author: HERSEY, Judge.

text:
    In re The ESTATE OF Pauline Helen PENDRYS, Deceased. Andrew PENDRYS and Domenic L. Grosso as Guardian ad Litem for Timothy Pendrys, Appellants, v. Barbara SZYMBER, Appellee.
    No. 82-2443.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Jonathan L. Gaines and Paul R. Regens-dorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellants.
    Lewis M. Petzold of Dilworth, Paxson, Kalish, Kauffman & Tylander, Boca Raton, for appellee.
   HERSEY, Judge.

The proceedings which ripened into this appeal were initiated by a petition filed in the probate division of the. circuit court seeking a determination as to whether property constituted a homestead for purposes of descent and distribution. The trial court answered this query in the negative.

Edwin and Pauline Pendrys were divorced in 1977. The Illinois court approved a settlement agreement providing for joint custody of two minor sons with Edwin agreeing to furnish their full support and maintenance. In January of 1982, Timothy, age 16, became uncomfortable living in Illinois with his father and came to Boca Raton, Florida, to live with his mother in the home awarded to her from the divorce. Timothy obtained a Florida driver’s license and enrolled in school. Five weeks later Pauline was hospitalized. It was decided that Timothy would return to his father’s home in Illinois. There is some evidence that Timothy’s absence from Florida was a temporary expedient, awaiting only his mother’s recovery from illness. There is no evidence to the contrary. Pauline Pen-drys died approximately one month later leaving a will which devised the residential real property to a sister, appellee, Barbara Ann Szymber. The personal representative filed the petition for guidance to which we referred initially.

The issues are whether homestead status attached to the residence by virtue of its occupancy by mother and son and, if so, whether that status was abandoned by Timothy’s return to Illinois. If homestead status attached and was hot abandoned then the devise to decedent’s sister is constitutionally infirm and therefore invalid. Art. X, § 4(c), Fla. Const. (1968). We recently had occasion to analyze this provision and its purpose in In Re: Estate of Melisi, 440 So.2d 584 (Fla. 4th DCA 1983). There we reminded that “[i]n order for property to [be classified] as homestead, the property must be the residence of either the owner or the owner’s family and the owner must be the ‘head of a family.’ ” Pauline Pendrys was, at the time of her death, the “owner” of the property sought to be classified as homestead. The question is whether she qualified as head of a family. We observe parenthetically that Edwin Pendrys did not own any real property in Florida nor did he reside here so that the possibility of dual homesteads is avoided by the facts of this ease.

Our inquiry is guided by the observation in Holden v. Estate of Garner, 420 So.2d 1082, 1083 (Fla.1982) that:

In determining whether a person is the head of a family, Florida courts have long used a test which requires a showing of either: (1) a legal duty to support which arises out of a family relationship, or (2) continuing communal living by at least two individuals under such circumstances that one is regarded as in charge. Killian v. Lawson, 387 So.2d 960 (Fla.1980); Solomon v. Davis, 100 So.2d 177 (Fla.1958); Beck v. Wylie, 60 So.2d 190 (Fla.1952); Heard v. Mathis, 344 So.2d 651 (Fla. 1st DCA 1977); Brown v. Hutch, 156 So.2d 683 (Fla. 2d DCA 1963). While the former requirement looks to a “family in law,” the latter looks to a “family in fact,” which arises out of a moral obligation to support. Smith v. Stewart, 390 So.2d 178 (Fla. 4th DCA 1980).

When marriages were “ ‘til death us do part” application of the head of the family test was reasonably uneventful. In these modern times in which relationships appear to be transitory the following from Nationwide Financial Corp. of Colorado v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981) succinctly portrays the difficulties inherent in any attempt to apply that test:

Since the homestead exemption for the “head of a family” has been a part of the constitution, however, separate living arrangements, dissolutions and single parentage have become a much more frequent occurrence. It is common for more than one member of the family to provide family income. When the “family” is not a cohesive unit or when only one parent provides the income, it is no easy task to determine who is the “head” of the family, and the courts have been reluctant to adhere to any hard and fast rule in making that determination. See, e.g., Osceola Fertilizer v. Sauls, 98 Fla. 339, 123 So. 780 (1929); Barnett Bank of Cocoa v. Osborne, 349 So.2d 223 (Fla. 4th DCA 1977); Estate of Deem v. Shinn, 297 So.2d 611 (Fla. 4th DCA 1974); Vandiver v. Vincent, 139 So.2d 704 (Fla. 2d DCA 1962).

The evidence shows that mother and minor child lived in a house in Florida which mother owned. It may be assumed that the mother was in control. In that posture they constituted a family in fact. Thus the property took on the status of a homestead.

The remaining question is whether that status was abandoned. We hold that it was not. Pauline Pendrys, except for being hospitalized, owned, resided in and (there being no evidence presented to the contrary) intended to continue to live in the residence and provide a home for her minor son. He, in turn, involuntarily removed himself from Florida awaiting his mother’s hoped-for recovery. On these facts it is clear that no abandonment took place.

The result we reach, reversing the lower court, does not evolve out of a reweighing of the evidence or inquiry into its sufficiency. The facts are substantially uncontro-verted. We simply determine that, in a close case, the trial court applied the incorrect rule of law. See Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981).

We therefore reverse and remand for further appropriate proceedings.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ., concur.


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    Arthur E. ANDERSON, Appellant, v. AETNA CASUALTY AND SURETY COMPANY and Travelers Insurance Company, Appellees.
    No. 82-2548.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee Aetna.
   LETTS, Judge.

This is an appeal by an insured from that portion of a trial judge’s order which denied coverage by reason of a provision in Aetna’s policy excluding personal injury protection coverage to an owner. We reverse.

The insurance policy sought to exclude personal injury protection benefits “to the named insured or any relative while occupying a motor vehicle of which the named insured is the owner and which is not an insured motor vehicle under this insurance.” In another paragraph, the policy defined “owner” as one who holds legal title to the uninsured vehicle. Under the facts before us now, the insured had a beneficial interest in the vehicle but he did not hold legal title to the vehicle at the time of the accident.

Reversed and remanded with instrue-tions.

Strictly construing the terms of the policy, as we must, any legal interpretation of the term “owner” must be limited to the definition set forth. Thus, the trial court erred in applying the PIP exclusion because the insured did not have legal title to the vehicle. Accordingly, we reverse the trial court’s decision since the PIP exclusion is inapplicable.

REVERSED.

DOWNEY and HERSEY, JJ., concur.

      . The insured was under contract to purchase the vehicle.


author: PER CURIAM.

text:
    CITY OF LAKE WORTH, Appellant, v. Robert WALTON, Appellee.
    No. 83-124.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    James M. Adams and Charles W. Mus-grove, Lake Worth, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A. and Edna L. Caruso, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The issue is whether the trial court erred in granting a writ of mandamus requiring the appellant/city to pay a cost judgment. We hold that the cost judgment was subject to an automatic stay and, therefore, we reverse.

Rule 9.110(h), Fla.R.App.P., provides that “[t]he court may review any ruling or matter occurring prior to filing of the notice [of appeal]. Multiple final orders may be reviewed by a single noticé, if the notice is timely filed as to each such order.” Applying this rule to the case at bar, we hold that the notice of appeal in case no. 82-2199 which was timely filed after rendition of a final judgment and after rendition of an order taxing costs and attorney’s fees, gave this court jurisdiction to review both orders. See also Roberts v. Askew, 260 So.2d 492 (Fla.1972) (construing predecessor rule). Since the City of Lake Worth, a public body, is the appellant in case no. 82-2199, its timely filed notice of appeal automatically operated as a stay of both orders under review. See Rule 9.310(b), Fla.R.App.P. Consequently, the trial court erred in granting a writ of mandamus requiring payment of a cost judgment which had been stayed pending review.

Accordingly, we reverse and remand with instructions to discharge the writ.

REVERSED & REMANDED WITH INSTRUCTIONS.

DOWNEY, HURLEY and WALDEN, JJ., concur.


text:
    Gary William BENSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-155.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Rehearing Denied Jan. 25, 1984.
    Kenneth W. Gieseking of Law Offices of Kenneth W. Gieseking, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the issues raised by appellant and the record of the proceedings below we do not believe reversible error has been demonstrated. For the most part we believe the state’s response to the issues raised adequately sets out the reasons for our decision to affirm. While we have some concern for the degree of rhetoric contained in the state’s closing argument, we do not believe such argument constituted error requiring a new trial. Accordingly, the judgment of the trial court is affirmed.

ANSTEAD, C.J., and DOWNEY and DELL, JJ., concur.


text:
    Larry Donnell THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 83-531.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Larry Donnell Thomas, charged with attempted sexual battery, was adjudged not guilty by reason of insanity on July 28, 1981 and was subsequently committed for observation and treatment. His most recent petition for release filed December 17, 1982 was denied by the trial court, occasioning these appellate proceedings. Although denominated an appeal, review by certiorari appears to be the more procedurally correct vehicle to bring up an order involving the conditional release program codified in Section 916.17, Florida Statutes (1981) and Rule 3.219 of the Florida Rules of Criminal Procedure. We treat appellant’s application accordingly and deny the petition for writ of certiorari.

