author: RYDER, Judge.

text:
    CITY OF CAPE CORAL, Appellant, v. Kathy Jean DUVALL, a minor, by her father and next friend, William R. Duvall, Appellees. CITY OF CAPE CORAL, Appellant, v. Richard FONTAINE, as Administrator of the Estate of Donald Joseph Fontaine, a minor, deceased, Appellee. CITY OF CAPE CORAL, Appellant, v. Camita BEDDOW, as Administratrix of the Estate of Judy Lynn Scroggins, Appellee. CITY OF CAPE CORAL, Appellant, v. John Thomas TKAC and Angela Tkac, Appellees.
    Nos. 81-2068 to 81-2071.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1983.
    Rehearing Denied Feb. 22, 1983.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
    Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, Joe Unger, Miami and Joel D. Eaton and Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appel-lees.
   RYDER, Judge.

The City of Cape Coral appeals from the final judgment awarding appellees damages for personal injuries. We reverse.

This action began as four lawsuits filed concerning an automobile accident occurring February 15, 1975 in Cape Coral. The plaintiffs/appellees are personal representatives of two parties killed in the accident, Scroggins and Fontaine, Kathy Duvall Ellis and her parents, as well as John Tkac and his wife. The plaintiffs/appellees brought suit against the City of Cape Coral, John Patrick McNally, Margaret McNally, Randall Industries, Inc., William Adkins and three insurance companies. The amended complaint alleges that all the plaintiffs were occupants of a taxicab struck in the rear by an automobile operated by McNally. The complaint alleges McNally had been stopped a few hours earlier by the Cape Coral Police Department. McNally was very intoxicated. The police department did not arrest McNally, but rather delivered him into the custody of Adkins, a cab driver for Jack’s Radio Cabs, a subsidiary of Randall Industries. The complaint alleges that the officers negligently failed to determine the correct whereabouts of McNally’s residence and the cab company failed to deliver him to his home. The cab company returned McNally to his car and gave him the keys. McNally drove away and shortly thereafter caused the accident and injuries to appellees. Following detailed proof of these allegations at trial, the jury returned a verdict finding McNally, Jack’s Radio Cabs and Cape Coral to be at fault, and awarded damages.

On appeal, appellant argues that the lower court erred in giving or refusing various instructions and in failing to direct verdicts on several grounds. We hold that the court erred in failing to instruct the jury on an applicable statute, and do not discuss the other issues raised.

Section 856.011(3), Florida Statutes (1981), provides as follows:

[A]ny peace officer, in lieu of incarcerating an intoxicated person for violation of subsection (1), may take or send the intoxicated person to his home or to a public or private health facility, and the law enforcement officer may take reasonable measures to ascertain the commercial transportation used for such purposes is paid for by such person in advance. Any law enforcement officer so acting shall be considered as carrying out their official duty.

Upon appellant’s request to so instruct the jury, the court ruled that the statute did not apply and refused the request. We hold that the statute could be applied to the facts below and that the lower court erred in refusing the instruction.

Additionally, during the pendancy of this appeal, this court has considered a case with nearly identical facts. In Everton v. Willard, 426 So.2d 996, (Fla. 2d DCA 1983), we held that neither a county nor deputy sheriff may be held liable for the exercise of discretion not to arrest a drinking driver, when that driver subsequently causes injury. We adopt the holding and rationale of Everton, and hold that it precludes relief for appellees below.

Accordingly, the judgments below are vacated and the cases remanded for entry of judgment for appellant.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Randolph KLEIN, Petitioner, v. Jay M. LANCER, Respondent.
    No. 82-1336.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1983.

      Mark R. Lewis, St. Petersburg, for petitioner.
    Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Sarasota, for respondent.
   PER CURIAM.

Petitioner, who is the plaintiff in the trial court, seeks review of an order which granted respondent’s motions to (1) compel discovery and (2) limit petitioner’s ability to proceed with respondent’s deposition until petitioner was first deposed. Petitioner contends that the answers requested and the materials sought by the discovery are too broad and, further, oppressive. As to the trial judge limiting petitioner’s ability to proceed to depose respondent, petitioner contends the trial judge had no authority to make such a ruling.

Petitioner brought a slander action against respondent and claimed damages to his business reputation and a loss of esteem, reputation and profits.

Although the general nature of the alleged slander and alleged damages here makes for a wide scope of inquiry into petitioner’s past conduct, we find that portions of the inquiry permitted by the court transcend even that broad boundary. We find merit in petitioner’s argument that certain materials in the notice to produce compelled by the order are overbroad and irrelevant. Nowhere in the record is there a showing that the item numbers listed below are “relevant to the subject matter of the pending action ... [or] ... appear(s) reasonably calculated to lead to discovery of admissible evidence.” Fla.R.Civ.P. 1.280(b)(1); Equifax Corp. v. Cooper, 380 So.2d 514 (Fla. 5th DCA 1980).

Accordingly, that portion of the order compelling production of items numbered 8, 14,15,16, 25, 30, 36, 37, 38, 39 and 40 listed in the notice to produce departed from the essential requirements of law.

The trial judge did not abuse the discretion granted to him by Florida Rules of Civil Procedure 1.380(a)(2) and 1.280(c) when he limited petitioner’s ability to proceed in deposing respondent. Because that is so, there was no departure from the essential requirements of law in that respect.

The petition for certiorari is granted in part and the order under review is quashed as to the above specified items. The cause is remanded to the trial court for further proceedings.

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


author: COBB, Judge.

text:
    Stephen Walter PURWIN, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Department of Corrections, Respondent.
    No. 82-1424.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1983.
    Rehearing Denied Aug. 2, 1983.

      Stephen Walter Purwin, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   COBB, Judge.

The petitioner, Stephen Walter Purwin, seeks a writ of habeas corpus to secure a belated appeal, claiming ineffective assistance of appellate counsel in his original appeal. See Terry v. State, 404 So.2d 1154 (Fla. 5th DCA 1981); Ross v. State, 287 So.2d 372 (Fla. 2d DCA 1973); Wright v. State, 269 So.2d 17 (Fla. 2d DCA 1972).

The Florida Supreme Court articulated the standards applicable to a review of a claim that appellate counsel was ineffective in Knight v. State, 394 So.2d 997 (Fla.1981). The third burden of the petitioner, according to Knight, is:

Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error.

394 So.2d at 1001.

In the instant petition, no effort has been made to meet this initial burden. The putative error — failure to argue the correctness of the trial court’s denial of a motion to suppress — well may have been harmless in view of the state’s remaining evidence identifying the petitioner as the culprit in three murders. Hence, the petition is facially insufficient and is

DENIED.

SHARP and COWART, JJ., concur.


author: GRIMES, Judge.

text:
    Rick FOLEY, Appellant, v. Robert H. DICK, Appellee.
    No. 82-1220.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1983.

      George Browning, III, Sarasota, and James R. Dirmann of Dirmann & Scott, Sarasota, for appellant.
    Terence Matthews, Bradenton, for appel-lee.
   GRIMES, Judge.

Foley sued Dick for conversion. The court directed a verdict against him on his claim for punitive damages, but the jury awarded him compensatory damages of $2,650. Dissatisfied with the amount of his judgment, Foley brings this appeal.

Since Foley argues that the court should have submitted his punitive damage claim to the jury, we will state the evidence in the light most favorable to Foley. Foley, a Canadian citizen, was arrested in Florida on Canadian charges of possession of a stolen automobile and possession of stolen credit cards. Dick, a Florida attorney, consulted with Foley at the jail. To secure legal representation Foley instructed a friend to give Dick, as collateral, a diamond ring which Foley had won in a golf tournament. A few days later, while still incarcerated, Foley was charged with attempted escape and criminal mischief. Foley testified that Dick visited him in the jail once after these new charges were filed, but that Dick did not represent him concerning these charges and only discussed with him the payment of Dick’s fee. Shortly thereafter, Foley’s Canadian lawyer became involved and secured a new Florida lawyer to take Dick’s place. Foley then requested Dick to return the ring to him. Although acknowledging that he no longer represented Foley, Dick refused to do so, stating that he would have to consult his records in order to determine his fee for the services rendered prior to the termination of his employment.

Subsequently, Dick sent a letter to Foley’s Canadian lawyer indicating that after calculating the time spent on Foley’s case he felt that a fee of $250 for professional services and costs would be reasonable. The letter stated that Dick was holding the diamond ring as collateral and that he would release it upon payment of his fee. Foley’s brother sent Dick the $250, but Dick declined to return the ring. By this time Foley had been released and returned to Canada. Dick told Foley on the telephone that he needed another $300 for fees and costs for the work he had done before he would return the ring. Foley later sent him a check for $300, but Dick returned it with the notation that the payment had not been made within a reasonable time. When Foley called Dick about this, Dick told him that because of Foley’s delay he had sold the ring to make up the difference in what Foley owed him. Thereafter, Dick failed to respond to letters from Foley and his Canadian counsel.

