreement. The agreement, inter alia, called for the purchaser to pay the rent to the owner, to make periodic payments to Buschlen until the purchase price was paid in-full, and further provided that upon the purchaser’s default, the balance due would be accelerated, and the right of possession of the premises would revert to Buschlen. According to his own testimony, Buschlen fully understood that he had retained the right to repossess the leasehold as security for the purchaser’s faithful performance of his obligation to make the required payments.

Sometime after this transaction, the purchaser transferred his rights to a portion of the leasehold to the Cinques. When still later the purchaser failed to make a payment under his agreement with Buschlen, Buschlen demanded that the Cinques relinquish possession of the portion of the premises held by them and, upon their refusal to do so, brought this action for damages for wrongful eviction. The Cinques appeal from the judgment entered in Bus-chlen’s favor. We reverse.

Buschlen’s claim that he was entitled to possession of the premises, and thus damages for the wrongful withholding of such possession, is bottomed, as it must be, on his contention that he occupied the position of owner of the leasehold interest upon the purchaser’s default. This contention, however, is without merit.

Section 697.01, Florida Statutes (1979), provides in pertinent part:

“All conveyances ... or other instruments of writing conveying or selling property, either real or personal, for the purpose or with the intention of securing the payment of money ... shall be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages.”

We think it clear that the instant agreement was a conveyance made “for the purpose or with the intention of securing the payment of money,” and therefore must be deemed and held to be a mortgage. See Adkinson v. Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977) (agreement for deed under which purchaser immediately received burdens and benefits of ownership and which gave seller right to repossess the land and retain moneys paid to date upon purchaser’s default deemed to be a mortgage); H & L Land Company v. Warner, 258 So.2d 293 (Fla. 2d DCA 1972) (same); Mid-State Investment Corporation v. O’Steen, 133 So.2d 455 (Fla. 1st DCA 1961), cert. denied, 136 So.2d 349 (Fla.1961) (same). See also Huguley v. Hall, 157 So.2d 417 (Fla.1963); Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982). Because a mortgage is “held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession,” § 697.02, Fja.Stat. (1979), the provision in the agreement giving Buschlen the right of possession upon default is a nullity. See Wylly-Gabbett Co. v. Williams, 53 Fla. 872, 42 So. 910 (1907). See also Bemort, Inc. v. Deerfield Beach Bank, 134 So.2d 28 (Fla. 2d DCA 1961). Buschlen, therefore, was not an owner of the leasehold entitled to possession of the premises and, it follows, not entitled to damages when the possession of the premises was withheld from him by the Cinques. Buschlen’s sole remedy upon the purchaser’s default was, as in the case of any mortgagee, a suit to foreclose the lien of what we deem to be his mortgage.

Reversed with directions to enter judgment for the Cinques.


text:
    Carlos VELAZQUEZ, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 83-1140.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Stabinski & Funt and Norman Funt, Miami, for appellant.
    Talburt, Kubicki & Bradley, and Gail Leverett Kniskern, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reject the plaintiff’s challenge to section 95.11(3)(a), Florida Statutes (1981), as an unconstitutional denial of access to the courts. Our supreme court has responded to the issues raised herein when it decided Slaughter v. Tyler, 126 Fla. 515, 171 So. 320 (1936), overruled on other grounds, Manning v. Serrano, 97 So.2d 688 (Fla.1957); accord Gasparro v. Horner, 245 So.2d 901 (Fla. 4th DCA 1971). Since the emancipated minor in the present case had access to the courts through his natural parents, the statute of limitations was not tolled during his minority.

Consequently, the order dismissing the complaint is affirmed.


text:
    Juan RODRIGUEZ, a/k/a Javier Rivera, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1210.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Appellant’s probation was revoked for (1) changing his residence without first procuring the consent of his probation officer, (2) failing to file a monthly report for January, 1988, (3) failing to remain at liberty without violating any law in that he did commit the offenses of (a) trespass and (b) obstruction by false information, and (4) failing to make payments toward the cost of his supervision.

The record reflects, however, that at the probation revocation hearing the trial court found the appellant not guilty as to the obstruction by false information charge. The trial court also found him not guilty of failing to pay the costs of supervision since there was no showing of a present ability to pay these costs. Accordingly, we strike from the final order the finding of violation that pertains to the payment of costs and that portion of the finding of violation on failure to remain at liberty without violating any law, to wit: obstruction by false information. We affirm the revocation of appellant’s probation on the remaining findings of violation. Wienke v. State, 412 So.2d 936 (Fla. 2d DCA 1982); Cephas v. State, 412 So.2d 935 (Fla. 2d DCA 1982).

Affirmed.


text:
    Francisco MONZON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1253.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Bennett H. Brummer, Public Defender, and Gerald D. Hubbart, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant appeals the final order placing him on probation for five years with a special condition of one year’s incarceration, following a jury verdict finding him guilty of perjury in an official proceeding, as charged in the information. The information charged Monzon with lying under oath in connection with an investigation into the crime of leaving the scene of an accident involving personal injury.

After having reviewed the record, briefs and arguments of counsel, we have concluded that no reversible error has been demonstrated. See Wells v. State, 270 So.2d 399 (Fla.3d DCA 1972), cert. denied, 277 So.2d 533 (Fla.1973), cert. denied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.Ed.2d 316 (1973). The order appealed is, accordingly, affirmed.

Affirmed.


text:
    Jack L. TERNER, Appellant, v. Freda RAND, as Personal Representative for the Estate of Ruth C. Terner, deceased, Appellee.
    No. 83-1325.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Rehearing Denied Jan. 20, 1984.
    Keith, Mack, Lewis & Allison and Edgar Lewis and R. Hugh Lumpkin, Miami, for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon and Linda A. Wells, Miami, for ap-pellee.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

This is an appeal from a final order assessing attorney’s fees and costs against a surviving spouse, which fees and costs were incurred by the personal representative of the estate in defending certain unsuccessful actions brought by the surviving spouse against the estate. We affirm this order upon a holding that the circuit court sitting in probate had the authority to assess such fees and costs against the surviving spouse herein under the authority of Section 733.106(4), Florida Statutes (1981). See In re Estate of Gerhart v. Belcher, 220 So.2d 655, 657 (Fla. 3d DCA 1969), and cases collected.