The order complained of provides:

ORDERED AND ADJUDGED that the Defendant’s Motion for Conditional Release is hereby denied on the following basis:
1.The Department of Health & Rehabilitative Services has not complied with the statutory requirements regarding the preparation of an adequate plan for release as set forth in F.R.Cr.P. 3.219, F.S. 916.17, and in Thomas Hill v. State, 358 So.2d 190, (1978); in that the plan did not adequately address the following:
a.A supervised living arrangement for Mr. Thomas.
b. A system for monitoring the aftercare and follow-up of Mr. Thomas.
c. A plan in which Mr. Thomas might have an appropriate means of self-support.
2.Relying on the reports of the experts, the Department of Health and Rehabilitative Services, and primarily the evaluation conducted by the TASC Program, this Court finds that Mr. Thomas lacks appropriate insight into his problems, and therefore still presents a danger to himself and to society; and it is therefore further
ORDERED AND ADJUDGED as follows:
1. The Defendant is hereby recommitted to the Department of Health and Rehabilitative Services.
2. The Court hereby retains jurisdiction over this case, and Mr. Thomas shall not be released from the hospital without the prior consent of this Court.
3. The findings of this Court at this hearing are without prejudice, in that the Department of Health and Rehabilitative Services may refile a subsequent Motion for Conditional Release upon their compliance with the items enumerated in this order.

Petitioner contends that it has not been shown that if released he would be likely to injure himself or others and therefore he is entitled to an order of release. Reliance on the likely-to-injure standard analyzed in Hill v. State, 358 So.2d 190 (Fla. 1st DCA 1978) is no longer justified. The test laid down by Section 394.467, Florida Statutes (Supp.1982) and Section 916.15, Florida Statutes (1981), and now applicable to a person acquitted of criminal charges by a finding of not guilty by reason of insanity, is whether he is “manifestly dangerous to himself or others.” The trial court found that Thomas met this criteria and that finding is supported by the evidence.

Noting that either the Department of Health and Rehabilitative Services or petitioner himself are at liberty to propose to the trial court a plan of conditional release meeting the legitimate concerns expressed in the order, we find no departure from the essential requirements of the law and decline to issue the writ.

CERTIORARI DENIED.

DOWNEY and BERANEK, JJ., concur.


author: ANSTEAD, Chief Judge.

text:
    SOUTHEASTERN FIRE INSURANCE COMPANY, Appellant/Cross-Appellee, v. Daniel LEHRMAN, Appellee/Cross-Appellant.
    No. 83-578.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Rehearing Denied Feb. 3, 1984.
    James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., Fort Pierce, for appellant/cross-appellfee.
    Osborne - Walker O’Quinn, Fort Pierce, for appellee/cross-appellant.
   ANSTEAD, Chief Judge.

This is an appeal from a final judgment assessing damages against the appellant insurance company for a loss by theft of the appellee insured. We believe the trial court erred in construing an insurance policy to include coverage for the appellee’s customized show motorcycle where the policy specifically excluded from coverage “motorized vehicles, except such vehicles pertaining to the service of the premises and not licensed for road use.” It is undisputed that appellee’s motorcycle is a “motorized vehicle” and that such vehicle was not one “pertaining to the service of the premises” upon which appellee resided. Under such circumstances the motorcycle was excluded ¡from coverage.

Courts should resort to complex rules of construction to determine coverage or the applicability of exclusions only when the language used in the policy is ambiguous or otherwise susceptible of more than one meaning. Absent such factors courts should apply the plain meaning of words and phrases used in a policy of insurance. Guthrie v. State Farm Mutual Automobile Insurance Co., 382 So.2d 1312 (Fla. 4th DCA 1980). While we will not hesitate to construe provisions against an insurance company responsible for drafting the contract, we must be equally ihindful to construe words and phrases according to their plain meanings. This is especially important in light of our repeated admonitions to insurance companies to write policies in clear and understandable terms.

In accordance with the above we reverse and remand with directions that judgment be entered in favor of the appellant. In view of our holding we need not decide the issue raised on cross appeal.

DOWNEY and DELL, JJ., concur.


text:
    SHELL DEVELOPMENT CORPORATION, Appellant, v. ANN FORD, INC., a Florida corporation, and Trans-Florida Realty Corp., a Florida corporation, Appellees.
    No. 83-633.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Linda K. Raspolich of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellant.
    David R. Thompson, Jr., Panama City, for appellees.
   PER CURIAM.

Appellees (hereafter Ann Ford) sued appellant (hereafter Shell) and recovered a real estate commission of $20,000.

The evidence reflects that in November 1979 Shell’s lawyer wrote Ann Ford advising that Shell contemplated purchasing certain apartments in Fort Lauderdale and that, if the purchase was consummated, a real estate brokerage commission of $100,-000 would be due and payable.

Subsequently, on January 15, 1980, Shell’s lawyer again wrote Ann Ford, stating:

Confirming our understanding relative to the purchase of the Galt Ocean Terrace Apartments by Shell Development Corporation, you have agreed to accept a real estate sales commission for and on account of this transaction, the sum of EIGHTY THOUSAND AND NO/100 ($80,000) DOLLARS. This sum will be placed in escrow upon the execution of the purchase contract and will be paid to you at the closing of this transaction.
It is further understanding that the only brokers involved in this transaction are Ann Ford, Inc. and Trans-Florida Realty Corporation and that if any other broker claims a right to share in that commission, such share will be paid if at all, by Trans-Florida Realty Corp.
This Agreement and Understanding su-percedes (sic) and voids my letter dated November 7, 1979.
Please acknowledge acknowledgment and acceptance of this Agreement by having a copy of this letter fully executed and returned to me.

The letter was approved by the appellees.

Prior to the filing of this suit the $80,000 commission mentioned in the letter of January 15, 1980, was the subject of an inter-pleader action filed by the purchaser’s attorney because a third party claimed a portion of the commission. In that interpleader action Ann Ford filed a third party complaint claiming the commission. This suit was settled and Ann Ford received $65,000.

The present suit was commenced to recover an additional $20,000 in commission. At trial the court, upon a ruling that the letter of January 15, 1980, was ambiguous, allowed Ann Ford to adduce evidence that Shell had agreed prior to the writing of that letter to an additional commission of $20,000. Shell objected on parole evidence grounds but the objection was overruled. We have considered Ann Ford’s arguments in her brief and at oral argument regarding alleged ambiguities in the letters of November 1979 and January 1980. However, we hold that there are no ambiguities in the letter of January 1980, thus the admission of parole evidence of an agreement for additional commission was improper.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to enter judgment for appellant Shell Development Corporation, Inc.

REVERSED AND REMANDED, with directions.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    In the Interest of H.D., a child.
    No. 83-678.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Rehearing Denied Jan. 18, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Finding that Rule 8.290(d)(4) of the Florida Rules of Juvenile Procedure tracks Rule 3.111(d)(4) of the Florida Rules of Criminal Procedure, we affirm on the authority of Jordan v. State, 334 So.2d 589 (Fla.1976).

AFFIRMED.

BERANEK and DELL, JJ., concur.


text:
    Roy Irwin SNYDERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-992.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, 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.

The order revoking defendant’s probation is affirmed as hereafter modified. At the conclusion of the defendant’s probation revocation hearing, the court announced its finding that the defendant had violated conditions three, five and six. The written order of revocation, however, recites that the defendant violated each of the six allegations in the amended affidavit. Accordingly, we remand with instructions to modify the order of revocation to conform with the court’s oral pronouncement and, as modified, we affirm.

DOWNEY, HURLEY and DELL, JJ., concur.


author: HURLEY, Judge.

text:
    Alain SCORDILIS, Appellant, v. Marie DROBNICKI, Appellee.
    No. 83-1894.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Rehearing Denied Jan. 31, 1984.

      Charles Wender of Smith, Smith & Wen-der, P.A., Boca Raton, for appellant.
    Harvey J. Garod of Shutts & Bowen, Lake Worth, for appellee.
   HURLEY, Judge.

The issue in this non-final appeal is whether the trial court correctly determined that Florida’s long arm statute empowered the court to exercise in personam jurisdiction over a non-resident defendant. We conclude that the allegations of the complaint, coupled with the affidavits offered in support of and in opposition to the defendant’s motion to dismiss, fail to demonstrate sufficient minimum contacts between the defendant and the State of Florida and, consequently, we reverse.

