text:
    ENTERPRISE BUILDING CORPORATION, Appellant, v. The SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA, Appellee.
    No. 83-1392.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1984.
    Donald A. Pleasants, Tampa, for appellant.
    B. Edwin Johnson, Clearwater, for appel-lee.
   PER CURIAM.

Enterprise Building Corporation, a contractor, appeals from the denial by the Pinellas County School Board of Enterprise’s application for prequalification as a bidder on construction projects. We affirm.

Enterprise cogently argues that the denial was improper because of (1) abuse of discretion by the Board in denying prequa-lification; (2) failure of the Board to adopt under chapter 120, Florida Statutes, a rule corresponding to section 6A-2.31(9), Florida Administrative Code, regarding, among other things, past satisfactory performance being a criterion for prequalification; (3) lack of a formal order by the Board denying prequalification; and (4) lack of adequate notice of hearing on the prequalifieation issue.

As to the first argument, we find no abuse of discretion under the facts of this case which involved whether there had been past satisfactory performance by the contractor on another job. See Couch Construction Co., Inc., v. Department of Transportation, 361 So.2d 184, 187 (Fla. 1st DCA 1978).

As to the second and third arguments, whether or not chapter 120 applied, which we do not address, any failure of the Board to follow the procedures of that chapter regarding adoption of rules was harmless. There was no showing that denial of prequalification would not have resulted even if there had been formal adoption of the rule contended for or that the absence of a formal order was prejudicial. See Wahlquist v. School Board of Liberty County, 423 So.2d 471 (Fla. 1st DCA 1982); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979).

As to the fourth argument, although it is debatable whether adequate notice was given, we are unable to find improper action by the Board in that respect under the facts of this case. In any event, that issue was not sufficiently preserved for appeal. See Jacker v. School Board of Dade County, 426 So.2d 1149 (Fla. 3d DCA 1983).

AFFIRMED.

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


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Stephen Joseph LYNCH, Appellee.
    No. 83-1562.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellant.
    James D. Eckert of Eckert & Nelson, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

The state appeals an order granting Stephen Joseph Lynch’s motion to discharge an information charging him with the offense of possession of cocaine due to the state’s purported failure to comply with Florida Rule of Criminal Procedure 3.191, the speedy trial rule. We reverse and remand.

On March 31, 1983, the state filed an information accusing Lynch of committing the felony of possession of cocaine on July 24, 1982. Lynch was eventually arrested on the cocaine possession charge on May 10, 1983. On June 9, 1983, Lynch filed a motion to discharge under Rule 3.191.

Section (a)(1) of Rule 3.191 states that a person charged with a felony shall without demand be brought to trial within 180 days from the date that he “is taken into custody as defined under section (a)(4).” Subsection (i) of section (a)(4), which is the applicable subsection under our facts, provides that a person is taken into custody “when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged.”

Lynch averred in his Rule 3.191 motion to discharge that the alleged offense of possession of cocaine occurred at the same time and location as an alleged offense of battery of a law enforcement officer; that the alleged crime of battery of a law enforcement officer had been dismissed on speedy trial grounds on May 17, 1983; and that, as a result, the same relief should apply to the cocaine possession charge.

At a hearing on Lynch’s motion to discharge, Detective Paul Smith of the Pinel-las County Sheriff’s Office testified that at about 1:30 a.m. on July 24, 1982, he and Detective Poorbaugh were sitting inside an unmarked squad car outside a local tavern known as the 49th Street Mining Company. They observed Lynch in the parking lot take a small bottle out of his pocket, remove the top, and sniff the contents. They then saw Lynch offer the bottle to a male and female, both of whom also sniffed the substance. Suspecting that the substance “might” be cocaine because of the actions of the three, the officers, who were dressed in plain clothes, approached Lynch. Immediately after the officers identified themselves, Lynch threw the bottle, despite Detective Smith’s attempt to prevent the throw, and then Lynch shoved Detective Smith backwards. Detective Poorbaugh promptly arrested Lynch for battery of a police officer.

Detective Smith testified further that the bottle thrown by Lynch was never located, having landed in a heavily wooded area. However, the bottle’s plastic cap and some cotton were recovered shortly after Lynch’s arrest on the battery charge. No presumptive tests for cocaine were performed at the scene due to an insufficient amount of substance for testing. The bottle cap and cotton were submitted to a forensic laboratory for analysis. The analysis, which was completed on November 2, 1982, revealed traces of cocaine on the bottle cap. Lynch was not arrested for the offense of possession of cocaine on July 24, 1982, because Detective Smith was of the belief that he lacked probable cause at that time to arrest Lynch for that offense.

After the hearing, the trial court rendered an order granting Lynch’s motion to discharge under Rule 3.191, deciding that “the conduct giving rise to the charge of possession of cocaine ... arose from the same conduct or criminal episode giving rise to the charge of battery of a police officer ..., which charge was dismissed [on] May 17, 1983” pursuant to an earlier Rule 3.191 motion to discharge.

On appeal, the state voices its disapproval with the trial court’s conclusion that the 180-day speedy trial time period for the cocaine possession charge began to run on July 24, 1982, the date of Lynch’s arrest for the charge of battery of a law enforcement officer. Relying on the cases of Walker v. State, 390 So.2d 411 (Fla. 4th DCA 1980), and State v. Hoesley, 427 So.2d 1077 (Fla. 2d DCA 1983), which it asserts are both analagous to the instant case, it maintains that the two charges occurred during separate criminal episodes. It therefore reasons that the speedy trial time period for the charge of possession of cocaine did not begin to run until May 10, 1983, the date Lynch was placed into custody for that charge. Lynch responds, citing the case of State v. Kelly, 407 So.2d 257 (Fla. 2d DCA 1981), that the trial court correctly held that the two alleged offenses were elements of a single criminal episode. He believes that there was only one criminal episode since the alleged crime of battery of a law enforcement officer was committed only because of Detective Smith’s investigation of the alleged offense of possession of cocaine.

We concur with the state that the trial court erroneously discharged Lynch on the cocaine possession charge. Kelly, which Lynch points to for support, actually hurts his position. In Kelly, we endorsed the Rule 3.191(a)(4) definition of “criminal episode” which says that a criminal episode demands more than a relationship between separate offenses; it requires that the same conduct or episode give rise to different offenses. 407 So.2d at 259. In applying this definition to the facts in Kelly, we upheld a trial court’s order which granted the defendant’s motion to discharge him under Rule 3.191 for the offense of trafficking in a .45 caliber pistol. This offense transpired during a single sale by the defendant of the .45 caliber pistol and a .38 caliber pistol. Kelly was not arrested for the crime of trafficking in the .45 caliber pistol until more than 180 days had elapsed from the date of his arrest for the offense of trafficking in the .38 caliber pistol.

The definition of “criminal episode” which we employed in reaching our decision in Kelly actually originated from the Fourth District Court of Appeal’s pronouncement in Walker that the conduct resulting in the separate crimes must be “not merely related,” but “the same conduct.” 390 So.2d at 412. In Walker, our sister court used this definition to affirm a trial court’s order which denied the defendant’s motion to discharge under Rule 3.191 for the felony of vehicular homicide. The conduct involved in the vehicular homicide was separate and apart from the defendant’s subsequent criminal conduct of leaving the scene of an. accident, for which he was arrested more than 180 days prior to his arrest for the vehicular homicide.

Taking its cue from Walker, the Third District Court of Appeal in State v. Stanley, 399 So.2d 371 (Fla. 3d DCA 1981), also held that “[i]t is not enough that the conduct resulting in separate offenses be related; the conduct or episode must be the same even though it may give rise to different consequences.” Id. at 373.

This succinct, accurate, and easy-to-apply definition of “criminal episode” is entirely consistent with the majority of holdings in cases dealing with the issue at bar. See, e.g., Carter v. State, 432 So.2d 797 (Fla. 2d DCA 1983) (defendant entitled to discharge under Rule 3.191 for the crime of causing a death by the operation of a motor vehicle while intoxicated since the offense occurred while he was engaged in the crime of driving while his license was suspended or revoked, for which he was placed in custody more than 180 days before his arrest for causing a death by the operation of a motor vehicle while intoxicated); Hoesley (defendant not entitled to discharge under Rule 3.191 for a charge of possession of cocaine because the cocaine was discovered during an inventory search incident to impoundment of his car after he was stopped and arrested for the offense of driving under the influence of alcohol, for which he was arrested more than 180 days before his arrest for the crime of possession of cocaine); Kelly; Walker; Robinson v. Lasher, 368 So.2d 83 (Fla. 4th DCA 1979) (defendant entitled to discharge under Rule 3.191 for the crime of manslaughter because the manslaughter was committed while he was engaged in the crime of reckless driving, for which he was placed in custody more than 180 days before his arrest for the offense of manslaughter); Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976) (defendant entitled to discharge under Rule 3.191 for the offense of operating an automobile while intoxicated because the offense was the same conduct which resulted in the crime of manslaughter, for which he was arrested more than 180 days before his arrest for the offense of operating an automobile while intoxicated).