Dick testified that the ring, which Foley told him was worth $1,000, was given to him as part of his fee. He said that his letter advising that his fee would be $250 referred only to his services in connection with the attempted escape and criminal mischief charges. He produced a “receipt” signed by Foley and Dick which stated that a diamond ring worth $1,000 constituted a retainer on a $3,000 fee for representation on criminal charges. Dick did not recall if he gave Foley a copy of this document. Foley said that when he signed the receipt it did not contain the reference to the $3,000 fee. Dick admitted telling Foley that he no longer had the ring, but he nevertheless produced it at the trial.

In suits for conversion, punitive damages are allowable where the circumstances surrounding the conversion are such as to show fraud, actual malice, deliberate violence, or oppression, such gross negligence as to indicate a wanton disregard of the rights of others, or where the wrong partakes of a criminal character. Doral Country Club, Inc. v. Lindgren Plumbing Co., 175 So.2d 570 (Fla. 3d DCA 1965). Measured by this standard and keeping in mind that Dick had a fiduciary obligation to his client, we believe the court erred in taking the issue of punitive damages away from the jury.

Foley also complains that his judgment for compensatory damages was inadequate because he was precluded from proving that the ring had appreciated in value. He testified that the ring was worth $2,650 at the time he gave it to Dick. He was then asked to give his opinion of its value on the date of the trial but was not shown to have any experience in the appraisal of diamond rings. Dick objected on grounds that only the value of the ring on the date of conversion was relevant and that in any event Foley was not qualified to give such an opinion. The court sustained the objection.

Ordinarily, damages for conversion consist of the value of the converted items at the time and place of their conversion, plus interest thereon. In re Estate of Cor-bin, 391 So.2d 731 (Fla. 3d DCA 1980); Gillette v. Stapleton, 336 So.2d 1226 (Fla. 2d DCA 1976). However, Foley argues that where there is a wrongful conversion of jewelry not held for purposes of commercial traffic, the wrongdoer must pay for any appreciation of value which has occurred until the time of trial. The early case of Moody v. Caulk, 14 Fla. 50 (1872), lends support to this position. However, we need not reach this point because we believe that the court’s ruling can be sustained on the alternative ground of Dick’s objection.

Generally, one who owns property may testify concerning its value without having special expertise. Jones v. State, 408 So.2d 690 (Fla. 2d DCA 1982). Yet, Foley was not in quite the same position as the usual property owner because under the theory of conversion, upon satisfaction of his judgment, title to the ring will pass to Dick retroactive to the date of the conversion. 18 Am.Jur.2d Conversion §§ 6, 172 (1965). The premise upon which an owner is permitted to testify concerning the value of his property is that one is presumed to be familiar with the property which he owns. Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515 (Fla. 3d DCA 1961). At the time of the trial, Foley had not even seen the ring for more than five years. Therefore, even if the value of the ring on that date was relevant, we believe that the court had the discretion to refuse to permit him to express an opinion concerning its current value. See Annot., 37 A.L.R.2d 967, 985 (1954), citing many cases from jurisdictions other than Florida which hold that when it plainly appears that an owner has no knowledge of the value of his property, the presumption arising from ownership is overcome and his opinion is inadmissible.

Accordingly, we affirm the judgment for compensatory damages, but we remand the case for a new trial on the issue of punitive damages.

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


author: SCHEB, Judge.

text:
    Winnis H. LOFTON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2079.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1983.
   SCHEB, Judge.

After pleading guilty in 1981 to two third-degree felonies, Winnis Lofton was convicted and sentenced to two concurrent five-year terms of imprisonment. He has now filed a motion for post-conviction relief alleging that his plea was improperly induced because the state had promised he would receive no more than two years imprisonment. After considering the record including the transcript of the hearing on Lofton’s plea, the trial court summarily denied the motion. The trial judge, however, failed to attach such portion of the record or file which would conclusively refute Lof-ton’s allegation as required by Florida Rule of Criminal Procedure 3.850.

We issued an order directing the trial court to either set Lofton’s motion for an evidentiary hearing or enter a supplemental order and attach thereto those portions of the record which would conclusively refute Lofton’s allegation. See Fla.R.App.P. 9.140(g); Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978).

The trial court has now furnished us with a transcript of the proceedings the court reviewed in which Lofton withdrew his plea of not guilty and entered a plea of guilty. We have examined it and find that it conclusively shows that the state made no such promises as alleged by Lofton. However, during the hearing on Lofton’s plea, the assistant state attorney informed the court that the state considered that the two counts to which Lofton pled guilty were a single transaction and that the maximum sentence to be imposed would be five years. The court recognized this and informed Lofton that he would be sentenced to a maximum five years. Instead, the court sentenced Lofton to two concurrent five-year terms of imprisonment. This was error.

Accordingly, we reverse the denial of Lofton’s motion for post-conviction relief and direct the trial court to strike one of the five-year sentences that it imposed.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


text:
    STATE of Florida, Appellant, v. Enricho PETRILLI, Appellee.
    No. 82-166.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1983.
    Rehearing Denied March 7, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    James Birkhold, Edwin T. Mulock, P.A., Bradenton, for appellee.
   PER CURIAM.

Reversed. See State v. Sokos, 426 So.2d 1044 (Fla. 2d DCA 1983).

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


author: OTT, Chief Judge.

text:
    William W. FOSTER, Appellant, v. Joan MARTIN, as guardian ad litem of Kim D. Martin, a minor, Appellee.
    No. 82-1443.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1983.
    James W. Hagan of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Clear-water, for appellant.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellee.
   OTT, Chief Judge.

Appellant’s complaint to cancel a deed was dismissed with prejudice by the trial court for failure to state a cause of action. We reverse.

After setting forth the events leading up to the execution of the deed in question, the complaint alleged that at the time appellant executed the deed he was emotionally distressed, that the conveyance was without consideration, that delivery and recordation of the deed were contrary to his direction and without his consent, and that he thought he was executing a will rather than a deed.

We think the complaint contained sufficient ultimate fact allegations of appellant’s emotional distress, mental weakness, and lack of understanding, coupled with lack of consideration and delivery, to withstand the motion to dismiss. See Windham v. Windham, 152 Fla. 362, 11 So.2d 797 (1943); Leonard v. Howarth, 153 So.2d 743 (Fla. 2d DCA 1963). The execution of the deed, recital of consideration therein, and recording thereof raise rebuttable presumptions against appellant but are not conclusive in the face of allegations to the contrary. See Smith v. Owens, 91 Fla. 995,108 So. 891 (1926). Rebuttable presumptions suggest or present evidentiary considerations and burden of proof problems rather than pleading deficiencies.

The order dismissing appellant’s complaint is REVERSED and the case REMANDED for further proceedings consistent herewith.

RYDER and SCHOONOVER, JJ., concur.


author: WIGGINTON, Judge. ERVIN, Judge,

text:
    Chester F. DAVIS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-313.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1983.
    Chester F. Davis in pro. per.
    Earl H. Archer, Acting Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   WIGGINTON, Judge.

Davis seeks our review of an order of the Florida Parole and Probation Commission establishing a presumptive parole release date (PPRD). We find no reversible error and affirm the order.

We have held that a PPRD set in accordance with parole guidelines adopted subsequent to the date of the offense does not violate the prohibition against ex post facto laws. Overfield v. Florida Parole and Probation Commission, 418 So.2d 321 (Fla. 1st DCA 1982) and May v. Florida Parole and Probation Commission, 424 So.2d 122 (Fla. 1st DCA 1982).

The commission’s method of fixing Davis’ PPRD does not violate double jeopardy proscriptions. In arriving at the date for tentative release, consideration may be given the trial court’s sentence as well as the same aggravating circumstances that were reviewed and utilized in the sentencing so long as Davis’ release is within the maximum time of his sentence. The court and commission have thus considered the same aggravating circumstances for complementary purposes, and no showing is made that that is not as it should be. See Hipke v. Florida Parole and Probation Commission, 380 So.2d 494 (Fla. 1st DCA 1980). As noted in Nunley v. U.S. Board of Pardons, 439 F.Supp. 887, 890 (W.D.Okl.1966), the “doctrine of double jeopardy has strict application to criminal prosecutions only.... It does not apply to other judicial proceedings.”

AFFIRMED.

MILLS, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I concur in the majority’s disposition of this cause on all grounds stated except that relating to the question of whether the Commission’s action violates the ex post facto clause of both the state and federal constitutions. In so doing, I adopt the views stated by Judge Shivers’ dissenting opinion in May v. Florida Parole and Probation Commission, 424 So.2d 122 (Fla. 1st DCA 1982). At the very minimum I would certify the same question certified by the majority in May as one of great public importance.


text:
    Jack Barnett EMERICK, Appellant, v. STATE of Florida, Appellee.
    No. 82-731.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah A. Adamson, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).