This case is the product of a family dispute which culminated in a multi-count complaint filed by the plaintiff mother-in-law against the defendant son-in-law. The critical allegations indicate that the mother-in-law is a Florida resident while the son-in-law is a New York resident. Essentially, the case concerns four loans made by the mother-in-law to the son-in-law in New York pursuant to oral contracts which did not specify a location for repayment. The complaint does not indicate where the mother-in-law resided when the loans were made, but the brief filed in this appeal states that she was a New York resident at that time. The complaint also contains a count for payment for personal services rendered pursuant to an implied contract in New York, a count for conversion of New York household goods and a count for fraudulent conveyance of New York real property. The son-in-law filed a motion to dismiss, contending that the complaint failed to allege sufficient facts to justify a Florida court exercising in personam jurisdiction. To support the motion, the son-in-law filed an affidavit which verified his New York residence and stated that he had no contact with the State of Florida. The mother-in-law did not file an affidavit to verify her place of residence. She did, however, file an affidavit from a daughter who lives in Florida and who stated that the defendant, her brother-in-law, at some time in the past, had spent sixty to ninety days in Florida.

The mother-in-law’s theory of jurisdiction involves a two-step analysis. First, relying on general contract law, she asserts that in a suit on a contract, the cause of action arises where the breach occurs; and, if the contract does not expressly provide for a place of payment, it is implied that payment is to be made at the residence of the creditor. See, e.g., Crescent Beach, Inc. v. Jarvis, 435 So.2d 396 (Fla. 5th DCA 1983). Second, she employs section 48.193(l)(g), Florida Statutes (1981), which provides that a person is subject to Florida’s jurisdiction if that person “[bjreaches a contract in this state by failing to perform acts required by the contract to be performed in this state.”

Admittedly, if the general principles of contract law can be applied so as to find a breach of the contract in Florida, then a literal reading of the statute would suggest that Florida has jurisdiction over the son-in-law. But, in our view, such an application of the statute would not pass constitutional muster. Our sister court articulated the same concern in Osborn v. University So ciety, Inc., 378 So.2d 873 (Fla. 2d DCA 1979):

[I]n cases involving jurisdiction over nonresidents, there are constitutional issues which we must also consider. A court may acquire personal jurisdiction over a nonresident only if the nonresident has “minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). Thus, under a given factual situation, even though a nonresident may appear to fall within the wording of a long arm statute, a plaintiff may not constitutionally apply the statute to obtain jurisdiction in the absence of the requisite minimum contacts with the forum state.

Id. at 874 (citations omitted).

Quoting from International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the United States Supreme Court in Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977), observed that “[mjechanical or quantitative evaluations of the defendant’s activities in the forum could not resolve the question of reasonableness:

Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a statute may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties or relations.”

In the ease at bar, the son-in-law has only one, tenuous connection with Florida: he borrowed money from his mother-in-law, a New York resident, who later moved to Florida and made demand for repayment. Aside from this, there is no evidence that the defendant has any ties, contacts or relations with Florida.

In comparing this case with others in which the long arm statute has been applied, we find it significant that the son-in-law did not come to Florida to negotiate the loan as did the defendant in First National Bank of Kissimmee v. Dunham, 342 So.2d 1021 (Fla. 4th DCA 1977). Also, it is noteworthy that the parties did not expressly agree that the loans would be repaid in Florida. See Gerard v. Pisces Sales & Marketing, Inc., 425 So.2d 209 (Fla. 4th DCA 1983); see also Newton v. Bryan, 433 So.2d 577 (Fla. 5th DCA 1983). Perhaps most significantly, there are no allegations in this case that the defendant son-in-law availed himself of any privileges and benefits of Florida law. In short, the record reflects a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. The mother-in-law’s selection of Florida as her eventual place of residence is an isolated, “fortuitous circumstance,” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980), which, standing alone, will not support Florida’s exercise of in personam jurisdiction over the defendant. Mere “unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.” Hanson v. Dencklat 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). “In short, it cannot be said that the defendant engaged in any purposeful activity related to the forum that would make the exercise of jurisdiction fair, just or reasonable .... ” Rush v. Savchuk, 444 U.S. 320, 329, 100 S.Ct. 571, 577, 61 L.Ed.2d 516 (1980). Thus, we conclude that the complaint and supporting affidavit in the case at bar fail to demonstrate minimum contacts with Florida. Consequently, the plaintiff cannot employ the long arm statute to achieve in personam jurisdiction over the defendant in Florida. Contra Engineered Storage Systems v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982). Accordingly, the order on appeal is

REVERSED.

DOWNEY and DELL, JJ., concur.

      . Section 48.193(l)(g), Florida Statutes (1981).

      . The affidavit contained a typographical error in that it stated, “I am currently and have been at all times alleged in the Complaint a resident and domicile of the State of Florida, residing at 2015 61st Street Brooklyn, New York.” Upon review, the trial court noted the ambiguity and held "[t]hat is obviously a typographical error.”

      . The affidavit of the defendant’s sister-in-law indicated that, at some unspecified time, the defendant had spent sixty to ninety days in Florida. Apparently this was filed to demonstrate that the defendant has ties, contacts or relations with Florida. However, the affidavit is wholly insufficient for this purpose. It does not contain the slightest suggestion that the time spent in Florida was anything more than a visit and there is no allegation that it had anything to do with the events forming the basis of the complaint. Also, we note a second more serious deficiency in the mother-in-law’s proof: her failure to support the jurisdictional allegations of the complaint. In Hickok Teaching Systems v. Equitech Training Systems, 421 So.2d 772, 773 (Fla. 4th DCA 1982), we held that "[a] plaintiff must plead sufficient material facts to establish a basis for jurisdiction under the Florida Long-arm statute. If a defendant challenges those allegations by affidavit, the plaintiff must then support its jurisdictional allegations by affidavit or other proof.” The complaint in the case at bar alleged that the mother-in-law was a resident of Palm Beach County, Florida "at all times material to this cause.” When challenged by the son-in-law, the mother-in-law failed to respond with a supporting affidavit directed to her allegations. Moreover, it now appears through a concession in her brief that she was a resident of Florida only at the time that demand for repayment was made.


author: GLICKSTEIN, Judge.

text:
    Jimmy Carter LAMAR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1921.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Jimmy Carter Lamar, Jr., pro se.
    No appearance on behalf of appellee.
   GLICKSTEIN, Judge.

Appellant alleges that he was not given credit for time served on an invalidated armed robbery charge, and that an invalid sentence was used to enhance another charge. These allegations are properly raised on a Rule 3.850 motion, Meintzer v. State, 399 So.2d 133, 135 (Fla. 5th DCA 1981).

In Vellucci v. Cochran, 138 So.2d 510 (Fla.1962), an appellant’s conviction was invalidated, and his case sent back for retrial. Florida’s highest court observed that if on retrial appellant was either acquitted or received fewer days than those already served, the time served on this first charge would be applied to a second conviction on other charges. The same result is implied by Coleman v. Wainwright, 323 So.2d 581 (Fla.1975). Time served on a void conviction had been credited toward two later convictions. Although this was not the issue on appeal, the Coleman court held the time properly credited, implying that the time served on the invalid conviction could be credited to the others. Thus, the allegation that the trial court failed to consider time already served, if true, warrants modification of appellant’s sentence. Similarly, if the court considered the robbery conviction for the purpose of enhancing appellant’s sentence, a change might be appropriate.

Both of appellant’s contentions are questions on which the trial court should make a finding, see Cookish v. State, 416 So.2d 53 (Fla. 4th DCA 1982); Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981). Where such improprieties are alleged, the trial court, in addition, should attach the portions of the record demonstrating that appellant is not entitled to relief, if it summarily denies the motion. Otherwise, it should hold an evidentiary hearing. Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980); Fla.R.App.P. 9.140(g). We remand with directions that the trial court proceed in compliance with the foregoing requirements.

ANSTEAD, C.J., and DOWNEY, J., concur.


author: BERANEK, Judge.

text:
    Frank S. CLARK, Appellant, v. Dorothy F. CLARK (now known as Dorothy F. Galmish), Appellee.
    No. 83-2112.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Robert E. Dubow of Dubow & Thomas, Dania, for appellant.
    Patrick C. Rastatter of Glass, Rastatter & Tarlowe, P.A., Fort Lauderdale, for ap-pellee.
   BERANEK, Judge.

This is an interlocutory appeal growing out of a rather confused domestic situation. The parties were divorced in 1970, with custody of the three minor children being given to the wife. The wife remarried in 1974, and her second husband adopted the children. In 1977, the wife divorced her second husband and was granted custody of the children. In 1980, the wife moved to South Carolina where she resided with her son, the remaining minor child of the parties. She allowed her son to travel to Florida frequently to visit with his natural father and his older sister, who was then residing with the natural father. In 1983, the wife brought her son to Florida to spend his summer vacation with his natural father. The son, who was approximately 16 years of age, eventually decided that he wanted to reside in Florida with his father, and informed his mother that he was not returning to South Carolina. The wife disagreed and reinstituted proceedings in the original divorce case in Florida.