Applying this definition of “criminal episode” to the facts in this case, it is plain that Lynch engaged in two criminal episodes. The separate alleged offenses of possession of cocaine and battery of a law enforcement officer were related, to be sure, but they were not the result of the same conduct or episode. Thus, Lynch is not entitled to a discharge under Rule 3.191 for the cocaine possession charge.

We recognize that two cases relied upon by Lynch cannot be reconciled with the definition of “criminal episode” which requires that the separate offenses arise from the same conduct or episode: Crain v. State, 302 So.2d 433 (Fla. 2d DCA 1974), and Deiches v. Kaney, 375 So.2d 584 (Fla. 5th DCA 1979). In Crain, the defendant was arrested for the offense of driving an automobile while under the influence of a prohibited drug. During the investigation of the incident, the police discovered marijuana in the trunk of his car. He was not arrested for possession of a felony amount of marijuana until more than 180 days after his arrest for the crime of driving an automobile while under the influence of a prohibited drug. This court held that the two offenses stemmed from the same criminal episode, thus entitling the defendant to be discharged under Rule 3.191 for the marijuana possession charge. It seems clear that the separate crimes were, at most, related, which, of course, is not enough to satisfy the currently accepted definition of “criminal episode.” Thus, to the extent that Crain appears inconsistent with our holding today and with our decisions in Carter, Kelly and Hoesley, Crain yields.

In Deiches, the defendant attempted to pass a forged prescription at a drugstore. Immediately upon his exit from the store, the police followed his car and cornered him in a dead-end alley, where he was promptly arrested for the offense of loitering and prowling. However, he was not arrested for the crime of unlawfully attempting to acquire possession of a controlled substance by attempting to pass the forged prescription until more than 180 days had elapsed since the date of his arrest for the loitering and prowling offense. The Fifth District Court of Appeal held that the two offenses occurred during a single criminal episode and thus quashed an order denying Deiches’ motion to discharge him on the charge for attempted forgery. We disagree with the holding in Deiches because it suggests that a charge may be dismissed under Rule 3.191 merely because it is related to another charge which occurred in the same general vicinity during the same general time frame. In our view, such a definition of “criminal episode” is overly broad and is easily susceptible of inconsistent applications.

Given that there were two criminal episodes in the case at bar, it is unnecessary to address the “probable cause” issue which was also raised by the parties.

Accordingly, we reverse the order discharging the information accusing Lynch of the offense of possession of cocaine and remand for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

RYDER and CAMPBELL, JJ., concur.


author: COBB, Judge.

text:
    V.S.H., a minor, By and Through his father and next friend, Kenneth Kelly HUDSON, and Kenneth Kelly Hudson and Phyllis Gay Hudson, individually, Petitioners, v. Frank R. HELLINGER, M.D.; Blair Murphy, M.D.; Blair Murphy, P.A.; Adventist Health System/Sunbelt, Incorporated d/b/a Florida Hospital Orlando d/b/a Florida Hospital South; and Florida Physicians’ Insurance Reciprocal, Respondents
    No. 83-1759.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 1984.
    Timothy I. Mize of Parker, Johnson, Owen & McGuire, P.A., Orlando, for petitioners.
    Robert D. Henry of Maguire, Voorhis & Wells, P.A., Orlando, for respondent Blair Murphy, M.D.
    No appearance for respondents Hellinger, Adventist Health System/Sunbelt, Inc., and Florida Physicians’ Ins. Reciprocal.
   COBB, Judge.

The petitioners, plaintiffs below in a medical malpractice action, seek certiorari review of a discovery order entered by the trial judge. We grant the petition and quash the order, which clearly contravenes the Florida Rules of Civil Procedure.

The defendant Murphy filed a motion seeking a court order requiring the minor plaintiff to submit to a physical examination by his selected medical expert, one Dr. Cullen, without compliance with the requirement of Florida Rule of Civil Procedure 1.360(b) that a report of such examination be furnished to said examined plaintiff upon his request: That rule in its entirety provides:

(b) Report of Examining Physician.
(1) If requested by the party against whom an order is made under subdivision (a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnosis and conclusions, with similar reports of all earlier examinations of the same condition. After delivery the party causing the examination to be made shall be entitled upon request to receive from the party against whom the order is made a similar report of any examination of the same condition previously or thereafter made, unless in the case of a report of examination of a person not a party the party shows that he is unable to obtain it. On motion the court may order delivery of a report on such terms as are just and if a physician fails or refuses to make a report, the court may exclude his testimony if offered at the trial.
(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him concerning the same mental or physical condition.
(3) This subdivision applies to examinations made by agreement of the parties unless the agreement provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or taking the deposition of the physician in accordance with any other rule.

It is undisputed that the physical condition of the minor plaintiff is at issue in this cause. The motion for physical examination filed by Defendant Murphy, however, despite the clear wording of the above rule, specifically requested that Dr. Cullen’s report “not be subject to discovery by any other party unless Robert P. Cullen, M.D., is listed as an expert witness to testify at trial.” This motion, with its prohibition against discovery, was granted.

The respondent attempts to justify the order, acknowledged by the trial judge as “blazing a new trail,” on the basis that it protects the petitioners from surprise at trial, since if Dr. Cullen testifies at trial the examination results are discoverable; that Dr. Cullen is a retained expert outside the scope of Rule 1.360; and that the intrusion upon the examined plaintiff would be minimal.

This response misses the point: the rules provide for discovery of all medical examinations of an injured claimant, whether done by a treating or examining physician. No exceptions are provided. Additionally, Florida Rule of Civil Procedure 1.280(b)(3)(B) subjects an expert who conducts an examination pursuant to Florida Rule of Civil Procedure 1.360(b) to discovery, even if the expert is not to be called as a witness at trial.

The respondent’s assertion that the plaintiffs may have physicians examine the minor without risk of discovery of the findings is not true. The defense can discover, by deposition or interrogatory, the name and address of every such physician and depose him prior to trial pursuant to the rules.

No statute, case or rule has been cited to this court which supports the discovery order herein at issue. It is clear that the Florida Supreme Court has provided Florida Rule of Civil Procedure 1.360 to cover compulsory physical examinations in a civil case, and that rule cannot be revised by the trial court. The order of the trial court dated November 9, 1983 is

QUASHED.

DAUKSCH and SHARP, JJ., concur.

      . Rule 1.280(b)(3)(B) provides:
      A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.


text:
    Winford DICKEY, Petitioner, v. Honorable Raymond T. McNEAL, Circuit Judge, Fifth Judicial Circuit, Respondent.
    No. 83-1787.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 1984.

      Howard H. Babb, Jr., Public Defender, Fifth Judicial Circuit, and Alan R. Fanter, Asst. Public Defender, Ocala, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for respondent.
   COBB, Judge.

Petitioner, Winford Dickey, seeks a Writ of Prohibition to prohibit any further proceedings against him and a discharge based on an alleged violation of Florida Rule of Criminal Procedure 3.191. Dickey was charged with grand theft by information filed in Marion County on March 2, 1983. On September 12, 1983, Dickey was arrested in Clay County on a charge of grand theft and held there pending trial. Dickey stood trial on the Clay County charges on November 9, 1983, and after being found guilty was sentenced on November 29, 1983. Marion County placed a hold on Dickey, but it was not executed until October 22, 1983, when Dickey was brought to Marion County and arrested on their charges.

On September 28, 1983, Dickey executed a pro se motion for speedy trial for the cause in Marion County. This notice was acknowledged by the Clerk of the Court and sent to the state attorney’s office on September 30, 1983. On October 24, 1983, Dickey was arraigned in Marion County and a public defender was appointed to defend him. At the same time, an order setting the case for trial the week of December 12, 1983 was entered. The state did not make a motion to strike the demand for speedy trial nor did it request an extension of the speedy trial period.

On December 5, 1983, Dickey filed a motion for discharge, claiming that more than 60 days had passed since his demand for speedy trial. A hearing on the motion for discharge was held on December 7, 1983. At the hearing, the primary argument centered around Dickey’s preparedness for trial when the demand was made, particularly in light of his subsequent acquisition of a public defender. The state argued that this showed that Dickey was not prepared at the time his demand was made and that his appointed attorney could not be ready for trial without any discovery. The defense attorney, when queried by the trial judge, stated that he felt that he was precluded from proceeding with any discovery or investigation because of the pending pro se demand preceding his appointment. He said, “... [W]hen he [Dickey] files his demand and the first words out of his mouth is ‘I’ve demanded a speedy trial’ and he tells me he’s ready, I couldn’t in good faith say, well, I’m going to have to do discovery and ruin your speedy trial demand.”

