text:
    Raymond TRENARY, Appellant, v. STATE of Florida, Appellee.
    No. 83-959.
    District Court of Appeal of Florida, Second District.
    June 22, 1984.
    Rehearing Denied Aug. 9, 1984.

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

Defendant, Raymond Trenary, appeals his conviction and sentence for second degree murder after the trial court denied his motion to withdraw his nolo contendere plea.

Defendant was originally indicted for first degree murder for the stabbing death of Hendry County Sheriff Earl S. Dyess, Sr. Pursuant to a plea bargain, defendant pled nolo contendere to second degree murder, a first degree felony subject to life imprisonment. § 782.04(2), Fla.Stat. (1979). Upon entering his plea, defendant stated that he understood the penalty could be life in prison. At sentencing, however, he contended that the sentence should be pursuant to the Youthful Offender Act, section 958.011, Florida Statutes (1979), which would limit the sentence to four years imprisonment followed by two years community control. Defendant argued that inasmuch as second degree murder was a first degree felony, he satisfied all the requirements for sentencing under the Act. The trial judge refused to apply the Youthful Offender Act and then sentenced defendant to 137 years imprisonment, retaining jurisdiction over the first one-third of the sentence.

On appeal this court affirmed, noting that second degree murder, though ordinarily a first degree felony, was subject to enhancement to a life felony for use of a weapon:

The indictment charged Trenary with “stabbing the said Earl S. Dyess, Sr.” Implied in such language is the use of some type weapon. The record is clear that the weapon consisted of a knife (not a common pocketknife) and as such amounts to a weapon as contemplated by section 775.087(1), Florida Statutes (1979). See Bryant v. State, 386 So.2d 237 (Fla.1980); § 790.001(13), Fla.Stat. (1979). As a result, pursuant to section 775.087(1), Florida Statutes (1979), the offense was enhanced from that of a first degree felony to that of a life felony and thus Trenary did not qualify for sentencing under the Youthful Offender Act as section 958.04(1)(b), Florida Statutes (1979), requires, among other things, that the offense not exceed a first degree felony. Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981).

Trenary v. State, 423 So.2d 458 (Fla. 2d DCA 1982). The court remanded, however, for correction of the judgment to reflect the use of a weapon and for resentencing after compliance with section 39.111(6), Florida Statutes (1983).

Prior to resentencing, defendant filed a motion to withdraw his plea. As grounds therefor, defendant alleged that he entered his plea upon the advice of counsel, with the express understanding that he would be sentenced under the Youthful Offender Act. After argument on the matter, the court denied the motion and again sentenced defendant to 137 years, retaining jurisdiction for the first one-third of the sentence.

Our review of the hearing on the motion to withdraw the plea reveals that the trial court failed to address the key issue in this case: whether defendant pled nolo contendere in reliance on the attorney’s belief that defendant would be sentenced under the Youthful Offender Act. The law is well settled that if a defendant enters a plea in reasonable reliance on his attorney’s advice, which in turn was based on the attorney’s honest mistake or misunderstanding, the defendant should be allowed to withdraw his plea. Costello v. State, 260 So.2d 198 (Fla.1972); Brown v. State, 245 So.2d 41 (Fla.1971). Although the record reflects a sufficient basis to find that an actual mistake or misunderstanding existed, we think this issue would be best determined by the trial court after testimony from, but not limited to, defendant and his trial attorney.

Accordingly, we remand the cause for a full evidentiary hearing on the issue.

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


source: Caselaw Access Project

author: ZEHMER, Judge.

license: Public Domain

text:
    E. Lamar BAILEY, Appellant, v. Jimmy CHRISTO, Appellee.
    No. AY-94.
    District Court of Appeal of Florida, First District.
    June 29, 1984.
    Rehearing Denied Sept. 4, 1984.

      Clinton E. Foster, P.A., Panama City, for appellant.
    Ervin, Yarn, Jacobs, Odom & Kitchen, Tallahassee, and Carroll L. McCauley, Panama City, for appellee.
   ZEHMER, Judge.