The wife sought to hold her first husband in contempt, and the husband sought dismissal urging an absence of personal and subject matter jurisdiction. He argues that the wife’s motion seeks to hold him in contempt of the 1970 divorce decree and that this decree has been superseded by the 1974 adoption and the wife’s 1977 divorce from her second husband. We certainly agree that contempt was an improper vehicle for bringing this matter before the court. However, although styled “Motion and Suggestion for Contempt,” the wife is really asking for a custody determination as exhibited by her prayer for relief:

WHEREFORE, the Petitioner moves this Honorable Court to issue an Order requiring the Respondent to make an immediate return of the minor child, FRANK STILES GALMISH, and any further relief that may be just and proper under the circumstances ....

The court clearly has both subject matter and personal jurisdiction over the minor child and is required to act in the best interest of that child. Jurisdiction over the natural father is of no concern to us as he is a stranger to these proceedings, and the trial court does not need jurisdiction over him in order to determine the custody of the minor over whom the court does have jurisdiction. It appears obvious that the adoptive father, who has been mentioned by no one, would be an appropriate party to these proceedings. Further, the natural father may not seek to retain custody and simultaneously object to jurisdiction over him.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.

DOWNEY and HERSEY, JJ., concur.


text:
    Alphonso McBRIDE, Petitioner, v. STATE of Florida, Respondent.
    No. 83-2241.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1984.
    Alphonso McBride, Raiford, pro se petitioner.

      No appearance required for respondent.
   PER CURIAM.

The matter is before us upon Petition For Writ of Mandamus and Responses of the State of Florida which agree that Petitioner is entitled to relief.

It appears that Petitioner duly filed his Motion For Post-Conviction Relief, pursuant to Florida Rule of Criminal Procedure 3.850, in the Circuit Court of the Nineteenth Judicial Circuit, in and for Indian River County, Florida, sometime in March, 1983. It appears that the Honorable G. Kendall Sharp, Circuit Judge, endorsed the original motion in his handwriting “motion denied 3/14/83.” However, no formal order has been filed or rendered. We issued an order to show cause on October 31, 1983, and, to date, a proper order has not been entered. The failure to promptly issue a formal order results in an inappropriate delay as concerns Petitioner’s appellate rights.

We grant the petition for Writ of Mandamus. Flagship Nat. Bank of Miami v. Testa, 429 So.2d 69 (Fla. 3d DCA 1983); State ex rel. Locke v. Sandler, 156 Fla. 136, 23 So.2d 276 (1945); State ex rel. Palmer v. Atkinson, 116 Fla. 366, 156 So. 726 (1934).

We respectfully direct the Honorable G. Kendall Sharp, Circuit Judge, or his successor, to enter a formal ruling upon Petitioner’s Motion For Post-Conviction Relief, in accordance with Florida Rule of Criminal Procedure 3.850, within ten (10) days of receipt of this order, or from date issued. We are content that Respondent will comply with the directions of this Court without the necessity for the issuance of the peremptory writ.

Petition for Writ of Mandamus is

GRANTED.

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


text:
    Deborah Kirk EDWARDS and Bill J. Kirk, Appellants, v. YELLOW CAB COMPANY OF LAKELAND, INC., Melvin Lee Vaden and William Harvey Smith, Appellees.
    No. 83-61.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.
    Lex Taylor, Lakeland, for appellants.
    Larry M. Segall of Straske, Farfante, Segall & Arcuri, P.A., Tampa, for appellee Yellow Cab Co. of Lakeland.
   PER CURIAM.

Affirmed. Our decision, however, does not preclude appellants from filing appropriate actions against any parties other than appellee Yellow Cab. We also note that appellants, of course, are not precluded from seeking relief which might be available in federal bankruptcy court.

GRIMES, A.C.J., RYDER, J., and HAN-LON, Morton J., Associate Judge, concur.


author: RYDER, Judge.

text:
    Gladys M. WITTER, Appellant, v. Donald R. WITTER, Jr., Appellee.
    No. 83-759.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.

      Elihu H. Berman of Krug, Berman & Silverman, and Leon Whitehurst, Jr., Clear-water, for appellant.
    Charles F. Mixon of Mixon & Vollrath, Tampa, for appellee.
   RYDER, Judge.

Gladys Witter seeks review of a post-dissolution of marriage order granting Donald Witter, Jr.’s motion to dismiss her petition for modification of alimony. In this appeal, the former wife contends the trial court erred in ruling that (1) “the parties intended the separation and property settlement agreement to be a permanent resolution of their rights with each other,” and (2) “there has been valuable property rights exchanged between the parties and the payment of periodic alimony is only a part thereof with the other exchanges of rights.”

Upon close examination of the entire agreement, which was incorporated into the final judgment of dissolution of marriage, and after a review of the applicable case law, we hold the learned trial judge erred in finding the document was clearly a “true and complete property settlement agreement” and in determining he did not have jurisdiction to modify the alimony provision. We find the facts of Woodworth v. Woodworth, 385 So.2d 1024 (Fla. 4th DCA 1980), to be very similar to the facts of the present case and further find its analysis and holding to be supportive of our conclusion. Moreover, in addition to the determinative factors mentioned in Woodworth, we note that the agreement in the case sub judice does not specifically state the alimony provision is part of an exchange of true property rights nor does the agreement, including the clause concerning the intention of the parties, specifically state the alimony provision is final and unmodifiable.

Consequently, the conclusion of the Fourth District in Woodworth is appropriate here:

This is a classic case of an agreement containing a combination of provisions. The agreement provides for future support and maintenance subject to modification by the trial court. It also divides the parties’ property and disposes of the property rights without being subject to modification.

385 So.2d at 1026.

Accordingly, we reverse, vacate the order granting the motion to dismiss, remand the cause, and direct the trial court to exercise its jurisdiction with respect to the petition and conduct further proceedings consistent with the dictates of section 61.-14, Florida Statutes (1981).

REVERSED and REMANDED with instructions.

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

      . Although not specifically raised by the parties on appeal, we note that the provision requiring Mr. Witter to maintain a life insurance policy with Mrs. Witter as the beneficiary is part of a true property settlement and, therefore, is unmodifiable. E.g., Woodworth, 385 So.2d at 1027.

      . We do not express an opinion as to whether the periodic alimony provision was intended by the parties at the time of execution of the agreement to be rehabilitative alimony or permanent periodic alimony limited for a specific number of years. Such a determination, if necessary to the resolution of the issues presented by the petition, should be made by the trial court on remand.


author: DANAHY, Judge.

text:
    William WYHOPEN and Victoria Wyhopen, Appellants, v. Arthur B. VIA, Hazel H. Via and Bruce C. Wrinkle, as Trustee, Appellees.
    No. 83-874.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.

      John M. Dart of Harnden, McLain, Spi-vey & Dart, Sarasota, for appellants.
    Barry J. McCaughey of McCaughey, Knaust & Evans, St. Petersburg, for appel-lees.
   DANAHY, Judge.

When this case was first before us, we reversed an order which dismissed plaintiffs’ complaint against the defendants seeking cancellation of a deed between defendants Via and Harding, specific performance of a lease agreement providing for right of first refusal to purchase the leased premises, and damages for tortious interference with contractual rights. Why open [sic] v. Via, 404 So.2d 851 (Fla. 2d DCA 1981).

On remand, the trial court correctly tried the remaining issue to determine what price and terms would be “equal to” those contained in the Via-Harding contract to enable the plaintiffs to purchase only the leased premises.

At trial the testimony revealed that the Via-Harding contract provided for an inflated price of $1,118,000 for the entire parcel based upon a “creative experience in merchandising” which allowed for a 19.5 per cent down payment with the balance covered by a purchase money mortgage and promissory note bearing interest at 4.4 per cent per annum for six years, then amortized payments for twenty-three years at 4 per cent interest. The expert witness further testified that the fair market value of the entire parcel would be $782,000. Using these two figures, the evidence demonstrated that the value of the leased premises, which comprised 28.77 per cent of the entire parcel, would be either an inflated price of $321,675 or a fair market value of $258,951.

In the final judgment rendered, the trial court ordered in pertinent part as follows:

2. The purchase price for the property is to be $321,675.00 and is to be paid into the registry of the court to be released subject to the order of this Court.
3. The Plaintiffs are given ninety (90) days from the date of entry of this order within which to arrange any financing they may need and to close on the purchase set forth in paragraph 1 above. The Court, however, reserves jurisdiction to extend this time period upon proper motion by Plaintiffs.
4. Upon payment by Plaintiffs of the purchase price into the registry of the court, title to the real property covered by this Final Judgment shall be deemed to be held by Plaintiffs free and clear of all claims of Defendants, VIA and HARDING, and all those claiming by, through or under them, and the real property mortgage now encumbering said property shall be partially released and satisfied of record by Defendants, VIA, as to the property covered by this Final Judgment.

