author: DANAHY, Judge.

text:
    Robert M. HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 84-40.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1984.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant, Robert M. Hodges, appeals from sentences entered after judgments upon a jury verdict finding him guilty of three counts of second degree murder, three counts of kidnapping, and one count of racketeering. He also appeals from the judgment entered against him on the racketeering count. Appellant elected to be sentenced under the new sentencing guidelines pursuant to section 921.001(4)(a), Florida Statutes (1983). See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). Appellant received six concurrent terms of life imprisonment for each of the second degree murder and kidnaping offenses and a consecutive term of thirty years’ probation for the racketeering offense. We affirm in part and reverse in part.

Appellant argues several points on appeal in support of his contention that the trial court erred in imposing sentences exceeding the range permitted under the sentencing guidelines without giving written reasons for the departure. We reject appellant’s argument that the points assessed against him were excessive. It is evident from the record that all concerned understood that the sentencing guideline score-sheet prepared in connection with appellant’s case was properly modified during, the sentencing proceeding. See Florida Rule of Criminal Procedure 3.701(d)(1) (trial judge has ultimate responsibility for assuring the accuracy of the scoresheet). Specifically, the transcript of the sentencing hearing reflects that the state reviewed and justified all points assessed in each category against appellant. The final point total clearly placed appellant within the recommended sentencing guidelines range of life imprisonment.

However, although the trial judge correctly sentenced appellant for each of his seven offenses as required by Florida Rule of Criminal Procedure 3.701(d)(12), he effectively sentenced him to a total of life imprisonment plus thirty years’ probation. That was improper. Walker v. State, 458 So.2d 396 (Fla. 1st DCA 1984); Roux v. State, 455 So.2d 495 (Fla. 1st DCA 1984). The total sentence imposed “cannot exceed' the total guideline sentence unless a written reason is given.” Fla.R.Crim.P. 3.701(d)(12). Moreover, when appellant was sentenced on December 20, 1983, Committee Note.(d)(12) provided, as a specific limitation on the permissible total length of a split sentence (i.e., incarceration and probation), that “the total sanction imposed cannot exceed the maximum guideline range.” See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983); Walker v. State; Roux v. State. In appellant’s case, because the maximum guidelines range for each of his offenses is life imprisonment, a sentence of “life plus thirty years” is outside the guidelines. Furthermore, the trial judge gave no reasons, oral or written, for departure from the guidelines.

We find no merit in appellant’s attack on his adjudication for racketeering and, therefore, affirm his conviction for that offense.

Accordingly, we affirm appellant’s sentences to life imprisonment for each of the murder and kidnaping offenses. Further, we affirm his conviction for racketeering, but vacate the sentence imposed on that conviction and remand the same for resen-tencing. On remand appellant should be sentenced for racketeering under the guidelines in effect at the time he was originally sentenced. However, in resen-tencing for the racketeering offense, the trial court cannot exceed appellant’s total recommended sentence of life imprisonment unless it desires to deviate from the recommended range and states reasons for doing so. Fla.R.Crim.P. 3.701(d)(11) and (12); Vileta v. State, 454 So.2d 792 (Fla. 2d DCA 1984); see Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984). If the trial court does impose a sentence which, when coupled with the six sentences we affirm today, results in a total sentence outside the recommended guidelines, either party may appeal after resentencing. § 924.-06(l)(e) and § 924.07(9), Fla.Stat. (1983); Vileta v. State.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


source: Caselaw Access Project

author: RYDER, Chief Judge.

license: Public Domain

text:
    Sharole S. SHACKLETT, Appellant, v. STATE of Florida, Unemployment Appeals Commission and Eckerd Drugs of Florida, Inc., Appellees.
    No. 84-927.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1984.
    James W. Hengelbrok, Jr., Tampa, for appellant.
    Donna Erlich, Tallahassee, for appellee Unemployment Appeals Com’n.
   RYDER, Chief Judge.

Sharole S. Shacklett appeals a decision of the Unemployment Appeals Commission finding her ineligible for unemployment compensation benefits. We reverse.

Appellant was employed as a floor clerk and cashier for Eckerd Drugs of Florida, Inc. On October 7, 1983, when working as a cashier, appellant allegedly failed to ring up a $2.10 cigarette sale to a “mystery shopper” employed by Eckerd to scrutinize employee performance. Appellant was fired for her failure to ring up the sale, a violation of Eckerd policy.

The appeals referee found that appellant admitted not ringing up the purchase and concluded that she was guilty of misconduct and should be ineligible for unemployment benefits. The Unemployment Appeals Commission affirmed.

Misconduct for purposes of the Unemployment Compensation Law is defined in section 443.036(24), Florida Statutes (1981), as:

“Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

We hold that the Unemployment Appeals Commission erred in affirming the appeals referee’s decision because the decision depends on findings of fact not supported by competent, substantial evidence in the record. Appellant was discharged by Eck-erd solely for her failure to ring up a single sale of cigarettes. Although the appeals referee found that appellant admitted not ringing up the sale, the record is devoid of any such admission. It contains only speculation on the major point. At the hearing, appellant testified that although she may not have rung up the sale, she did not recall not doing so. The only other two witnesses who testified did not have personal knowledge of the incident.

In any event, the record does not contain competent, substantial evidence to support a ruling that appellant wantonly or willfully deliberately violated Eckerd’s policy or was careless or negligent to such a degree or recurrence as to manifest culpability, willful intent or evil design, or to show a substantial disregard of her employer’s interests or of her duties and obligations to her employer. Absent evidence that appellant was guilty of such misconduct, appellant should not have been disqualified for unemployment compensation benefits. Castor v. Department of Labor and Unemployment Security, 429 So.2d 829 (Fla. 2d DCA 1983); Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d DCA 1971); Earp v. Florida Department of Commerce Industrial Relations Commission, 241 So.2d 422 (Fla. 2d DCA 1970); Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3d DCA 1963).

As the Third District observed in Spaulding:

The unemployment compensation statute is designed to cushion the effect of unemployment by a series of benefit payments for a period to a worker who becomes unemployed. Discharge “for misconduct connected with his work” will disqualify a claimant, but in determining whether such a disqualification has occurred, the statute should be liberally construed in favor of the claimant for whose benefit it exists.

154 So.2d at 339.

Accordingly, the decision of the Unemployment Appeals Commission is quashed and the cause is remanded to the Commission with instructions to enter an appropriate order entitling appellant to unemployment compensation benefits.

SCHOONOVER, J., and McDONALD, RANDALL G., Associate Judge, concur.


author: PER CURIAM.

text:
    Randall Steven MOE a/k/a Randy Bonvillion, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1721.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Samek & Besser and Lawrence Besser, Miami, for appellant.
    Jim Smith, Atty. Gen. and Henry Barks-dale, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Stanley v. State, 357 So.2d 1031 (Fla. 3d DCA 1978); White v. State, 348 So.2d 1170 (Fla. 3d DCA 1977).


text:
    J.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-53.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse an adjudication of delinquency because of insufficient evidence that the juvenile committed the crime charged in the petition for delinquency. State v. V.D.B., 270 So.2d 6 (Fla.1972); Jackson v. State, 436 So.2d 1085 (Fla. 3d DCA 1983); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).


text:
    Oscar PENA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-852.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.

      Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The appellant was charged in count one with possession of methaqualone with intent to sell, manufacture or deliver in violation of section 893.13(l)(a), Florida Statutes (1981), and in count two with trafficking in methaqualone in violation of section 893.-135(l)(e), Florida Statutes (1981). He was convicted by a jury on both counts and sentenced to three years’ imprisonment on the trafficking count and placed on probation for three years on the possession count.

It is appellant’s contention that the trial court erred in imposing a separate conviction and probationary term on the count for possession of methaqualone with intent to sell, manufacture or deliver, since that charge is a lesser included offense of the offense of trafficking in methaqualone for which he was also convicted and sentenced.

We find merit in appellant’s contention and reverse his conviction and the probationary term imposed as to count one for possession of methaqualone with intent to sell, manufacture or deliver. To allow the conviction and probationary term to stand on the lesser included offense would not comport with the double jeopardy clauses of both the United States and Florida Constitutions. Bell v. State, 437 So.2d 1057 (Fla.1983); Muwwakil v. State, 435 So.2d 304 (Fla. 3d DCA 1983), pet. for rev. denied, 444 So.2d 417 (Fla.1984).

The judgment and probationary term as to the possession count is reversed and the judgment and sentence as to the trafficking count is affirmed.

Affirmed in part and reversed in part.


text:
    May L. ROTOLANTE, Appellant, v. Donald DASILVA, Appellee.
    No. 83-1854.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.

      William H. Peeples and Lewis D. Mil-ledge, Jr., Richard M. Gale, Miami, for appellant.
    Mark Krasnow, Miami, for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant is the owner of real property upon which her lessee operates a boarding stable for horses, and from which a horse which was neither owned nor controlled by the appellant wandered onto a public road causing damage to the appellee. The judgment against the appellant is reversed with directions to enter judgment in her favor upon a holding that the owner of land, who neither owns nor has custody or control of any livestock on the property, has no duty to erect or maintain a fence upon the land. Davidson v. Howard, 438 So.2d 899 (Fla. 4th DCA 1983), rev. denied, 450 So.2d 486 (Fla.1984).