Affirmed.


author: PER CURIAM. FERGUSON, Judge

text:
    Robert Edward POPLAR, Appellant, v. Jeanette Marie POPLAR, Appellee.
    No. 83-1684.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Robert Edward Poplar, in pro. per.
    Mary K. Schwartz, Miami, for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed.

FERGUSON, Judge

(dissenting).

I find a sufficient change in circumstances to justify a modification of the alimony and support award even if we consider only those matters over which the appellant had no control.


text:
    Beverly S. GOLDSTEIN, Appellant, v. I.R.E. REALTY ADVISORS, INC., et al., Appellees.
    No. 82-414.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.
    Goldstein & Goldstein and S. William Goldstein, Jacksonville, Nancie G. Severs, Hollywood, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Robert A. Mark, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   ORDER OF DISMISSAL

PER CURIAM.

The parties having stipulated to the dismissal of this appeal, it is ordered that the opinion of July 19, 1983 is withdrawn, and this appeal is dismissed.


author: HOBSON, Judge.

text:
    Barbara SPRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 82-1641.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.

      Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Barbara Spradley appeals a conviction and sentence for manslaughter. We reverse and remand.

At approximately 12:20 a.m. on February 7, 1981, Deputy Wayne Close of the Lee County Sheriffs Department entered a houseboat in Matlacha, Florida, in response to a report of a shooting incident. He observed the victim, James Munn, sitting by the kitchen table, and being cared for by Bill Russell, a neighbor, who was holding a towel over Munn’s stomach. A .22 caliber handgun was lying on the table, and appellant was standing nearby. She was upset and inquired several times as to Munn’s condition. Deputy Close asked Russell what had happened. Russell answered that Munn had been shot, and that he, Russell, had entered the houseboat after the shooting, picked up the gun from the floor, and placed it on the table. After summoning an ambulance, Deputy Close questioned appellant. She replied that Munn, with whom she had been living for about five years, had been out drinking heavily throughout the day and night. He arrived home and went to bed sometime after 10:00 p.m. She came home about 30 to 45 minutes later, looked in on the sleeping Munn, and went to the upper level of the houseboat to check on her two children: Teresa, a mildly retarded 10-year old; and Jimmy, a 7-year old. While watching television with the children upstairs, she heard Munn screaming from the kitchen. When she came downstairs, an argument ensued between them. The gun accidentally discharged while in Munn’s possession when she tried to take it away from him.

At around 1:30 a.m., Deputy Close left the houseboat with appellant to transport her to the sheriffs department. On their way there, he advised her of her Miranda rights. He told her that she was not under arrest, but was a suspect. He then asked her if she wished to add anything to her earlier statement. She answered “No,” but did not request an attorney. He then ceased questioning her.

Deputy Close arrived with appellant at the sheriffs department between 2:00 a.m. and 2:15 a.m. Minutes later, he initiated a conversation with her about the incident while preparing a written report. He did not reread her the Miranda warnings before beginning this colloquy. She repeated essentially the same story which she had provided him previously at the houseboat. He noticed that she was upset and concerned about Munn’s condition during this time. She asked him several questions about Munn’s condition. Unbeknownst to both of them, Munn had died en route to the hospital.

At about 2:45 a.m., Deputy George Mitar met with appellant at his office. He informed her that he was conducting a general investigation of the incident. Shortly after 3:00 a.m., he apprised her of her Miranda rights. He then advised her that Munn had died, at which time she began to cry. After being allowed only a few minutes to try to compose herself and to drink a cup of coffee, she signed a waiver of rights form. After she signed the form, he interviewed her on tape from about 3:15 a.m. until 3:55 a.m. On this tape, she stated basically the same story which she had told Deputy Close twice before.

A short while later, Deputy Mitar requested to speak with appellant’s children. Appellant was unaware at the time that her children had already been brought to the station pursuant to the orders of Deputy Mitar, who was cognizant not only of their youthful ages, but also of the daughter’s mental handicap. She acceded to his request.

After speaking with the children, Deputy Mitar returned to appellant shortly before 6:00 a.m. He advised her that there were some discrepancies between her story and that of her children. When he reminded her of the form which she had signed, she told him that she wanted to tell him the truth, and that she had not done so yet. He thereupon conducted a second taped interview with her which lasted from about 6:00 a.m. until 6:20 a.m.

At the outset of this interview, appellant’s son, who was waiting by himself in an adjoining, locked room, was heard calling for appellant and asking to be let out so that they could go home. Her son was then let out of the room. However, Deputy Mitar still made him wait in another room while he interviewed appellant.

Appellant told Deputy Mitar during this second taped discussion that, after awaking, Munn began yelling and cursing at her because she had taken some items, including his gun, out of his pants pockets. He also started cursing the daughter and making degrading comments about her ability and character. Appellant then retrieved the articles and placed them on the kitchen table. When Munn continued screaming at her, she picked up the gun, intending to scare him by shooting at the wall. However, when he attempted to grab the gun from her, it discharged, fatally wounding him.

Throughout the entire time in which she was at the station, appellant, who appeared to Deputy Mitar as though she had lost a loved one, had not been granted an opportunity to sleep, had not been allowed any food, and had not been allowed an opportunity to speak with her children, who were in their nightclothes and were scared and confused.

The trial court denied appellant’s pretrial motion to suppress her custodial statements to Deputies Close and Mitar.

Appellant argues on appeal that her custodial statements to Deputies Close and Mitar should have been excluded from evidence at trial on the grounds that they were not freely and voluntarily given and that the officers did not “scrupulously hon- or” her right to remain silent, which she invoked in Deputy Close’s squad car. We agree with both assertions.