We agree that a trial judge in an equity action can exercise wide discretion in accordance with the reasonableness test of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), in determining the price and terms of purchase based upon competent, substantial evidence before him. In the case before us, the trial judge, with evidence of two financing arrangements before him, could choose either: (1) the fair market value with its allowance for independent financing arrangements, or (2) the whole “creative experience in merchandising” package with its inflated purchase price and specified financing arrangement. See Home America, Inc. v. Atkinson, 392 So.2d 268 (Fla. 2d DCA 1980); 330 Michigan Avenue, Inc. v. Cambridge Hotel, Inc., 188 So.2d 725 (Fla. 3d DCA 1966).

We find that the trial judge was well within the bounds of his discretion when he chose the second option. But we also find that he erred when, after adopting the inflated purchase price, he ordered that this price be paid solely in cash. Additionally, the trial judge should have imposed the concomitant duty on the Vias to take back the plaintiffs’ mortgage containing the same unique and favorable terms afforded Harding. 330 Michigan Avenue, Inc. By not imposing terms equal to the Via-Harding contract in accordance with plaintiffs’ right of first refusal, the trial judge in effect changed the terms of the agreement between plaintiffs and Via in their lease. The trial judge could not make a new or different contract between the parties.

Accordingly, the order appealed from is affirmed as to the'purchase price found by the trial court. However, we reverse that part of the order which failed to impose the duty on defendants to accept a down payment of 19.5 per cent and a mortgage which conforms to the Via-Harding agreement for the balance of the purchase price.

Finally, we note that appellee, Bruce C. Wrinkle as Trustee, has filed a cross-appeal. We must dismiss the cross-appeal because no written order or judgment denying the beneficiary Corra’s motion to intervene has ever been rendered. Thus, there is nothing from which cross-appellant can appeal. See State v. Wells, 326 So.2d 175 (Fla.1976), and Downey v. State, 409 So.2d 133 (Fla. 4th DCA 1982).

REVERSED and REMANDED for entry of an order consistent with this opinion.

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

      . During these proceedings, Bruce C. Wrinkle was substituted as trustee in place of Warren G. Harding.

      . The right of first refusal provision in the lease agreement is stated as follows:
      XVI. RIGHT OF FIRST REFUSAL
      Tenant shall have the first option to purchase the real property heretofore described in the event Landlord decides to sell. In the event a third party executes a valid enforceable contract for purchase of the real property, the Tenant shall be delivered in hand a signed original of said contract. Tenant shall have forty-eight (48) hours, not counting weekend or holiday, to indicate his desire to exercise his option at terms equal to said contract. Said acceptance or refusal shall be indicated on the original and returned to Landlord or his agent, and shall constitute Tenant's agreement to accept the terms of said contract.
      This first refusal is intended to extend to each and every contract entered into by Landlord for sale of property. [Emphasis added.]


author: CAMPBELL, Judge.

text:
    Robert CHALK, Appellant/Patient, v. STATE of Florida, Appellee.
    No. 83-1097.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.

      Judge C. Luckey, Jr., Public Defender, and Gary G. Graham, Asst. Public Defender, Tampa, for appellant/patient.
    Jim Smith, Atty. Gen., and Dean C. Kow-alchyk, Asst. Atty. Gen., Tallahassee, for appellee.
   CAMPBELL, Judge.

Appellant/patient, Robert Chalk, appeals the order involuntarily committing him to a mental institution. At the involuntary placement hearing, one of the psychiatrists who signed the petition for involuntary commitment was the only witness. The state attorney asked appellant’s counsel to stipulate as to the psychiatrist’s qualifications. Appellant’s counsel refused. The court immediately declared that the psychiatrist was an expert witness. No further inquiry was made into the doctor’s credentials. Appellant argues that the court improperly found that the psychiatrist was an expert witness.

At the end of the hearing, appellant’s counsel requested permission to make a closing argument. The trial judge denied the request saying, “I will not listen to your argument,” and stated, “I think the court is able to remember twenty minutes of evidence.”

Appellant argues that the trial court’s refusal to allow closing argument violated his due process rights.

Involuntary commitment has been termed “a massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972). “Those whom the state seeks to involuntarily commit to a mental institution are entitled to the protection of our Constitutions, as are those incarcerated in our correctional institutions.” Shuman v. State, 358 So.2d 1333, 1335 (Fla.1978). The subject of an involuntary commitment has a right to the effective assistance of counsel at all judicial proceedings which could result in a limitation on the subject’s liberty. § 394.-467(4)(e), Fla.Stat. (Supp.1982), and In Re Beverly, 342 So.2d 481, 489 (Fla.1977).

In Herring v. New York, 422 U.S. 853, 859, 95 S.Ct. 2550, 2554, 45 L.Ed.2d 593, 598 (1975), the court stated “the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.”

Under Herring and Shuman, appellant’s constitutional due process rights were violated when his trial counsel was not allowed to present a closing argument.

Due to the shortness of the hearing, closing argument seemed unwarranted to the trial judge in this case. The United States Supreme Court addressed this problem in Herring.

Some cases may appear to the trial judge to be simple — open and shut — at the close of the evidence. And surely in many such cases a closing argument will, in the words of Mr. Justice Jackson, be “likely to leave [a] judge just where it found him.” But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel. (Footnotes omitted.)

Id. 422 U.S. at 863, 95 S.Ct. at 2556, 45 L.Ed.2d at 601.

Thus, a defendant has a right to a closing argument regardless of the length of the hearing or the apparent simplicity of the issues presented.

Appellee also argues that the psychiatrist’s testimony was required by section 394.467(3)(a), Florida Statutes (Supp. 1982) and, therefore, inquiry into his qualifications would not be relevant. Section 394.467(3)(a) provides that one of the mental health professionals who signed the petition for involuntary commitment must testify at the hearing for involuntary commitment. In this case, the psychiatrist’s testimony was offered and accepted in accordance with that statute. Nonetheless, an unquestioning acceptance of the psychiatrist’s credentials is not required by the statute. The psychiatrist was the only witness in this case. His testimony was the primary basis for committing appellant to a mental institution. Appellant’s counsel should have been allowed to discover, through cross-examination, information about the doctor’s education and experience which would affect the reliability of his judgment in this case.

Here, defense counsel did not attempt to cross-examine the psychiatrist as to his credentials. The trial court had clearly indicated during the presentation of the psychiatrist as an expert witness, that no examination of the psychiatrist’s credentials would be allowed. At that point, the assistant state attorney asked defense counsel, “Will you stipulate?” Defense counsel answered, “No, I will not.” The trial judge then interjected, “Yes, you will. Court finds he is an expert witness.” During cross-examination of the psychiatrist, defense counsel stated, “I was not allowed to go into your qualifications, Doctor.” We find defense counsel has properly preserved this point for appeal. Due to the trial court’s previous ruling, an effort to cross-examine the psychiatrist would have been futile. “A lawyer is not required to pursue a completély useless course when the judge has announced in advance that it will be fruitless.” Brown v. State, 206 So.2d 377, 384 (Fla.1968); Wilson v. State, 344 So.2d 1315, 1317 (Fla. 2d DCA 1977).

The lack of inquiry alone probably would not constitute grounds for reversal; however, when this aspect of the case is combined with the denial of an opportunity to make a closing argument, the impairment of appellant’s ability to present his defense is apparent.

For the reasons described above, we find appellant’s due process rights were violated. We reverse and remand for a new hearing when appellant shall be given an opportunity to present a closing argument and to inquire into the psychiatrist’s qualifications. Meanwhile, if appellant continues to be involuntarily committed, he shall remain in custody pending the outcome of the new hearing.

As a final comment, we note that on the date of the hearing discussed here, the lower court heard several other involuntary commitment cases involving the same psychiatrist and attorneys as appeared in this case. We understand the trial court did not allow voir dire of the psychiatrist because defense counsel had just stipulated to the same psychiatrist’s qualifications at the involuntary commitment hearing immediately preceding this one. According to defense counsel, he refused to stipulate in this case because problems arose with the testimony of the psychiatrist in the preceding case. We recognize that the trial courts’ dockets are heavy, and we sympathize with the need to keep the process moving as quickly as possible; nonetheless, due process rights must prevail. Appellant should not have been refused any inquiry into the psychiatrist’s expertise, and he should have been granted an opportunity to present a closing argument.

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


text:
    W.P.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 83-1420.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

W.P.J., an eighteen year old child, appeals his adjudication of delinquency for five counts of criminal mischief. Following adjudication, appellant was committed to the Department of Health and Rehabilitative Services and ordered to pay restitution in an amount not to exceed $200 prior to his release.

We affirm the adjudication of delinquency. However, the trial court erred in imposing restitution because appellant was not placed in a community control program. A penalty in the nature of restitution may be imposed, but only if the child has been placed in a community control program. § 39.11, Fla.Stat. (1981); M.V.D. v. State, 414 So.2d 599 (Fla. 1st DCA 1982).

Accordingly, this cause is remanded to the trial court to strike that portion of the commitment order imposing restitution. In all other respects, the order is affirmed.

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


text:
    A.G.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 83-1419.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This case is a companion to W.P.J. v. State, 443 So.2d 424 (Fla. 2d DCA 1984). However, in this case the court properly imposed restitution since appellant here was placed in a community control program. We therefore affirm in all respects.