Reversed.


text:
    Andrew BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2009.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Rehearing Denied March 19,1985.
    Bennett H. Brummer, Public Defender and R. James Pelstring, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

The judgment of convictions and sentence under review is affirmed upon a holding that (1) the trial court committed no error in denying the defendant’s motion to suppress the in-court identifications of the defendant by the witness Lucy Sanchez because utterly no showing was made below that any unnecessarily suggestive identification procedures were used by the state within the meaning of the standards established in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); (2) the trial court committed no error in denying the defendant’s motion to discharge based on an alleged speedy trial violation, State v. Bassham, 352 So.2d 55 (Fla.1977); and (3) the trial court committed no error in denying a motion for mistrial based on a witness’ trial reference to a police photo lineup, as a subsequent cautionary instruction cured the error under the circumstances of this case. See Loftin v. State, 273 So.2d 70 (Fla.1973); Jones v. State, 453 So.2d 1192 (Fla. 3d DCA 1984).

Affirmed.


text:
    C.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2695.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

The adjudication of delinquency under review is affirmed based on the following holdings: (1) the trial court, as the trier of fact, was not required to find, as urged, that the juvenile requested counsel 'prior to his confession to the police because the juvenile’s testimony below on this subject, which admittedly is unrefuted, does not establish this fact (Tr. 14), Von Horn v. State, 334 So.2d 43, 46 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1977); (2) as we have held in another opinion filed this day and involving the same issue, there is, in our view, no requirement that a Miranda waiver from a juvenile be in writing, T.J. v. State, 460 So.2d 568 (Fla. 3d DCA 1984); see State v. Cartwright, 448 So.2d 1049 (Fla. 4th DCA 1984); In re H.D., 443 So.2d 410 (Fla. 4th DCA 1984); see also Jordan v. State, 334 So.2d 589 (Fla.1976); contra S.L.W. v. State, 445 So.2d 586 (Fla. 1st DCA 1983); and (3) the juvenile was otherwise fully apprised of his right to counsel and right to remain silent, the juvenile voluntarily waived those rights notwithstanding a prior assertion of the right to remain silent, and the trial court properly admitted the juvenile’s confession in evidence below, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Mullings v. State, 452 So.2d 1010 (Fla. 3d DCA 1984).

Affirmed.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    C.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2761.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Skinner v. State, 450 So.2d 595 (Fla. 5th DCA 1984); Delaughter v. State, 341 So.2d 235 (Fla. 3d DCA 1976); Mead v. State, 214 So.2d 514 (Fla. 3d DCA 1968), cert. denied, 222 So.2d 747 (Fla. 1969); § 790.19, Fla.Stat. (1981).

SCHWARTZ, Chief Judge

(specially concurring).

I base my conclusion for affirmance explicitly upon Skinner v. State, 450 So.2d 595 (Fla. 5th DCA 1984) and Ballard v. State, 447 So.2d 1040 (Fla. 2d DCA 1984). I thus reject the contrary decision, invoked by the appellant, of Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960), receded from, Carter v. State (Fla. 1st DCA Case No. AU-45, opinion filed, December 6, 1984). These cases concern the prerequisites for finding a violation of section 790.19, Florida Statutes (1983). (“Whoever, wantonly or maliciously, shoots at, within, or into ... any public or private building, occupied or unoccupied ... shall be guilty of a felony of the second degree -”) C.H. indisputably intentionally fired a shot towards a home which struck the structure. Under Skinner and Ballard, it is immaterial whether, as he contends, he was shooting at a particular person or the building itself.


text:
    Pauline CRUNKLETON, Personal Representative of the Estate of Howard Crunkleton, Deceased, Appellant, v. EAGLE-PICHER INDUSTRIES, INC., Appellee.
    No. 84-181.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Baron & Associates and Jane N. Saginaw, Dallas, Tex., Robles & Robles, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Michael K. McLe-more and Bert Pena, Miami, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings upon the authority of Dombroffv. Eagle-Picher Industries, Inc., 450 So.2d 923 (Fla. 3d DCA 1984), and cases cited therein.


text:
    A.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 84-415.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and BARKDULL, JJ.
   PER CURIAM.

The evidence adduced by the prosecution, which consisted of the fact that cocaine was found hidden inside a roll of toilet, tissue in the glove compartment of his sister’s car, which A.S. was driving; the respondent’s attempt to flee from the police to avoid a traffic stop; and his expressions of interest and concern during the ensuing search of the vehicle, and of “disappointment” after the drugs were discovered, was insufficient to support a finding that he was in constructive possession of the contraband. Johnson v. State, 456 So.2d 923 (Fla. 3d DCA 1984); Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981); Harris v. State, 307 So.2d 218 (Fla. 3d DCA 1974), cert. denied, 315 So.2d 195 (Fla.1975); see Lincoln v. State, 459 So.2d 1030 (Fla.1984). Accordingly, the adjudication of delinquency under review, which was based on that determination, is

Reversed.


text:
    Sandra NEILINGER and Eric Neilinger, her husband, Appellants, v. BAPTIST HOSPITAL OF MIAMI, INC., a Florida corporation, Appellee/Cross Appellant, and The Florida Patient’s Compensation Fund, Appellee/Cross Appellee.
    No. 84-451.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.

      Brumer, Cohen, Logan & Kandell and Karen A. Curran, Miami, for appellants.
    Parenti & Falk, Greene & Cooper and Robyn Greene and Joan Bolotin, Miami, for Baptist Hosp. of Miami, Inc.
    Thomas R. Post, Evan J. Langbein, Miami, for Florida Patient’s Compensation Fund.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

This is an appeal and cross appeal from a final summary judgment entered in favor of the defendant Florida Patient’s Compensation Fund on the basis that the plaintiffs’ cause of action was time-barred by the two-year statute of limitations for medical malpractice actions [§ 95.11(4)(b), Fla. Stat.(1979) ]. This is also an appeal from an interlocutory order which limits the defendant Baptist Hospital, Inc.’s liability, if any, to $100,000 in damages under Section 768.54(2)(b), Florida Statutes (1979).

We affirm the final summary judgment under review for two reasons. First, we are convinced that the claim filed by the plaintiffs herein is an “action for malpractice” because it is “a claim in tort ... for damages because of ... injury ... to [a] person arising out of ... medical ... care by [a] provider of health care,” § 95.-ll(4)(b), Fla.Stat. (1979), thereby making the claim against the defendant Florida Patient’s Compensation Fund time-barred by the two-year statute for medical malpractice claims. The claim filed by the plaintiffs herein arises out of Baptist Hospital’s allegedly negligent medical care of the plaintiff Sandra Neilinger while she was a maternity patient at the hospital. Mrs. Neilinger slipped and fell on a pool of amniotic fluid while she was descending from an examination table under the direction and care of hospital employees at the said hospital. See Mount Sinai Hospital of Greater Miami, Inc. v. Wolfson, 327 So.2d 883 (Fla. 3d DCA 1976). Therefore, unlike in Durden v. American Hospital Supply Corp., 375 So.2d 1096 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 633 (Fla. 1980), the health care provider herein was performing medical services for the said plaintiff at the time of the alleged injury. Second, the Florida Patient’s Compensation Fund, in accordance with the weight of authority, is entitled to rely on the two-year statute of limitations for medical malpractice claims against health care providers, where, as here, the Fund is made a party defendant. Robison v. Florida Patient’s Compensation Fund, 458 So.2d 1225 (Fla. 3d DCA 1984); Fatal v. Florida Keys Memorial Hospital, 452 So.2d 946 (Fla. 3d DCA 1984); Lugo v. Florida Patient’s Compensation Fund, 452 So.2d 633 (Fla. 3d DCA 1984); Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984); Burr v. Florida Patient’s Compensation Fund, 447 So.2d 349 (Fla. 3d DCA), pet. for review denied, 453 So.2d 43 (Fla.1984); contra Florida Patient’s Compensation Fund v. Tillman, 453 So.2d 1376 (Fla. 4th DCA 1984). We reject the argument that the applicable statute of limitations is the four-year statute for actions founded on a statutory liability. § 95.11(3)(f), Fla.Stat. (1979).

We have no jurisdiction to entertain the appeal from the interlocutory order limiting the liability of the defendant Baptist Hospital, Inc. to $100,000 pursuant to Section 768.54(2)(b), Florida Statutes (1979), because it is not among the non-final orders made appealable under Fla.R.App.P. 9.130(a). We therefore treat the appeal from this order as a petition for a writ of certiorari, see Fla.R.App.P. 9.040(c), and deny the petition because the said order does not constitute a departure from the essential requirements of law. Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980).

The final summary judgment entered in favor of the defendant Florida Patient’s Compensation Fund is affirmed. The appeal taken from the interlocutory order limiting the liability of the defendant Baptist Hospital, Inc. to $100,000 is treated as a petition for a writ of certiorari and the said petition is denied.

Affirmed in part; certiorari denied in part.


text:
    Frances M. MULLINS, Appellant, v. John MULLINS, Appellee.
    No. 84-617.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.

      George C. Vogelsang and Deborah White, Miami, for appellant.
    Stabinski & Funt and Cristina De Oli-veira, Miami, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The former wife Frances M. Mullins appeals a final judgment of marriage dissolution and contends that (1) the trial court erred in not awarding her the former husband John Mullins’ entire interest in the marital home as lump sum alimony; (2) the trial court erred in its award of equitable distribution; and (3) the trial court erred in awarding her an inadequate monthly amount of permanent, periodic alimony.

We reject these points and affirm because to do otherwise would be to substitute our judgment for that of the trial court on questions of fact and matters of discretion. There was a reasonable basis in this record for the trial court’s decision on each of the points complained of, and we remain unconvinced that no reasonable trier of fact could have reached the decision that the trial court did here. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Green v. Green, 442 So.2d 354 (Fla.1st DCA 1983).