Appellant unequivocally invoked her Fifth Amendment right to remain silent, but not her Fifth Amendment right to counsel, by responding “No” when Deputy Close asked her in his squad car upon advising her of her Miranda rights whether she wished to make any statements in addition to those which she had made previously at the houseboat. A person in custody is afforded a lesser degree of protection from further questioning by law enforcement authorities if he invokes the right to remain silent, but not the right to counsel. The Eleventh Circuit Court of Appeals aptly summarized the distinction in United States v. Bosby, 675 F.2d 1174, 1181-82 (11th Cir.1982):

Although the assertion of either right mandates the immediate cessation of an interrogation, the particular right invoked has a differing impact on subsequent police conduct. [Citation omitted.] Upon assertion of his right to counsel, law enforcement officials cannot subject the defendant to further questioning until an attorney has been appointed for him and he has been accorded the opportunity to consult. [Citations omitted.] Thus a request for counsel acts as an absolute prohibition on the right of police to initiate questioning until an attorney has been appointed. No such proscription upon the right of police to resume questioning exists where a defendant asserts his right to remain silent. Instead, law enforcement officials are required to cease questioning the defendant but may resume the interrogation at some later time. [Citations omitted.]

In Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 325-26, 46 L.Ed.2d 313, 321 (1975), the Supreme Court of the United States declared, paraphrasing from Miranda, that resolution of the question of the admissibility of statements obtained after a person in custody has invoked his right to remain silent depends upon whether his decision to assert his “right to cut off questioning” was “scrupulously honored.”

In holding that no Miranda violation occurred in Mosley, the Court stated:

This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.

423 U.S. at 105-06, 96 S.Ct. at 327, 46 L.Ed.2d at 322.

The record before us does not support the trial court’s apparent finding that the state carried its burden of proving that appellant’s decision to assert her “right to cut off questioning” was “scrupulously honored” by Deputies Close and Mitar. Although Deputy Close immediately ceased questioning her in the squad car when she invoked her right to remain silent, he promptly resumed interrogating her upon their arrival at the station about 45 minutes later. Approximately one-half hour later, Deputy Mitar began interrogating her about the shooting incident. He read-vised her of her Miranda rights and she supposedly voluntarily waived her rights shortly after being informed that her boyfriend had died. Three hours later, after speaking with appellant’s children, Deputy Mitar resumed questioning her, at which time she incriminated herself. In short, the deputies persisted in attempts to wear down her resistance throughout the early morning hours during questioning about the incident. The sole fact that Deputy Mitar had readvised her of her Miranda rights just before she gave her initial taped statement does not, in our view, save the state on this issue.

Alternatively, the record does not corroborate the trial court’s ruling that the state carried its burden of showing that appellant’s second taped statement to Deputy Mitar was freely and voluntarily given under the totality of the circumstances. In sum, her taped confession was extracted from her only after she was placed in the coercive atmosphere of a station-house setting, was subjected to a barrage of questions during the pre-dawn hours, was advised that her boyfriend of five years had died, was not allowed to care for her confused and frightened children, was not afforded an opportunity to sleep, and was not permitted to eat.

Appellant also contends on appeal that the trial court erred by admitting into evidence over her objection 1) Munn’s death certificate, which indicated that his death, though resulting from the gunshot wound, was caused by a “homicide,” to the exclusion of the three other listed possible causes — “accident,” “suicide,” and “undetermined”; and 2) testimony of the medical examiner who conducted the autopsy and completed the certificate, Dr. Robert Schultz, regarding how he arrived at the conclusion that the death was not caused by an “accident.” We agree with her that the certificate and this particular testimony should not have been allowed into evidence.

A medical examiner should not be permitted, over objection, to testify as an expert witness concerning a factual issue unless a sufficient predicate has been laid. Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975). Over appellant’s objection, Dr. Schultz, a forensic pathologist, testified why he excluded “accident” as the cause of Munn’s death, notwithstanding admissions by him that at the time he performed the autopsy he did not have any knowledge about either the shooting incident or the investigation surrounding the incident, and that he was told prior to completing the certificate that the shooting had not been an. accident. He thus was not qualified to opine that Munn’s death was not caused by an “accident.”

In any event, by marking on the death certificate, and testifying that Munn’s demise was caused by a “homicide,” not an “accident,” Dr. Schultz effectively eliminated appellant’s viable defense of excusable homicide, thereby implying in very clear terms for the jury that appellant was guilty of one of the degrees of homicide. A witness, however, cannot offer an opinion as to the guilt or innocence of an accused person. Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967); Farley v. State, 324: So.2d 662 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976).

Accordingly, we reverse the conviction and sentence for manslaughter and remand for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

OTT, C.J., and RYDER, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The right to counsel during custodial interrogation is founded in the Fifth Amendment to the federal constitution, not the Sixth Amendment. Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386-87 (1981).


text:
    Sammy Lee CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 82-2209.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse defendant’s judgment of conviction and sentence because the record does not reflect a knowing and intelligent waiver of his constitutional right to assistance of counsel. We indicated in Mansfield, v. State, 430 So.2d 586, 588 (Fla. 4th DCA 1983) that “[i]f the defendant does not want the services of his appointed public defender, for whatever reason, the trial court must then point out the dangers and disadvantages of his conduct.” Moreover, Rule 3.111(d)(5), Fla.R.Crim.P., requires that “[i]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” In the case at bar, neither requirement was fulfilled. Therefore, the judgment of conviction and sentence are reversed and1 the cause is remanded for new trial.

REVERSED & REMANDED.

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


author: WALDEN, Judge.

text:
    ST. MARY’S HOSPITAL, a Florida non-profit organization, Appellant, v. OKEECHOBEE COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
    No. 82-2546.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.

      Bernard A. Conko of Gibson & Gibson, West Palm Beach, for appellant.
    Kyle S. Van Landingham, Okeechobee, for appellee.
   WALDEN, Judge.

This is an appeal from an administrative action under Florida Rule of Appellate Procedure 9.030(b)(1)(C).