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


author: SCHEB, Acting Chief Judge.

text:
    Manuel GONZALEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 83-2225.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 1984.
    Nora Leto, Florida Rural Legal Services, Inc., Bartow, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.
   SCHEB, Acting Chief Judge.

Manuel Gonzalez seeks a writ of certiora-ri on the ground that the circuit court departed from the essential requirements of law in affirming his conviction in the county court.

The state charged Gonzalez with three counts of violating the Farm Labor Registration Laws, which require every farm labor contractor to carry a certificate of registration, take out certain insurance, and produce evidence of a vehicle inspection. §§ 450.33(1), (5), and (9), Pla.Stat. (1981).

The county court, in a bench trial, found Gonzalez guilty of all three counts and placed him on six-months probation and assessed costs against him. Gonzalez appealed to the circuit court contending that the evidence was legally insufficient to show that he was a farm labor contractor within the meaning of the statutes. The circuit court found the evidence sufficient and affirmed the judgment and sentence.

Section 450.28(l)(a) defines a farm labor contractor as:

Any person who, for a fee or other valuable consideration, recruits, transports into or within the state, supplies, or hires at any one time in any calendar year 10 or more farm workers to work for, or under the direction, supervision, or control of, a third person_ (Emphasis supplied.)

Gonzalez urges that the evidence before the county court was deficient in that it failed to establish that he received any fee or other valuable consideration. We agree and grant his petition for writ of certiorari.

The evidence before the county court disclosed that on November 30, 1982, Gonzalez, who lived at Hallmark Farms, drove his pick-up truck to work at nearby Trophy Farms in Hillsborough County. He was accompanied by three of his sons and seven other persons. The Border Patrol had set up a roadblock at the gate of Trophy Farms, and when Gonzalez approached that point, the patrol stopped him and removed four allegedly illegal aliens from his truck. At that point the Border Patrol issued a citation for Gonzalez to appear on the charges noted.

At trial the state produced three witnesses. On the issue of whether Gonzalez received a fee or other valuable consideration, Raymond Coyle of the Department of Labor testified:

Q. What is the valuable consideration?
A. The job.
Q. What job?
A. The job that he was going to at Trophy Farms.
Q. Now, the fact that somebody is taking somebody to work with them is a valuable consideration?
A. Sure.
Q. Can you explain that?
A. The fact being that he was taking them there to work. As he told me, they were all going there for the job and he was driving. And also that he was going to register that morning to be a farm labor contractor and he had every intention of being a farm labor contractor based on conversation or I would never have written him.

Gonzalez testified that he was paid $1.25 a flat for picking berries, the same as everyone else received, and that he did not receive any fee for transporting workers into the field. He further stated that the workers who were with him had just jumped into the truck and said, “We want to go too.” The state did not contradict this testimony.

The other two witnesses for the state offered no testimony on the issue of consideration. The state’s evidence, however, did reveal that Gonzalez’ truck had the words “The Boss,” painted on it. Additionally, the court received testimony that on the day before the incident Gonzalez had applied to the Department of Labor for a crewleader registration card.

The state argues that the fact that the vehicle driven by petitioner was transporting ten individuals to work and had the words “The Boss” painted on it was evidence from which the county court could infer that Gonzalez was a farm labor contractor. Therefore, the state contends the evidence at trial was legally sufficient and that Gonzalez now is merely seeking a second appeal after his conviction was affirmed by the circuit court.

While certiorari cannot be used by a defendant to attempt a re-evaluation of the probative weight of the evidence, Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.), cert. dismissed, 378 U.S. 539, 84 S.Ct. 1895, 12 L.Ed.2d 1018 (1964), nevertheless, when there is no evidence on a material element of a crime, it is appropriate that certiorari be granted notwithstanding an affirmance of a conviction by the circuit court sitting in its appellate capacity. Zediker v. State, 218 So.2d 464 (Fla. 3d DCA 1969); Newman v. State, 174 So.2d 479 (Fla. 2d DCA 1965).

The evidence is uncontroverted that petitioner was going to a job and receiving the same flat rate of pay as every other worker. This does not constitute “valuable consideration” under section 450.28(l)(a). The fact that “The Boss” was painted on his truck is no indication that he received any consideration for transporting the workers who were riding with him. Moreover, the fact that Gonzalez was in the process of applying to become a farm labor contractor at another farm is not proof that he was acting in that capacity at the time and place he was charged with the violations.

The evidence before the county court was legally insufficient to sustain Gonzalez’ convictions, and, on appeal, he was entitled to have those convictions vacated. We, therefore, reverse the circuit court’s affirmance of his convictions and direct that an order be entered discharging Gonzalez.

CAMPBELL and SCHOONOVER, JJ., concur.


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

text:
    Richard B. BOYNTON, et al., Appellants, v. ALLSTATE INSURANCE CO., et al., Appellees.
    No. 82-1002.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.

      R. David Ayers, Jr., Winter Park, for appellants.
    Robert A. Wohn, Jr., of Anderson & Hurt, P.A., Orlando, for appellee Allstate.
    No appearance for appellee Luke.
   ORFINGER, Chief Judge.

Two issues are raised on appeal: (1) Is a vehicle an uninsured vehicle when a policy of liability insurance covers it, but the policy does not provide coverage for the particular occurrence; (2) Is the insured “legally entitled to recover” from the operator of an uninsured motor vehicle when there is a statutory bar to an action against the operator, but for which bar, recovery would lie? In this action to recover uninsured motorist benefits, the trial court entered a summary judgment in favor of the insurer and the insured appeals. We reverse.

Richard 0. Boynton, appellant, was employed by Sears, Roebuck & Company as an auto mechanic. James Luke was also employed by Sears as a mechanic and worked in the same garage as did Boynton. While both were on the job, Boynton was injured when he was struck by a car on which Luke was working. Boynton sought damages under Luke’s automobile liability policy, but the carrier denied coverage because Luke was on the job when the accident occurred and Luke’s policy excluded coverage for injury occasioned during the pursuit of a business.

The auto which ran into Boynton was owned by Gelco Corporation and leased to Xerox Corporation. Xerox had left it with Sears for repairs and maintenance. The Boyntons filed suit against Sears and Xerox and their respective insurance carriers. Sears was later voluntarily dismissed, and a final summary judgment was entered in favor of Xerox under the principles announced in Castillo v. Bickley, 363 So.2d 792 (Fla.1978). This order was not appealed, but it is significant here in that it demonstrates that the owner’s liability insurance is not available to Boynton. The Boyntons then amended their complaint, alleging that Luke was an uninsured motorist when he negligently ran the car into Boynton so that Boynton was entitled to recover his damages from Allstate under his (Boynton’s) uninsured motorist coverage. The court entered final summary judgment in favor of Allstate, and this order is the subject of this appeal.

In Boynton’s automobile insurance policy, Allstate has agreed that:

We will pay damages for bodily injury, sickness, disease or death which you are legally entitled to recover from the owner or operator of an uninsured auto. Injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured or underinsured auto.

There is no contention that Boynton’s injury was not caused by accident, nor from the maintenance or use of an automobile. Allstate contends, however, that the automobile in question was not “uninsured” and that Boynton was not “legally entitled to recover” damages from Luke. Thus, argues Allstate, Boynton is not entitled to recover uninsured motorist benefits.

I. IS THE AUTO IN QUESTION “UNINSUKED”?

Boynton’s policy provides us with this definition:

An uninsured auto is:

(1) A motor vehicle which has no bodily injury liability bond or insurance policy in effect at the time of the accident.
(2) A motor vehicle for which the insurer denies coverage, or the insurer becomes insolvent within twelve months from the date of the accident.
(3) A hit-and-run motor vehicle which causes bodily injury to an insured person....

Wausau, Xerox’s carrier, has denied coverage for this accident because Xerox is not responsible for it. The question thus presented is whether a vehicle is “uninsured” although covered by a liability policy, when the policy provides no coverage for the particular loss for which damages are claimed.

In Brown v. Progressive Mutual Insurance Company, 249 So.2d 429 (Fla.1971), the supreme court held:

The purpose of the uninsured motorist statute is to protect persons who are injured or damaged by other motorists who in turn are not insured and cannot make whole the injured party. The statute is designed for the protection of injured persons, not for the benefit of insurance companies or motorists who cause damage to others.
* * * * * ⅜
In deciding whether a person is entitled to the protection of Fla.Stat. § 627.0851, F.S.A., the question to be answered is whether the offending motorist has insurance available for the protection of the injured party, for whose benefit the statute was written; the test should not be simply whether or not the injured party can prove the offending party was uninsured, which is, in many instances, impossible in hit-and-run cases. Any other construction of the statute is unfair and unduly restricts the application intended by the Legislature, (emphasis added).