Affirmed.


text:
    Aldo D’LA ROSA and Mirtha Marceira Mazza, Appellants, v. Barbaro RODRIGUEZ and Coronet Insurance Co., Appellees.
    No. 84-618.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Stone, Sostchin & Gonzalez and Robert Rossano, Miami, for appellants.
    Goodhart, Rosner & Green; Daniels & Hicks and Elizabeth K. Clarke, Miami, for appellees.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Upon consideration of the record and briefs of counsel we are convinced that the trial court did not err in entering judgment pursuant to a jury verdict which appellants contend included inconsistent findings. We find no merit in this contention. The record demonstrates that the answers provided by the jury on the special interrogatory verdict are all that are necessary to properly determine liability and damages as between the parties. No reversible error having been demonstrated, the judgment appealed is affirmed.

Affirmed.


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Carol Ann KAYE, Appellant, v. Burghard STEINER and Allstate Insurance Company, Appellees.
    No. 84-673.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    S. Peter Capua, Miami, for appellant.
    J. Leon Coleman and Vivian de Jesus; Spencer & Taylor and H.B. Yandle, Miami, for appellees.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See and compare Gatins v. Sebastian Inlet Tax District, 453 So.2d 871 (Fla. 5th DCA 1984); Higginbotham v. Fearer Leasing, Inc., 32 Mich.App. 664, 189 N.W.2d 125 (1971).

DANIEL S. PEARSON, Judge,

concurring.

The introductory signal to the cases cited in this per curiam affirmance should not be construed as our approval of Gatins v. Sebastian Inlet Tax District, 453 So.2d 871 (Fla. 5th DCA 1984). The rule adopted there, namely, that “the plaintiff is permitted to amend outside the limitation period to formally make the third party defendant a party defendant • • • where ... the plaintiffs claim concerns the same issues as are raised in the third party complaint,” applies only when, unlike here, the “third party complaint is filed within the applicable limitation period and the third party defendant is made aware that it may be held liable for the plaintiffs damages,” Gatins v. Sebastian Inlet Tax District, 453 So.2d at 875. Therefore, we would be required to affirm the case under review, whether we follow Gatins or the rule of the majority of jurisdictions, that no such amendment to the primary complaint is permitted even if the third-party complaint is timely filed.


text:
    T.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 84-775.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.

      Bennett H. Brummer, Public Defender and Robert Coppel, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The adjudication of delinquency under review is affirmed upon a holding that (1) the juvenile has not preserved for appellate review the denial of his motion to suppress certain physical evidence based on fourth amendment grounds because he did not object to the admission of the evidence when it was offered by the state at the trial of this cause, Bonham v. State, 450 So.2d 269 (Fla. 3d DCA 1984); (2) the motion to suppress was properly denied, in any event, because the police had reasonable suspicion to stop the appellant in this case, which stop, in turn, led to the seizure of the subject evidence, State v. Tamer, 449 So.2d 890 (Fla. 3d DCA 1984); State v. Lawson, 446 So.2d 202 (Fla. 3d DCA), pet. for review denied, 453 So.2d 44 (Fla.1984); and (3) the trial court committed no error in admitting in evidence, over objection at trial, the juvenile’s confession because, in our view, the juvenile’s Miranda waiver of counsel was not required to be in writing, State v. Cartwright, 448 So.2d 1049 (Fla. 4th DCA 1984); In re H.D., 443 So.2d 410 (Fla. 4th DCA 1984); see Jordan v. State, 334 So.2d 589 (Fla.1976); contra S.L.W. v. State, 445 So.2d 586 (Fla. 1st DCA 1983).

Affirmed.


text:
    Angel MANITO, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 84-1048.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Barry Diamond, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and William L. Petros, Asst. County Atty., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983); § 768.28(6), Fla.Stat. (1979).


text:
    Candida VALDES, Appellant, v. Delfin P. VALDES, Appellee.
    No. 84-1321.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Melvin A. Rubin, Miami, for appellant.
    No appearance for appellee.

      Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

The order reducing support payments having been entered without proper pleading or notice, be and the same, is hereby vacated and the matter is returned to the trial court for further proceedings. Sweetland, v. Gauntlett, 460 So.2d 570 (Fla. 3d DCA 1984).


text:
    Andrea SWEETLAND, Appellant, v. Paul GAUNTLETT, Appellee.
    No. 84-1322.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Melvin A. Rubin and Steve Grossbard, Miami, for appellant.
    No appearance for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

This is an appeal from an order which reduces a child support award previously set by court order in a paternity action. We reverse the order under review upon a holding, in accordance with settled law, that a trial court may not modify a prior child support award, where, as here, no pleading has been filed requesting such modification. State, Department of Health & Rehabilitative Services v. Miller, 444 So.2d 1157 (Fla. 2d DCA 1984); Parmer v. Parmer, 431 So.2d 257 (Fla. 2d DCA 1983); Lentz v. Lentz, 414 So.2d 292 (Fla. 2d DCA 1982); Koken v. Neubauer, 374 So.2d 49 (Fla. 3d DCA 1979); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977).

Reversed.


text:
    Janet M. WILSON, f/k/a Janet M. Keland, Appellant, v. COUNTY NATIONAL BANK OF SOUTH FLORIDA, a National Banking Corporation, Appellee.
    No. 84-1600.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Sabatino & Spindel, Bay Harbor, for appellant.
    Mamber, Epstein & Savage, North Miami Beach, for appellee.

      Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Barrett v. Pickard, 85 So.2d 630 (Fla.1956); Stone v. Pembroke Lakes Trailer Park, Inc., 268 So.2d 400 (Fla. 4th DCA 1972).


author: SCHWARTZ, Chief Judge.

text:
    Mildred MAYO, Appellant, v. HIGHLAND PARK HOSPITAL CORP., Appellee.
    No. 84-1753.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    Richard D. Katz, Coral Gables, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Sherryll Martens Dunaj, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   SCHWARTZ, Chief Judge.

The trial court properly dismissed Mayo’s claims against her former employer (a) for wrongful discharge because no such action lies when, as here, the employment is terminable at will, DeMarco v. Publix Super Markets, Inc., 384 So.2d 1253 (Fla. 1980); Maguire v. American Family Life Assurance Co. of Columbus, Ga., 442 So.2d 321 (Fla. 3d DCA 1983), pet. for rev. denied, 451 So.2d 849 (Fla.1984), and cases cited; and (b) for personal injuries because of the exclusivity of worker’s compensation, Sec. 440.11, Fla.Stat. (1981); Ivy H. Smith Co. v. Kates, 395 So.2d 263 (Fla. 1st DCA 1981). Since the defendant is therefore not liable to the plaintiffs upon the asserted causes of action, it does not matter if, as Mayo contends, it negligently hired the co-employee she contends was personally responsible for her misfortunes. See Texas Skaggs, Inc. v. Joannides, 372 So.2d 985 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980).

Affirmed.


author: NESBITT, Judge.

text:
    Carol A. ABRAMS, Appellant, v. GENERAL INSURANCE COMPANY, INC. and South Carolina Insurance Company, Appellees.
    No. 84-1848.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1984.
    George C. Vogelsang and Deborah White, Miami, for appellant.
    Joe N. Unger, Miami, Kopplow & Flynn, Fort Lauderdale, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Plaintiff appeals an order dismissing her defamation action for failure to state a cause of action. We reverse.

It is axiomatic that when considering a motion to dismiss for failure to state a cause of action, the court must confine itself strictly to the allegations within the four corners of the complaint, and must accept all well-pleaded allegations as true. Consideration of defendant’s affirmative defenses or sufficiency of evidence which plaintiff will likely produce on the merits is wholly irrelevant and immaterial to deciding such a motion. Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So.2d 1171 (Fla. 3d DCA 1981). Accord Kaufman v. A-1 Bus Lines, Inc., 363 So.2d 61 (Fla. 3d DCA 1978).

In the present case, the alleged defamatory letter states that there appears to be a violation of section 627.409, Florida Statutes (1981), and then proceeds to quote that section in its entirety. The letter then states:

Our file indicates that your son, Ronald Frank Abrams, is, in fact, a driver of the vehicle shown on our policy. This information was withheld in Sections II and III of your Application for Insurance dated 10/21/82.
If the General Insurance Company had been supplied with the proper information, i.e., that Ronald Frank Abrams, is, in fact, a driver of the vehicle we insure, the policy would have been issued at a substantially higher premium based on his record and his date of birth.
In view of the violation of the Statute, which denied General Insurance Company the information to properly evaluate the application, we hereby decline to provide any insurance coverage for this accident.

The defendant contends that the words attributed to it are not reasonably susceptible of the defamatory meaning contended for by plaintiff. Undoubtedly this was the basis on which the trial court dismissed the action, and it is with some reluctance that we take a different position. We find, however, that it is possible that persons reading the alleged defamatory letter might take it to mean that plaintiff was guilty of misrepresentation in the acquisition of her insurance policy. See Wolfson v. Kirk, 273 So.2d 774, 778 (Fla. 4th DCA), cert. denied, 279 So.2d 32 (Fla.1973).

Accepting all well-pleaded allegations in the complaint as true, and construing them in the light most favorable to plaintiff, as we must, we find plaintiff has adequately stated a cause of action for defamation. Accordingly, the order dismissing the defamation action is reversed and the cause remanded for further proceedings.

      . The,letter quotes the statute as follows:
      627.409 Representations in applications; warranties
      (1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
      (a) Fraudulent; or
      (b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
      (c) The insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, [...] or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been known to the insurer, [sic] as required either by the application for the policy or contract or otherwise. (2) A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or
      application therefor, shall not render void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation . increased the hazard by any means within the control of the insured.

        See § 627.409, Fla.Stat. (1981). This section was rewritten but substantively unchanged by the legislature in 1982. See § 627.409, Fla.Stat. (1983).


author: GLICKSTEIN, Judge.

text:
    Leo Prince FERGUSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-2065, 83-2066.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.