It requires an interpretation of portions of The Florida Health Care Responsibility Act:

154.302 Legislative intent
It is the intent of the Legislature to place the ultimate financial obligation for the medical treatment of indigents on the county in which the indigent resides, for all those costs not fully reimbursed by other governmental programs or third-party payors.
154.306 Financial responsibility for out-of-county indigent patients treated at a regional referral hospital
Ultimate financial responsibility for treatment received at a regional referral hospital by a certified indigent patient who is a resident of the State of Florida but is not a resident of the county in which the regional referral hospital is located shall be the obligation of the county of which the certified indigent patient is a resident. A county’s financial responsibility for each of its resident certified indigent patients receiving treatment at a regional referral hospital shall be limited to payment for 12 days of services per admission, not to exceed 45 days per annum, at the per diem reimbursement rate currently in effect for the regional referral hospital under the medical assistance program for the needy under Title XIX of the Social Security Act, as amended. However, no county shall be required to pay for services at a regional referral hospital when such services are available at a local hospital in the county where the indigent resides, except that the county where the indigent resides shall, in all instances, be liable for the cost of treatment provided to said certified indigent at a regional referral hospital for any emergency medical condition which will deteriorate from failure to provide such treatment and when such condition is determined by the attending physician to be of an emergency nature.

St. Mary’s Hospital is a regional referral hospital located in Palm Beach County. Three patients are involved. They were certified indigents and residents of Okeechobee County. St. Mary’s Hospital furnished emergency treatment to them. Such care was not available in Okeechobee County. The treatment charges exceed the limitation found in Section 154.306, Florida Statutes (1981).

St. Mary’s contends that it is statutorily entitled to full payment. Okeechobee contends that it is not statutorily required to make full payment, but says it is responsible for a lesser sum according to the limitations in Section 154.306, Florida Statutes (1981).

In appropriate administrative proceedings, the Board of County Commissioners of Okeechobee County, acting as an administrative agency, determined that Okeechobee was not required to pay the full amount of St. Mary’s charges. It was determined that St. Mary’s could only collect in accordance with the limitations found in Section 154.306, Florida Statutes (1981).

St. Mary’s appeals. We affirm.

We read, re-read, and studied the statutes in light of the able advice of counsel. While not a model of clarity, we find that they are sufficiently clear and reconcilable so as to not require construction or nullification, in whole or part.

As we see it, the legislative intent announced in Section 154.302, Florida Statutes (1981), is basically repeated in the first sentence of Section 154.306, Florida Statutes (1981). It is immediately followed by the limitations in question. Thus we hold that the home county is responsible for all charges with the limitation or cap found in the second sentence of Section 154.306, Florida Statutes (1981), subject further to the exceptions found in the third sentence of Section 154.306, Florida Statutes (1981). The third sentence provides two circumstances. First, the home county will not be responsible for the care of its indigents in a regional hospital if the services rendered were available locally. This is not applicable to the facts of this case since the needed St. Mary’s services were not available in Okeechobee. Second, this exception is qualified if the services rendered are of an emergency nature in which case the home county would be responsible for payment. We further hold that even if the services were available in Okeechobee, St. Mary’s would be entitled to recompense from Okeechobee if the Okeechobee indigents presented an emergency medical condition which would deteriorate if the services were not provided, again subject to the limitations found in the second sentence.

We have not been furnished and we have not found any authority or legislative history dealing with the question at hand. We have, of course, taken notice of the general principles customarily used by courts when an issue is made as concerns the application of a statute and see no need to parrot them.

The wisdom and fairness of legislation is for the legislature and not the courts. Here, we do not know the rationale for limiting payment as the statute provides. If, as contended by St. Mary’s, it is unfair (and we tend to agree), the answer lies with the legislature and not here.

Affirmed.

HERSEY and GLICKSTEIN, JJ., concur.


author: BERANEK, Judge.

text:
    BEAULEM, INC., a Florida corporation, Appellant, v. Joseph J. TITONE, Appellee.
    No. 83-323.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.

      William F. Zamer of William F. Zamer, P.A., Fort Lauderdale, for appellant.
    No appearance on behalf of appellee.
   BERANEK, Judge.

Appellant, a restaurant/lounge, appeals the granting of two summary judgments, one on liability, and one on damages, entered in favor of appellee, an attorney. We reverse.

In October, 1980, the attorney entered into an agreement to represent appellant in a lawsuit against the city of Oakland Park. The attorney drafted the agreement which was signed by appellant. The lawsuit against the city was unsuccessful but because of an order issued by this court in a related case, the lounge was allowed to remain open until 4:00 a.m. for some eight weeks. A dispute over fees resulted in the attorney suing the lounge based on the agreement. The lounge defended contending that the written agreement drafted by the attorney did not accurately reflect their verbal agreement and that the attorney had not prevailed in the suit. The attorney moved for summary judgments on the issues of liability and damages. Both were granted and a judgment of $15,769.50 was entered against appellant.

Appellee/attorney has not favored this court with a brief. A review of the sworn statements in the record persuades us that both summary judgments were improper as there were genuine issues of fact in controversy. These factual differences apparently were not considered by the trial court because they would have required admission of parol evidence. However, we find the written agreement ambiguous as it does not adequately establish the duties required to be performed by the attorney nor the precise payments for such services. Thus, on remand, parol evidence should be admitted to show the intent of the parties. We note that the trial court did have before it one sworn statement by the attorney which does interpret the agreement. We do not know whether the trial court considered this statement, but if it did, it was error to consider the attorney’s interpretation of the agreement and ignore appellant’s interpretation. Since it is not before us, we take no position on the issue of whether the contract is unconscionable.

REVERSED AND REMANDED.

LETTS and HERSEY, JJ., concur.

      . AGREEMENT
      BEAULEM INC., a Florida Corporation, doing business as STUDIO 51 has paid JOSEPH J. TITONE a non refundable retainer of $3,000.00 to represent them in an action to keep STUDIO 51 open till 4:00 A.M.
      After the action is filed should STUDIO 51 be allowed to stay open till 4:00 A.M. then an additional payment of $2,000.00 is to be paid by undersigned to JOSEPH J. TITONE and JOSEPH J. TITONE is to be paid $1,000.00 every week that STUDIO 51 is open till 4:00 A.M.
      Should the undersigned sell STUDIO 51 while it is open till 4:00 A.M. JOSEPH TITONE is to be paid one hundred thousand dollars ($100,-000.00) out of proceeds of sale.
      Any dispute as to this agreement, prevailing party is entitled to reasonable attorneys fees.
      DATED this 20th day of October, 1980 at 2034 East Oakland Park Boulevard, Fort Lauderdale, Florida 33306.


text:
    Edward MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 83-991.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.