The court found that the 60-day period ran from September 30, and that the state made no attempt to strike the demand or to get Dickey to Marion County for trial. The court also found that there had been no showing that Dickey was not continuously available for trial. The issue, as seen by the court, was whether the demand was a valid one under the circumstances. The court stated:

What bothers me about this case and a lot of these other cases where defendants file demands for speedy trial on their own behalf, it seems to me like in those cases the defendant ought to have to go ahead and represent themselves and if he’s going to have an attorney, then the attorney ought to file a demand or at least reaffirm the fact that he was ready for trial because we know one thing. Mr. Dickey obviously wasn’t ready for trial because he didn’t have an attorney and he requested an attorney after he got here, and I don’t know whether Mr. Fanter was ready for trial or not but I — I don’t think — absent the agreement of his client to go to trial without taking any discovery or making any investigation he would’ve been ready for trial.

Following the hearing, the trial court stated:

The Court is going to find under the circumstances of this case, the totality of the circumstances, that the — although the Defendant had a bona fide desire to obtain a speedy trial he had not diligently investigated his case and was not prepared for trial, and I deny the Motion to Dismiss.

Dickey filed his Petition for Writ of Prohibition with this court on December 15, 1983, contending the trial court erred in denying his motion to discharge, since more than 60 days passed from the filing of the speedy trial demand. Dickey relies on the following pertinent portions of Rule 3.191:

(a)(2) Speedy Trial Upon Demand. Except as otherwise provided by this Rule and subject to the limitations imposed under (b)(1) and (c), every person charged with a crime by indictment or information shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within 60 days, and if not brought to trial within such period of time following such demand shall upon motion timely filed with the court and served on the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall make the required inquiry under (d)(3). The time period established by this section shall commence when such demand has been properly filed and served. Trial may be scheduled at any time within the 60 day period except that trial may not be scheduled within 5 days of the filing of the demand without the consent of the defendant and the prosecuting attorney.
(c) Demand for Speedy Trial; Accused is Bound. A demand for speedy trial binds the accused and the State. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided. A demand for speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case, and that he is prepared or will be prepared for trial within 5 days. A demand filed by an accused who has not diligently investigated his case or who is not timely prepared for trial shall be stricken as invalid upon motion of the prosecuting attorney. A demand may not be .withdrawn by the accused, except on order of the court, with consent of the State or on good cause shown. Good cause for continuances or delay on behalf of the accused shall not thereafter in-elude nonreadiness for trial, except as to matters which may arise after the demand for trial is filed and which could not reasonably have been anticipated by the accused or his counsel. A person who has demanded speedy trial, who thereafter is not prepared for trial, is not entitled to continuance or delay except as provided in this Rule.

Florida Rule of Criminal Procedure 3.191(a)(2) allows for a demand for speedy trial to be made after the information or indictment is filed. See State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971); State v. Gravlee, 276 So.2d 480 (Fla.1973). The 60-day limit provided therein begins to run from the date of demand, without any regard to the date a person is placed in custody, as under 3.191(a)(1) (180-day limit for felony charges). See also O’Bryan v. State, 326 So.2d 83 (Fla. 1st DCA), cert. denied, 336 So.2d 602 (Fla.1976). In the instant case, the demand was made on September 30, 1983; thus, Dickey’s trial would have had to commence by November 29, 1983, to be within the rule. It did not do so and, in fact, was not set for trial until the week of December 12, 1983.

If the 60-day limit of Rule 3.191(a)(2) is not met, the defendant should be discharged; but first, the trial court must determine that no time extension was entered, that the delay was not attributable to the defendant, and that the demand was valid. Fla.R.Crim.P. 3.191(d)(3). As the Florida Supreme Court stated in State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971):

After a demand for speedy trial has been filed, the court should not summarily dismiss a defendant at the expiration of the 60-day period provided in the rule. It is not only appropriate, but necessary, to ascertain whether or not the accused had a “bona fide desire” to obtain the speedy trial and to determine whether or not the accused or his attorney “has diligently investigated his case, and that he is prepared” for trial. If these prerequisites to the filing of the demand were not met, the demand for speedy trial should be . stricken as being null and void.

253 So.2d at 130. See also: Hopkins v. Barad, 380 So.2d 1166 (Fla. 3d DCA 1980) (defendant seen as unprepared and demand deemed invalid where complete lack of preparation present).

In State v. Kaufman, 421 So.2d 776 (Fla. 5th DCA 1982), as in the instant case, the issue was whether the demand for speedy trial was bona fide when filed, with the prime question being whether the defendant had diligently investigated his case and was prepared for trial. The trial court in Kaufman discharged the defendant, but this court reversed. The court saw the ongoing investigation and participation in the case by the defendant, such as in the scheduling of discovery depositions and other discovery demands, as the antithesis of being prepared for trial. The court stated:

We hold that the test to determine preparedness for trial must be primarily objective. The old adage that actions speak louder than words is quite appropriately applied here. When the record shows continuing investigation and ongoing preparation, it speaks more eloquently than any subjective opinion testimony to the contrary.

421 So.2d at 777-78. See also Turner v. State ex rel. Pellerin, 272 So.2d 129 (Fla.1973) (demand seen invalid when defendant moved to compel discovery and depositions two days after filing motion); State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973) (demand seen invalid where motion to dismiss is filed two weeks later alleging that information was too vague to prepare adequate defense); State v. Wright, 389 So.2d 289 (Fla. 3d DCA 1980) (demand invalid where defendant sought continuance for further discovery after filing demand); State ex rel. Furland v. Conkling, 405 So.2d 773 (Fla. 5th DCA 1981) (demand invalid where notice of deposition filed same day as demand, with deposition set for 11 days later). Cf. State v. Embry, 322 So.2d 515 (Fla.1975) (the mere filing of a motion to suppress does not ipso facto negate a previously filed demand).

In the instant case, the act of the defendant giving rise to a finding of unpreparedness and lack of diligent investigation is Dickey’s hiring of a public defender following his arraignment on the Marion County charges. This is the only action Dickey took in his own behalf, with no request for discovery being filed either before or after the speedy trial demand was made.

When we apply the test outlined in Hanks to the testimony of Dickey’s appointed attorney in the instant case, we must come to the same conclusion as did the trial court: the attorney had not “diligently investigated his case” (because he felt constrained not to do so by the pending motion) and had not prepared for trial— hence the motion was null and void. As was pointed out in Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980), in reliance upon Goode v. State, 365 So.2d 381 (Fla.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979), a defendant has the right, under appropriate circumstances, to represent himself — but he has no right to partially represent himself and be partially represented by counsel. Neither Article I, Section 16 of the Florida Constitution nor the sixth amendment of the United States Constitution guarantees a defendant such a “hybrid” form of representation. State v. Tait, 387 So.2d 338 (Fla.1980).

As pointed out by Chief Judge Orfinger in State v. Kaufman, 421 So.2d 776, 777 (Fla. 5th DCA 1982), a speedy trial demand should not be used as a “defense” to a criminal prosecution. Certainly, it should not be the sole defense. It is unreasonable and unfair to expect an attorney to be controlled by a legal determination by his client to forego trial preparation. No competent and ethical attorney, privately retained, would accept such a restriction. Neither, then, should appointed counsel. An appointed counsel must not be a captive counsel bound by the legal strategems of his client. Accordingly, the petition for writ of prohibition is

DENIED.

DAUKSCH and COWART, JJ., concur.

      . The state’s reliance on Morris v. Nimmons, 414 So.2d 568 (Fla. 1st DCA 1982), is misplaced. In Morris, the defendant was arrested in Nassau County on charges arising in that county. The court held that since the defendant was not arrested on the capias issued by the Duval County officials, the speedy trial time would not run for the Duval charges during the time he was in Nassau County. There was no demand made in Morris. Here, while Dickey’s arrest stemmed from charges in Clay County, and only a detain-er was placed against him from Marion- County, the speedy trial time began running when the demand was made, without any regard to the custody date as is required under 3.191(a)(1). See also State v. Dukes, 443 So.2d 471 (Fla. 5th DCA 1984).


author: OTT, Chief Judge.

text:
    STATE of Florida, Appellant, v. Jeffery S. MOSER, Appellee.
    No. 83-26.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.

      Jim Smith, Átty. Gen., Tallahassee, and Katherine V.. Blanco, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellee.
   OTT, Chief Judge.

The state appeals from the trial court’s grant of defendant’s motion for discharge for noncompliance with the speedy trial provisions of the Interstate Agreement on Detainers, section 941.45(4)(c), Florida Statutes (1981). We dismiss this appeal as moot for the reasons stated below.