249 So.2d at 430.

In American Fire and Casualty Company v. Boyd, 357 So.2d 768 (Fla. 1st DCA 1978), the court found the vehicle which caused plaintiff’s injury to be “uninsured,” though covered by a liability policy, because of a provision which excluded coverage when the insured was travelling under military orders. The court said:

The sole issue is whether the Hansen vehicle was “an uninsured vehicle” within the meaning of that term as used in F.S. 626.727. We hold that it was, and therefore affirm. Although Hansen had procured a policy of insurance, that policy afforded no coverage because of the exclusionary clause; and the mere fact that Hansen was in such a position as to cause to be invoked by his negligence the provisions of the Federal Tort Claims' Act does not mean that he is thereby “insured” within the meaning of the statute.

357 So.2d at 768.

Allstate relies on Centennial Insurance Company v. Wallace, 330 So.2d 815 (Fla. 3d DCA), cert. denied, 341 So.2d 1087 (Fla.1976), as support for the judgment here. Wallace held that a self-insured vehicle was not an uninsured vehicle, and that it could not be considered “uninsured” “simply because coverage may not be available to the injured party under the circumstances.” Id. at 817. We cannot agree, and we hold, as in Boyd, that a motor vehicle is uninsured, as that term pertains to a specific loss, if the offending motorist has no insurance coverage available for the protection of the injured party. Brown. In our view, a policy which, because of exclusions, provides no coverage for a particular loss, is tantamount to no insurance at all as respects that loss. Additionally, the existence of the “owner’s” insurance here is really irrelevant, because Xerox cannot be held liable as owner, absent its own negligence, for the operation of the vehicle when that vehicle has been turned over to a repair shop or garage. Castillo. We find nothing in the applicable statute or cases which prohibits a claim under an uninsured motorist provision simply because the other vehicle involved is covered by an unresponsive or unenforceable insurance policy.

II. IS BOYNTON “LEGALLY ENTITLED TO RECOVER” DAMAGES FROM LUKE, AS THE OPERATOR OF THE VEHICLE WHICH CAUSED THE INJURY?

Luke and Boynton were fellow employees at Sears, so section 440.11, Florida Statutes (Supp.1978), applies here and precludes suit by Boynton against Luke. Boynton has shown no facts which would bring this case within the exceptions recognized by the statute. Allstate contends that because Boynton cannot recover in an action against Luke, Boynton is thus not “legally entitled to recover” damages. Boynton contends that Luke’s immunity from suit only strengthens his entitlement to uninsured motorist benefits.

The majority of courts which have construed the words “legally entitled to recover as damages” have construed them to mean simply that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of the damages. See, e.g., Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973), and cases cited in Anno., 73 A.L.R.3d 632, 649. Recovery may be had under this coverage when the claimant shows conduct on the part of the tortfeasor which would entitle claimant to recover damages even though a defense available to the tortfeasor would defeat actual recovery. Allstate Insurance Co. v. Elkins, 77 Ill.2d 384, 33 Ill.Dec. 139, 396 N.E.2d 528 (1979).

In other cases, it has been held that the expiration of the statute of limitations which would bar an action against the tort-feasor does not bar recovery of uninsured motorist benefits, Sahloff v. Western Casualty & Surety Company, 45 Wis.2d 60, 171 N.W.2d 914 (1969); DeLuca v. Motor Vehicle Accident Indemnity Corporation, 17 N.Y.2d 76, 268 N.Y.S.2d 289, 215 N.E.2d 482 (1966); Transnational Insurance Company v. Simmons, 19 Ariz.App. 354, 507 P.2d 693 (1973); that the inability of the injured party to recover against the tortfeasor because of interspousal immunity does not prevent recovery of uninsured motorist benefits, Elkins; that a discharge in bankruptcy of the tortfeasor which bars suit against him does not preclude recovery of uninsured motorist benefits, Wilkinson v. Vigilant Insurance Company, 236 Ga. 456, 224 S.E.2d 167, on remand, Wilkinson v. Craft, 138 Ga.App. 380, 226 S.E.2d 478 (1976); and that the insured’s dismissal of an uninsured tortfeasor who is joined in a suit seeking uninsured motorist benefits does not bar the insured’s recovery from the insurer of uninsured motorist benefits, Reese v. Preferred Risk Mutual Insurance Company, 457 S.W.2d 205 (Mo.App.1970).

In Watkins v. United States, 462 F.Supp. 980 (S.D.Ga.1977); aff'd 587 F.2d 279 (5th Cir.1979), the widow of a serviceman who was killed on the base by a shuttle bus driven by a civilian employee sued the United States, the driver, and Government Employees Insurance Company (GEI-CO), decedent’s uninsured motorist carrier. A summary judgment was entered in favor of the driver because he was immune from suit under the Federal Drivers Act, 28 U.S.C. § 2679(b). A summary judgment was also entered in favor of the United States because it too was immune from suit because decedent’s injuries arose out of or were incurred in the course of an activity incident to service. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

On the uninsured motorist claim, GEICO contended that no benefits were payable because plaintiff could not recover judgment against the driver in view of the immunity afforded by the Federal Drivers Act. Thus, argued GEICO, plaintiff was not “legally entitled to recover” damages. The court rejected this argument and held that if an insured can establish tort liability, he can recover from his uninsured motorist carrier “regardless of whether he can recover against the uninsured motorist.” Id. at 990.

A claim for uninsured motorist benefits is a claim under the insurance contract. Hartford Accident and Indemnity Company v. Mason, 210 So.2d 474 (Fla. 3d DCA 1968). Without the policy provision, there would be no claim against the carrier. Allstate contends, however, that if the vehicle involved is uninsured, then the injured party’s carrier stands in the shoes of the tortfeasor, and should have all its rights. This argument is often made, but has been aptly restricted in this context as explained in Sahloff v. Western Casualty & Surety Company, where the Wisconsin Supreme Court said:

Although the phrase “legally entitled to recover” appears both in sec. 204.30(5)(a), Stats., and in the uniform uninsured motorist coverage, we find no basis in the history of the statute or of the endorsement that coverage should be restricted to those situations in which the insurer can stand in the shoes of the uninsured motorist. The purpose and intent of this type of coverage was to benefit the insured so that he would be reimbursed for his injuries. The purpose was not to provide free liability insurance for an otherwise uninsured motorist; and the endorsement does not do so because a right of subrogation does exist, if the insurer wishes to preserve it. In settling a claim under the endorsement, the insurer does not represent the uninsured motorist but rather itself on its own contract against its own insured who has paid a premium for this indemnity feature in his liability policy. It is neither necessary under the coverage nor desirable public policy to place the indemnity insurer in exactly the same position of a liability insurer of an uninsured motorist. Consequently, the claim against the insurer on the endorsement should be and is treated differently than the cause of action the insured has against the uninsured motorist.

171 N.W.2d at 918.

We agree. The insured has paid a premium for insurance coverage which protects him when he is injured through the negligence of an uninsured motorist. He need not secure a recovery against such motorist as a condition to his securing uninsured motorist benefits (and in fact may not do so under the policy without the carrier’s consent.) He is “legally entitled to recover” in the context of the insurance policy if he can show liability on the part of the uninsured motorist and damages resulting therefrom.

The judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting.

I respectfully dissent. The majority opinion directly conflicts with Centennial Insurance Co. v. Wallace, 330 So.2d 815 (Fla. 3d DCA), cert. denied 341 So.2d 1087 (Fla.1976). In Centennial, the plaintiff was prevented from recovering from the owner of a vehicle by virtue of the immunity provision of the workmen’s compensation laws. In holding that plaintiffs uninsured motorist coverage did not apply, the court stated:

Where a vehicle is covered to the extent of the law, it is not an uninsured vehicle simply because coverage may not be available to the injured party under the circumstances. See Taylor v. Safeco Insurance Co., Fla.App.1974, 298 So.2d 202.

330 So.2d at 817.

The majority equates “legally entitled to recover” with the establishment of fault on the part of the uninsured motorist. I cannot conclude this is correct for two reasons. First, “legally entitled” means something more than simply “entitled.” In the instant case, Boynton was perhaps “entitled” to recover but he was not “lawfully or legally” entitled to recover because he was barred by law from recovery. See § 440.-11, Fla.Stat. (Supp.1978). Had he been legally entitled to recover, Boynton could recover from Luke who had a liability policy in effect. Second, the wording of the uninsured motorist statute includes “lawfully entitled to recover from the operator of an uninsured motor vehicle.” The vehicle was not uninsured by the definition in the policy or as provided by law. In fact, the vehicle had in effect all the liability insurance required by law.

In Hayston v. Allstate Insurance Company, 290 So.2d 67 (Fla. 3d DCA 1974), Hayston was injured in an accident with another vehicle operated by David McConnell and owned by John Jordan. McConnell had no automobile liability policy. However, Jordan had a policy in effect which provided coverage to McConnell as a permissive user of the automobile. On appeal from a final summary judgment in favor of Allstate, Hayston argued that the uninsured motorist provision was applicable where the operator of the vehicle, McConnell, did not own a policy, even though the owner, Jordan, did have a policy covering the driver of the car with the permission and consent of the owner. The court rejected this argument, stating:

The policy now clearly envisions that where a bodily injury liability policy is applicable at the time of the accident, then the uninsured motorist portion of the policy is inapplicable.