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

Appellant was placed on probation for two years for uttering a forged instrument and grand theft by fraud. Conditions of his probation included participation in a Probation and Restitution Center for a maximum of four months, compliance with its rules, and payment of $158.00 as restitution. Revocation of probation was sought for nonpayment of restitution, costs of supervision or subsistence payments, as well as one untruthful signout. Appellant correctly notes that revocation for financial violations requires some showing that the probationer had' the ability to make the payments. Baran v. State, 381 So.2d 323 (Fla. 5th DCA 1980); Freiberger v. State, 343 So.2d 57 (Fla. 4th DCA 1977). The only fact adduced at the hearing was that the appellant had failed to make payments. There was no demonstration of his ability to do so. Revocation based on the grounds of nonpayment was inappropriate. The only proof of the untruthful signout was equally inadequate. The subject revocation would result in this individual’s incarceration for two years; a burden to the taxpayers requiring justification by more than the present record. Accordingly, we reverse.

GLICKSTEIN and WALDEN, JJ., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


text:
    CEM-A-CARE OF FLORIDA, INC., a Florida corporation, Appellant, v. AUTOMATED PLANNING SYSTEMS, INC., an Illinois corporation, William J. Pailey, Jr., John C. Lilegdon, and Investment Properties Management, Inc., a Florida corporation, Appellees.
    No. 83-1780.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.

      William H. Stolberg of Shankweiler & Stolberg, Fort Lauderdale, for appellant.
    Karen Coolman Holmes, of Holmes & Amlong, P.A., Fort Lauderdale, for appel-lees.
   PER CURIAM.

This is an interlocutory appeal from an order striking appellant’s defensive pleadings directed to appellees’ counterclaim. The main action had been previously disposed of by summary judgment, and only the counterclaim remained set for trial between the parties. The scheduled trial, which had been set and reset several times, was continued at appellant’s request. Appellant’s actions in having the trial of the counterclaim continued were found by the trial court to be a flagrant, persistent, aggravated and willful attempt to delay and avoid the trial of the ease. The court concluded that appellant had flaunted the authority of the court in an extremely dilatory manner. The court specifically found that appellant obtained a stay of the trial conditioned upon the posting of a bond which was never posted. The appellant intentionally chose not to post the bond within a matter of days after the scheduled trial date had passed. The court concluded that appellant’s conduct in this regard and over the entire course of the case had been extremely dilatory and aggravated and granted the ultimate' sanction of striking the defensive pleadings.

The standard of review for imposition of such a sanction has recently been discussed in Mercer v. Raine, 443 So.2d 944 (Fla. 1983). There, the supreme court applied the Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), standard for reviewing an abuse of discretion. Although Mercer dealt with a sanction for a discovery violation, we think it equally applicable here. When a trial judge expressly finds that a party has willfully and flagrantly abused the system and violated court orders, then the severity of the sanction is within the very broad discretionary area noted in Canakaris. Although subject to review and reversal for abuse, that discretion is expansive and subject to being influenced by the parties’ past actions and inactions in the litigation. Here, the court made express findings as to this party’s past dilatory actions. Lesser sanctions had been previously imposed for discovery violations under court order. The initial sanction order requiring responses to discovery and taxing attorney’s fees was also not obeyed and a further sanction order became necessary. The case was set and reset and set and reset for trial. The last continuance, conditioned on the posting of a bond, was the proverbial straw which produced the order here appealed. We find no abuse of discretion here. Based upon Mercer v. Raine, supra, the exercise of the trial court’s discretion herein is affirmed.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

WALDEN, J., dissents without opinion.


author: PER CURIAM. WALDEN, Judge,

text:
    Lonnie BROWNLEE, Appellant, v. STATE of Florida, Appellee.
    No. 83-14.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Peter J. Giacoma, Jr., P.A., Fort Lauder-dale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD, C.J., and GLICKSTEIN, J., concur.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

The trial court incorrectly prevented Appellant from questioning the victim as to her prior residences and aliases. I would reverse upon authority of Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931).

I would reverse and remand for trial.


author: PER CURIAM. THOMPSON, Judge, WENTWORTH, Judge,

text:
    George PECK, III, Appellant, v. PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
    No. AQ-126.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, Miami, for appellant.
    Melanie Jacobson, West Palm Beach, for appellee.
    Before ERVIN, C.J., and MILLS, ROBERT P. SMITH, Jr., BOOTH, LARRY G. SMITH, SHIVERS, WENTWORTH, JOA-NOS, THOMPSON, WIGGINTON, NIM-MONS and ZEHMER, JJ.
   PER CURIAM.

Claimant, George Peck (Peck), appeals the deputy commissioner’s order denying permanent partial disability benefits for a hearing loss not covered by the guidelines established by the American Medical Association (AMA). We reverse.

Because our reversal of the deputy commissioner’s order requires us to recede from former opinions of this court reaching a contrary result, it is necessary for the entire court to participate in the decision under the en banc provisions of Florida Rule of Appellate Procedure 9.331.