Defendant was charged with burglary in April, 1981. On August 11, 1982, the State of Maryland delivered temporary custody of defendant to the State of Florida for the purpose of standing trial on the pending burglary charge. After defendant was not brought to trial within one hundred twenty days, the trial court granted defendant’s oral motion for discharge and ordered the return of defendant to Maryland. Defendant was returned to Maryland shortly thereafter. This appeal ensued.

Defendant contends that the appeal is moot, arguing that the information must be dismissed with prejudice notwithstanding the speedy trial issue because the state violated section 941.45(4)(e).

The anti-shuffling provision of the Interstate Agreement on Detainers, section 941.45(4)(e), provides:

If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph (e) of subsection (5), such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Compliance with the provisions of the Interstate Agreement on Detainers is mandatory. Hughes v. Denver District Court, 197 Colo. 396, 593 P.2d 702, 705 (1979); see United States v. Mauro, 436 U.S. 340, 361—363, 98 S.Ct. 1834, 1847-1848, 56 L.Ed.2d 329 (1978); see generally People v. Beamon, 83 Mich.App. 121, 268 N.W.2d 310, 98 A.L.R.3d 149 (1978) (return of prisoner to sending state pending retrial after mistrial had been declared deemed violative of the anti-shuffling provision). However, the rights afforded a prisoner under the Interstate Agreement on Detainers do not rise to the level of constitutionally guaranteed rights and can be waived. State v. Grizzell, 399 So.2d 1091 (Fla. 1st DCA 1981); see generally Annot., Validity, Construction, and Application of Interstate Agreement on Detainers, 98 A.L.R.3d 160.

In the instant case, defendant was returned to Maryland before a trial was had in this jurisdiction. No express or implied waiver of the anti-shuffling provision appears in the lower court record. Accordingly, we hold that the state violated section 941.45(4)(e) by returning defendant to Maryland prior to- trial and such violation requires dismissal of the information with prejudice. Since reversal of the trial court’s order discharging defendant on the speedy trial issue would accomplish nothing in light of defendant's return to Maryland in violation of séction 941.45(4)(e), we will not address the merits of the issue raised by the state and dismiss the appeal as moot.

GRIMES and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    ROCKY POINT VILLAGE CORP., Appellant/Cross-Appellee, v. Margaret L. GORMAN, Appellee/Cross-Appellant.
    No. 83-373.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Gary W. Nicholson of Carson & Guem-mer, Tampa, for appellant/cross-appellee.
    R. Wayne Miller and Debra L. Romanello of Moffitt, Hart & Miller, Tampa, for appel-lee/cross-appellant. .
   PER CURIAM.

AFFIRMED. We do not find an abuse of discretion in the trial court’s order granting a new trial, see Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975), or in the trial court’s exclusion of evidence concerning prior accidents at other locations on the same premises, see Lawrence v. Florida East Coast Railway Co., 346 So.2d 1012 (Fla.1977).

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


author: SCHEB, Judge.

text:
    Kenneth L. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 83-615.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The state charged Kenneth Cooper by information with armed robbery, kidnapping, and aggravated assault. He entered a plea of guilty to the armed robbery and aggravated assault. The trial court sentenced him to ninety-nine years on the robbery count concurrent with five years on the aggravated assault count. The court retained jurisdiction over one-third of his sentence pursuant to section 947.16(3), Florida Statutes (Supp.1982).

Cooper contends that in accepting his plea, the trial court erred in failing to inform him that it could retain jurisdiction over one-third of any sentence imposed. State v. Green, 421 So.2d 508 (Fla.1982). In Green, however, the defendant moved to vacate and set aside his sentence based on his lack of knowledge that the trial judge could retain jurisdiction over a portion of his sentence. Cooper did not file such a motion, nor did he move to withdraw his guilty plea. Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). Accordingly, we do not reach this issue on direct appeal.

We find no merit in defendant’s other point on appeal.

We, therefore, affirm defendant’s conviction and sentence without prejudice to file a motion for relief under Florida Rule of Criminal Procedure 3.850.

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


author: GRIMES, Judge.

text:
    CITY OF TAMPA, Appellant, v. Elizabeth J. JORDA and Louis D. Jorda, her husband, Appellees.
    No. 83-839.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Joseph G. Spicola, Jr., City Atty., and Jack M. Larkin, Asst. City Atty., Tampa, for appellant.

      Ronald E. Perez, Tampa, for appellees.
   GRIMES, Judge.

This is an appeal from an order granting a new trial in a negligence action.

Mr. and Mrs. Jorda sued the City of Tampa for injuries suffered by Mrs. Jorda when she fell as a result of stepping on a city water meter box located in her front yard. The jury found the Jordas’ damages to be $10,000 but concluded that Mrs. Jorda was 95% negligent and that the city was only 5% negligent. The court entered an order granting a new trial, and the city appeals.

The city first argues that the court should have granted its motion for a directed verdict because of a total absence of evidence of negligence on the part of the city. While the point was close, we believe that the evidence concerning the city’s failure to properly maintain its meter box was sufficient to present a jury issue.

In reviewing an order for new trial, the appellate court must look to the reasons articulated by the court below. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). Here, the trial judge granted a new trial upon the ground that it had erred in submitting the issue of Mrs. Jorda’s negligence to the jury.

According to Mrs. Jorda, the meter box gave way when she stepped on its lid, causing her to fall. After the accident it was determined that some of the sand beneath the meter box had fallen away so as to allow the box to become tilted. Mrs. Jorda gave no testimony concerning the position of the meter box before her fall or whether she even saw it before stepping on it. Among other points upon which she was impeached, she acknowledged having testified at her deposition that she was looking at her mail as she walked across the yard. For what it was worth, the city also brought out that Mrs. Jorda had admitted to drinking a beer a short time before the accident occurred. Viewing the evidence as a whole, we believe that the court properly submitted the negligence of both parties to the jury.

We reverse the order granting a new trial and remand with directions to enter judgment according to the jury verdict.

HOBSON, A.C.j!, and SCHEB, J., concur.

      . Even though the city is appealing from an order granting a new trial, it is entitled to make this argument pursuant to the authority of Bowen v. Willard, 340 So.2d 110 (Fla.1976). See committee notes pertaining to the 1977 revision of Florida Rule of Appellate Procedure 9.110.

      . Contrary to Purvis v. Inter-County Telephone & Telegraph Co., 173 So.2d 679 (Fla.1965), the court apparently granted a new trial on damages as well as liability even though the only reason given for granting a new trial was a purported judicial error on a liability issue. However, in view of our disposition of the case, we need not pursue this point.


author: SCHEB, Acting Chief Judge.

text:
    John Smith SIMMONS, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-982 to 83-986.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.

      Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

John Smith Simmons challenges the trial court’s final orders revoking and modifying his probation.

In 1979 defendant Simmons was adjudicated guilty of five counts of dealing in stolen property. The court placed him on concurrent seven-year periods of probation for each charge. This probation was “to commence upon [defendant’s] release from prison” on a separate unrelated offense, for which defendant had been sentenced to four years imprisonment.

Defendant was paroled from prison on December 2, 1981, with his parole to expire on May 21, 1983. On December 21, 1982, affidavits were filed charging defendant with violating probation. The trial court subsequently revoked his probation on one count and modified probation on the four remaining counts. This appeal ensued.

In sentencing Simmons, the trial judge stated that his probation was to commence upon his release from prison. In Johnson v. State, 419 So.2d 752 (Fla. 2d DCA 1982), petition for review denied, 427 So.2d 737 (Fla.1983), we explained that in such an instance the defendant’s term of probation does not commence until the expiration of his parole. Here, as in Johnson, the trial judge clearly indicated that defendant’s term of probation was to be treated separately, and, therefore, he could not be on parole and probation at the same time. Thus, Simmons is in the same position as the defendant in Johnson, and his probation could not begin until his parole expired on May 21, 1983.

At the time the affidavits were filed charging Simmons with a probation violation, his term of probation had not yet commenced. Therefore, the trial court could not revoke or modify his probation. See Thomas v. State, 434 So.2d 20 (Fla. 2d DCA 1983).

Accordingly, we reverse the orders revoking and modifying defendant’s probation.

SCHOONOVER and LEHAN, JJ., concur.

      . In light of our holding, we do not need to address defendant’s remaining point on appeal.


text:
    Wayne Allen KELLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1169.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.

      Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. The trial court did not abuse its discretion in not admitting the proffered testimony which would have been cumulative. See Sheppard v. State, 322 So.2d 628 (Fla. 3d DCA 1975); Smith v. State, 320 So.2d 420 (Fla. 2d DCA 1975).

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


text:
    Robert GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 83-1405.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Jerry Hill, Public Defender, Paul C. Helm, Asst. Public Defender, and Gerald 0. Johnson, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Robert Graham appeals from his judgment and sentence for grand theft.

In the judgment, appellant was ordered to pay $10 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund), and $2 pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Correctional Officer Training Trust Fund). Because he is an indigent, appellant argues that the portion of the trial court’s order assessing such costs is improper.