E. Lamar Bailey appeals a nonfinal order for preliminary injunction which requires, among other things, that Bailey open and operate the Spinnaker II nightclub in Panama City and pay to himself and to appellee Christo, who claims to be a co-owner of the business, stipulated percentages of gross revenues derived from the operation of the nightclub during the March to September 1984 season. Bailey contends that the trial court abused its discretion in directing him to operate the business with his own funds and to pay a percentage of gross revenues monthly to the owners before resolution of the disputed rights of the parties and before determination of the ultimate amount of profit that will be earned by the business operation during the season. We hold that appellant has failed to demonstrate an abuse of discretion requiring this court to intervene in the trial court’s handling of this litigation, and affirm.

For a number of years, Bailey and Jimmy Christo have been co-owners of a nightclub business called Spinnaker II. The club is located on Panama City Beach and operates during the local season, which extends from March to September. Christo has managed the nightclub for a number of years, and that apparently is his principal source of income. Bailey had not been active in operating the club until this dispute arose. During the 1983 season, Bailey and Christo developed substantial differences of opinion concerning the operation of the club and the use of its revenues. Finally, in October 1983, Bailey physically took possession of the premises, inventoried and shipped the physical assets to a warehouse for storage, erected a fence around the club building, locked the gate, and posted a guard with instructions to keep all persons, including Christo, off the premises.

In response to Bailey’s actions, Christo filed this lawsuit claiming to be a fifty percent owner in Funtana Village, Inc., the corporation that owned the premises and the alcoholic beverage license under which the nightclub operated. Christo’s complaint alleged that Bailey’s actions in taking possession of the club have wrongfully deprived him of his legal rights and prayed for declaratory judgment, injunctive relief, and damages. Bailey answered, claiming to be owner of record of one hundred percent of the stock of Funtana Village, Inc., but admitting that Christo is a fifty percent owner of a partnership that has operated the club during prior years. Bailey counterclaimed for damages from Christo for his misuse of Spinnaker II partnership funds derived from the operation of the club during 1988.

On November 27, 1983, Bailey filed a motion for temporary restraining order and preliminary injunction to prohibit Christo from entering upon the property. On December 1, 1983, the trial court held an extensive evidentiary hearing on Bailey’s motion, during, which both Christo and Bailey gave testimony concerning their respective claims of interest in the Spinnaker II, its value, and the profitability of the operation. That hearing was continued to December 15, when additional evidence was received by the court. No ruling was immediately issued, however, and on February 1, 1984, Christo filed a motion for preliminary injunction to compel Bailey to return the Spinnaker IPs personal property and permit Christo to reopen the nightclub and resume his duties as manager during the rapidly approaching season. On February 10, at a hearing on Christo’s motion, both Bailey and Christo made additional statements to the court. Bailey had previously testified that the Spinnaker II should realize profits of $700,000 to $1,000,000 per year if managed properly. He admitted that Christo was a fifty percent partner in the operation of the nightclub. When it became apparent during the course of the hearing that the trial court was contemplating an order that the club should be reopened under Christo’s management, Bailey, in response to a specific inquiry by the trial judge, stated that he would be willing to reopen the nightclub and operate it himself.

On March 5, 1984, the court entered the order here appealed. Although purporting to grant Bailey’s motion for preliminary injunction and deny Christo’s motion, the order granted some relief to each party. It enjoined Christo from interfering in Bailey’s possession or operation of the Spinnaker II, mutually enjoined both parties from harassing, threatening, or otherwise interfering with the private rights of each other, required Bailey to post a $500 bond, and ordered Bailey to open and operate the Spinnaker II during the coming season “consistent with past practices.” The order also directed that certain accountants be engaged to account for the revenues and expenditures of the club operation by Bailey, directed that Christo be allowed on the premises during business hours (apparently for the purpose of taking advantage of the goodwill he had generated in prior years through his personal management of the business), and directed that both Bailey and Christo be paid stipulated percentages from the gross revenues of the operation on a monthly basis. It is apparent to us that the trial court was endeavoring to restore the status quo as much as possible while protecting Bailey from Christo’s alleged misuse of funds by permitting Bailey to operate the business and maintain personal control over the funds, subject to indirect court supervision through appointed accountants.

Bailey contends that the trial court erred in two respects in entering the injunction. First, there were no pleadings before the trial court requesting that Bailey open and operate the club. Second, there was no testimony or evidence taken by the trial court in direct support of a requirement that Bailey operate the club, other than that received December 1 and 15 concerning Bailey’s motion to restrain Christo from entering upon the premises.