      Mary M. Dunn of Dennis & Dunn, Okeechobee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPON MOTION TO REVIEW ORDERS TO DENY POST-TRIAL RELEASE BAIL-SUPERSEDEAS BOND

GLICKSTEIN, Judge.

On May 3, 1982, Leo Prince Ferguson pleaded nolo contendere in the circuit court of Okeechobee County to a charge of carrying a concealed weapon. On June 7, 1982, he was sentenced in open court to two years’ probation provided he serve one week in county jail. Ferguson has shown he was not adjudicated guilty at the June 7, 1982 hearing. Subsequent written orders entered in Ferguson’s absence reflect an adjudication of guilt. Rule 3.180(a)(9) requires that the defendant be present when judgment is pronounced, and Bunting v. State, 361 So.2d 810 (Fla. 4th DCA 1978), states the written sentence should reflect the true facts of the case. It is clear, however, that adjudication of guilt may be withheld when a defendant is placed on probation. Rule 3.670, Fla.R.Crim.P.

Ferguson was on probation when he was charged with another felony, which occurred February 11, 1983. A jury found him guilty of manslaughter, and the court revoked his probation and sentenced him to ten years for the manslaughter conviction, to be served concurrently with a five year sentence for the prior crime of carrying a concealed firearm. The trial court did not at that time adjudicate Ferguson guilty of the earlier crime, nor has it done so to this day, so far as we know.

The trial court denied Ferguson’s motion for post-trial release pending appeal. It is clear from the proceedings of September 22, 1983, ’that the basis of the denial was a prior felony conviction. Section 903.132(1), Florida Statutes (1983), and Rule 3.691, Florida Rules of Criminal Procedure, preclude post-trial release on bail when a person has previously been convicted of a felony committed prior to the felony of which he now stands convicted, or if there are other felony charges against him, supported by probable cause, at the time he requests bail.

Ferguson has requested review of the trial court’s denial of post-trial release as well as its denial of his motion to conform written judgment and sentence in the earlier conviction to oral open court pronouncements. We shall take up the latter first.

Ferguson contends that there are the following discrepancies between the open court pronouncements and the written orders on his earlier conviction: (1) in open court, the judge did not adjudicate Ferguson guilty of either the felony or a concomitant misdemeanor to which he had likewise pleaded no contest, but the written orders state Ferguson was adjudicated guilty; (2) the written judgment and sentence speaks only of the “offense”, when there were two offenses; and (3) as written, the probation appeared to be for two years not only for the felony, but also for the misdemeanor, when the lawful limit for probation in the latter was only one year. These defects did exist, but not all of them are to be corrected by conforming the written orders to the open court pronouncements. Although the withholding of adjudication of guilt is ordinarily done affirmatively by the court, we think what occurred in the earlier proceedings is tantamount to the withholding of adjudication of guilt. Such adjudication can yet be made, though it ought to have been made when probation was revoked and certainly before sentence was imposed for the carrying of a concealed firearm. Correcting the failure to adjudicate appellant guilty of the earlier offense in open court does not require modifying the written judgment and sentence; it can be accomplished by filling in the void in open court. The apparently mechanical error of using the singular when there were both a felony and a misdemeanor deserves correction, and clarification of the correct probation period for the misdemeanor is desirable in order to tidy up the record, though of no particular import in the present case.

As to the denial of post-trial release, we analogize as far as is feasible to the law of second offender proceedings, as illuminated by the opinion in Shargaa v. State, 102 So.2d 809 (Fla.), cert. denied, 358 U.S. 873, 79 S.Ct. 114, 3 L.Ed.2d 104 (1958). Mere placement on probation is not of itself evidence of a prior felony conviction; there is need of proof of adjudication of guilt of a prior felony. In Shargaa an order of probation containing formal adjudication of guilt was held to be sufficient proof of the prior felony conviction. The pertinent facts of Shargaa differ from those here in that there the minute book of the court lacked evidence of a judgment of conviction, whereas here the record of the plea, motion and sentencing proceedings is available and shows no formal adjudication of guilt occurred in open court. We do not think the written order of probation, evidently prepared outside the defendant’s presence, can substitute for the required open court adjudication of guilt. The Supreme Court stated in Shargaa that a formal judgment of guilt is essential to support a subsequent sentence. Id. at 812. Similarly we say that absent a formal judgment of guilt, in open court, of a former felony, a trial court may not deny, on the ground of a prior felony conviction, post-trial release pending appeal. We note, however, that an alternate mandatory basis for denying bail is the existence of pending charges of another felony when probable cause has been found that the defendant has committed that felony at the time he requests bail. We think the latter basis for denial of bail may be found to exist in the case at bar. There are also, of course, well-known discretionary bases for denying bail.

We reverse the trial court’s denial of appellant’s motion to conform judgment and sentence to oral court pronouncements, as well as its denial of post-trial release. We remand so that the trial court may correct the errors we have observed in its judgment and sentence on the concealed weapon offense and the concurrent misdemeanor; adjudicate guilt on the same offense; and hear anew appellant’s motion for post-trial release. Because Ferguson’s plenary appeal is also before this court, we relinquish jurisdiction pursuant to Florida Rule of Appellate Procedure 9.600(b) so that the trial court may deal with these matters.

DELL and BARKETT, JJ., concur.


text:
    Wiley R. REYNOLDS, III, Appellant, v. TEETERS BROTHERS CONTRACTING COMPANY, d/b/a Teeters Brothers, Inc., Appellee.
    No. 83-2093.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.

      Charles C. Chillingworth of Chilling-worth & Axelrod, P.A., Palm Beach, for appellant.
    J. Michael Burman and Gary Russo of Slawson & Burman Law Offices, North Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Upon examination and review of the record we find that there is competent substantial evidence to support the trial court’s findings both as to the issue of rescission and the amount of any claims due one party from the other. Having made such a determination, we are without authority to disturb the rulings of the trial court challenged on appeal, regardless of our own views on the issues. Horn & Hardart, Florida, Inc. v. Dietz, 417 So.2d 1039 (Fla. 4th DCA 1982).

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


text:
    WEST AMERICAN INSURANCE COMPANY and the Ohio Casualty Insurance Company, Appellants, v. Vincent A. LLOYD, as Personal Representative of the Estate of Anita M. Lo-Presti Zacharakis, deceased, and First American Title Company of St. Lucie County, Inc., Appellees.
    No. 84-3.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    James T. Walker of Brennan, McAliley, Hayskar, McAliley & Jefferson, P.A., Fort Pierce, for appellants.
    Larry Klein and Pariente & Silber, P.A., West Palm Beach, for appellees.
   PER CURIAM.

We affirm on the authority of Ferrigno v. Progressive American Insurance Co., 426 So.2d 1218 (Fla. 4th DCA 1983); First State Insurance Co. v. Stubbs, 418 So.2d 1114 (Fla. 4th DCA 1982); Ruiz v. Prudential Property and Casualty Insurance Co., 441 So.2d 681 (Fla. 3rd DCA 1983).

DOWNEY, LETTS and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Peter IODICE, Jr., Appellant, v. Loretta SCOVILLE, f/k/a Loretta Iodice, Appellee.
    No. 84-188.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.

      Lawrence M. Kopelman, Fort Lauder-dale, for appellant.
    No appearance for appellee.
   DOWNEY, Judge.

Appellant seeks reversal of a judgment entered in a partition proceeding in which the trial court failed to award appellant one-half of the interest payments he made on the mortgage during his occupancy of the premises and certain sums he claimed for maintenance and repairs.

In the final judgment dissolving the marriage between the parties appellant was awarded custody of the parties’ three children and possession of the jointly owned marital domicile. When the last child reached majority, appellee sued to partition the property. Appellant counterclaimed for a set-off or reimbursement for principal and interest payments on the mortgage and for maintenance, repairs, and improvements made during his occupancy with the children. The trial judge refused to award appellant any credit for the interest portion of the mortgage payments and did not award a full one-half of the claimed expenditures for maintenance, repairs and improvements.

The court properly found the appellant husband entitled to reimbursement for one-half of the principal payments that he made on the mortgage. 12 Fla.Jur.2d, Cotenancy and Partition, § 65. We find nothing in the record to justify denying him reimbursement of the interest payments. On the other hand, the circuit court properly did not allow the appellee the rental value of the property during appellant’s use and occupancy thereof, because appellant’s occupancy was for the benefit of the children and pursuant to court order. Power v. Power, 387 So.2d 546 (Fla. 5th DCA 1980).

The mere fact that appellant claims expenditures for maintenance, repairs and improvements does not ipso facto entitle him to an award therefor. The trial judge exercises discretion in granting or denying them depending upon the circumstances surrounding the expenditures such as need, reasonableness, and other similar factors. On this record, appellant has not demonstrated reversible error in this respect.

Accordingly, the judgment appealed from is affirmed in all respects except that, on remand, the judgment should be modified to award appellant one-half of the mortgage interest that he paid during the period of his occupancy with his minor children.

AFFIRMED IN PART; REVERSED IN PART, and remanded for modification.

LETTS and WALDEN, JJ„ concur.


author: SCHEB, Acting Chief Judge.

text:
    Dennis T. COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-458.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1984.
    John R. Parkhill, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Defendant Dennis T. Coleman appeals his judgment and sentence for battery of a law enforcement officer. We have examined the several points he raises and find that only one has merit. He contends that the trial court improperly retained jurisdiction over his sentence. We agree.

The state charged defendant with battery of a law enforcement officer, a third-degree felony under section 784.07(2)(b), Florida Statutes (1981). At trial the state’s evidence revealed that on April 15, 1982, two uniformed police officers entered the New Lounge in Tampa to make a bar check. The officers saw the defendant in the bar. They noticed that he was wearing cut-off shorts and high white basketball socks. The socks were skin tight, ending just below his kneecap. In one sock the officer saw a large bulge. One officer believed this bulge might have been a knife, another weapon, or a narcotic.