BOARDMAN, A.C.J., and GRIMES and LEHAN, JJ., concur.


text:
    Ronald DULAC, Appellant, v. STATE of Florida, Appellee.
    No. 82-1596.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1983.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

BOARDMAN, A.C.J., and GRIMES and LEHAN, JJ., concur.


text:
    David Lowell TOLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 82-1805.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1983.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. Hayes v. State, 425 So.2d 634 (Fla. 2d DCA 1983).

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


author: DOWNEY, Judge.

text:
    Barbara PIERSON, as Personal Representative, for the Benefit of the Survivors and Estate of Norma Gerridean Pierson, Deceased, Appellant, v. Kato Antonyo WILLIAMS, et al., Appellees.
    No. 81-2053.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 1983.
    John Jay Watkins and George L. Harrell, II, of the Law Offices of George L. Harrell, II, P.A., Fort Myers, for appellant.
    J. Stephen Tierney, III, of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellees.
   DOWNEY, Judge.

Appellant seeks reversal of a final judgment dismissing her complaint, as personal representative, for the wrongful death of her minor child.

Among other things, the second amended complaint alleges the following: appellee, St. Lucie County, granted a franchise to St. Lucie Sanitation Company, Inc., for the collection of garbage; appellant’s decedent was killed by a sanitation truck at the sanitation garage located on property owned by the sanitation company; negligence of the sanitation company and its driver resulted in the death of appellant’s child; the county was also liable for the sanitation company’s negligence because under the franchise agreement the county had the right to pass rules and regulations controlling the operation of the sanitation company and to supervise compliance therewith.

The trial court granted a motion to dismiss, filed by the county and its insurance carrier. Appellant’s brief suggests that the dismissal was based upon a trial court finding that the county’s obligation to make rules and regulations for the sanitation company and supervise its compliance with said rules and regulations involved discretionary activity and thus, under rules laid down in Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010 (Fla.1979), the county is immune to suit.

We are unable to determine with any degree of certitude the reason for the dismissal of the complaint. However, the reason suggested by appellant would not be a valid ground for dismissal in this case as the activity described would surely be operational rather than discretionary. Therefore, there is no question of governmental immunity involved here. Be that as it may, the allegations of the complaint must be taken as true. Thus, the extent to which the county had the right to control the sanitation company and the effect that would have on its liability should be resolved by a jury.

Accordingly, the dismissal of the complaint was, at the very least, premature and requires reversal of the judgment appealed from.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.


author: SPICOLA, GUY W., Associate Judge.

text:
    STATE of Florida, Appellant, v. Debra Ann COLLINS, Appellee.
    No. 82-1065.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 1983.
    Rehearing Denied March 14, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Frank C. Alderman III, Fort Myers, for appellee.
   SPICOLA, GUY W., Associate Judge.

This is an appeal by the state from an order dismissing an indictment for first-degree murder on the ground of double jeopardy. We affirm.

Debra Ann Collins was indicted for the first-degree murder of her husband. During the course of her trial, the state sought to introduce an alleged fake suicide note and the murder weapon. The state was prevented from doing so by a ruling of the trial judge. During a recess on the third day of the trial, the state learned of a conversation about the case between the trial judge and one of its witnesses, who was a friend of the judge. Nevertheless, the state made no objection and continued to present more testimony in an attempt to have the note and gun introduced into evidence. The court again denied the admissibility of the evidence, and then the state moved for a mistrial on the basis of the judge’s conversation with the witness.

The court then went into chambers to conduct a hearing on the matter. The hearing revealed that during the course of the judge’s conversation with the witness, he told her that the state had a questionable case and that the trial would soon be over. However, the witness stated that the judge never intimidated her or put her in fear, nor did anything to change or alter her testimony. Furthermore, he had no discussions with her concerning the substance of her testimony.

The state again indicated that it wanted to move for a mistrial to which the defendant objected. The trial judge responded that he did not believe that he had done anything wrong and that a mistrial was unnecessary. He also expressed his opinion that if a mistrial were granted the defendant could not be retried because of former jeopardy. Nevertheless, the state persisted with its motion, and the trial judge declared a mistrial over the objection of the defendant.

Subsequently, on motion by the defendant, another judge dismissed the indictment on the basis of double jeopardy. This appeal followed.

The concept of protection against double jeopardy originates in the Fifth Amendment to the United States Constitution and section 9 of the Declaration of Rights of the Florida Constitution. Its purpose is to protect citizens against the once existing power of the state, or the sovereign, to continue to prosecute the same person for the same offense until a conviction is obtained. If a mistrial is declared and the jury discharged, jeopardy attaches unless there appears a manifest necessity justifying the declaration of mistrial. Bryant v. Stickley, 215 So.2d 786 (Fla. 2d DCA 1968).

This case is novel in that the trial judge granted a mistrial after stating that he did not believe there were sufficient grounds for mistrial. The cases we have reviewed generally relate to whether the court properly exercised its discretion in determining that a mistrial was necessary. These cases stand for the proposition that where a mistrial is declared on a motion by the state, a retrial of the defendant is barred on the ground of former jeopardy unless the declaration of mistrial by the judge was dictated by manifest necessity. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); State v. Grayson, 90 So.2d 710 (Fla.1956).

The authoritative starting point of the law in this area of double jeopardy after a mistrial is the benchmark decision in United States v. Perez, 9 Wheat., 22 U.S. 579, 6 L.Ed. 165 (1824), wherein Justice Story formulated the following rule:

We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all of the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oath of office.

9 Wheat., 22 U.S., at 580, 6 L.Ed. at 165.

The prosecution has a heavy burden of showing that the retrial after a mistrial is justified by manifest necessity. Brady v. Samaha, 667 F.2d 224 (1st Cir.1981).

In Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), the Supreme Court indicated how strict it was in the application of the principle by the following language:

The discretion to discharge the jury before it has reached a verdict is to be exercised “only in very extraordinary and striking circumstances” to use the words of Mr. Justice Story in United States v. Coolidge, 25 Fed.Cas. 622, 623. For the prohibition of the Double Jeopardy Clause is “not against being twice punished, but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300.

83 S.Ct. at 1034. Moreover, the court went on to note:

We resolve any doubt “in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion.”

83 S.Ct. at 1035.

In Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the court bottomed its decision on whether the trial judge was acting “in the sole interest of the defendant.”

Where the judge, acting without the defendant’s consent, aborts the proceedings, the defendant has been deprived of his valued right to have his trial completed by a particular tribunal. See Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1948). The defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. The defendant’s option to continue with the trial should not be foreclosed until the scrupulous exercise of judicial discretion leads to the conclusion that the ends of justice would not be served by continuation of the proceedings. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

Another consideration is the threat of bad faith conduct by the prosecutor. The Double Jeopardy Clause bars a retrial solely to afford the prosecutor a more favorable opportunity to convict the defendant. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). For example, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence such as when the prosecutor proceeds to trial aware that key witnesses are not available to give testimony and a mistrial is later granted for that reason. Downum v. United States. The prohibition against double jeopardy unquestionably “forbids the prosecutor the use of the first proceeding as a trial run of his case.” Note, Twice in Jeopardy, 75 Yale L.J. 262, 287 (1965). See also Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). State v. Sanborn, 157 Me. 424, 173 A.2d 854 (1961).

Finally, the record strongly suggests that the state may have resorted to its demand for a mistrial only when prospects of acquittal were apparent. Be that as it may, the mistrial was not manifestly necessary under the circumstances of this case. We in no way condone a trial judge conversing with a witness as was done in this case. Nevertheless, we agree with the trial judge who reluctantly dismissed the indictment on the ground of double jeopardy.

Accordingly, we affirm the trial court’s decision.

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


author: SCHEB, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Jay Tim PERKINS, Jacobs Zeches, Mark Eugene Angle, Ezeliel Byrd, Robert Campbell, Andrew A. Dean, Ray Whitney Fish, Jerry Vincent Golden, Herschel F. Griffin, Jack R. Boyle, and Paul Mervin Gaither, Appellees.
    Nos. 82-477, 82-478, 82-493 to 82-500, 82-955 and 82-956.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1983.
    Rehearing Denied March 22, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellant.
    Elizabeth Anne Goodale, Largo, for ap-pellees.
   SCHEB, Acting Chief Judge.

In these consolidated appeals, appellees were charged in county court with violating a Special Act of the legislature. The court dismissed the charges against each, holding the act unconstitutional, and the state now appeals. We have jurisdiction pursuant to Article V, section 4(b)(1), Florida Constitution; section 26.012(1), Florida Statutes (1981); and Florida Rule of Appellate Procedure 9:030(b)(l)(A). We reverse.