Our consideration of Bailey’s objections must be made within the framework of certain general principles. The trial court has wide discretion to grant, deny, or modify injunctions, and an appellate court will not interfere with the exercise of this discretion unless some abuse thereof is clearly made to appear; and a presumption exists as to the correctness of a trial court’s ruling, with the burden on the appellant to prove such abuse. Duvallon v. Duvallon, 409 So.2d 1162 (Fla. 3d DCA 1982). The purpose of a temporary injunction is to preserve the status quo until a final hearing may be held and the dispute resolved. City of Miami Springs v. Steffen, 423 So.2d 930 (Fla. 3d DCA 1983). The status quo preserved by a temporary injunction is the last peaceable non-contested condition that preceded the controversy. Bowling v. National Convoy & Trucking Co., 135 So. 541 (Fla.1931). One critical purpose of temporary injunctions is to prevent injury so that a party will not be forced to seek redress for damages after they have occurred. Lewis v. Peters, 66 So.2d 489 (Fla.1953). The granting of a temporary injunction rests in the trial court’s sound judicial discretion, guided by established rules and principles of equity jurisprudence in view of the facts of the particular case. Decumbe v. Smith, 143 Fla. 5, 196 So. 595 (Fla.1940). A temporary mandatory injunction pending final hearing, though not usually granted, may be granted if the totality of circumstances warrant. Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (Fla.1925).

Regarding Bailey’s first contention, it must be remembered that this action was initiated by Christo’s filing a complaint for the purpose of establishing his ownership and right to possession of the club operated by him. Among other things, he sought injunctive relief prohibiting Bailey from interfering with operation of the club. By February, Christo had filed a motion for preliminary injunction to compel Bailey to return possession of the premises so that Christo could open and manage the club during the coming season. Even though the hearing on December 1 and 15 was ostensibly in connection with Bailey’s motion to keep Christo off the premises, the issue of who owned the club and had the right to possession was necessarily involved in that hearing. At the time the appealed order was entered, the pleadings squarely presented the question whether the club should be operated during the approaching 1984 season by Christo or by someone else. The trial judge was not bound to limit his consideration to whether Christo alone should operate the club and simply deny Christo’s motion if that relief was not granted; the trial court had broad discretion to fashion an appropriate remedy in equity. Since Bailey perceived during the hearing in February that the court was going to require that the club be operated by someone, and being fearful that that someone might be Christo, Bailey offered to operate it himself. Accordingly, he will not now be heard to complain that the issue was not properly before the court for lack of specificity in the pleadings.

Regarding his second point, Bailey argues that substantially all of the testimony relied on by the trial court was received on December 1 and 15 in connection with Bailey’s motion to restrain Christo from entering the premises. Thus, Bailey contends, there was no evidence received by the court directly in support of the injunction ordered by the court and, therefore, the order cannot stand. We disagree.

At the time of the hearing on Bailey’s motion to enjoin Christo, issues had been raised by Christo’s pleadings concerning his right to possess the premises. Resolution of Bailey’s demand to keep Christo off the premises was necessarily interrelated with Christo’s right to possession of the premises by reason of his ownership interest and past operation of the club. Hence, it was readily foreseeable that the evidence taken on December 1 and 15 would, as it did, relate primarily to the ownership and operating requirements of the business. When Christo brought the issue squarely in focus with his February 1 motion to open and operate the club, the trial court was entitled to consider relevant evidence received at the December hearings, as well as any additional evidence that might be offered by the parties at the February 10 hearing, in support of Christo’s motion. We find no error in the trial court’s having done so.