This officer approached defendant. When the officer leaned forward to get a better look at the bulge, defendant shoved him in the chest and shoulders with both hands. This push caused the officer to stagger, tip over backwards, and almost lose his balance. The officer, however, did not fall, and no evidence was introduced to show that the officer suffered any personal injury. The officer said he had not given defendant permission to touch him. He admitted that the defendant never threatened him verbally or physically.

The defendant, who testified on his own behalf, said that when the officers approached him, one of them asked to see what was in his sock. When he reached down into the sock, the officers, grabbed his arms and he shoved them back.

A jury found defendant guilty as charged. The trial court adjudicated him as an habitual offender and sentenced him to an extended term of ten years imprisonment under section 775.084, Florida Statutes (1981). The trial judge also retained jurisdiction over one-half of his sentence under section 947.16(3), Florida Statutes (Supp.1982), because he concluded that the crime involved the use of intentional violence and the victim was injured.

Defendant argues that the trial court improperly retained jurisdiction over his sentence. Defendant was not convicted of any of the specific crimes set forth in the statute. See § 947.16(3), Fla.Stat. (1981). Consequently, the only classification under section 947.16(3), which might apply to defendant, is “any felony involving ... the use of intentional violence.” Id. Intentional violence is not defined in the statute. While any battery against a law enforcement officer is a serious offense, we do not believe that defendant’s shoving of the police officer in this case constitutes the type of intentional violence contemplated by the statute. Here, the defendant merely shoved the officer without threatening or injuring him. To hold otherwise would inject an additional element of intentional violence into an offense which, but for the victim’s occupation, would be a misdemean- or offense of simple battery. See § 784.-03(2), Fla.Stat. (1981).

Accordingly, the trial court erred in retaining jurisdiction over defendant’s sentence. We remand the case to the trial court for entry of an amended sentence deleting the retention of jurisdiction. Otherwise, we affirm defendant’s conviction and sentence.

SCHOONOVER, J., and BENTLEY, E. RANDOLPH, Associate Judge, concur.

      . Defendant correctly argues that, under the statute in force when the crime was committed, the trial judge could only retain jurisdiction over one-third of his sentence. See Reid v. State, 440 So.2d 651 (Fla. 2d DCA 1982). Cf. §§ 947.16(3), Fla.Stat. (1981) and 947.16(3), Fla. Stat. (Supp.1982). See also Springfield v. State, 443 So.2d 484 (Fla. 2d DCA 1984) (ex post facto application of the retention statute is not fundamental error and objection must be made in the trial court to preserve the issue for appellate review). In view of our holding, we need not address defendant’s contention on this issue.


author: GRIMES, Judge.

text:
    Peter G. WAHL, Appellant, v. STATE of Florida, Appellee.
    No. 84-2013.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1984.
   GRIMES, Judge.

This is an appeal from the denial of a motion for post-conviction relief. As one of his grounds, appellant contends that in sentencing him under the guidelines, the court improperly departed from the presumptive range. We hold that this issue cannot be raised in a motion for post-conviction relief.

Section 921.001(5), Florida Statutes (1983), provides for appellate review of any sentence imposed outside the guidelines. If appellant had a complaint concerning the court’s departure from the guidelines, he should have filed a direct appeal from the sentence. That portion of Florida Rule of Criminal Procedure 3.850 which authorizes the review of sentences “in excess of the maximum authorized by law,” refers to a sentence which is above the legislative maximum for the prescribed crime. Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979). Since appellant complains of an error which is not of fundamental dimension and which could have been raised by way of appeal, it cannot now be asserted in a motion for post-conviction relief.

The other grounds of appellant’s motion have no merit. Therefore, the order of denial is affirmed.

RYDER, C.J., and CAMPBELL, J., concur.


author: SHIVERS, Judge.

text:
    INTERNATIONAL HARVESTER COMPANY, a corporation, Paul L. Rice, Ken Law and Mann International, Inc., a corporation, Appellants, v. C. Rex MANN, Appellee.
    No. BA-241.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1984.

      Alan C. Sundberg, Sylvia H. Walbolt and W. Douglas Hall of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellants.
    Frank A. Baker, Marianna, for appellee.
   SHIVERS, Judge.

Defendants/appellants appeal an order denying their motion to dismiss for lack of personal jurisdiction over defendants Price and Law.

Defendant/appellant Mann International, Inc. (MI) is a Delaware corporation, authorized to do business in Florida and having its sole place of business in Jackson County, Florida. Mi’s board of directors consists of appellee Mann, a Florida resident, and appellants Price and Law, both Georgia residents. Defendant/appellant International Harvester, also a foreign corporation authorized to do business in Florida, owns 100% of the voting and preferred stock of MI, while appellee Mann owns 100% of the non-voting stock.

Suit was filed by Mann in Jackson County, Florida, following action taken by International Harvester, Price, and Law to liquidate all assets of MI by transferring those assets to International Harvester at a price substantially below fair market value. The meeting at which the decision was made to liquidate was held in Delaware and Mann received no notice of the liquidation, the effect being to deprive him of his ownership interest in MI without payment of any compensation.

Count I of appellee’s complaint was a shareholder’s derivative action brought on behalf of MI, alleging breach of fiduciary duty owed to MI by appellant. Appellee claimed that MI suffered damages to its inventory and to its value as an ongoing business concern by reason of defendant’s actions. Count II was an action brought by appellee individually for breach of fiduciary duty owed to him by appellant. That count claimed that appellants’ actions were taken for the purpose of defrauding appel-lee and were calculated to render the value of his shares in MI worthless. Process was served upon appellants Price and Law in Georgia, after which they moved to dismiss the complaint for lack of personal jurisdiction. The denial of that motion resulted in this appeal.

Section 48.193(1), Florida Statutes (1983) authorizes personal service on a non-resident who:

(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.
(b) Commits a tortious act within this state.

Plaintiff/Appellee has conceded, to appellants’ argument that subsection (a) cannot form the basis for personal jurisdiction in this case, as he has not alleged that Price or Law were engaged in business as individuals, but only as directors of MI. Therefore, if the trial court’s jurisdiction is to be affirmed, it must be based upon a finding that appellants Price and Law have committed a tort within the state of Florida.

It is well-established that the commission of a tort for purposes of establishing long-arm jurisdiction does not require physical entry into the state, but merely requires that the place of injury be within Florida. Lee B. Stern & Co., Ltd. v. Green, 398 So.2d 918 (Fla. 3rd DCA 1981); Bangor Punta Operations, Inc. v. Universal Marine Co., 543 F.2d 1107 (5th Cir. 1976); Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir.1975). Based upon that interpretation of subsection (b), appellee asserts that, assuming arguendo the defendants’ actions originated elsewhere, they culminated in Jackson County, Florida in (1) effecting an improper transfer of Mi’s Florida assets to International Harvester, (2) depriving Mann of his ownership interest in his Florida business without compensation, and (3) depriving MI of its value as an ongoing Florida business concern. Ap-pellee also correctly states that the commission of a tort within Florida by a nonresident is a sufficient “minimum contact” with Florida to justify personal jurisdiction in light of the federal constitution. Godfrey v. Neumann, 373 So.2d 920 (Fla.1979).

The Florida courts have consistently held that a plaintiff seeking to assert long-arm jurisdiction over a non-resident must allege in his complaint sufficient facts to fall within the language of Section 48.-193, Florida Statutes. Wynn v. Aetna Life Insurance Co., 400 So.2d 144 (Fla. 1st DCA 1981); Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla. 1977). We believe that plaintiff/appellee did so in this case. Although MI was formed as a corporation under the laws of Delaware, its physical assets and its operation as a business were solely within the state of Florida. Therefore, any injury to its inventory or operation as a business concern, as alleged, must have occurred within Florida.

Appellant has asserted the argument that the situs of plaintiff’s stock is in Delaware, the state of incorporation, thus the damage to the value of plaintiffs stock and the jurisdiction of this suit lie in Delaware, if anywhere. Although the general rule states that stock may have a situs in the state of incorporation for purposes of determining rights and claims thereto, Jellenik v. Huron Copper Mining Co., 177 U.S. 1, 20 S.Ct. 559, 44 L.Ed. 647 (1900), it is also well-recognized that the situs may be elsewhere for other purposes. Krizanek v. Smith, 32 Del.Ch. 513, 87 A.2d 871 (1952). The issue of the situs of stock for purposes of pin-pointing the location of an injury and thereby establishing Florida long-arm jurisdiction, however, has not as yet been decided. While we recognize that the question is interesting, we find it unnecessary to address in this case as plaintiffs complaint contains sufficient alternative allegations' of injury within Florida upon which to base personal jurisdiction.

Accordingly, the denial of appellant’s motion to dismiss is affirmed.

WENTWORTH and NIMMONS, JJ., concur.


author: ORFINGER, Judge.

text:
    Jane D. DEAKYNE, Appellant, v. Dean J. DEAKYNE, Appellee.
    No. 83-1673.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 1984.

      Rick Kolodinsky, New Smyrna Beach, for appellant.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
   ORFINGER, Judge.

The wife appeals from a judgment dissolving the marriage between the parties. She contends that the trial court abused its discretion in the division of the marital property, in awarding her too little for alimony, and in denying her request for an award of attorney’s fees. We affirm in part and reverse in part.

The standard of review is whether the trial court abused its discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

Although there is evidence to support the wife’s contention that she is unable to work outside the home, there is also evidence that the. husband’s earnings are insufficient to meet the needs of the parties. The trial court made the specific finding that

This is another of those cases in which there is insufficient means to meet the needs of the parties and to accomplish what this court believes to be just and equitable under the existing circumstances.