Each appellee was charged with using a seine, gill net, or other net within fifty yards of a dock or pier in Pinellas County in violation of Chapter 81-465, section 1, Laws of Florida. They pled not guilty and filed motions to dismiss, attacking the constitutionality of the Special Act. Their motions alleged the act was a violation of equal protection, unconstitutionally vague, arbitrary and capricious, and beyond the police power of the state. After hearing arguments of counsel, the trial court granted their motions to dismiss, holding that Special Act 81-465 was unconstitutional, the court:

having found no rational decision or rational basis for prohibiting net fishing simply because it is within 50 yards of a dock.
This Act obviously is simply designed to protect the private interest of people who happen to own docks along the waterways of Pinellas County. It does not have any foundation or basis for the protection of the environment or natural resources of the State, or any other thing in which the State has a rational police power or power to regulate under the police power.

In challenging the county court’s order finding Chapter 81-465 unconstitutional, the state argues that the Florida Supreme Court has long recognized that the legislature may enact special or local laws for the protection of fish in this state. Nash v. Vaughn, 133 Fla. 499, 182 So. 827 (1938); Price, v. City of St. Petersburg, 158 Fla. 705, 29 So.2d 753 (1947). The state emphasizes that in determining the constitutional validity of legislation, the courts are to consider only the power of the legislature to enact the particular provision involved and not the policy, wisdom or necessity for the en-aetment. The challenged Act, the state argues, therefore passes constitutional muster.

Appellees, on the other hand, posit three principal arguments to sustain the trial court’s judgment. First, they note that the present Florida Constitution prohibits the enactment of Special Acts or general laws of local application which pertain to the regulation of occupations regulated by state agencies. Second, they argue that there is no rational basis to prohibit the use of a net within fifty yards of a dock or pier. Such restriction, they say, does not relate to conservation of the state’s resources or protection of its environment. Finally, they contend that the Special Act violates the equal protection clause of the constitution.

In evaluating appellees’ arguments, we start with the well-established principle that legislative enactments carry a strong presumption of validity with all doubt resolved in favor of the constitutionality of a statute. State v. Kinner, 398 So.2d 1360 (Fla.1981). As the state correctly points out, any questions as to the wisdom, need, or appropriateness of a particular enactment are for the legislature. State v. Bales, 343 So.2d 9 (Fla.1977). Finally, the party asserting the unconstitutionality of a legislative enactment bears the burden of demonstrating clearly that such act is invalid. Village of North Palm Beach v. Mason, 167 So.2d 721 (Fla.1964). We find that in their assault on Chapter 81-465, appellees have failed to carry this burden.

In support of their first argument, appellees correctly point out that Article III, section 11(20), of the Florida Constitution prohibits any Special Act pertaining to an occupation regulated by the state. This, they say, renders Chapter 81 — 465 invalid. We disagree. We recognize that Chapter 370, Florida Statutes (1981), already provides for state regulation of the salt water fisheries industry. However, Chapter 81-465 is not an attempt to regulate the commercial fishing industry; rather, it merely governs access to marine resources in the Pinellas County area. Furthermore, it is well established that the right of property in fish in the salt waters of the state is common to all people and cannot be claimed by any particular individuals. The people have a right to take fish from the salt waters subject to regulations imposed by the state for the benefit of the people of the state.

The Florida Supreme Court has long recognized that the legislature may enact special or local laws for the protection of salt-water fish in this state. Nash v. Vaughn. Indeed, many sessions of the legislature have addressed the need for restricting salt-water fishing on a local basis by enacting special and local laws concerning salt-water fishing and particularly the use and size of nets. Recently, the First District in Fulford v. Graham, 418 So.2d 1204 (Fla. 1st DCA 1982), upheld the constitutionality of a number of special and local acts which regulated salt-water fishing on a county-by-county basis. Those legislative enactments contained restrictions on the use or size of nets in certain specific locations.

Appellees’ second and third arguments are also without merit. They contend that no rational basis exists for the fifty-yard limit from docks and, further, that Chapter 81-465 violates their equal protection rights. However, since the act has not clearly been shown to be arbitrary and capricious, it is not our function to question its wisdom, need, or appropriateness. State v. Bales. Clearly the state has a sovereign interest in the salt-water fish of the state and the act, which is directed to all persons, attempts to strike a balance between use of the salt waters for fishing, recreational interests, or for other legitimate state interests related to the general welfare.

Accordingly, we reverse each of the trial court’s orders and remand each case for further proceedings.

RYDER and SCHOONOVER, JJ., concur.

      . Chapter 81-465, section 1, provides that:
      No seine, gill net, or other net, except a common cast net, shall be set or used for the taking of food fish from the salt waters of Pinellas County within 50 yards of any dock or pier.

      . It is noteworthy that while Article III, section 11(19), of the Florida Constitution forbids enactment of special acts regulating fresh-water fishing, no corresponding constitutional provision proscribes enactment of special or local acts in regard to salt-water fishing in this state.

      . See, e.g., Laws of Fla, Ch. 79-514, Ch. 80-524, Ch. 80-540, Ch. 81-376(21), Ch. 81-409, and Ch. 81-472.


author: HOBSON, Acting Chief Judge.

text:
    Robert S. PAGE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1180.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

We reverse on authority of Hall v. Oakley, 409 So.2d 93 (Fla. 1st DCA 1982). However, we find the issue raised in Hall and this case concerning impeachment of a defendant to be a question of great public importance. We therefore certify the following question pursuant to article V, section 3(b)(4), Florida Constitution (1972):

WHETHER THE STATE IS PREVENTED BY SECTION 90.610(1), FLORIDA STATUTES (1981), FROM IMPEACHING A DEFENDANT BY USE OF A PRIOR PETIT THEFT CONVICTION WITHOUT SHOWING THAT SUCH CRIME INVOLVES SOME ELEMENT OF DECEIT, UNTRUTHFULNESS, OR FALSIFICATION BEARING UPON THE DEFENDANT’S CAPACITY TO TESTIFY TRUTHFULLY.

DANAHY and SCHOONOVER, JJ., concur.


author: DANAHY, Judge. BOARDMAN, Acting Chief Judge,

text:
    HILLSBOROUGH COUNTY AVIATION AUTHORITY, Petitioner, v. AZZARELLI CONSTRUCTION COMPANY, INC., a Florida corporation, Respondent.
    No. 82-2519.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1983.
    Rehearing Denied March 23, 1983.

      Stewart C. Eggert and William S. Josey of Allen, Dell, Frank & Trinkle, and Jonathan L. Alpert, of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for petitioner.
    J. Bert Grandoff of Lawson, MeWhirter & Grandoff, Tampa, for respondent.
   DANAHY, Judge.

The Hillsborough County Aviation Authority urges us to hold that trial preparation materials, or “work product,” are not public records within the meaning of section 119.011(1), Florida Statutes (1981), as interpreted by our supreme court in Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So.2d 633 (Fla.1980). We decline to do so.

The Authority is a defendant in litigation initiated by the respondent seeking damages for claims which allegedly arose while the respondent was general contractor for the construction of a remote parking facility at Tampa International Airport. The respondent served a request for production of documents which the Authority characterizes as work product. The Authority refused to produce the documents, and the trial judge entered an order directing the Authority to produce the requested material. The Authority then brought this petition for writ of certiorari, claiming that the trial judge’s order departed from the essential requirements of the law because the work product of the Authority does not constitute public records. We deny the writ.

In Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979), the supreme court had the occasion to consider whether the judicially created privileges of attorney-client and work product extend to public records. The court held that they do not, remarking that if the common law privileges are to be included as exemptions, it is up to the legislature, and not the courts, to amend the statute. There is no statutory exemption of work product. The Authority acknowledges the Wait decision, but insists that its impact is modified by the supreme court’s later decision in the Byron, Harless case, when the court set forth a definition of “public records.” The court said in that case that the term “public records” means ihaterials which constitute records — that is, materials that have been prepared with the intent of perpetuating or formalizing knowledge. The Authority argues that when a public body is engaged in litigation, the pleadings and evidence it presents in court constitute the formal agency statement on the subject matter in question and that all else is merely preliminary or preparatory, and, therefore, not a chapter 119 public record. In our view, the supreme court’s decision in the Wait case constituted a tacit recognition that work product can be a public record. If that were not so, the court would not have found it necessary to address the question whether the judicially created work product exemption applies to public records.

Alternatively, the Authority argues that matters of discovery are procedural in nature, and points out that Florida Rule of Civil Procedure 1.280(b)(2), relating to discovery, contains protections against the disclosure of work product. The Authority concludes from this that if the Public Records Act does indeed apply to work product, to this extent it concerns a matter of practice and procedure, and the rule adopted by the supreme court takes precedence over the statute. We disagree. Access to public records, in our view, is a matter of substance. Benyard v. Wainwright, 322 So.2d 473 (Fla.1975); City of Tampa v. Titan Southeast Construction Corp., 535 F.Supp. 163 (M.D.Fla.1982).