Peck, a forty-one year old patrolman, had been employed by the Palm Beach County Sheriffs Department since 1974. On November 1,1978, Peck was required to qualify on the firing range, as he had done two to four times per year since 1974. He fired 50-100 times with a .357 magnum and ten times with a shotgun, with other officers firing near him. Peck testified that to his knowledge protective ear muffs were not required at that time, but since that time they are now required. Following the firing test, Peck noticed the loss of hearing he usually experienced, but he also experienced pain in his ears. The loss of hearing persisted. On May 25, 1979, Peck was examined by Dr. Murray, an ear, nose and throat specialist, who diagnosed permanent, high frequency deafness resulting from nerve damage in both ears. Dr. Murray characterized the injury as a classic case of noise-induced deafness, causally related to repeated exposure to gunfire at the firing range. He explained that Peck suffered a 45-50% hearing loss for the higher frequencies of 2,000-8,000 Hertz, but that for lower range frequencies, below 2,000 Hertz, Peck had no hearing disability. This translated into Peck’s being able to hear lower register tones, such as a man’s voice, but not being able to hear higher pitched sounds, such as a siren or burglar alarm. Additionally, Dr. Murray stated that Peck suffered “recruitment,” i.e. if a sound exceeded a certain frequency, it would hurt his ears. Dr. Adams, a clinical audiologist, testified as an expert on the employer’s behalf that based upon Peck’s audiometric tests and the AMA Guides, Peck did not have a hearing loss that could be rated. The AMA formula for determining disability due to hearing loss does not measure impairment beyond 2,000 Hertz, such as Peck suffered. The deputy commissioner recognized the requirement that he measure Peck’s hearing loss in accordance with the AMA Guides, as determined in Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981), and found that Peck did not have any permanent hearing loss that was measurable. Notwithstanding, he found that Peck suffered a compensable injury by accident which arose out of and in the course of employment on November 1, 1978.

The deputy commissioner’s recognition of the requirement of referencing a rating of permanent impairment to the AMA Guides, as provided by Section 440.-15(3)(a)3, is consistent with the court’s opinions in Decor Painting & Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981) and Jamar Sportswear, Inc. v. Miller, 413 So.2d 811 (Fla. 1st DCA 1982). Section 440.15(3)(a)3 mandates the Division of Workers’ Compensation of the Department of Labor and Employment Security to “establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings.” The statute further provides: “On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, copyright 1977, 1971, by the American Medical Association, shall be the temporary schedule and shall be used for the purposes hereof.” Keying in on the “August 1, 1979” language of the amended statute, a number of our decisions, while sustaining awards not based on evidence reflecting the use of the guides, have nonetheless observed that such awards, entered on or after August 1, 1979, were “technical violations” of Section 440.15(3)(a)3. Snead, at 1017; Vannice Construction Co. v. Silverman, 419 So.2d 369 (Fla. 1st DCA 1982); Dade American Hospital Supply v. Perez, 417 So.2d 296, 297 (Fla. 1st DCA 1982).

Although it does not appear from any of the above opinions whether the court was asked if Section 440.15(3)(a)3’s provisions could be retrospectively applied to injuries which had occurred before the statute’s effective date, the consequence of our decisions in Rohn and Jamar was to do just that, since they disapproved impairment ratings, not based on the guides, of injuries which had been sustained before August 1, 1979, the date Section 440.15(3)(a)3 became law. We now recede from Rohn and Jamar, as well as all other opinions of this court holding similarly, because they did not properly take into account the effective date the guides were required to be used.

Section 440.15(3)(a)3’s provision that permanent impairment ratings be based on objective standards first appears in Section 10, Chapter 79-40, Laws of Florida. As then worded, Section 10 — instead of simply declaring as does the final statute that the guides shall be used as of August 1,1979— provided in part: “On the effective date of this act and pending the adoption of a permanent schedule, Guides to the Evaluation of Permanent Impairment, ... by the American Medical Association, shall be the temporary schedule_” (e.s.) Section 127 applied Chapter 79-40 “to all claims for injury arising out of accidents occurring on or after July 1, 1979.”

During the 1979 legislative session, Chapter 79-40 was amended by Chapter 79-312. Although minor changes were made to Section 440.15(3)(a)3 by Section 8 of the act, the language arising from Chapter 79-40 remained intact in requiring the temporary use of the guides “[o]n the effective date of this act....” The July 1, 1979 effective date of Chapter 79-40 was later amended, however, to “apply to all claims for injury arising out of accidents occurring on or after August 1, 1979.” Chapter 79-312, Sections 23, 25, Laws of Florida (e.s.). Section 25 specifically narrowed the effective date to Sections 6-20 of Chapter 79-312. Significantly, Section 8 of the act comprises the permanent impairment provisions of Section 440.15(3)(a)3.

From our examination of the above session laws, we find that the legislature has unequivocally expressed its intent as to the date the temporary guides are to be used in rating the degree of permanent impairment: They are to be used in “all claims for injury arising out of accidents occurring on or after August 1, 1979.” (e.s.) Unfortunately this declaration was not carried over in the language of Section 440.15(3)(a)3, as published in the compiled 1979 general statutes. No reviser’s note accompanies the statute as to why the complete statement contained in Section 23 or 25 of the enrolled act was not employed.

If this appeal had been filed before the Official 1979 Statutes were adopted by the 1981 legislature, and if there were any genuine question of conflict between the enrolled act and the published statute, the rule of construction to be applied would be simple: The enrolled act is the best evidence of what the law is as to the matter dealt with and would prevail. See Preface to Florida Statutes, Vol. I, 1981 Florida Statutes at vii. This rule does not, however, apply since the order on review was not entered until November 16, 1982, and our jurisdiction had not vested until after the publication of the 1981 statutes. Cf. McCulley Ford, Inc. v. Calvin, 308 So.2d 189, 195 (Fla. 1st DCA 1974). If it were determined that there was conflict between the two, we would be faced with the contrary rule recognizing that those portions of the statutory law of the preceding regular session which were adopted by the next succeeding regular session constitute the best evidence of what the law is. See Preface to Florida Statutes, supra. Before we apply either rule of construction, however, it is necessary for us to decide whether there is in fact a conflict.