In Jenkins v. State, 444 So.2d 947 (Fla.1984), the supreme court determined that the assessment of costs under sections 960.20 and 943.25(4) against an indigent defendant is permissible only after the defendant has been given adequate notice of such assessment and full opportunity to object to the assessment. Where no prior notice has been given, this court has stricken the assessment of such costs. Kerney v. State, 445 So.2d 381 (Fla. 2d DCA 1984).

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

Accordingly, the assessment was not appropriate and is hereby stricken. Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

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

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


text:
    Christopher Dana McNALLY, Petitioner, v. STATE of Florida, Respondent. Albert ROBERTS, III, Petitioner, v. STATE of Florida, Respondent.
    No. 84-250.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    John M. Edman, St. Petersburg, for petitioner Albert Roberts, III.
    James D. Eckert, St. Petersburg, for petitioner Christopher McNally.
    James T. Russell, State Atty., Russell K. Bausch, Asst. State Atty., Clearwater, for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied. Petitioners will have an adequate remedy, if necessary, by plenary appeal to the circuit court and then by petition for writ of certiorari to this court after the conclusion of all proceedings in the trial court.

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


text:
    William Lee MIMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-935.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    N. Richard Schopp, Port St. Lucie, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, State v. Dunmann, 427 So.2d 166 (Fla.1983); Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982).

BERANEK, DELL and WALDEN, JJ., concur.


author: LETTS, Judge.

text:
    Daniel T. DANNA, Appellant, v. BAY STEEL CORPORATION and Florida Erection Service, Inc., Appellees.
    No. 82-1356.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    J. Patrick Floyd, Fort Lauderdale, for appellant.
    James W. Dawson of Fazio, Dawson & Disalvo, Fort Lauderdale, for appellee Bay Steel Corp.
    Carolyn J. Bingham of Thornton & Hern-don, Miami, for appellee Florida Erection Service, Inc.
   LETTS, Judge.

A subcontracting steel supplier to a construction job sub-subcontracted out the actual erection of steel reinforcement rods to an erector service, which latter allegedly implanted the rods negligently so that the vertical points were exposed. As a result, a construction worker who fell from the fourth floor was impaled on the points. The trial judge granted summary judgment in favor of both the steel supplier and the erector service. We reverse.

As to the Steel Supplier

The plaintiff noticed the taking of the deposition of the steel supplier’s corporate president and attempted to take it four times prior to the hearing on the motion for summary judgment. Each time he was thwarted by evasive tactics. On the fourth and final occasion, for example, the president simply failed to show. The steel supplier insists this recalcitrance was not prejudicial because there were affidavits on file by its president, and others, establishing (1) no obligation whatever at the site (2) the subcontracting erector service had completed its task, left it in complete conformity with the standard practices of the industry, and nothing remained to be done except by the plaintiffs employer, the general contractor. Maybe so, but a defendant corporation cannot avoid a pertinent deposition of one of its officers by substituting self-serving affidavits. Where a deposition is appropriately noticed and no protective order is either sought or obtained, the plaintiff is entitled to that discovery before his law suit is summarily disposed of. This is not to say that a summary judgment as to the steel supplier may not still be appropriate if the fruits of the deposition produce no more facts and issues than are now on file. However, before that discovery takes place, summary judgment is premature under the facts of this case.

As to the Erector Service

The sub-subcontracting erector service bases its entitlement to summary judgment on there being no duty owed, it having complied with the custom and usage of the industry. The plaintiff argues that the pointed ends of the rods should have been sheathed by some protective device, while the defendants point out in their affidavits that such protection is never furnished for steel reinforcing rods under the custom and usage in the trade. However, “the responsibility for deciding facts presented as to such custom or trade usage is normally one to be submitted to a jury rather than to be determined by a court in summary proceedings_” Fred S. Conrad Construction v. Exchange Bank, 178 So.2d 217, 221 (Fla. 1st DCA 1965). See also Homan v. County of Dade, 248 So.2d 235, 237 (Fla. 3d DCA 1971). As our Supreme Court has remarked, evidence of the general custom of others is not conclusive: “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not.” Sea Board Air Line Ry. Co. v. Watson, 94 Fla. 571, 113 So. 716, 718 (1927).

Accordingly, we reverse the trial court’s ruling and remand for proceedings in accordance herewith.

We find the remaining points on appeal to be without merit.

REVERSED AND REMANDED.

DOWNEY and HERSEY, JJ., concur.


author: WESSEL, JOHN D., Associate Judge.

text:
    Shirley MERIDA, Appellant, v. Carlos MERIDA, Appellee.
    No. 82-1375.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      Andrew M. Leinoff of Marks, Aronovitz & Leinoff, Miami, for appellant.
    Norman D. Zimmerman, Pompano Beach, for appellee.
   WESSEL, JOHN D., Associate Judge.

The appellant/wife challenges the Final Judgment of Dissolution of Marriage in this action in its failure to award her lump sum alimony or an equitable distribution of properties.

Briefly, this was a short-term marriage; however, the parties had a meretricious relationship for a period of time prior to the marriage. Appellant maintains that much of her assets were used to maintain a condominium acquired by the husband from his employer, unconnected to the marriage. The trial court awarded to the wife an automobile and certain personal properties and found the appellant was not entitled to alimony, lump sum alimony, or equitable distribution.

We have reviewed the fragmented record in this cause and find no abuse of discretion. Conner v. Conner, 439 So.2d 887 (Fla.1983). Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

ANSTEAD, C.J., and HURLEY, J., concur.


author: LEE, J. CAIL, Associate Judge. LETTS, Judge,

text:
    Marian MARSHALL, Appellant, v. Dan MARSHALL, Appellee.
    No. 82-1820.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Linnes Finney, Jr., and Lorenzo Williams of Gary, Williams & Walker, Fort Pierce, for appellant.
    Jacqueline L. Russakis, Fort Pierce, for appellee.
   LEE, J. CAIL, Associate Judge.

This is an appeal from a final judgment of dissolution of marriage. The Wife in this seventeen year marriage claims that, along with the child support and other awards made to her, she should have been granted permanent periodic alimony rather than lump sum alimony. We agree.

We recognize that there were few assets and relatively little money in this marriage. Nonetheless, the Husband’s future security is assured, as least to a limited extent, by his retirement pay, which he may be able to supplement. The Wife’s chances to obtain self-supporting employment, although not impossible, appear more unlikely. Under all the circumstances of this case, it was error not to award the Wife permanent periodic alimony. Although it is not our usual function to set the amount of an award, in this case we hold that permanent periodic alimony of Two Hundred Dollars ($200.00) per month to the Wife is an equitable sum. As was said in Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973), “Nil prospects to the contrary notwithstanding, if she should somehow blossom into a financially productive member of society and other material changes occur, the Husband can obtain a trial court review of the award.”

Accordingly, the judgment appealed from is modified by eliminating the award of lump sum alimony and inserting in its stead permanent periodic alimony in the sum of $200.00 per month. As so modified the judgment is affirmed.

DOWNEY, J., concurs.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

specially concurring.

I think the majority has reached the correct result in this case, but I remain uneasy about what we do.

Commencing with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), followed by Conner v. Conner, 439 So.2d 887 (Fla.1983) and most recently by Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983) our Supreme Court has, at least arguably, put the District Courts on notice that the decisions of trial judges in domestic cases are all but irreversible. The statement in Canakaris that an abuse of discretion only occurs when “no reasonable man would take the view adopted by the trial court,” id. 1203, is chilling, but not necessarily dispositive, because any district court panel supposedly composed of three “reasonable” men can take the position that no reasonable man would have done what the unreasonable trial judge did. However, the statement in Conner that if one party or the other is “shortchanged [that] is an issue of fact and not one of law” and therefore within the trial court’s discretion is a horse of quite another color. The two sizable dictionaries in my office define “short-change” as the giving of less than the correct amount or cheating. If a trial judge awards an incorrect amount to the wife or cheats her, surely that is an abuse of discretion. I certainly hope so.

We have also substituted permanent periodic alimony for lump sum. Again I think we are correct based on the facts of this case because the “lump sum” here awarded was only $10,800 payable in monthly installments of $100 for 108 months.


author: DOWNEY, Judge.

text:
    Rickie Lee HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 82-2224.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged and convicted of armed robbery and sentenced to fifteen years in prison.

The robbery occurred at a convenience store when appellant entered and demanded the money in the cash register. When the clerk responded: “You got to be kidding,” appellant advised her he was not kidding and he pushed the button on the register, opened it, and took over $100. When arrested forty-five minutes later, he had only some change in his possession.

At trial appellant requested the jury be instructed on attempted robbery. However, the trial court instructed on lesser included offenses, but refused the attempt instruction because there was no evidence to support the mere attempt; rather the evidence supported the completed crime of robbery.