The Authority’s petition for certiorari is denied. Accord, City of Williston v. Roadlander, 425 So.2d 1175 (Fla. 1st DCA 1983).

GRIMES, J., concurs.

BOARDMAN, A.C.J., specially concurs with opinion.

BOARDMAN, Acting Chief Judge,

specially concurring.

I concur only because I have no choice. It is clear that there is no work product exception under the Public Records Act. Wait. However, I feel work product should be exempt. As noted in Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982), the Act places public agencies faced with potential litigation at a disadvantage compared to private individuals and corporate entities. I strongly urge that the legislature revisit the entire Act and reconsider the portions thereof which have posed serious difficulties for the courts and the litigants involved in a number of recent cases.

      . The Florida Evidence Code’s recognition of the attorney-client privilege has been held to create a statutory exemption to the Public Records Act. § 90.502(1), Fla.Stat. (1981); City of Tampa v. Titan Southeast Construction Corp., 535 F.Supp. 163 (M.D.Fla.1982).


text:
    Samuel SINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1111.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1983.
    Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Maselli v. State, 425 So.2d 176 (Fla. 2d DCA 1983).

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


text:
    Thomas L. ETHERIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1442.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1983.
    Jerry Hill, Public Defender, Bartow, and Robert J. Krauss, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. United States v. Ross, 456 U.S. 2157, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

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


text:
    James H. STOVER, Appellant, v. Elliot L. MILLER, Appellee.
    No. 82-1276.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1983.
    Hilton R. Carr, Jr. and John M. Murrell, Jr., Miami, for appellant.
    Judith A. Frankel and Elliot L. Miller, Miami Beach, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Wilson v. Southern Discount Co., 385 So.2d 169 (Fla. 3d DCA 1980).


text:
    Robert Anthony ARCHER, Appellant, v. STATE of Florida, Appellee.
    No. 82-51.
    District Court of Appeal of Florida, Second District.
    March 2, 1983.
    John S. Burton, Plant City, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed.

The judgment and sentence, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by section 921.161, Florida Statutes (1979). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975).

Remanded for correction of sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    Emily Sue LYONS, Appellant, v. Daniel E. LYONS, Appellee.
    No. 82-1482.
    District Court of Appeal of Florida, Second District.
    March 4, 1983.

      Robert Jackson McGill of Law Offices of Robert Jackson McGill, P.A., Venice, for appellant.
    John J. Blair of Law Offices of John J. Blair, Venice, for appellee.
   SCHEB, Judge.

Emily Sue Lyons and her former husband, Daniel E. Lyons, were married for over twenty-one years. Upon dissolution of their marriage, the husband was allowed to retain sole ownership of the marital home. Appellant wife contends the trial court abused its discretion in denying her claim to an interest in the home. We agree.

Mr. and Mrs. Lyons married in December 1960 and lived together until July 1981. Each had a child by a previous marriage who came to live with the new couple. Three children were born of this marriage, but their fifteen-year-old daughter was the only minor child at the time of the dissolution. During most of their marriage, Mrs. Lyons was the homemaker, with Mr. Lyons supporting the family. During their last five years, Mrs. Lyons availed herself of vocational training, obtained a position as a medical lab technician, and thereafter contributed to the support of the family. At the time of dissolution, Mr. Lyons was earning approximately $200 per week as a self-employed lawn maintenance man, while Mrs. Lyons was drawing about $242 per week.

Mr. Lyons petitioned to dissolve the marriage and sought custody of their minor daughter. Mrs. Lyons counterpetitioned also seeking dissolution and custody as well as child support and partition of the marital home. Later, she was granted leave to seek rehabilitative alimony.

Mr. Lyons owned some lawn equipment and three vehicles, the newest of which was a 1980 Buick. Beyond a modest amount of tangible items, he had no personal property of financial substance; Mrs. Lyons had no independent assets. They had divided their joint bank accounts prior to the dissolution. The one substantial asset was the unencumbered marital home where they lived from the time they married. The husband valued it at $50,000; the wife at $60,000. Apparently under the belief that she was a tenant by the entirety and would become a tenant in common upon dissolution, the wife originally sought partition of the home. When she became aware the home was titled solely in the name of her husband, Mrs. Lyons continued to pursue her claim for partition contending that she was entitled to a special equity or other equitable interest in this asset.

In its final judgment the court awarded Mrs. Lyons $1,500 rehabilitative alimony and the 1980 Buick as lump sum alimony. She was also granted custody of their daughter, with the husband required to contribute $107.50 per month in child support. However, the court declined to award her an interest in the marital home. The trial judge concluded that during the latter period of the marriage, Mrs. Lyons had become strengthened in her earning capacity. He opined that Mr. Lyons, on the other hand, had suffered from a compulsive jealousy of his wife and his earning capacity had deteriorated. The court went on to observe that the wife had voluntarily left the home, and the husband, whose earnings had paid for it, now had a greater need for the home than did the wife. Thus, the court concluded, it would be inappropriate .to award Mrs. Lyons any interest in the homeplace. We think the court abused its discretion.

To arrive at a fair distribution of marital assets in cases like this undoubtedly requires a Solomonic wisdom on the part of the trial court. As the trial judge explained to the parties, it becomes virtually impossible for the court to arrive at a distribution considered fair by both parties. We understand this and recognize that the trial court is vested with broad discretion in making awards of alimony and distributions of property in dissolution of marriage cases. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). As the trial judge observed, Mrs. Lyons may now be strengthened and in a position whereby she does not require periodic support. However, she should not be deprived of an award of lump sum alimony in the home which is the only significant asset of this long-term marriage. True, the husband made the initial down payment on the home prior to the marriage, and during the marriage he made substantially all the payments on the mortgage he assumed when he purchased the home. And, while the wife did testify that she had made a contribution from a personal injury settlement she received after the marriage, the court could have, and perhaps did, reject this testimony in denying her plea for a special equity in the property. But, even laying aside the wife’s claim of specific monetary contribution, we cannot overlook the fact that she was the homemaker during the marriage. She raised the children and performed the household chores, thus contributing significantly to making a home for her husband. Moreover, in the latter years she too worked and contributed to the family support.

In Canakaris the supreme court quoted approvingly from Judge Rawls’ pertinent observations in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974):

How shall the material wealth of a marriage which is being dissolved be divided when one partner, the wife, has contributed her time to the marital home and children of the parties while the husband has pursued the accumulation of material goods. The evolution of the law of alimony that we have reviewed in length shows that today the contributions of each party to the accumulation of material assets must be considered in dissolving the marital partnership. Either spouse may contribute either by working in the market place or by working as a homemaker. The fact that in one marital venture a spouse is gainfully employed in the market place and pays a housekeeper to rear the children and keep house is not distinguishable from the spouse who devotes his or her full time to the profession of homemaker. The primary factual circumstance is each spouse’s contribution to the marital partnership. In the case sub judice, the wife has been short changed. The wife has not been adequately compensated for the contribution that she made as a full time mother and homemaker to the equal partnership marriage. We hold that the trial court abused its discretion in awarding the wife a pittance of the material assets accumulated in the husband’s name during 21 years.

Canakaris, 382 So.2d at 1203, 1204.

We cannot say it any better. We only add that while we recently said that equitable distribution is not an independent vehicle for distribution of assets on dissolution, Powers v. Powers, 409 So.2d 177 (Fla. 2d DCA 1982), each spouse must be treated in such a manner as to be given fair consideration of what has been accumulated during the marriage. Robinson v. Robinson, 403 So.2d 1306 (Fla.1980); Ingram v. Ingram, 379 So.2d 955 (Fla.1980). In determining a proper award, courts are to consider all relevant circumstances to ensure equity and justice between the parties. Ca-nakaris. In this instance the trial court failed to give the required weight to the wife’s contribution to this long-term marriage. Simply stated, it is inequitable for Mrs. Lyons to leave the marriage with an automobile and $1,500, while the husband continues to own the unencumbered marital home which he values at $50,000.

Mrs. Lyons does not challenge the trial court’s denial of her claim for attorney’s fees. Yet, she and Mr. Lyons each seek an award of attorney’s fees on appeal. Since it appears to us that the parties have substantially similar abilities to secure competent legal counsel, we deny each petition. Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973).

Accordingly, we affirm the final judgment insofar as it grants the dissolution and awards custody, child support, the car, and rehabilitative alimony to the wife and denies her an award of attorney’s fees. We reverse, however, that provision which denies the wife’s claim for any interest in the marital home. We remand and direct the trial court to award the wife lump sum alimony in the form of an interest in the marital home considering her long-term contribution to the marriage. The court may take further testimony on this issue if it deems it necessary, but the wife should not be prejudiced because title to the marital home is vested solely in the husband. The trial court shall grant leave for any amendments to the pleadings necessary for partition of the marital home.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


text:
    In re ESTATE OF Robert O. CASON, Deceased. James W. FINGER, Appellant, v. Sharon CASON and Deborah Cason, Appellees.
    No. 82-885.
    District Court of Appeal of Florida, Second District.
    March 4, 1983.
    Jon H. Anderson of Lane, Trohn, Bertrand & Williams, Lakeland, for appellant.
    A. August Quesada, Jr. of Wildt, Quesada & Walker, P.A., Jacksonville, for appellees.
   PER CURIAM.