The evidence supports that conclusion. We therefore find no basis for disturbing the alimony award. Similarly, the record reflects a reasonably equitable division of the marital property, and based on the test espoused in Canakaris, we cannot say that there was an abuse of discretion in making such division.

We do find, however, that the trial court abused its discretion in denying the wife any award for attorney’s fees. In Peak v. Peak, 411 So.2d 325 (Fla. 5th DCA 1982) this court held that when one spouse is in a position to pay attorney’s fees for a spouse who is unable to afford counsel, the court should award the needing spouse such fees. In the instant case the wife has no income or earning ability, and no assets sufficient to pay fees. By contrast, the appellee does earn a regular income from his own business. It is clear that the wife’s present ability to pay for her attorney’s services is inferior to her husband’s.

In Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981) this court stated that the purpose of Florida Statute § 61.16, permitting the trial court to award attorney’s fees in a dissolution proceeding, is to ensure that both parties will have the same opportunity to secure counsel. Where one party has a superior financial ability to secure counsel, it is not necessary that the other spouse be completely unable to pay attorney’s fees. See, Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Canakaris, 382 So.2d at 1205.

In the instant case the appellant is not at all on an equal footing with the appellee in terms of her ability to pay her attorney. The record shows that she is completely unable to pay counsel without assistance from her husband. Although the husband’s ability to pay is also limited, the comparative financial position of the parties clearly suggests that the husband is in a superior position to pay some, if not all, of the wife’s fees.

We affirm the final judgment in all respects except as to the denial of the wife’s request for an award of attorney’s fees. We reverse that part of the judgment denying attorney’s fees to the wife, and remand the cause to the trial court for a determination of a reasonable award of attorney’s fees to the wife for proceedings in the trial court.

AFFIRMED in part, REVERSED in part, and REMANDED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: POWELL, R., Associate Judge.

text:
    STATE of Florida, Appellant, v. Ricky Everett JOYNER, Appellee.
    No. 84-121.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellee.
   POWELL, R., Associate Judge.

The state appeals an order granting Joyner’s motion for discharge on the ground that his constitutional right to speedy trial was violated. We reverse.

This court recently addressed such an issue in Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984). The controlling principles are fully set forth in that opinion and need not be repeated here.

While the delay of twenty months between the filing of the information and issuance of capias and the return of Joyner from the Department of Corrections was sufficient to trigger a presumption of prejudice, requiring consideration of other factors, it was insufficient in itself to find a violation of Joyner’s constitutional speedy trial right. The delay by the state in ascertaining Joyner’s whereabouts and returning him for trial was negligent delay, which weighs less heavily against the state than deliberate delay. Of utmost importance, however, is that Joyner has failed to show actual prejudice resulting from the delay. There was no oppressive pretrial incarceration because Joyner was serving a lengthy state prison sentence, norr was there undue anxiety and concern since he was unaware of the pending charge. His assertion that his defense was impaired by the intervening death of a potential alibi witness was just that — a mere assertion, lacking in substance or particulars.

After considering all of the Barker factors, as expressed in Vela, we conclude that Joyner’s constitutional right to speedy trial was not violated. Consequently, the trial court’s order discharging him was in error and is hereby reversed.

REVERSED and REMANDED.

ORFINGER and COWART, JJ., concur.

      . This case does not involve a claim that Joyner’s right to speedy trial under Florida Rule of Criminal Procedure 3.191 was violated.

      . The only showing made of an impaired defense was counsel’s argument at the hearing that one Willie Bozeman, a former employer, had died on October 19, 1983 (his death certificate was produced) and that although counsel had never spoken with Bozeman, "it’s our contention that there could very well have been an alibi.” Speculative allegations of an impaired defense are unpersuasive. United States v. Jenkins, 701 F.2d 850 (10th Cir.1983).

      . Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


text:
    UNITED COMPANIES FINANCIAL CORPORATION, Appellant, v. Robert E. HUGHES, Sr., Trustee, and Michael E. Broyhill, Appellees.
    No. 84-318.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.

      James M. Shuler and Charles L. Weiss-ing of Kass, Hodges & Massari, Tampa, for appellant.
    Stuart M. Rosenblum, Clearwater, for appellee Hughes.
   SCHEB, Acting Chief Judge.

The trial court awarded attorneys’ fees to defendants Robert Hughes and Michael Broyhill in a mortgage foreclosure suit on the authority of section 57.105, Florida Statutes (1983). The plaintiff, United Companies Financial Corporation, contends that there were justiciable issues of fact and law in this litigation, and, therefore, the trial court erred in assessing attorneys’ fees under the statute. We agree and vacate the award. ,

Michael Broyhill executed a second mortgage to plaintiff’s predecessor in 1982. The mortgage contained a “due-on-sale” clause which provided that if the mortgage'd property was sold or transferred without the mortgagee’s prior written consent, the mortgagee could declare sums secured by the mortgage to be immediately due and payable. Broyhill subsequently transferred the property secured by the mortgage to Robert Hughes, as trustee, without obtaining the mortgagee’s prior written consent.

Although United Companies accepted Hughes’ check covering past-due mortgage payments, it filed suit to foreclose. United alleged that the defendants violated the due-on-sale clause by not obtaining the mortgagee’s consent to the sale and by not furnishing details of the transfer from Broyhill to Hughes. After the court denied a motion for judgment on the pleadings, the case was heard at a nonjury trial. There was a conflict in the evidence as to whether United actually received information concerning the identity and status of the purchaser of the property. United argued that its security had been impaired because this information was not furnished to it and justified its exercise of its option to invoke the due-on-sale clause on that basis. The trial judge heard arguments on the law as to whether there was, in fact, a violation of the due-on-sale clause and, if so, whether such a violation was merely technical and would not justify foreclosure.

At the conclusion of the nonjury trial, the trial court denied foreclosure. Thereafter, the successful defendants filed motions for attorneys’ fees under section 57.105. After hearing the motions the trial judge said he was “75% convinced” that there was an absence of justiciable issues and it appeared the suit was motivated by a vendetta. The court assessed $3,500 attorneys’ fees against the plaintiff. On appeal, United only raises the issue of the award of fees.

Section 57.105 provides for the award of reasonable attorneys’ fees to the prevailing party when the court finds “that there was a complete absence of a justicia-ble issue of either law or fact raised by the losing party.” The purpose of the statute is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorneys’ fees awards on losing parties who engage in such activities. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). Yet, courts must carefully balance invocation of the statute against the right of access to the courts guaranteed under the Florida Constitution. See Art. I, § 21, Fla.Const. Therefore, before an award can be made, the trial court must find that the losing party’s action or defense was frivolous. In sum, to justify an award against an unsuccessful plaintiff, the action must be so clearly devoid of merit, both on the facts and the law, as to be completely untenable. Wall v. Department of Transportation, 455 So.2d 1138 (Fla. 2d DCA 1984); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA), petition for review denied, 392 So.2d 1373 (Fla.1980).

Regarding the existence of any justicia-ble issues of law, United Companies argued that a mortgagee may enforce a due-on-sale clause as long as its security is impaired. First Federal Savings & Loan v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980). Concededly, there was no impairment of security here which resulted from any delinquency in mortgage payments. Defendants, however, seek to sustain the trial court’s judgment on the ground that Florida courts refuse to grant foreclosure for “technical violations” of a mortgage clause as existed here. See Delgado v. Strong, 360 So.2d 73 (Fla.1978). United, on the other hand, points to decisions from various jurisdictions which hold that such a clause may properly be invoked to protect the mortgagee from legitimate threats of increased credit risks, such as an unidentified obligor. Since United appears to have raised legitimate arguable points, it is difficult to say that there was no justiciable issue of law.

Furthermore, as noted, there was a conflict in the evidence as to whether United received information concerning the identity and status of the actual purchaser of the property. Thus, justiciable issues of fact were present.

As noted, there must be a complete absence of justiciable issues of fact and law in order for the court to make an award under section 57.105. In this case the trial judge remained only “75% convinced” that there was an absence of such judicial issues. Such a finding is insufficient to show the foreclosure action was frivolous. Consequently, it was improper for the court to award attorneys’ fees.

We reverse and remand with directions to the trial court to vacate the judgment for attorneys’ fees.

OTT, J., and STEINBERG, RALPH, Associate Judge, concur.


author: SCHOONOVER, Judge.

text:
    Jeffrey C. MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 84-392.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    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.
   SCHOONOVER, Judge.

Appellant, Jeffrey C. Murphy, appeals from a judgment and sentence entered pursuant to a jury verdict finding him guilty of first degree murder. We have jurisdiction because the trial court imposed a life sentence. Fla.R.App.P. 9.030(b)(1)(A). We affirm.

Appellant was a juvenile when taken into custody and charged with murder. The arresting officer testified that he advised appellant of his Miranda rights and that appellant appeared to understand them. The officer interrogated appellant and received incriminating statements from him prior to procuring a written waiver of counsel in compliance with Florida Rule of Juvenile Procedure 8.290(d)(4).

The sole issue on appeal is whether a juvenile’s inculpatory statements are rendered inadmissible when they are obtained without a valid waiver of counsel pursuant to rule 8.290(d)(4).

The First District Court of Appeal in the ease of S.L. W. v. State, 445 So.2d 586 (Fla. 1st DCA 1984), held that compliance with rule 8.290(d)(4) is mandatory, and a police officer’s failure to secure the waiver of counsel renders a juvenile’s statements inadmissible.