Appellant contends it was error not to charge on attempted robbery under sew eral theories that we have considered and reject.

A more serious question raised by appellant is that the court was required to instruct on attempts even though in the judge’s opinion the facts establish guilt of the crime charged rather than the attempt. For this position appellant relies upon State v. Bruns, 429 So.2d 307 (Fla.1983).

The old rule requiring an instruction on attempts was set forth initially in the oft cited ease of Brown v. State, 206 So.2d 377 (Fla.1968). Since that time both the Florida Rules of Criminal Procedure and the Florida Criminal Standard Jury Instructions pertaining to this question have been changed. The criminal procedure rule applicable to this case, Florida Rule of Criminal Procedure 3.510(a), states:

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.

Thus, it appears the rule prohibits an attempt instruction on a criminal episode that has reached fruition.

The Florida Standard Jury Instructions in Criminal Cases (1981 Edition) contains a schedule of lesser included offenses. In the robbery portion thereof attempts are placed in the new category two, which requires instructions only where the pleading and proof coincide. Fla.Std. Jury Instr. (Crim), p. 266.

We hold, therefore, that Rule 3.510 controls the question at hand and precludes instructions on attempts where the only evidence proves a completed offense. While conceding the Bruns reference to Brown v. State, supra, causes some concern, we would dispose of that problem by suggesting that the reference to Brown, taken in context, is simply a restatement of what the Brown court had held in 1968. The reference was not meant to overrule the provisions of Rule 3.510 or the new Standard Jury Instruction.

Accordingly, we affirm the judgment appealed from.

AFFIRMED.

LETTS and HERSEY, JJ., concur.


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Joel TROMBLEY, Appellee.
    No. 82-2300.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    R. Fred Lewis of Magill, Reid, Kuvin & Lewis, Miami, for appellant.
    Michael A. Viscomi and Robert V. Roma-ni of Farish, Farish & Romani, West Palm Beach, for appellee.
   PER CURIAM.

This appeal concerns stacking of uninsured motorist coverage under Section 627.4132, Florida Statutes (1980).

On May 19, 1981, appellee Joel Trombley was operating his employer’s vehicle when it collided with the vehicle of an uninsured motorist. He filed a claim for uninsured motorist benefits under his employer’s fleet automobile insurance policy requesting the stacking of coverage by combining together the coverage on the number of vehicles which were covered under the employer’s policy. The insurance company refused to stack. Thereafter, appellee brought a cause of action for declaratory relief to determine the amount of coverage. The trial court found that Section 627.4132, Florida Statutes (1980), permitted stacking of uninsured motorist coverage and found that appellee was entitled to stack the uninsured motorist benefits under his employer’s insurance policy to the extent of the number of vehicles covered for a total of $800,000.

In a recent opinion this court determined that the legislature did not intend to abolish existing case law on classification of insureds by its enactment of Section 627.-4132, Florida Statutes (1980). American States Insurance Co. v. Kelley, 446 So.2d 1085 (Fla. 4th DCA 1984).

A review of the insurance policy sub judice shows that the employee was a class two insured who operated the vehicle with the employer’s permission and was not a named insured. Therefore the trial court erred in directing that the employer’s multiple coverages be stacked to allow the employee to aggregate coverage of $800,-000 rather than $100,000, the amount of the uninsured motorist coverage on the vehicle involved in the accident. Accordingly, we reverse and remand the cause for the trial court to correct the final judgment.

REVERSED AND REMANDED.

DOWNEY, LETTS and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Ricardo FUNDAMENT and Margarida P. Fundament, his wife, Appellants, v. George I. MAY, M.D., George I. May, M.D., P.A., n/k/a May Orthopaedics, P.A., The Staff Fund and Florida Patient’s Compensation Fund, Appellees.
    No. 82-2476.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Richard G. Collins, Fort Lauderdale, for appellants.
    Steven R. Berger, P.A., and Bernard & O’Brien, Miami, for appellees.
   GLICKSTEIN, Judge.

Appellants contend the trial court erred in refusing to give the following instruction in a medical malpractice case:

If you find that but for the negligent care and treatment of GEORGE MAY that RICARDO FUNDAMENT would have had a better chance to achieve a fuller recovery from his injuries, then GEORGE MAY’S negligence is a legal cause of RICARDO FUNDAMENT’S injuries. Dawson v. Weems, 352 So.2d 1200 (4 DCA 77)[;] Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (3 DCA 74).

Subsequent to oral argument in the present appeal the Florida supreme court said with respect to the two cases upon which appellants based their request:

Neither Hernandez nor Dawson contains any reasoning or authority to support a rule relaxing the more likely than not standard of causation in medical malpractice actions although they do hold that a plaintiff may go to the jury on proximate cause merely by showing that the defendant decreased the chances for survival, no matter how small. Those cases are antithetical to our concept of proximate cause and are disapproved.

Gooding v. University Hospital Building, Inc., 445 So.2d 1015, - (Fla.1984). In Gooding, the supreme court also expressly disapproved the following addition to the standard jury charges on legal cause:

Negligence is a legal cause of death and damages if it directly and in natural and continuous sequence produces or contributes substantially to producing such death, so that it can reasonably be said that, but for the negligence, the death would not have occurred. If you find that Hagood Gooding had a significant chance of survival and if you find that negligence on the part of the defendant, its agents or servants, destroyed Mr. Gooding’s chances for survival, then the negligence of that defendant or defendants — that defendant is a legal cause of injury. (Emphasis added.)

Id. at-N. 1. Because of the foregoing conclusions reached by this state’s highest court, it seems incumbent upon us to affirm; and we do so. See also Beisel v. Lazenby, 444 So.2d 953 (Fla.1984).

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


author: PER CURIAM. LETTS, Judge,

text:
    Ronald L. MARCOUX, Appellant/Cross Appellee, v. Catherine M. MARCOUX, Appellee/Cross Appellant.
    No. 83-361.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Gary L. Rudolf of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant/cross appellee.
    William I. Zimmerman of William I. Zimmerman, P.A., Pompano Beach, for ap-pellee/cross appellant.
   PER CURIAM.

Husband appeals the final judgment of dissolution ending a 13-year marriage. The parties have two children ages 13 and 11. The husband was 18 years old and the wife 17 at the time of their marriage. Both were high school graduates without assets when they married. The wife worked miscellaneous jobs during the marriage, the last time as a bank teller for approximately seven months in 1977. The husband began as a carpenter and ultimately became a partner with another man in an interior contracting business. The parties own, as tenants by the entireties, a four-bedroom home with a fair market value of $129,000. The home has a mortgage of $76,000, yielding a net equity of $53,000. In addition, the parties had a bank account with $5,000 in it which the wife withdrew at the time of the separation.

The husband owns 50% of the stock in three interconnected corporations, Drau-ghon and Marcoux, Inc., Draughon and Marcoux Interior Contractors, Inc., and Draughon and Marcoux Investments. In addition, the husband owns one-third of the stock in Bella Vista Properties, Inc., its only asset being a four-unit apartment building. The parties agree that the husband’s interest in Bella Vista property is $53,333.33, that his interest in the investment corporation is $29,333.33, and that Draughon and Marcoux Interior Contractors, Inc., has no value. The crux of this case is the valuation placed on Draughon and Marcoux, Inc. At the hearing, the trial court heard testimony from each party’s accountant. Both accountants agreed that the husband’s corporation has a book value of $160,000 so that upon liquidation, the husband would receive approximately $80,-000. However, the wife’s accountant went further and added $325,000 for good will valuing the business at $585,000. Thus, according to the wife’s accountant, the husband’s interest in the business is worth $292,500.

At the time of the hearing, the wife was 31 years old and in excellent health. She testified that she has no desire to enter the professional world. She feels her teenaged children need her constant attention until they leave for college. In its final judgment, the trial court awarded the wife the marital residence and all of its furnishings, $100,000 lump sum alimony, payable at $10,000 per year for 10 years, with accumulated interest on the declining balance at the rate of 8% yearly, $1250 a month in permanent periodic alimony, $500 a month child support, and attorney’s fees, accountant’s fees, and appraiser’s fees in the amount of $9,650. The trial court made no findings as to the value of the husband’s corporation. Based on this award, however, we can assume that the court did determine that the corporation had some substantial good will value. This corporation was essentially a small closely held personal service business and we doubt its substantial good will value. However we cannot conclude that it had no such value as a matter of law as the trial judge certainly heard conflicting evidence on this subject.