Bailey’s chief concern centers around the provision in the injunctive order requiring that certain percentages of gross revenues, ranging from five to ten percent, be paid each month to Bailey and Christo. The record reflects that the trial court predicated this requirement entirely upon Bailey’s testimony regarding anticipated profits and upon the court’s recognition of Christo’s dependency on the operation of the club for his primary source of income. The trial court, exercising its power to achieve equity and justice to both parties, explicitly found it is in the parties’ best interest that the Spinnaker II be operated during the coming season. It is apparent that the trial judge was concerned primarily with preserving the status quo during this litigation by enjoining Bailey from forcibly closing down the Spinnaker II. With certain exceptions, the judge required the continued operation of the club during the pendency of this litigation on a basis “consistent with past practices.” Instead of allowing Christo to operate and manage the club and make monthly draws out of the income, as he had in the past, the trial court recognized Bailey’s objection to leaving Christo in charge and allowed Bailey to operate the club even though it was Bailey who upset the status quo by taking possession of the premises through self-help and deprived Christo of the ability to operate the club and earn his livelihood. The trial court’s requirement that a percentage of gross revenues be distributed monthly is supported by competent, substantial evidence, and we find no basis for holding that the trial court abused its discretion in this regard.

Bailey has filed motions with the trial court and with this court suggesting that material changes in circumstances have occurred since the entry of the order here appealed that make it unfair, if not impossible, for Bailey to comply with the injunction. We have not considered such circumstances in arriving at this decision, which is based solely upon the record before the trial court at the time the appealed injunc-tive order was entered. This decision is without prejudice to the trial court’s consideration of any applications to modify or vacate the appealed order based upon competent evidence of changed circumstances.

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


author: PER CURIAM.

text:
    LOCAL NO. 666, CONCRETE PRODUCTS AND MATERIAL YARD WORKERS, LABORERS INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO a/k/a Laborers Local Union No. 666, Appellants, v. Thomas H. DENNIS and Rinker Materials Corporation, Appellees.
    No. 84-331.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Sept. 7, 1984.
    Richard Siwica of Kaplan, Sicking, Hes-sen, Sugarman, Rosenthal, Suskind, Bloom & De Castro, Miami, for appellants.

      No brief filed for appellees.
   PER CURIAM.

This appeal from a non-final order denying a motion to quash service of process is appropriately filed under Rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure.

We reverse, holding that service of process on a secretary in the office of the business manager of a labor union is insufficient to permit the court to obtain jurisdiction over the union. § 48.141, Fla.Stat. (1983). See also § 447.11, Fla.Stat. (1983). Semble: Hauser v. Schiff, 341 So.2d 531 (Fla.3d DCA 1977).

REVERSED AND REMANDED.

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


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Crystal A. JOHNSON, Appellant, v. Carl E. TROIANO, Appellee.
    No. 84-571.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Sept. 7, 1984.
    Kim Douglas Sherman, Fort Lauderdale, for appellant.
    No appearance by appellee.
   PER CURIAM.

The above-styled appeal is hereby dismissed because it does not qualify under the provisions of Florida Rule of Appellate Procedure 9.130(a)(3). We decline to treat it as a petition for common law certiorari.

HERSEY and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

Based upon the appellant’s unrebutted showing of the lack of a legal or factual basis for the trial court’s sua sponte imposition of monetary sanctions I would acknowledge jurisdiction, and reverse. The order directed the immediate payment of money. In addition, it is undisputed that final judgment has now been entered in the cause. Under these circumstances it is clear that we have jurisdiction. To hold otherwise would be tantamount to holding that the order imposing monetary sanctions is not subject to review at all.


author: SCHEB, Judge.

text:
    James P. CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1924.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Rehearing Denied Aug. 15, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Defendant, James Crawford, appeals his conviction for grand theft. We reverse.

The state’s information charged Crawford with grand theft in violation of section 812.014, Florida Statutes (Supp.1982). Crawford pled not guilty.

At jury trial the operative facts established by the state’s evidence that on March 13, 1983, Clara Ritter contacted Crawford about fixing the roof on her house in St. Petersburg. Crawford told her the labor and materials to fix her roof would cost $400. Ritter did not have $400 available at home at the time; however, she paid him $240 to enable him to purchase materials. Crawford gave her a receipt for the $240. She signed some form of agreement, but it was not introduced into evidence. She stated that she assumed that Crawford would start the job the next day.

Late the next afternoon Crawford and his helper arrived at the Ritter home with one bucket of tar. When asked about the materials, Crawford said he had to buy them in Tampa, and they had not yet been delivered. Ritter became very upset with Crawford, fired him, and asked for her money back. Crawford said he would return the money the next evening, but he failed to do so. She subsequently talked with him and he again promised to return the money. When he did not do so, she called the police. After giving conflicting stories to the police, Crawford finally admitted he had not purchased any materials with the money. Rather, he stated to the police officer that he had used the money to buy food for his family.