Due to the obvious expression of legislative intent appearing in the session law, we will not presume that the revised statute represents a deliberate attempt by the Joint Legislative Management Committee to make a substantive change in the statutory law — an action which is in excess of the authority granted it. Foley v. State, 50 So.2d 179, 184 (Fla.1951); Jones v. Christina, 184 So.2d 181, 184 (Fla.1966). We are confident that the purpose of the revisers in substituting the words “August 1, 1979” in Section 440.15(3)(a)3 for “the effective date of this act” was simply to reference the language of Section 8, Chapter 79-812, to that contained in Sections 23 and 25 of the act, describing the conditions under which the act was to take effect. The revision, under those circumstances, was carried out pursuant to the provisions of Section 11.242(1), Florida Statutes (1979), for the purpose of “removing inconsistencies, redundancies and unnecessary repetitions .... ”

In view of the unambiguous language employed in Section 127 of Chapter 79-40, and in Sections 23 and 25 of Chapter 79-312, we now hold that the reference to August 1, 1979 in Section 440.15(3)(a)3 requires that the temporary guides be used to gauge the degree of permanent impairment only as to claims for injury arising out of accidents occurring on or after August 1, 1979. Accordingly, we recede from Rohn and Jamar and from any language in other decisions indicating a contrary result.

The deputy commissioner’s order insofar as it denied permanent partial disability benefits based upon our previous decisions is REVERSED and this cause is REMANDED for redetermination consistent with this opinion.

ERVIN, C.J., MILLS, ROBERT P. SMITH, Jr., LARRY G. SMITH, SHIVERS, JOANOS, WIGGINTON, NIMMONS and ZEHMER, JJ., concur.

THOMPSON and BOOTH, JJ., specially concur.

WENTWORTH, J., dissents with opinion.

THOMPSON, Judge,

specially concurring.

I concur in the result reached by the majority on the issue determined en banc and would recede from the prior decisions of this court which interpret § 440.-15(3)(a)3., Fla.Stat. (1979) as requiring that permanent impairment be determined in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) for accidents occurring prior to August 1, 1979. Application of this statute to pre-August 1, 1979 accidents results in an unconstitutional impairment of the claimant’s contract with his employer and his employer’s insurance carrier.

Hardware Mutual Casualty Co. v. Carlton, 151 Fla. 238, 9 So.2d 359 (1942), held that an employee who sustained an injury prior to the effective date.of a 1941 amendment to the workmen’s compensation law, which allowed attorney’s fees against the employer and insurance carrier, was not entitled to an attorney’s fee. In so holding the court stated:

This statute substantially changed the liability of the employer and the insurance carrier from what it was when the injury occurred.
The acceptance of the application of Workmen’s Compensation Statutes, Acts 1935, c. 17481, by employer, employee and insurance carrier constitutes a contract between the parties embracing the provisions of the statutes as they may exist at the time of any injury compensa-ble under the terms of the statute. See Chamberlain v. Florida Power Corporation, 144 Fla. 719, 198 So. 486; Liberato v. Royer, 270 U.S. 535, 46 S.Ct. 373, 70 L.Ed. 719.
It, therefore, follows that when claimant was injured in November of 1940, the Act of 1941, supra, was not in existence and was not a part of the contract.
In Page on Contracts, Vol. 6, Sec. 3674, the writer says: “The obligation of a contract is impaired when the substantive rights of the parties thereunder are changed. The extent to which their substantive rights are impaired is probably immaterial since they are entitled to their rights under the original contract without any change.”

Id. at 9 So.2d 359, 360. See also Sullivan v. Mayo, 121 So.2d 424 (Fla.1960); Ship Shape v. Taylor, 397 So.2d 1199 (Fla. 1st DCA 1981).

In order for a permanent impairment to result from a post-July 31, 1979, injury, such as the one in this case, it must be based on medically or scientifically demonstrable findings determined in accordance with the AMA Guides. However, prior to August 1, 1979, a finding of permanent disability could be based on any competent medical testimony or even on purely subjective findings. If the use of AMA Guides is required to determine whether the claimant in this case had a compensable claim for wage loss benefits or for permanent partial disability under the pre-1979 law, the claimant is not entitled to any of those benefits because there is no competent substantial evidence of a permanent impairment determination in accordance with the AMA Guides. However, if use of the AMA Guides is not required, there is competent substantial evidence that the claimant has sustained a permanent disability or impairment of his hearing. Although the extent of the impairment of contract is immaterial, I can conceive of no greater impairment of contract and of the claimant’s constitutional rights than the retroactive application of an amendment that would prevent him from receiving compensation that he was entitled to at the time his accident occurred. The claimant’s substantive rights were substantially changed by the 1979 amendment and its application would prevent the claimant from receiving benefits he was entitled to under the law in effect at the time of his injury.

BOOTH, J., concurs.

WENTWORTH, Judge,

dissenting.

I dissent, and would conclude that our earlier decisions correctly construed § 440.-15(3)(a)3 as a burden of proof amendment uniformly applicable after August 1, 1979, to the longstanding problem of determination of permanent impairment for compensation purposes. Sections 26 and 128 of Chapter 79-312, providing the act “shall take effect on August 1,” should control all procedural amendments in the act not specifically excluded therefrom. Cf., Summerlin v. Tramill, 290 So.2d 53 (Fla.1973); Walker & Laberge Inc. v. Halligan, 344 So.2d 239 (Fla.1977); Myers v. Carr Construction Co., 387 So.2d 417 (Fla. 1st DCA 1980). Sections 25 and 127, limiting the new act (except for forum changes) to accidents after August 1, should of course control substantive amendments but do not in my opinion constitute specific legislative alteration of the general rule on procedural amendments, most particularly in view of the internal provision in the section in question that on the effective date the “Guides ... shall be used for the purposes hereof.”

I would note also a confusion in terminology because the stated purpose of the section is not that a physician’s rating be “referenced to” the Guides, and not that an award be based on “evidence reflecting the use of the guides.” The mandate instead is for the “use [of] a schedule for determining the existence and degree of impairment,” a function of the deputy, based on evidence which in substance meets the Guide’s standards whether or not a medical witness uses or references those prescriptions.

      . The provisions of Sections 23 and 25 of Chapter 79-312 are found in the 1979 Official Florida Statutes at Section 440.60.


text:
    Samuel Perry PENLAND, Sr., Appellant, v. Sybil Claire PENLAND, Appellee.
    No. AQ-354.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.