Affirmed. See International Patrol & Detective Agency Co., Inc., v. Aetna Casualty & Surety Co., 419 So.2d 323 (Fla.1982).

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


text:
    Phyllis Jean JOHNSON, Appellant, v. Harold G. JOHNSON, Appellee.
    No. 82-1533.
    District Court of Appeal of Florida, Second District.
    March 4, 1983.
    Rehearing Denied April 11, 1983.
    Eula Tuttle Mason of Shade & Mason, St. Petersburg, for appellant.
    Loyd C. Mosley of Mosley & Evans, P.A., Clearwater, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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


text:
    FORESKORE LEASEHOLDS, INC. and Rebecca H. Elliott, d/b/a Elliott Realty, Appellants, v. KENNEDY APPLIANCES, INC. and T.D. Kennedy, Appellees.
    No. 82-1661.
    District Court of Appeal of Florida, Second District.
    March 9, 1983.
    Charles M. Milligan of McConnell & Milli-gan, Fort Myers Beach, for appellants.
    Thomas Corbin of Adams & Corbin, Fort Myers, for appellees.
   PER CURIAM.

Affirmed on the rationale of Dugan v. Haige, 54 So.2d 201 (Fla.1951).

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


text:
    Wilhelmener HARRIS, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. 82-1950.
    District Court of Appeal of Florida, Second District.
    March 16, 1983.
    Douglas A. Mulligan and I.W. Williams of Williams and Milton, St. Petersburg, for appellant.
    Stuart J. Freeman, Pinellas Park, for ap-pellee.
   PER CURIAM.

Affirmed. See Denmark v. Nationwide Mutual Fire Insurance Co., 384 So.2d 912 (Fla. 2d DCA), review denied, 392 So.2d 1373 (Fla.1980); Johns v. Nationwide Mutual Insurance Co., 375 So.2d 320 (Fla. 2d DCA 1979), and Williams v. Leatherby Insurance Co., 338 So.2d 70 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 429 (Fla.1977).

BOARDMAN, A.C.J., and SCHEB and RYDER, JJ., concur.


text:
    Donald CABLE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-607.
    District Court of Appeal of Florida, Second District.
    March 18, 1983.

      Jerry Hill, Public Defender, Bartow, and Glenn E. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from a conviction of aggravated assault.

Detective Richard Swann, an undercover narcotics officer, met an informant at about 5:00 p.m. on June 16, 1981. The informant introduced Swann to appellant, and Swann told appellant that he wanted to buy some cocaine. Appellant’s first efforts to acquire the cocaine were unsuccessful, so he told Swann to return later. „ At about 8:00 p.m., Swann picked appellant up, and they went to several places searching for drugs. Appellant then directed Swann to return to a gameroom that they had earlier visited to see if he could find someone with cocaine. Before arriving at the gameroom, appellant directed Swann to turn in to see several men who were in the parking lot of a convenience store. One of the men in the parking lot was appellant’s brother William. After talking awhile, they decided to return to the gameroom.

Once at the gameroom, Swann noticed several others present, including a man named H.P. Brock. While the men talked, appellant drove off in William’s car. He returned shortly and then told Swann to come outside. He took Swann to the side of thé building away from the parking lot and told him that he could not find any cocaine that night. Suddenly, Swann turned and found William Cable advancing towards him with a large pair of hedge clippers. William Cable placed the clippers at Swann’s throat and threatened to kill him. Appellant remained behind Swann, and Brock stood by as well. William Cable demanded Swann’s wallet. As Swann gave it to him, Brock held the clippers. After searching Swann’s wallet, William Cable ordered the officer against a car and patted him down. They also made Swann remove his shoes to see if he was carrying a weapon. After satisfying themselves that Swann was not a police officer, the men told him that if he would return the following night, they would sell him narcotics. Swann left without further incident. Appellant, his brother, and Brock were eventually arrested. The state charged appellant with aggravated assault.

Unquestionably, William Cable committed an aggravated assault on Officer Swann. See Lindsey v. State, 67 Fla. 111, 64 So. 501 (1914); Gilbert v. State, 347 So.2d 1087 (Fla. 3d DCA 1977); § 784.-021(1), Fla.Stat. (1981). We now must decide whether appellant’s activities were sufficient to make him a principal in the first degree pursuant to section 777.011, Florida Statutes (1981). Section 777.011 provides in pertinent part:

Principal in first degree. — Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, ' convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

Before one can be convicted as an aider or abettor, there must be proof of his intent to participate in the crime. Shockey v. State, 338 So.2d 33 (Fla. 3d DCA 1976); McClamrock v. State, 327 So.2d 780 (Fla. 3d DCA 1975). The state must also show that the accused has done or said something which causes, encourages, assists, or induces the other person to actually commit the crime. G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981).

In most cases of this type, the crime perpetrated by others is an end in itself, and the state simply seeks to' prove that the defendant aided in the commission of that crime. Here, appellant actively tried to commit a crime, and the question is whether he can be convicted as a principal for the commission of a second crime carried out in furtherance of a scheme to commit the first one. Obviously,' appellant and his brother and Brock were attempting to consummate a drug sale. At some point, they became suspicious that Swann was an undercover agent. Appellant asked Swann to come outside ostensibly to talk with him about the sale of the cocaine. When Swann was sufficiently removed from the premises, appellant’s brother accosted him with some hedge clippers. While appellant did not handle the clippers, he was present at all times. His brother’s acts did not appear spontaneous, and they were entirely consistent with the preservation of the common drug scheme. The jury was entitled to conclude that appellant was a principal in the commission of the aggravated assault.

AFFIRMED.

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


text:
    Joseph C. MERRITT, Appellant, v. STATE of Florida, Appellee.
    No. 82-663.
    District Court of Appeal of Florida, Second District.
    March 23, 1983.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Merritt seeks review of the trial court’s order revoking his probation and sentencing him to prison. He also alleges that the written order of judgment and sentence, as it relates to credit for time served, erroneously differs from the oral sentence imposed by the trial judge.

We affirm the trial court’s order revoking probation and the adjudication of guilt and sentence.

Appellant’s challenge to the trial court’s order of revocation of probation is premised upon the contention that the order is invalid because the state failed to file an affidavit and warrant charging conduct violative of his probation prior to the hearing during which the appellant’s probation was revoked. An examination of the record reveals that an affidavit and warrant charging acts violative of the terms of probation were filed in September of 1980. The affidavit and warrant alleged that appellant had violated condition (5) of his probation inasmuch as he had been arrested and charged with a misdemeanor offense of possession of marijuana and a felony offense of burglary.

On November 3, 1980, an evidentiary hearing, pursuant to the warrant, was conducted during which the state conceded that it was not prepared to prove up the felony offense as grounds for revoking Merritt’s probation. At the conclusion of the hearing, the trial judge determined that he would not revoke Merritt’s probation on the relatively minor marijuana charge. The judge reinstated appellant’s probation, but added that such reinstatement was effective only until such time as the state’s proceedings regarding the felony charge had been concluded.

Based upon the September 19, 1980 affidavit and warrant, a second revocation of probation hearing was conducted on February 16, 1981. The transcript of that hearing reveals that during the interim, appellant had been convicted of the felony burglary offense. Accordingly, and based upon Merritt’s felony conviction, the trial judge revoked appellant’s probation.

We affirm the February 16, 1981 order revoking Merritt’s probation and reject his argument that the order is defective because it was not issued pursuant to a valid affidavit and warrant charging him with a violation of his probation. We hold that on November 3, 1980 the judge reserved ruling on the charge of violation of probation as it related to the burglary charge, thereby preserving the effectiveness of the September 19, 1980 affidavit and warrant. Hence, it was not incumbent upon the state to have filed a second affidavit and warrant prior to conducting the February 16, 1981 hearing.

We turn now to Merritt’s second point on appeal relating to the allegation that he did not receive the proper amount of credit for time served when the written judgment and sentence was entered. The trial judge believed Merritt was entitled to 158 days credit. Apparently, another judge gave him credit for 972 days, and Merritt contends he is entitled to 1,253 days credit. From the record on appeal, we cannot determine the correct amount of entitlement. Thus, we remand for a hearing to determine the correct number of days credit due and for an order so stating.