At the conclusion of the state’s evidence, the trial court denied Crawford’s motion for a judgment of acquittal. The jury found him guilty, and the trial judge adjudicated him guilty and placed him on five years probation. This appeal ensued.

At the outset, we recognize that the language in section 812.014, the present omnibus theft act, now includes a variety of offenses related to unlawful appropriation of property (e.g., larceny, false pretenses, embezzlement, etc.), so we must consider whether the evidence presented by the state was legally sufficient to establish any of these traditional common law offenses now embraced within the definition of theft. To pursue this we think it helpful to review the principal cases relied on by Crawford and the state.

In Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980), relied on by Crawford, the First District reviewed a somewhat similar factual scenario. There, defendant Martin agreed to construct a small building for P.M. Brooks, who gave Martin a down payment of $200. The testimony disclosed that the down payment was made to enable Martin to purchase materials. Martin promptly cashed the check, but no materials were ever delivered to the job site and the construction was not started. Martin did not return the down payment. While the written memorandum between Brooks and Martin did not say when the job was to begin, Brooks and his son testified that construction was to start within a day or two after they signed the memorandum contract. The evidence further disclosed that Martin had telephoned Brooks concerning the work to be done, but before Martin started work, Brooks took out a warrant for his arrest. After that Martin made no further effort to perform. A jury found him guilty of grand theft.

On appeal the First District reversed Martin’s conviction. It held that even though Martin failed to perform the contract, there was no unlawful “taking” of the money, because Brooks had voluntarily given the money to the defendant. There was no fraud or false representation, the court said, because Martin’s promise to do something in the future was not a representation of a past or existing fact. Finally, the court found no basis to support a conviction for conversion or embezzlement, because the money given as a down payment did not retain its character as property belonging to the prosecuting witness after it had been given to Martin.

While acknowledging that Martin is an analogue to this case, the state says it is distinguishable, because it was based on the 1977 theft statute, which subsequently has been amended. Moreover, the state complains that in Martin the court took too narrow a view in construing the language of the theft statute.

The correct interpretation of the present theft statute, the state posits, is exemplified by the Fifth District’s recent decision in Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982), petition for review denied, 426 So.2d 25 (Fla.1983). There, the court took issue with the Martin decision and emphasized that regardless of how the property is acquired, if the defendant has the requisite criminal intent, he may be found guilty of theft.

We have no quarrel with this statement of law or its applicability to the facts in Brewer. In Brewer Parks’ house was burglarized and several rings and guns were stolen. Parks subsequently saw Brewer wearing one of the rings and informed him that the ring had been stolen. He then paid Brewer fifteen dollars for its return. At a later date, Brewer informed Parks that he could purchase Parks’ stolen guns for him. At that point Parks gave Brewer a thousand dollars with the understanding that he would travel to Miami, purchase the guns from the individuals who had stolen them, and return in “a day or two.” Although Brewer took Parks’ money, he never returned with the guns or the money. Parks neither saw nor heard from Brewer until the police arrested him some two and one-half years later. A jury found Brewer guilty of grand theft.

On appeal Brewer argued that Parks gave him money to perform a future service which was not performed. Therefore, he contended the evidence was insufficient to support a conviction of theft. The Fifth District rejected his argument and affirmed his conviction of grand theft.

Brewer appears to be distinguishable on its facts from Martin and the present case. In Brewer the defendant made no effort to perform the undertaking. He took the money and was neither seen nor heard from until he was arrested. Brewer’s lack of effort to perform after receiving the money was evidence of the requisite criminal intent. On the other hand, in Martin, where the starting date was not definite and the defendant was making some effort to resolve the problem, there was insufficient evidence to support the finding of a criminal intent.

We find the evidence in this case insufficient to show that Crawford did not intend to perform the contract when he entered into it. Here, Ritter unilaterally terminated the contract after Crawford began to perform. Thus, his retention of the funds she paid did not constitute a taking in the criminal sense, because it did not evince a felonious intent. See Adams v. State, 443 So.2d 1003 (Fla. 2d DCA 1983).