      John Paul Howard, Jacksonville, for appellant.
    Elaine N. Duggar, Gardner, Shelter & Duggar, Tallahassee, for appellee.
   MILLS, Judge.

Both parties appeal from an order denying modification of a final judgment of dissolution of marriage. We affirm.

Perry and Sybil Penland were divorced in 1980. The final judgment provided that the marital property would be divided so that Sybil had assets worth approximately $505,000 and Perry had assets worth approximately $585,000. The final judgment also required that Perry pay Sybil $2,000 per month as permanent alimony subject to future modification.

In 1982, Perry sought to have the alimony terminated. In response, Sybil sought an alimony increase. Sybil also asked the trial court to require Perry to pay her a portion of a tax refund received for taxes paid in 1979, a year in which Perry and Sybil filed a joint income tax return.

The trial court found that the circumstances of the parties had not changed enough to warrant modification. The trial court also denied Sybil’s request for a portion of the tax refund on the basis that disposition of the refund was covered by a pre-divorce agreement and on the basis that Perry had earned the income and sustained the loss which generated the refund.

Alimony may not be modified for anticipated changes in circumstances. Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981); Withers v. Withers, 390 So.2d 453 (Fla. 2d DCA 1980). When the trial court entered final judgment, Perry and Sybil knew that Sybil would have substantial assets and non-alimony income from those assets. They also knew that the non-alimony income would decrease and eventually terminate. Sybil’s changed financial circumstances were anticipated and could not serve as a basis for alimony modification.

Perry asserts that Sybil’s circumstances have changed because she is now able to supplement her income through gainful employment. The record, however, supports the trial court’s finding that Sybil’s ability to work is limited and that any work she does will be primarily therapeutic. There have been no unanticipated changes in Sybil’s circumstances justifying alimony modification.

Perry’s financial circumstances have not changed enough to warrant a modification of alimony. Perry does not argue on appeal that his financial circumstances have deteriorated. Sybil failed to show anything but a temporary increase in Perry’s income. In addition, Sybil failed to show that she needs more money. We agree with the trial court that alimony modification was not justified.

We find no merit in Sybil’s contention that she should receive a portion of the income tax refund for 1979. The trial court properly found that the pre-divorce agreement between the parties known as the “Boney Road Agreement” governed the disposition of the refund. The trial court did not abuse its discretion in interpreting this agreement.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


text:
    John Madison YATES, Appellant, v. Susan Ann YATES, Appellee.
    No. AQ-402.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.
    Rehearing Denied Jan. 10, 1984.
    David A. Sapp of Fisher, Bell, Hahn & Schuster, Pensacola, for appellant.
    David H. Levin of Levin, Warfield, Mid-dlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellee.
   PER CURIAM.

The final judgment of dissolution is affirmed; the award of attorney’s fees to the wife is reversed. The record in this case clearly demonstrates that the wife is in an equal, or better, position to pay her attorney’s fees than is the husband. Carangi v. Carangi, 441 So.2d 658 (Fla. 3rd DCA 1983); Greer v. Greer, 438 So.2d 535 (Fla. 2nd DCA 1983); Poppe v. Poppe, 412 So.2d 38 (Fla. 3rd DCA 1982); Epstein v. Epstein, 386 So.2d 1200 (Fla. 3rd DCA 1980); Hill v. Hill, 376 So.2d 472 (Fla. 4th DCA 1979); Bucci v. Bucci, 350 So.2d 786 (Fla. 3rd DCA 1977); Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977).

AFFIRMED in part and REVERSED in part.

LARRY G. SMITH, WENTWORTH and JO ANOS, JJ., concur.


author: JOANOS, Judge.

text:
    Patsy FERRAZZOLI, Appellant, v. STATE of Florida, Appellee.
    No. AQ-431.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1983.

      Wm. J. Sheppard, Elizabeth L. White of Law Office of Wm. J. Sheppard, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and John W. Tiede-mann, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

The appellant was charged with (1) trafficking in cocaine, (2) possession with intent to distribute cocaine; (3) possession of a firearm during the commission of a felony; (4) carrying a concealed weapon; and (5) operating a motor vehicle while in possession of drugs, with all offenses arising out of a controlled drug buy. Legally sufficient motions to suppress physical evidence and statements made to police officers were filed in accordance with Fla.R. Crim.P. 3.190(h)(4). The trial judge denied these motions after “reviewing the record, including the motions, the memoranda submitted in connection therewith, the sworn complaint and mittimus, and the affidavits for search warrants,” but without holding a formal evidentiary hearing, although defense counsel had expressed a desire to be heard on the motions on the day of trial. The judge, in an attempt to organize pretrial proceedings and prevent delay in the trial of cases, was operating under an order which stated that hearings would not “be held on motions unless set by the court except motions requiring an evidentiary hearing,” thus there is an inference in this case that the court believed that no eviden-tiary hearing was required on the motions to suppress. Appellant entered a plea of nolo contendere to the charge of trafficking in cocaine with the remainder of the charges being dismissed, and reserved the right; to appeal the trial court’s denial of the motions to suppress.

The review by the trial judge of the ábove enumerated documents did not constitute the kind of evidentiary hearing contemplated by Fla.R.Crim.P. 3.190(h)(3), which provides:

Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the Court hears the motion on its merits, the defendant shall present evidence supporting his position and the State may offer rebuttal evidence.

Therefore judgment and sentence are reversed and the case remanded for an evi-dentiary hearing on the motions. See Barker v. State, 438 So.2d 1014 (Fla. 4th DCA 1983); Mason v. State, 375 So.2d 1125, 1129 (Fla. 1st DCA 1979).

Appellee contends that appellant waived the issue by failing to bring to the trial court’s attention its argument that the denial of the motions to suppress was improper for failure to hold a formal eviden-tiary hearing. The record shows, however, that during the course of pretrial proceedings defense counsel made clear to the court their intention to pursue the motions to suppress and their desire to be heard on the motions on the day of trial. The court’s order denying the motions before trial and thus before this hearing could take place constituted a denial of the requested hearing, thus the issue was preserved for review.

REVERSED and REMANDED for further proceedings in light of this opinion.

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