Even though we believe that the husband has been shortchanged, we reluctantly must affirm because of the recent Supreme Court decision in Conner v. Conner, 439 So.2d 887 (Fla.1983). That case holds that a determination that a party has been “shortchanged” is an issue of fact and not one of law and that a District Court exceeds its scope of appellate review in making such a determination. To the same effect is the more recent case of Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983), where the Supreme Court reversed the Third District Court of Appeal based on the test of whether the judgment is supported by competent evidence. In doing so the Supreme Court noted that the role of the trial court is to determine alimony based on ability of the husband, need of the wife, and “the best interests of the parties.” If our scope of review does not encompass a review of the facts to determine that a party has been shortchanged, then we question our role in dissolution cases. We certify this question to the Supreme Court as being one of great public importance:

DO CONNER V. CONNER, SUPRA, AND KUVIN V. KUVIN, SUPRA, LIMIT THE SCOPE OF APPELLATE REVIEW ENUNCIATED IN CANAKARIS V. CANAKARIS, 382 So.2d 1197 (Fla. 1980)?

The wife has cross appealed raising numerous points, all of which we find to be without merit.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

LETTS, J., dissents in part, with opinion.

LETTS, Judge,

dissenting in part:

I concur in the decision to certify the question and in the belief that the husband was short-changed. I dissent as to the result.

The statement in Conner, supra, that if one party or the other is “shortchanged [that] is an issue of fact and not one of law” is indecipherable to me. The two sizable dictionaries in my office define “short-change” (with a hyphen) as the giving of less than the correct amount or cheating. If a trial judge awards an incorrect amount to the wife or cheats the husband, surely that is an abuse of discretion, the result of which no reasonable man would adopt (see Canakans at p. 1203). Moreover Kuvin has come forth with an interesting addition to the traditional need vis-a-vis ability to pay test, by adding to it a third ingredient to wit: “the best interest of the parties.” How permanent periodic alimony can be in the best interests of both the husband and the wife escapes me.

As a consequence, I would reverse. However, I might be skating on very thin ice. In fact, I can almost hear the splash for it appears that the Canakaris-Conner-Kuvin trilogy has collectively put the District Courts on notice that the judgments of trial judges are all but irreversible in domestic cases.


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    John MANCARELLA, Appellant, v. STATE of Florida, Appellee.
    No. 83-529.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Mark King Leban of Law Offices of Mark King Leban, P.A., and Russell Spatz of Goodhart, Rosner & Green, P.A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant and co-defendant Bennett were charged by information with trafficking by unlawful and knowing actual or constructive possession of 400 grams or more of cocaine. Bennett pled nolo contendere during trial and the case proceeded as to appellant. The jury returned a verdict of guilty of attempted trafficking in cocaine; judgment was entered accordingly. Appellant received a ten year sentence and timely filed this appeal.

Through undercover informant Ekstron, Agent Sousa arranged to purchase cocaine from co-defendant Bennett. On the day of the sale, Agent Sousa and the informant went to Bennett’s place of business, Space Age Marble. Sousa and the informant proceeded into Bennett’s office, where Bennett and appellant were present. After introductions around, Bennett said he wanted to see the money before showing the contraband. Sousa said he had it outside in the car but only one of them (Bennett or Man-carella) could come to look at it. Bennett told appellant to go with Sousa. Appellant went outside with Sousa to check the money, which was located in the rear part of a hatchback automobile; the two returned to Bennett’s office. Bennett picked up a hollow marble end table and extracted a plastic bag of cocaine therefrom. Sousa field tested the cocaine then left the room, ostensibly to get the money. Instead he signaled the surveillance team, who then entered the building where they encountered Bennett’s girl friend in a room anterior to the office, which resulted in some commotion that apparently alerted Bennett and appellant. The police broke down the locked office door. When they entered the office, the cocaine was not in sight; but they soon found it concealed above the drop ceiling in the office.

Appellant suggests three points on appeal. However, we need treat only one because it is dispositive of the case. The dispositive point is that the evidence of possession was insufficient to support a conviction for trafficking as charged, thus the trial court should have granted appellant’s motion for judgment of acquittal.

We have carefully reviewed the evidence in the light most favorable to the State, as the trial court is required on motion for judgment of acquittal. Even in such a favorable light, the evidence adduced here does not make a ease that sustains a verdict of guilty of trafficking by possession. In our judgment this case is weaker than both DiSangro v. State, 422 So.2d 14 (Fla. 4th DCA 1983), or Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979), wherein this court and the Second District reversed convictions involving possession based upon insufficiency of the evidence.

Accordingly, the judgment appealed from is reversed and the case is remanded with directions to discharge appellant.

REVERSED AND REMANDED with directions.

HERSEY, J., concurs.

LETTS, J., dissents without opinion.

      . Agent Sousa testified that no cocaine was visible in the office until Bennett removed it from the bottom of the table and that he had no idea how the cocaine got there or who put it there.


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    Judith Ellen BOHLEN, Appellant, v. Floyd J. SHAW, et al., Appellees. Susan M. HOFSTEIN, Appellant, v. Joseph Edward ROBERTS, et al., Appellees.
    Nos. 83-553, 83-554.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      Sam Daniels and Louise H. McMurray of Daniels & Hicks, P.J. Carroll and Andrew L. Waks of Friesner, Hatfield, Edge & Waks, Miami, for appellants.
    R. Fred Lewis of Magill, Reid & Lewis, P.A., Miami, for appellee, Dow Jones & Co., Inc.
   PER CURIAM.

Judith Ellen Bohlen and Susan M. Hof-stein appeal from a final summary judgment entered in favor of Dow Jones & Company, Inc. (Dow Jones) d/b/a The Wall Street Journal. Appellants brought suit after a truck, owned and operated by TVS Trucking Co., Inc. (TVS), collided with their car while transporting Wall Street Journals for Dow Jones. Dow Jones moved for summary judgment on the grounds that it had no liability for the actions of TVS and asserted TVS’s status as an independent contractor.

The trial court granted Dow Jones’ motion which the appellants contend constitutes error. We agree and reverse. Based-on the record before us, we find that genuine issues of material fact exist which preclude summary judgment. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966). Further, conflicting inferences can be drawn from the undisputed facts. Dawson v. Scheben, 351 So.2d 367 (Fla. 4th DCA 1977); Foster v. Lee, 226 So.2d 282 (Fla. 2d DCA 1969).

REVERSED and REMANDED.

BERANEK, DELL and WALDEN, JJ., concur.


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    In the Interest of G.R., a Child.
    No. 83-1075.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse the appellant’s conviction and sentence for trespass but affirm in all other respects.

ANSTEAD, C.J., and LETTS and HERSEY, JJ., concur.


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    Thomas J. LAWTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1211.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. On remand the circuit court is directed to amend the judgment of guilty to reflect that the defendant pleaded nolo contendere rather than guilty.

DOWNEY, LETTS and BERANEK, JJ„ concur.


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    Clifford BESS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1304.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Clifford Bess was charged in Count III of an information with sexual battery. He was convicted of aggravated battery, a lesser included offense contained in Count III. He appeals this conviction. We reverse and remand for a new trial.

The trial court declined to charge the jury, although requested, with the lesser included offenses of battery, assault, and aggravated assault. This was error in light of the accusatory pleading and evidence. Harris v. State, 438 So.2d 787 (Fla.1983); DeLaine v. State, 262 So.2d 655 (Fla.1972); Rule 3.510(b), Florida Rules of Criminal Procedure.

We reverse and remand for a new trial as to Count III, with the retrial to be limited to the charge of Aggravated Battery and lesser included offenses. Rule 3.640(a), Florida Rules of Criminal Procedure.

BERANEK, DELL and WALDEN, JJ., concur.


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    Robert A. McGEE, Appellant, v. Michele P. McGEE, Appellee.
    Nos. 83-1521, 83-1756.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Gary S. Israel, Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.
    Martin L. Haines, III, of Haines & D’An-gio, North Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See DelVecchio v. DelVecchio, 143 So.2d 17 (Fla.1962).

BERANEK, DELL and WALDEN, JJ., concur.


author: DELL, Judge.

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    Dudley D. HORN, II, Appellant, v. Glenda A. HORN, Appellee.
    No. 83-1632.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      Patrick O’Neal of O’Neal, Booth & Wilkes, P.A., Fort Lauderdale, for appellant.
    Steven I. Greenwald of the Law Offices of Steven I. Greenwald, P.A., Boca Raton, for appellee.
   DELL, Judge.

Dudley D. Horn, II appeals from a final judgment of dissolution which awarded ap-pellee a special equity in the marital home and in certain stock owned by him individually.

The parties were married for nineteen years and have two minor children. The joint assets of the parties include the marital domicile and certain income producing real property. The assets in appellant’s sole name include fifty percent of the stock in Collier City Homes, Inc., and a one-half interest in Hornoco Oil Partnership.