The Fourth District Court of Appeal held to the contrary in the case of In the Interest of H.D., 443 So.2d 410 (Fla. 4th DCA 1984). The court stated that since the juvenile rule tracks Florida Rule of Criminal Procedure 3.111(d)(4) governing waiver of counsel for indigents, the two rules must be interpreted in the same manner. On the authority of Jordan v. State, 334 So.2d 589 (Fla.1976), a supreme court case construing the criminal rule, the fourth district held that failure to comply with the juvenile rule governing waiver of counsel does not operate to suppress statements that are otherwise admissible. The court in Jordan held that criminal rule 3.111(d)(4) does not provide an independent ground for making a confession inadmissible. The remedy for the rule’s violation would not be suppression of evidence but would be to require a new trial with counsel available to represent the defendant. Jordan.

We agree with the decision of the Fourth District Court of Appeal and hold that failure to obtain a valid waiver of counsel pursuant to rule 8.290(d)(4) does not in itself render inadmissible a juvenile’s incul-patory statements. In the Interest of H.D.; see also, Jordan; contra S.L.W. v. State.

AFFIRMED.

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

      . The court certified to the Florida Supreme Court that its decision is in conflict with In the Interest of H.D., 443 So.2d 410 (Fla. 4th DCA 1984).


author: OTT, Acting Chief Judge.

text:
    Rodney James HENDRY, Appellant, v. STATE of Florida, Appellee.
    No. 84-923.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Acting Chief Judge.

Appellant, pursuant to a negotiated plea, received concurrent terms of five years imprisonment in each of two cases, one for armed robbery and the other for robbery and grand theft. Because the sentencing guidelines scoresheet incorrectly .included fourteen points for victim injury, we reverse.

Under the factual basis supporting the plea, it was specified that considerable injury, both physical and mental, was inflicted on the victim by either appellant or his partner or both.

This court has recently held that points for victim injury should not be assessed because victim injury does not constitute an element of the offense of armed robbery. See Toney v. State, 456 So.2d 559 (Fla. 2d DCA 1984).

Accordingly, victim injury points should not have been included in the score-sheet, because victim injury is not an element of the convicted offenses of robbery, armed robbery, or grand theft.

We reverse appellant’s sentence and remand for resentencing. We further note that while points for victim injury may not be included on the guidelines scoresheet, physical or mental abuse of the victim may be cited as reason for departure from the guidelines. Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984).

DANAHY and SCHOONOVER, JJ., concur.


text:
    Ricky PATTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-1000.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the trial court’s judgment in all respects, and further note that there is a rule 3.800 motion pending before the trial court on which we do not pass.

AFFIRMED.

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


author: CAMPBELL, Judge.

text:
    John Willie KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 84-1036.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    Jerry Hill, Public Defender, and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant contends that there was insufficient evidence to support the revocation of his probation. We agree.

Four grounds for revoking probation were stated by the trial court. First, appellant allegedly was not living in the approved residence in Maryland. At the probation revocation hearing, the probation officer testified as to evidence given to him by the Maryland probation officer by telephone. This is clearly hearsay testimony which cannot be the basis for probation revocation under Sillett v. State, 393 So.2d 53 (Fla. 2d DCA 1981). The second and third allegations were that appellant failed to pay the public defender’s fee and court costs. The only evidence presented was the probation officer’s statement that appellant did not make these payments. There was no testimony, nor any finding by the trial court, regarding appellant’s ability to pay. Absent a finding that appellant had the ability to pay, probation cannot be revoked based on the failure to pay the public defender’s fee and court costs. Peterson v. State, 384 So.2d 965 (Fla. 2d DCA 1980). Finally, it is alleged that appellant failed to file his monthly reports from July through September of 1983.

At the hearing, the trial court asked the probation officer:

Q. Aside from his approved residence, I take it he’s not done anything else required of him as a condition of probation, including filing reports or paying the sums imposed?
A. That’s correct.

There was no further testimony, or other evidence, indicating which reports were not filed. Appellant testified that he, in fact, filed the July through September, 1983 reports. He admitted that he did not file reports after he was informed of the outstanding warrant against him. Appellant’s testimony was uncontradicted.

It is not clear from the record presented where the monthly reports were to be filed. Also, if they were to be filed in Maryland, there is no indication of how the Florida-based probation officer knew they had not been filed. Due to the lack of evidence and testimony as to this allegation, we must determine that the evidence was insufficient to support a finding that appellant failed to file the monthly reports from July through September of 1983.

Thus, none of the four grounds alleged for revoking probation are a proper basis for probation revocation. We, therefore, reverse the order of the trial court revoking appellant’s probation.

RYDER, C.J., and GRIMES, J., concur.


text:
    RICHLAND GROVE & CATTLE COMPANY, INC., a Florida corporation, Appellant, v. Tom EASTERLING, Appellee.
    No. 84-1144.
    District Court of Appeal of Florida, Second District.
    Dec. 21, 1984.
    A.P. Gibbs of Gibbs, McAlvanah & Hanson, P.A., Dade City, for appellant.
    Donna Sumner Cox of Dayton, Sumner, Luckie & McKnight, P.A., Dade City, for appellee.
   PER CURIAM.

Appellant challenges the trial court’s adverse summary judgment. Our review of the record leads us to conclude that there has not been negated the existence of genuine issues of material fact. We therefore reverse the final summary judgment and remand this cause for further proceedings. St. Clair v. Smith, 445 So.2d 1113 (Fla. 2d DCA 1984).

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


text:
    Charlie Mae HADDOCK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1793.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    James L. Eisenberg of Green, Eisenberg & Cohen, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Donovan v. State, 417 So.2d 674 (Fla.1982); see also Williams v. State, 347 So.2d 472 (Fla. 1st DCA 1977).

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Mary Ann WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1935.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Donovan v. State, 417 So.2d 674 (Fla.1982); see also Williams v. State, 347 So.2d 472 (Fla. 1st DCA 1977).

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Harry COLLINS, Richard Donnellan and William Passalacqua, individually and d/b/a Richard Harwill Enterprises, Ltd., Appellants, v. Milton GREEN, Appellee.
    No. 84-156.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Alan C. Brandt, Jr. of Chappell & Brandt, P.A., Fort Lauderdale, for appellants.
    Andrew T. Lavin of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee.
   PER CURIAM.

Affirmed on the authority of Roundtree v. Smith, 448 So.2d 1252 (Fla. 4th DCA 1984); Berwick Corp. v. Kleinginna In vestment Corp., 143 So.2d 684 (Fla. 3d DCA 1962).

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


text:
    Robert P. KIPPERMAN, Appellant, v. SALLY BIEHUSEN REAL ESTATE, INC. and Max L. Jaffe, Appellees.
    No. 84-540.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    L. Martin Reeder, Jr. of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for appellant.
    Norman J. Kapner of Johnson & Bakst, P.A., West Palm Beach, for appellee Jaffe.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of Sousa v. Palumbo, 426 So.2d 1072 (Fla. 4th DCA 1983).

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


text:
    Sandra PARKER, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, etc., and State No-Fault Insurance Agency, Inc., Appellees.
    No. 84-1033.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Steven P. Cullen of Hoadley & Gavigan, P.A., West Palm Beach, for appellant.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lee-South Carolina Insurance Company.
   PER CURIAM.

This is the second time that this case has been before this court on appeal. The first time we reversed and remanded for further proceedings, 409 So.2d 106 at which point the pleadings were amended. On remand, the trial court decided that the amended pleadings raised no genuine issues of material fact and granted summary judgment in favor of appellee. We affirm. See Rios v. Florida Farm Bureau Mutual Insurance Company, 371 So.2d 700 (Fla. 3d DCA 1979).

DOWNEY, LETTS and HURLEY, JJ., concur.


text:
    STATE of Louisiana v. Juan MORALES.
    No. 84-KK-1952.
    Supreme Court of Louisiana.
    Nov. 13, 1984.
   In re Morales, Juan, applying for writ of certiorari, stay order, Parish of Orleans, Criminal District Court, Div. “B”, Nos. 298-406, 298-411; to the Court of Appeal, Fourth Circuit, No. K-2951.

Granted. The ruling of the trial judge is set aside, and the motions for subpoena duces tecum of the tapes and for subpoena of the Head of the Narcotics Division are granted.


text:
    STATE ex rel. Sherwood MILLET v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 84-KH-1900.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Millet, Sherwood, applying for writ of mandamus and/or writ of prohibition, Parish of Orleans, Criminal District Court, Div. “G”, No. 261-779.

Granted. The district court is ordered to act, if it has not already done so, on the post-conviction petition submitted on August 1, 1984.


text:
    Sharon CRIER v. Thomas S. WHITECLOUD, III, M.D. & Children’s Hospital.
    No. 84-C-1699.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Crier, Sharon, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. CA-1792; Parish of Orleans, Civil District Court, Div. “E”, No. 83-4947.

Prior report: 455 So.2d 1279.

Granted.


text:
    Judith Ann Hoover GOWINS v. Carroll E. GOWINS.
    No. 84-CC-1742.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Gowins, Judith Ann Hoover, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 84624; Parish of Rapides, 9th Judicial District Court, Div. “B”, No. 109940.

Prior report: 457 So.2d 685.

Granted.


text:
    STATE of Louisiana v. Robert E. TATUM.
    No. 84-KK-1776.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re State of Louisiana, applying for writ of certiorari, writ of review, Parish of Orleans, Criminal District Court, Div. “H”, No. 301778; to the Court of Appeal, Fourth Circuit, No. K-2639.

Granted.


text:
    STATE of Louisiana ex rel. Otis DAWSON v. John R. BALLARD, Judge, First Judicial District Court, Parish of Caddo, State of Louisiana.
    No. 83-KH-2269.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Otis Dawson, applying for writ of certiorari, prohibition and mandamus, to the First Judicial District Court, Parish of Caddo, No. 109-754.

Granted. Sentence vacated. Case remanded for reimposition of a fully determinate sentence as to duration of period without benefit of parole.

CALOGERO, J., concurs.