Crawford’s showing up with a helper the day after he received a down payment negates the criminal intent of theft by larceny or false pretenses. Although there may be a serious question as to whether his performance was adequate, this appears to be a civil rather than a criminal issue. There was no requirement that he even start performance at the time he arrived with his helper. His allegedly poor performance on that date does not equate with any criminal intent for theft by stealing.

Of course, there is the further question of whether the defendant had the requisite intent to steal Ritter’s money either at the time he promised to return it or at the time that he spent it for his family. The state urges that when Crawford failed to return the money after assuring Ritter that he would do so, he exhibited the necessary criminal intent to steal. We disagree, because a mere promise to return money would not be sufficient to establish a criminal intent.

While it is arguable that Crawford had an intent to take Ritter’s funds when he spent them on his family, we do not think the $240 retained its character as property belonging to Ritter after Crawford received it as a down payment. See Berney v. State, 38 So.2d 55 (Fla.1948). Furthermore, the evidence does not prove that Crawford used the down payment money before he was fired. Thus, there is no basis to uphold the conviction of theft on a finding of embezzlement or conversion.

There may be a genuine issue here as to the legal rights of Ritter and Crawford. This is an issue which appropriately could be (and probably should have been) resolved in a dispute resolution proceeding or in the small claims division of a county court. But we do not think the evidence was legally sufficient to show an intent to steal. We find no merit in defendant’s other points on appeal.

Accordingly, we vacate the conviction and sentence and direct that defendant be discharged.

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

      . § 812.014(1), Fla.Stat. (Supp.1982) states:
      A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
      (a) Deprive the other person of a right to the property or a benefit therefrom.
      (b) Appropriate the property to his own use or to the use of any person not entitled thereto.
      Apparently the amendments the state refers to are those which added the words "knowingly” and "either temporarily or permanently.” Ch. 78-348, § 1 and Ch. 82-164, § 1, Laws of Fla. See also State v. Dunmann, 427 So.2d 166, 169 (Fla.1983).

      . After examining a motion filed by defendant under Florida Rule of Criminal Procedure 3.190(c)(4), one of the judges who presided at the pretrial stage of this case suggested that the controversy here lended itself to a civil rather than a criminal resolution.


author: NESBITT, Judge.

text:
    BELLE ISLAND INVESTMENT CO., LTD. and Gilbride, Heller & Brown, P.A., Appellants, v. Laurence FEINGOLD, as Receiver of Belle Island Investment, Ltd., Appellee.
    No. 83-1470.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Rehearing Denied Aug. 31, 1984.

      Gilbride, Heller & Brown and William S. Weisman, Miami, for appellants.
    Lapidus & Stettin and Richard Lapidus, Miami, for appellee.
    Before NESBITT and JORGENSON, JJ., and FERRIS, JOHN G., Associate Judge.
   NESBITT, Judge.

Belle Island Investment Co., Ltd. (Belle Island) and Gilbride, Heller & Brown, P.A. (Gilbride) appeal a final judgment of ouster. The judgment prohibited both the maintenance of a lawsuit against Laurence Feingold, as receiver for Belle Island, and acts inconsistent with the receiver’s rights and privileges.

The case presents three issues for resolution: (1) whether a private foreign receiver has standing to sue in the courts of this state; (2) whether the circuit court was correct in extending comity to the laws and judicial acts of St. Vincent and the Grenadines; and (3) whether quo warranto is appropriate to test a private foreign corporation’s exercise of its corporate franchise.

Belle Island is incorporated in St. Vincent and the Grenadines, an independent state within the British Commonwealth. On September 4, 1981, Belle Island delivered its debenture in the amount of $500,000 to Caribbean and Overseas Trust Bank Ltd., (COTB), another St. Vincent corporation. The debenture is important in two respects. First, it is a secured obligation in that it gives COTB a floating charge on Belle Island’s assets, which include real property located in Dade County. Second, the agreement gave the bank the right to appoint a receiver for Belle Island in the event of default.

On default, and pursuant to the debenture, COTB, on March 11, 1983, appointed Feingold as receiver of Belle Island. Belle Island received notice of the appointment through its registered representative in St. Vincent, Stanley John, but has chosen not to challenge the appointment in a St. Vincent court.