The court granted appellee exclusive possession of the marital home until the youngest child becomes an adult, and required appellant to pay the monthly mortgage payments, taxes and insurance until the home is sold. The court provided that upon sale of the home, appellant shall only receive credit for the amount by which he reduced the principal sum owed on the mortgage. The court provided for appellee to receive from the proceeds a special equity in the amount of $10,000 as a result of her contribution to the improvement of the marital home from an inheritance (funds wholly unconnected with the marital relationship) and an additional special equity in the amount of $30,000 as a result of appellant’s investment of joint assets in Hornoco Oil Partnership without appellee’s permission. The court further awarded appellee a special equity in one-third of appellant’s solely owned stock in Collier City Homes, Inc., and ordered appellant to pay the sum totalling $127,300 as “lump sum alimony.”

Appellant contends that the record fails to demonstrate sufficient evidence to support the trial court’s award of special equities to appellee in the amount of $30,000 and $127,300. Appellant also contends that he should receive credit for interest, taxes, insurance and any other payments related to the marital domicile which he pays on behalf of the appellee.

As stated in Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980)

In its true sense, a “special equity” is a vested interest which a spouse acquires because of contributions of funds, property, or services made over and above the performance of normal marital duties. Eakin v. Eakin, 99 So.2d 854 (Fla.1958). See, e.g., Ball v. Ball, 335 So.2d 5 (Fla.1976) (property acquired with inherited funds of one spouse); Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978) (one spouse entered the marriage with possession of realty and personalty); and Green v. Green, 228 So.2d 112 (Fla. 3d DCA 1969) (one spouse contributed special labor toward accumulation of the other spouse’s wealth). A special equity in property held as tenants by the entirety will not arise when the property is acquired from funds generated by a working spouse while the other spouse performed normal household and child-rearing responsibilities.

The court’s award to appellee of a $10,000 special equity in the marital home for the contribution of her $10,000 inheritance for improvements to the marital home meets the criteria set forth in Duncan. However, we find that the record fails to support the trial court’s award of $30,000 as a special equity because of the appellant’s investment in the Hornoco Oil Partnership without appellee’s permission. The assets utilized to purchase the appellant’s interest in Hornoco Oil Partnership came from assets acquired during the course of the marriage. Appellee has failed to cite any case which would provide a special equity under these circumstances. Therefore, the trial court’s award of this special equity must be reversed.

The trial court labeled the award to appellee of a one-third interest in appellant’s solely owned stock in Collier City Homes, Inc. as a special equity but went on to direct appellant to pay said sum as “lump sum alimony.” Although the evidence does not support the trial court’s finding that appellee has a special equity in this asset, the evidence does support an award of lump sum alimony to accomplish an equitable distribution of the property acquired by the parties during their marriage. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Therefore we affirm this award.

Lastly, we conclude that the trial court erred when it failed to provide that appellant should receive a credit against the proceeds derived from the sale of the marital home for one-half of the payments made towards the mortgage, taxes and insurance on the marital domicile. We disagree with appellant’s contention that he should receive credit for the full amount paid. See Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975) and Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976).

Therefore, as to the trial court’s award of special equities to appellee in the marital home, we affirm the award of $10,000 but reverse the special equity award in the amount of $30,000. We remand this cause with directions to the trial court to amend the final judgment to provide for appellant to receive a credit against the proceeds derived from the sale of the marital home for payments of the mortgage, taxes and insurances made by him in excess of his one-half interest. We affirm the award of $127,300 to appellee as lump sum alimony. We affirm the final judgment in all other respects.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

BERANEK and WALDEN, JJ., concur.


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    Richard RINDLEY, a/k/a Dick Rindley, Appellant, v. GORY ASSOCIATED INDUSTRIES, INC., a corporation, Appellee.
    No. 83-2168.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Allan M. Glaser of Sibley, Giblin, Leven-son & Glaser, Miami Beach, for appellant.
    Paul M. May of Benson, Ray & May, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of King v. Insurance Company of North America, 426 So.2d 1302 (Fla. 2d DCA 1983).

LETTS, HURLEY and DELL, JJ., concur.


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    Thomas CAPRARO, Appellant, v. LANIER BUSINESS PRODUCTS, INC., Appellee.
    No. 83-2429.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.

      Edward A. Marod of Guns ter, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellant.
    Bruce Zeidel of Cohen, Scherer & Cohn, P.A., North Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order granting a preliminary injunction.

Capraro signed an employment contract with Lanier which provided that “for a period of one year after termination of employment hereunder, ... Employee will not, directly or indirectly, ... demonstrate or sell in the Territory products or services that are competitive with the Products, ... provided further, that nothing contained herein shall prevent Employee from engaging in any activity that is not competitive with the business then being conducted by the Company.” “Territory” was defined as Broward, Palm Beach, Okeechobee, Martin and Indian River Counties, and “Products” was defined as text writing, dictating, telephone answering, and computer equipment. Capraro left Lanier and immediately began working for Wang selling data processing systems with text writing capability. Lanier sued Capraro for breach of their covenant not to compete and applied for a temporary injunction, which was granted. Ca-praro appeals.

In order to state a cause of action for injunctive relief against one who violates a covenant not to compete, the complaint must allege a contract with an appropriate clause, the defendant’s “intentional, direct and material breach thereof,” and “no adequate remedy except by injunctive relief.” Silvers v. Dis-Com Securities, Inc., 403 So.2d 1133, 1136 (Fla. 4th DCA 1981). Irreparable injury is presumed in these cases. Id. The court also notes that “money damages, if susceptible of reasonable proof, may not compensate for all aspects of such a violation. Injunctive relief is therefore the favored remedy.” Id., at 1137; Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966). Furthermore, a temporary injunction must be affirmed on appeal if there is evidence in the record to support findings of the existence of the above elements. Id.

Capraro first claims that Lanier did not prove irreparable injury. Such proof is unnecessary because irreparable injury is presumed. Silvers, at 1136. Lanier introduced evidence of a contract that prohibited Capraro from selling text editing and other equipment in Palm Beach and other counties. Lanier also introduced evidence that Capraro was selling a competitor’s text editing equipment in Palm Beach County. Because money damages are presumed to be inadequate and because irreparable injury is also presumed, the record supports the issuance of an injunction.

Capraro next claims that he introduced evidence that the contract was invalid. Even where the validity of the contract is placed in dispute, however, a judge may in his discretion grant a temporary injunction. Hollender v. S.R.F., Inc., 321 So.2d 627 (Fla. 4th DCA 1975). Capraro’s evidence consisted of evidence that he was assured that the clause would not be enforced against him and that the clause was not enforced against others who had left Lanier. Such evidence may present a claim for equitable estoppel or damages against Lanier, but Hollender implies that the appellate court should rarely disturb a judge’s preliminary factual assessment of this issue. Instead, the issue is best left to be explored at a full trial on the merits. Hollender, at 628.

Capraro also claims that the contract was breached by Lanier. The contract, he claims, obligates Lanier to tell him trade secrets. If he was not told such secrets, Lanier cannot enforce other provisions of the contract. This claim that the language about trade secrets creates an enforceable dependent covenant was not accepted by the trial court and is not sufficiently established to mandate reversal of the trial court’s order. Cf. Suave Shoe Corp. v. Fernandez, 390 So.2d 799 (Fla. 3d DCA 1980).

Capraro also argues that the lack of specific proof of harm to Lanier should be fatal. As noted above, injury is presumed in these eases. Silvers, at 1136. Capraro may actually be claiming that the covenant is unreasonable, as his reference to the holding of Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974), indicates. Such clauses will be enforced “within a reasonably limited time and area.” § 542.33, Fla. Stat. (1981). -In Silvers, a one-year limitation was found to be reasonable. Id., at 1136. In the present case, while Capraro worked for Lanier only in Palm Beach County, the clause prohibited him from competing in a five-county area. The contract showed that this area was controlled by a central office in Fort Lauderdale. Ca-praro, through this office, could have had access to information relevant to any of these counties. Thus, it is reasonable to exclude him from these counties. Furthermore, Capraro’s clause was limited to specific product lines. Again, these lines were so closely related that Capraro might have had access to information about any of them. Therefore, we cannot disturb the trial court’s implied ruling that the scope of the clause was reasonable.

Next, Capraro argues that the injunction does not comply with Florida Rule of Civil Procedure 1.610(d). This rule reads:

(d) Form and Scope. Every injunction and temporary restraining order shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document and shall be binding on the parties to the action, their officers, agents, servants, employees and attorneys and on those persons in active concert or participation with them who receive actual notice of the order.

Clearly, the final order describes the acts restrained. Thus, Capraro must claim that the reasons for entry are not sufficiently specified. As noted above, Silvers only demands proof that a valid covenant not to compete was violated. The order states that Capraro’s present employment “is in violation of his employment agreement” with Lanier. Thus, the order includes exactly those reasons that Silvers requires.

Finally, Capraro argues that the injunction is too broad. As noted above, we have already concluded that the scope of the injunction is supported. Accordingly, the order of the trial court is affirmed.

ANSTEAD, C.J. and LETTS and BERA-NEK, JJ., concur.