AFFIRMED and REMANDED with instructions.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


author: SCHOONOVER, Judge.

text:
    FIRST HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, SEBRING, FLORIDA, a corporation organized and operating under the laws of the United States of America, Appellant, v. Dwight M. NANCE and Patricia G. Gallagher, Appellees.
    No. 82-1395.
    District Court of Appeal of Florida, Second District.
    March 23, 1983.

      Fred S. Ridley of Bucklew, Ramsey & Ridley, Tampa, for appellant.
    Harry M. Hobbs of Harry M. Hobbs, P.A., Tampa, for appellee/Patricia G. Gallagher.
   SCHOONOVER, Judge.

The appellant, First Home Federal Savings and Loan Association, has appealed a summary final judgment denying it the right to enforce a due-on-sale clause in a mortgage after the owner of the mortgaged property sold the property without appellant’s approval. The trial court held, consistent with this court’s holding in the case of First Federal Savings & Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980), that the appellant could not enforce the due-on-sale clause of the mortgage without alleging and proving that the transfer of the mortgaged property had impaired the lender’s security. We reverse.

On October 20, 1977, Dwight M. Nance executed and delivered to the appellant a promissory note and mortgage. Paragraph 17 of the mortgage provided in part:

17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable.

On March 5, 1980, Mr. Nance transferred the property by warranty deed to the appel-lee Patricia G. Gallagher. The transfer of said property was effected without the appellant’s prior written consent as required by paragraph 17 of the mortgage. After the appellant learned of the transfer, it accelerated the debt in accordance with the due-on-sale clause and thereafter instituted a foreclosure action against Dwight M. Nance and the appellee. A default was entered against Dwight M. Nance. The appellee answered the amended complaint and filed a counterclaim seeking a declaratory decree determining that she was not in default because of the sale of the property. The appellee then moved for a summary judgment, relying on this court’s decision in Lockwood. Her motion was granted and this appeal followed.

Subsequent to the trial court’s ruling, the United States Supreme Court in Fidelity Federal Savings & Loan Association v. de la Cuesta, -U.S. -, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), decided the issue presented in the case sub judice. In de la Cuesta, the court held that under section 5(a) of the Homeowner’s Loan Act of 1933 (HOLA), a federal regulation issued in 1976 by the Federal Home Loan Bank Board pre-empted state law, and that due-on-sale practices of federal savings and loan associations are governed exclusively by these regulations without regard to any limitations imposed by state law.

The court’s holding in de la Cuesta is dispositive of the issue presented by this appeal. It effectively overrules this court’s holding in Lockwood that a state court may, applying state equity law, refuse to enforce due-on-sale clauses in federal savings and loan associations’ mortgage contracts.

We accordingly reverse and remand for further proceedings consistent herewith.

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

      . This due-on-sale clause is similar to paragraph 17 of the Uniform Mortgage Instrument developed by the Federal Home Loan Mortgage Corporation and the Federal National Mortgage Association.

      . The regulation, now 12 CFR § 545.8-3(f) (1982), provides in relevant part:
      [A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent.


text:
    Shirley M. YACONIELLO, Appellant, v. EASTERN AIRLINES, INC., Appellee.
    No. 82-1804.
    District Court of Appeal of Florida, Second District.
    March 25, 1983.
    Scott Charlton of Peavyhouse, Giglio, Grant, Clark, Charlton & Opp, Tampa, for appellant.
    Jonathon L. Alpert of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. Bee Hilgenhurst v. Knight-Ridder Newspaper, Inc., 400 So.2d 523 (Fla. 3d DCA 1981); Warner v. Florida, Jai-Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969).

OTT, C.J., and DANAHY and LEHAN, JJ., concur.


text:
    Merle W. UNGER, Appellant, v. Gerald COLEMAN, Sheriff of Pinellas County, Florida, and State of Florida, Appellees.
    No. 81-2576.
    District Court of Appeal of Florida, Second District.
    March 25, 1983.
    Rehearing Denied April 27, 1983.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellees.
   PER CURIAM.

Affirmed. See State v. Soto, 423 So.2d 362 (Fla.1982).

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


text:
    Stephen G. BENEKE, Appellant, v. Barbara A. BENEKE, Appellee.
    No. 82-1663.
    District Court of Appeal of Florida, Second District.
    March 25, 1983.
    Rehearing Denied April 25, 1983.
    Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Largo, for appellant.
    Christopher C. Ferguson of Riden, Watson & Goldstein, St. Petersburg, for appel-lee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

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

Review dismissed, Fla., 431 So.2d 988.


text:
    Wayne H. HUNTER, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION, Appellee.
    No. 82-1808.
    District Court of Appeal of Florida, Second District.
    March 25, 1983.
    Rehearing Denied May 16, 1983.
    Zala L. Forizs of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Petersburg, for appellant.
    Bruce D. Lamb, Dept, of Professional Regulation, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978), and section 120.68(10), Florida Statutes (1981).

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


text:
    Thomas Lee SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 82-597.
    District Court of Appeal of Florida, Second District.
    April 6, 1983.
    Rehearing Denied May 16, 1983.

      Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Thomas L. Saunders appeals from his conviction and sentence for violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, section 893.135, Florida Statutes (1979), arguing that the trial court’s denial of his motion to discharge under the speedy trial rule was error. Fla.R.Crim.P. 3.191. We agree and reverse.

Saunders was arrested on June 27, 1981; on July 1, 1981, the public defender was appointed to represent him. On October 1, 1981, appellant entered a plea of not guilty to the charge. On October 22, 1981, during an unrecorded conference, trial was set for January 11, 1982; trial was thus scheduled for a date beyond the speedy trial deadline of December 24, 1981.

On October 27,1981, the public defender’s office filed a motion for determination of solvency. The trial court, on November 3, 1981, found appellant solvent and allowed the public defender to withdraw from the case. Saunders retained private counsel on or about November 17, 1981. On January 8, 1982, Saunders’ attorney filed a notice of appearance and a motion for discharge under the speedy trial rule.

On January 11, 1982, the trial judge continued and reset Saunders’ case until January 15, 1982 for a hearing on appellant’s motion for discharge. It is through the transcript of testimony taken during the January 15 hearing that we gain some insight into the unrecorded (and rather informal) meeting of October 22, 1981, whereat Saunders’ case was set for trial. It appears that a clerk from the state attorney’s office, an assistant public defender, a clerk from the public defender’s office, and a clerk of the circuit court (evidently assigned to the criminal justice division), attended the October 22 conference. These individuals met in order to schedule numerous cases for trial. There was no judge in attendance.

The representative from the circuit court clerk’s office had announced that the circuit court was overloaded due to some “big drug trial” and, therefore, she had instructions from a circuit judge that no new and no non-jail cases be set for trial for the remainder of 1981. The assistant public defender who had attended the meeting testified that his office never waived speedy trial. He recalled that he had not been aware of a speedy trial problem as of the October meeting. Apparently, none of those in attendance concerned themselves about speedy trial in the Saunders case.

After listening to the January 15, 1982 testimony, the trial judge denied the motion for discharge and set the case for trial on January 18, 1982.

On January 18, 1982, the trial judge allowed Saunders’ privately retained counsel the opportunity to make additional argument on the motion for discharge. Thereafter, the motion was again denied. Saunders then pleaded nolo contendere reserving for purposes of appeal the trial court’s denial of his motion for discharge.

The state argues on appeal, as they did below, that Saunders effectively waived his right to a speedy trial when, at the October 22 meeting, the public defender acquiesced in setting the trial for a date after the running of speedy trial. The state also maintains that appellant was unavailable for trial as of the date speedy trial expired. We cannot agree with either argument.

We believe the holding in State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1220 (Fla.1978), is controlling. Judge Rawls traced judicial treatment of the speedy trial rule.

The requirements of Fla.R.Crim.P. 3.191(d)(2)(i), requiring that an extension or waiver of the speedy trial time be in writing and be signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, have been modified considerably by judicial interpretation. Waiver has been found without the required writing where defense counsel orally stipulated to the delay in open court and where same was preserved for the record by certified transcript of the proceedings; or where there was either a passive or active acknowledgment on the part of the defense that a stipulation (in court or out, oral or written) had been entered into by which the parties agreed that the trial would be set beyond the speedy trial period; or where there was an acknowledgment by the court or one of the parties of a speedy trial issue followed by the defense’s acquiescence in a trial date set beyond the speedy trial period, (citations omitted).

349 So.2d at 838-839.

Judge Rawls concluded: “We hold that mere silence alone on the part of the defendant or his counsel at a proceeding in which the defendant’s trial date is set beyond the speedy trial period is not a waiver pursuant to Fla.R.Crim.P. 3.191(d)(2)(i).” 349 So.2d at 839.

None of the circumstances discussed in Ansley has occurred in the case sub judice. There was no written waiver, no transcript indicating stipulation to the delay, no acknowledgment on the part of the defense that there had been a stipulation to the delay, nor any acknowledgment of a speedy trial issued followed by acquiescence by the defense in setting trial beyond the expiration of the speedy trial period.