Id. at 68. See also General Accident Fire & Life Assur. Corp. v. Means, 362 So.2d 135 (Fla. 2d DCA 1978); Castaneda v. State Farm, 348 So.2d 1231 (Fla. 3d DCA 1977).

In Reid v. Allstate Ins. Co., 344 So.2d 877, 879 (Fla. 4th DCA 1977), approved, Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1978), where a daughter was prevented from recovering from her father, the court stated:

We hold that the family car in this case is not an uninsured motor vehicle and it does not become uninsured because liability coverage may not be available to a particular individual.

While philosophically I may agree that the cases cited reflect an omission in uninsured motorist protection, I cannot agree that we have any authority to rewrite the clear and unambiguous policy terms which define an uninsured motor vehicle as “a motor vehicle which has no bodily injury liability bond or insurance policy in effect at the time of the accident”, in the absence of statutory mandate or unless the definition contravenes public policy.

In Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1, 3 (Fla.1972), the Florida Supreme Court said:

Fla.Stat. § 627.0851, F.S.A. establishes the public policy of Florida to be that every insured, as defined in the policy, is entitled to recover under the policy for damages he would have been able to recover against the negligent motorist if that motorist had maintained a policy of liability insurance, (emphasis added)

Therefore, it follows that the insurance carrier stands in the shoes of the tortfeasor and if there can be no recovery against the tortfeasor, then there can be no recovery against the uninsured motorist insurance carrier.

The majority opinion has created a large class of uninsured vehicles. Every automobile left with a garage for repairs is uninsured as to employees injured by its negligent operation. While this risk may not be as great as I envision it, it is certainly not a risk contemplated by the carrier in establishing its rates. I would affirm.

      . Section 440.11, Fla.Stat. (Supp.1978): Exclusiveness of liability—
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death .... The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment.


author: DAUKSCH, Judge.

text:
    Eric McGILL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1317.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction and sentence for armed robbery. The evidence is sufficient. Tibbs v. State, 397 So.2d 1120 (Fla.1981). The court properly refused an instruction on circumstantial evidence. Miller v. State, 403 So.2d 1014, 1017 (Fla. 5th DCA 1981).

The court erred in sentencing appellant to a minimum three year sentence because only his accomplice had a firearm. Earnest v. State, 351 So.2d 957 (Fla.1977); Hillman v. State, 410 So.2d 180 (Fla. 2d DCA 1982). The court did not err in retaining jurisdiction over the first one-third of the sentence but even if he had there was no objection below and thus the question was not preserved for appellate review.

Conviction affirmed; portion of sentence reversed and case remanded for correction of sentence.

COBB, J., and DIAMANTIS, Associate Judge, concur.


text:
    Ira Lee POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1351.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

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

AFFIRMED.

See DeWitt v. State, 442 So.2d 1029 (Fla. 5th DCA 1983).

DAUKSCH and COBB, JJ., and DIAM-ANTES, Associate Judge, concur.


text:
    Clifford Ray JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-1503.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, 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 in a burglary case. As his point on appeal, appellant challenges the constitutionality of Section 39.04(2)(e)(4), Florida Statutes (1981).

(e) The state attorney shall in all cases have the right to take action, regardless of the action or lack of action of the intake officer, and shall determine the action which is in the best interest of the public and the child. The state attorney may:
⅞: sj¡ ⅝ sj! ⅜ ⅜
(4) With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of a child charged with a misdemeanor, the case shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.

It is an equal protection issue appellant raises. He says the prosecutor “is able to indiscriminately extract sixteen and seventeen year old children from others in the juvenile system and, simply by charging a felony, cause those children to be tried as adults in the circuit court, which clearly deprives those children due process and equal protection of the law.”

We cannot agree with appellant and find no constitutional infirmity in the statute. Appellant’s argument ignores two basic premises. First, the prosecutor has total and absolute discretion as to whom to charge and prosecute on what charge, be the accused an adult or not. Second, the juvenile system is purely statutory, not based upon the common law, and is thus governed in substance only by the legislature. The legislature’s enactments establish the charging procedures a prosecutor may follow and the prosecutor makes his choice as to which procedures he will follow. The main complaint of appellant is that some children may be charged with felonies and sent to adult court where other children who commit the same crime may be charged only with a misdemeanor and left in the juvenile court. We would add that the prosecutor could also charge a child with a delinquency constituting a felony and not have him put into adult court. Our system of justice gives the executive branch, the state attorney, the authority to do that at his discretion. It is not unconstitutional. See State v. Cain, 381 So.2d 1361 (Fla.1980) regarding the statute before it was amended. See also Hayes v. State, 425 So.2d 634 (Fla. 2d DCA 1983).

AFFIRMED.

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


author: ORFINGER, Chief Judge.

text:
    Christine Carolyn ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1554.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Whether or not to extend the speedy trial period for “exceptional circumstances” under Fla.R.Crim.P. 3.191(f)(3) is a matter for the discretion of the trial judge. State ex rel. Canup v. Langston, 341 So.2d 1069 (Fla. 2d DCA 1977). We find no abuse of discretion in the twelve-day extension of the speedy trial period on the State’s motion, grounded upon the delay in receiving a crime lab report, where the record supports the trial court’s determination that the State had used due diligence to secure the report but had been unable to do so in sufficient time to try defendant for possession of controlled substances within the prescribed 180-day period. See Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981). Appellant’s motion for discharge was filed prior to the expiration of the extended time for trial, and was correctly denied.

AFFIRMED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


author: PER CURIAM. SHARP, Judge,

text:
    Alan S. ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-382.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Appeal dismissed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

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

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

This case merits more than a citation to Robinson v. State, 373 So.2d 898 (Fla. 1979), as the basis for dismissing Adams’ appeal. An interesting procedural question is posed and it should be forthrightly answered: Is the proper method to present a claim that the trial court accepted a nolo contendere plea without determining that there is a sufficient factual basis for the plea (as required by Florida Rule of Criminal Procedure 3.170(j)) by direct appeal, or by filing a motion with the trial court pursuant to Florida Rule of Criminal Procedure 3.850? The majority holds that the only method to raise this issue is by a rule 3.850 motion. I disagree.

In State v. Kendrick, 336 So.2d 353 (Fla. 1976), the defendant pled guilty to aggravated assault and resisting arrest. He appealed to the Second District Court of Appeal on the ground that the trial court failed to sufficiently establish a factual basis for the plea, because a defense was raised and not countered. The district court reversed the count of aggravated assault because it thought the appellant had established prejudice. The supreme court tacitly approved this direct appeal procedure by holding that the district court should, in a proper case, remand the case to the trial court in order for it to make further inquiries into the factual basis for the plea. See also Williams v. State, 316 So.2d 267 (Fla.1975).

In Kendrick, the supreme court mentioned with approval State v. Lyles, 316 So.2d 277 (Fla.1975), and Hall v. State, 309 So.2d 226 (Fla. 2d DCA 1975). Both cases involved appeals after defendants entered guilty pleas. On appeal they argued that there was an insufficient basis in the record to permit acceptance of their pleas. In Lyles, the supreme court directed that the case be remanded to the trial court for further inquiry. In Hall, the Second District Court of Appeal affirmed Hall’s conviction as it determined that there was a sufficient factual basis in the record for the trial court to accept the plea. See also Dydek v. State, 400 So.2d 1255 (Fla. 2d DCA 1981); Waugh v. State, 388 So.2d 253 (Fla. 2d DCA), cert. dismissed, 394 So.2d 1154 (Fla.1980).

Nor do I think the adoption of section 924.06(3) in 1977 changed the method of review for these types of appeals. In Robinson, the Florida Supreme Court cited Williams with approval. Williams was an appeal from a guilty plea challenging the basis for the plea. The Robinson court also stated:

[I]t is our opinion that the statute and our present rules reflect a codification of the existing case law which holds that a valid guilty plea conclusively disposes of all prior issues presented in the cause. The statutory language, ‘A defendant who pleads guilty ... shall have no right to a direct appeal,’ forecloses appeal from matters which took place before defendant agreed to a judgment of conviction. Neither the statute nor our present rules cut off a right of appeal from conduct that would invalidate the plea itself (Emphasis supplied).

Id. at 902.

Although the ground for invalidating a guilty plea or a nolo plea because of an insufficient factual basis in the record is not specifically mentioned in Robinson, the failure of the trial court to follow rule 3.170(j) makes the plea itself invalid on constitutional grounds. A sentence based on that plea is, therefore, illegal. I would affirm this case because I think there was a sufficient basis in the record to sustain the guilty plea. Hall.

        . § 924.06(3), Fla.Stat. (1981).

      . Williams v. State, 316 So.2d 267 (Fla.1975).