BLANCHE, J., dissents.


text:
    STATE ex rel. Nathaniel CURTIS v. Honorable Frank A. MARULLO, Judge, Criminal District Court, Clerk of Court, Division “D”, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 84-KH-1561.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Curtis, Nathaniel, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “D”, No. 284-159.

Granted. Trial court is ordered to furnish Boykin transcript to defendant.


text:
    Frank J. CAVALIER v. The HOUMA COURIER NEWSPAPER CORPORATION.
    No. 84-CC-1812.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Houma Courier Newspaper Corp., applying for writ of certiorari, writ of review, Parish of Terrebonne, 32nd Judicial District Court, Div. “A”, No. 75886; to the Court of Appeal, First Circuit, No. CW 84-1183.

Granted and remanded to Court of Appeal for briefing, argument and an opinion.


text:
    Gwendolyn GROS, Individually and on behalf of her minor children, Darryle R. Gros, Damion A. Gros and Francois Gros v. OCCIDENTAL CHEMICAL CORPORATION and/or Hooker Chemical and Plastic Company, Dr. Armand Hammer, A. Robert Abboud, George P. Haas, AJ. Vedros, Bobby Mayaux, James Pittman, Curtis Cullen, Wilbert Fremin, Robert L. Hall and General Electric Corporation.
    No. 84-CC-1839.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Hammer, Armand Dr., Abboud, A. Robert, applying for supervisory writs, Parish of St. Charles, 29th Judicial District Court, Div. “D”, No. 25395; to the Court of Appeal, Fifth Circuit, No. 84-C-511.

Granted. Case remanded to the Court of Appeal for briefing, argument and an opinion.

LEMMON, J., recused.


text:
    STATE ex rel. Edward JACKSON v. CRIMINAL DISTRICT COURT, et al. and Clerk of Court For the Parish of Orleans.
    No. 84-KH-1899.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Jackson, Edward, applying for writ of mandamus and supervisory remedial writ, Parish of Orleans, Criminal District Court, Div. “G”, No. 285-306.

Granted. The district court is ordered to act, if it has not already done so, on the post-conviction petition submitted in October, 1983, if, as alleged, such petition has been filed.


text:
    STATE ex rel. Joey Lum BARNES v. 32ND JUDICIAL DISTRICT COURT, DIVISION “C”, PARISH OF TERREBONNE.
    No. 84-KH-1927.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Barnes, Joey Lum, applying for writ of mandamus, Parish of Terrebonne, 32nd Judicial District Court, Div. “C”, No. 97202.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted on September 13, 1984, if as alleged, such a petition has been filed.


text:
    STATE ex rel. Andrew Lee GREEN v. CLERK OF COURT, SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CATAHOULA, HARRISONBURG, La.
    No. 84-KH-1389.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Green, Andrew Lee, applying for mandamus, Parish of Catahoula, 7th Judicial District Court, Div. “B”, No. 80-411.

Granted and transferred to the district court solely for consideration.


text:
    STATE of Louisiana ex rel., Kirt Douglas MATTHEWS v. SIXTEENTH JUDICIAL DISTRICT COURT, and Clerk of Court For the Parish of Saint Mary.
    No. 84-KH-1876.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Matthews, Kirt Douglas, applying for supervisory writs, Parish of St. Mary, 16th Judicial District Court, Div. “F”, No. 108948.

Granted in part. The district court is ordered to act, if it has not already done so, in the sentencing transcript motion submitted on July 17, 1984, if, as alleged, such motion has been filed.


text:
    STATE of Louisiana, ex rel., Freddie CLEMENTS, Jr. v. Sheriff Charles C. FOTI.
    No. 83-KH-2263.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Freddie Clements, Jr., applying for remedial writs, Parish of Orleans, No. 272-959.

Denied.


text:
    STATE of Louisiana ex rel., Joseph W. MANGERCHINE v. Hon. Jacob L. KARNO, Judge, 24th Judicial District Court.
    No. 83-KH-2363.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Joseph W. Mangerchine, applying for writ of certiorari, mandamus and review from the 24th Judicial District Court, Parish of Jefferson, No. 81-573.

Denied.


text:
    STATE of Louisiana ex rel., Robert HYMAN, v. Hon. Alvin Rudy EASON, Judge Division “K”, 24th Judicial District Court.
    No. 83-KH-2443.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Robert Hyman, applying for writ of certiorari and review from the 24th Judicial District Court, Parish of Jefferson, No. 78-2650.

Denied.


text:
    STATE of Louisiana ex rel. Joseph WOOD v. STATE of Louisiana.
    No. 83-KH-2444.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
    Reconsideration Granted Dec. 14,1984.
   In re Joseph Wood, applying for writ of habeas corpus, Criminal District Court, Parish of Orleans, No. 269-497.

Denied. Relator must first seek relief in the district court.


text:
    STATE of Louisiana ex rel. Michael ASKINS v. Sheriff Charles FOTI.
    No. 83-KH-2475.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Michael Askins, applying for a remedial writ to the Criminal District Court, Parish of Orleans, No. 294-057.

Denied.


text:
    STATE of Louisiana ex rel. Josie LOWE v. Hon. Miriam WALTZER, Judge, Section “A”, Criminal District Court.
    No. 84-KH-0025.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Josie Lowe, applying for writ of certiorari or review to the Criminal District Court, Parish of Orleans, No. 244-259.

Denied.


text:
    STATE of Louisiana, ex rel. Alfred DEAL v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0078.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Alfred Deal, applying for writs of habeas corpus, certiorari, prohibition, and mandamus, Criminal District Court, Orleans Parish, No. 279-394.

Denied.


text:
    STATE of Louisiana ex rel. Warren SMITH v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 84-KH-0081.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Warren Smith, applying for writs of certiorari, habeas corpus and mandamus to the Criminal District Court, Parish of Orleans, No. 262-512, Section “D”.

Denied.


text:
    STATE of Louisiana, ex rel. Dudley P. BEAVERS v. Warden Burl CAIN.
    No. 84-KH-0158.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Dudley P. Beavers, applying for remedial writs, Parish of E. Baton Rouge, 19th Judicial District Court, No. 2-73-8303.

Denied.


text:
    STATE of Louisiana ex rel. Curtis Lee SULLIVAN v. John T. KING, Secretary, Louisiana Department of Corrections.
    No. 84-KH-0191.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Curtis Lee Sullivan, applying for remedial writ to the 26th Judicial District Court, Parish of Bossier, No. 57435.

Denied.


text:
    STATE of Louisiana, ex rel., Frederick L. STANLEY v. Hon. Edwin A. LOMBARD; Clerk, Criminal District Court, Parish of Orleans.
    No. 84-KH-0218.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Frederick L. Stanley, applying for writ of mandamus, Parish of Orleans, Nos. 292-054-055 and 296-283.

Denied.


text:
    STATE of Louisiana ex rel. Joe C. RIVERS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0295.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Joe C. Rivers, applying for writ of habeas corpus from the Twenty-Second Judicial District Court, No. 105873, Parish of St. Tammany.

Denied.


text:
    STATE of Louisiana ex rel. Clarence Bill McCORD v. Warden Ross MAGGIO.
    No. 84-KH-0356.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Clarence Bill McCord, applying for supervisory writs, to the Nineteenth judicial District Court, Parish of East Baton Rouge, No. 9-74-3966.

Denied.


text:
    STATE of Louisiana ex rel. Rickey ROBINSON v. STATE of Louisiana.
    No. 84-KH-0389.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Rickey Robinson, applying for remedial writs to the Criminal District Court, No. 252-999, Section “F”, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Terry L. DENMAN v. John T. KING.
    No. 84-KH-0460.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Terry L. Denman, applying for writ of certiorari to the Second Judicial District Court, Parish of Jackson, No. 18540.

Denied.


text:
    STATE of Louisiana ex rel. Franklin JONES v. STATE of Louisiana.
    No. 84-KH-0468.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Franklin Jones, applying for remedial writs to the Twentieth Judicial District Court, Parish of East Feliciana, No. W-73-11-542.

Denied. This matter is moot. The aggravated battery conviction has already been removed from the records maintained by the Department of Corrections.


text:
    STATE of Louisiana ex rel. Edward Charles JACKSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0469.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Edward Charles Jackson, applying for writ of certiorari, prohibition, mandamus and review to the Fourth Judicial Court, Parish of Ouachita, No. 38867.

Denied.


text:
    STATE of Louisiana v. Willie ROSS.
    No. 84-KH-0480.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Willie Ross, applying for remedial writs to the Criminal District Court, Parish of Orleans, No. 253-251.

Denied.


text:
    STATE of Louisiana, ex rel. Melvin CROCHET v. Bernard L. KNOBLOCH, Judge, 17th Judicial District Court and Ross Maggio, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0528.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Melvin Crochet, applying for writ of certiorari, prohibition, mandamus and habeas corpus, 17th Judicial District Court, Lafourche Parish, No. 72806.

Denied.


text:
    STATE of Louisiana v. Byron PATTERSON.
    No. 84-KH-0839.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Byron Patterson, applying for remedial writs to the Criminal District Court, No. 268-673, Section “J”, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Roosevelt JOHNSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0964.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Roosevelt Johnson, applying for writs of certiorari, prohibition, mandamus, or habeas corpus to the Nineteenth Judicial District Court, Section, “I”, No. 4-78-448, Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Darren HOOKS v. C. Paul PHELPS, Secretary Louisiana Department of Corrections.
    No. 84-KH-1016.
    Supreme Court of Louisiana.
    Nov. 16, 1984.
   In re Darren Hooks, applying for writ of certiorari, prohibition, mandamus or habeas corpus, to the Criminal District Court, Parish of Orleans, No. 278-617, Section “B”.

Denied.