It should also be noted that Fla.R.Crim.P. 3.191(d)(2) reads:

(d)(2). When Time May Be Extended. The periods of time established by this rule may be extended provided the period of time sought to be extended has not expired at the time the extension .was procured. Such an extension may be procured: (i) upon stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, ... (emphasis supplied).

Not only did the trial court lack formal evidence as to a stipulation of waiver of speedy trial, there was no trial judge present to accept such a stipulation.

Lastly, the state’s argument that appellant was unavailable for trial in view of these particular circumstances is merit-less. The state argues that appellant was unavailable for two reasons. First, because the state had no notice from November 3, 1981 until January 8,1982 (after the expiration of speedy trial) that appellant was represented by counsel. Second, as further evidence of appellant’s unavailability below, the state points to the fact that at the January 8 and 15 hearings, defense counsel requested continuances to prepare for trial.

For the state to argue the unavailability of appellant, because they had received no prior notice that appellant was represented by counsel before the expiration of the 180 days, is an attempt to shift the burden of complying with the 180-day rule to the criminal defendant. The burden to comply with the rule is on the state. Gue v. State, 297 So.2d 135 (Fla. 2d DCA 1974).

Turning to the state’s second argument regarding the unavailability of Saunders, we note that the requests for continuance by defense counsel were made outside the 180-day period. The speedy trial time had already run. We are required to examine appellant’s unavailability prior to, or at the point, the speedy trial time expired. The record is devoid of any conclusive evidence that Saunders was unavailable any time during the 180-day period which the state had been accorded to place appellant in jeopardy.

The denial of the motion to discharge was error and, as such, is reversed. This cause is remanded to the trial court with instructions to discharge appellant from the charges which gave rise to this appeal.

REVERSED and REMANDED with instructions.

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


text:
    Thomas J. LAMARCHE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1059.
    District Court of Appeal of Florida, Second District.
    April 6, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Irby v. Missouri, 427 So.2d 367 (Fla. 2d DCA 1983).

BOARDMAN, A.C.J., and GRIMES and DANAHY, JJ., concur.


text:
    In the Interest of C.E., a child, Appellant, v. STATE of Florida, Appellee.
    No. 82-1878.
    District Court of Appeal of Florida, Second District.
    April 6, 1983.
    Jerry Hill, Public Defender and Deborah A. Adamson, Asst. Public Defender, Tampa, for appellant.

      Jim Smith, Atty. Gen., and David T. We-isbrod, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

AFFIRMED. See State v. Young, 217 So.2d 567 (Fla.1968).

BOARDMAN, A.C.J., and RYDER and LEHAN, JJ., concur.


text:
    Louise R. FISCHER, Appellant, v. Frederick FISCHER, Appellee.
    No. 82-1834.
    District Court of Appeal of Florida, Second District.
    April 6, 1983.
    Rehearing Denied May 4, 1983.
    Thomas H. McGowan, St. Petersburg, for appellant.
    Wayne 0. Smith of Wallace, Smith, Finck & Beach, St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

OTT, C.J., and DANAHY and LEHAN, JJ., concur.


text:
    In the Interest of J.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 82-2085.
    District Court of Appeal of Florida, Second District.
    April 8, 1983.
    Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See Adams v. State, 367 So.2d 635 (Fla. 2d DCA 1979).

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


text:
    Sheldon LOBEL and Adele R. Lobel, Appellants, v. SOUTHGATE CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 82-461.
    District Court of Appeal of Florida, Fourth District.
    April 13, 1983.
    Rehearing Denied June 15, 1983.

      Edna L. Caruso, and Easley, Massa & Willits, P.A., West Palm Beach, for appellants.
    Dean J. Rosenbach of Lewis, Yegosen & Rosenbach, P.A., Palm Beach, for appellee.
   PER CURIAM.

This case is per curiam affirmed. However, we pause to comment on the motion for attorneys fees, made by the successful appellee, which we deny.

Increasingly we note a tendency to seek attorneys fees out of season. The Florida Rule of Appellate Procedure 9.400(b) calls for the filing of such a motion no later than the time for service of the reply brief. In the case now before us the reply brief was filed on November 8, 1982 and it was not until over five months later that the motion for fees was filed. It is because of this tardiness that we have denied it.

LETTS, C.J., DOWNEY, J., and GOLDMAN, MURRAY, Associate Judge, concur.


author: WALDEN, Judge. ANSTEAD, Judge,

text:
    Raul DAIZI, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. 82-776.
    District Court of Appeal of Florida, Fourth District.
    April 13, 1983.

      Raul Daizi, pro se.
    Enoch J. Whitney of the Florida Parole and Probation Commission, Tallahassee, for respondent.
   WALDEN, Judge.

In a petition for habeas corpus the petitioner contends the Parole and Probation Commission (Commission) erred in assigning his presumptive parole release date (PPRD).

Pursuant to Rule of Appellate Procedure 9.040(c) (1982) we have elected to treat the petition for habeas corpus as a petition for writ of mandamus. See Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974); Harrisson v. Florida Parole and Probation Commission, 428 So.2d 388 (Fla. 4th DCA 1983); Pannier v. Wainwright, 423 So.2d 533 (Fla. 5th DCA 1982) and Hardy v. Greadington, 405 So.2d 768 (Fla. 5th DCA 1981).

We acknowledge that the Third District has ruled on the legality of petitioner’s sentences in Daizi v. State, 396 So.2d 1160 (Fla. 3d DCA 1981). The Florida Supreme Court’s opinion in State v. Gibson, 436 So.2d 32 (Fla.1983), indicates that there is a question regarding the legality of the petitioner’s sentences. However, the question presented by this petition is not a further challenge to the legality of the petitioner’s sentences, but rather a challenge to the use of the petitioner’s sentences within the context of the Commission’s objective parole guidelines. The petitioner is not precluded by this opinion from seeking collateral relief from his sentences.

deny the writ. The Commission may aggravate the petitioner’s PPRD for multiple offenses with concurrent sen-senSala v. Florida Parole and Proba-ProbaCommission, 414 So.2d 263 (Fla. 1st DCA 1982). Therefore, the Commission did not err in aggravating the petitioner’s PPRD for his'concurrent sentence of unlaw-unlawpossession of a firearm while engaged in a criminal offense. Fla.Admin.Code Rule 23-21.10(4)(a)( l)(h).

Petition denied.

BERANEK, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I would adhere to our previous opinion holding that the Commission erred in aggravating petitioner’s presumptive parole release date because of his possession of a firearm during the commission of an aggravated assault. In doing so I believe the Commission improperly considered the petitioner’s use of the same weapon in the same incident twice. The Commission’s own rules prohibit aggravation by consideration of a factor which has already been considered in determining the seriousness of the offense for which the prisoner is incarcerated. In addition, the Florida Supreme Court has recently held that separate sentences may not be imposed for convictions of possession of a firearm during the commission of a felony and the underlying felony where the severity of the punishment for the underlying felony has already been enhanced by reason of the use of the firearm. See State v. Gibson, 436 So.2d 32 (Fla.1983).

The various responses filed by the Commission also reflect that the aggravation was specifically predicated upon petitioner having received consecutive sentences for the possession and assault charges, whereas the record reflects that the trial court ordered that such sentences be served concurrently.

      . The Commission is required by Sections 947.-172(2), (3), Florida Statutes (1981) and Parole and Probation Commission Rules, Fla.Admin. Code Rule 23-21.10 to provide the inmate with a written explanation of the factor or factors which influenced the Commission to aggravate the inmate’s term beyond the matrix time range. We note the fact that the Commission in their explanation designated that the “consecutive” sentence was considered when in fact the petitioner’s sentences were concurrent. We deem this to have been merely a misnomer in Commission’s explanation. In all other respects the Commission’s written explanation informed the petitioner of the basis for their decision with the “individual particularity” required by both the statute and administrative rules.


text:
    WASHEX MACHINERY CORPORATION, Appellant, v. BAY HARBOR INN OF TAMPA, INC., Appellee.
    No. 82-1874.
    District Court of Appeal of Florida, Second District.
    April 13, 1983.
    Gary W. Nicholson of Carson & Guem-mer, Tampa, for appellant.
    Raymond T. Elligett, Jr. and Kerry H. Brown of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

RYDER, A.C.J., SCHOONOVER and LE-HAN, JJ., concur.


text:
    CUMBEY AND FAIR, INC., Petitioner, v. The BOARD OF COUNTY COMMISSIONERS OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Respondent.
    No. 83-637.
    District Court of Appeal of Florida, Second District.
    April 15, 1983.
    David P. Rankin of Freeman & Lopez, P.A., Tampa, for petitioner.
   PER CURIAM.

Certiorari denied. See Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980); Suez Company v. Hodgins, 137 So.2d 231 (Fla. 3d DCA 1962).

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