In early April 1983, Stanley John was served with legal process in St. Vincent which indicated that Feingold, as receiver for Belle Island, was seeking an injunction in the St. Vincent courts, which would prevent Belle Island and its officers from dealing in any way “with the assets of Belle Island Investment Limited wherever situated.” Although Mr. John was Belle Island’s registered representative in St. Vincent, he failed to notify it of the litigation. On April 12, 1983, upon the receiver’s undertaking to pay any damages which might result to Belle Island from issuance of the injunction, a St. Vincent court granted the receiver’s request for injunctive relief, which Belle Island has not challenged in any St. Vincent court.

On April 21, 1983, Belle Island filed suit in Dade County against Feingold and others seeking to quiet title to its Dade County realty and seeking damages for slander of title, abuse of process and malicious prosecution. On May 4, 1983, Feingold filed this petition for writ of quo warranto, which resulted in the final judgment that is the subject of this appeal.

The first issue we address is whether a privately appointed foreign receiver has standing to sue in Florida courts. The modern rule in Florida appears to be that foreign receivers, as a matter of comity, are extended the privilege of suing in Florida courts, unless such a suit is adverse to the interests of local creditors or contrary to the policy of the state. Richardson v. South Florida Mortgage Co., 102 Fla. 313, 136 So. 393, 396 (1931). No Florida case has addressed the question of whether a privately appointed foreign receiver comes within that rule. Apparently, the only case to address the issue is Clarkson Co. v. Rockwell International Corp., 441 F.Supp. 792, 796 (N.D.Cal.1977), where it was held that a private receiver is covered by the rule. The reasoning of that case was that while the receiver is privately appointed, he asserts a status created by the laws of another jurisdiction and, therefore, his recognition is a matter of comity. We agree with that decision and see no reason why the rule should not apply so long as the creditors and policies of the forum state are protected. Since there is no evidence of any local creditors and since the receiver’s suit does not contravene any public policy, allowing him standing to sue was proper.

Belle Island next contends that the lower court erred, as a matter of comity, in recognizing both Feingold’s appointment as receiver and the St. Vincent injunction. In Florida, the rules of comity may not be departed from except to protect the citizens of our state or some paramount public policy. Beverly Beach Properties v. Nelson, 68 So.2d 604, 609 (Fla.1953), cert. denied, 348 U.S. 816, 75 S.Ct. 27, 99 L.Ed. 643 (1954). We disagree with Belle Island’s contention that the appointment of Feingold and the issuance of the St. Vincent injunction violated our concepts of due process.

First, while privately appointed receivers are unknown in American law, their appointment, pursuant to a contract freely negotiated by two corporate entities under the law of their jurisdiction, is not so shocking to our sensibilities as to violate due process. Simply because the law of St. Vincent is different from ours, and apparently more favorable to creditors, does not make it so pernicious as to defeat comity. Hunt v. BP Exploration Co. (Libya), 492 F.Supp. 885, 900 (N.D.Tex.1980); Toronto-Dominion Bank v. Hall, 367 F.Supp. 1009, 1016 (E.D.Ark.1973). Note, Foreign National Judgments: Recognition and Enforcement of Foreign Judgments in Florida and the Status of Florida Judgments Abroad, 31 U.Fla.L.Rev. 588, 618 (1979). Second, Belle Island has chosen not to challenge the appointment of the receiver in a St. Vincent court, which option it apparently has.

As to the injunction, we reject Belle Island’s contention that it did not receive notice. Stanley John, Belle Island’s registered representative in St. Vincent, was notified of the proceedings. Belle Island cannot be heard to complain that its own registered representative failed to inform it of the impending suit.

While it is true that Feingold was not required to post a bond in the St. Vincent court, as he would have been under Florida Rule of Civil Procedure 1.160, he did follow the customary British practice of giving his undertaking that he would pay Belle Island any damages which the St. Vincent court determined it suffered as a result of the injunction. Such an undertaking is apparently sufficient security for members of the British Commonwealth and we will respect that honorable tradition. Further, as with the receiver’s appointment, Belle Island has chosen not to enter the courts of St. Vincent to attempt to discharge the injunction, although the order allowed for such an action.

Belle Island also attacks the trial court’s use of a writ of quo warranto, asserting that its use is inappropriate against a private foreign corporation which has neither usurped any privileges or franchises granted by the State of Florida nor violated any Florida laws. We disagree.

Quo warranto is a remedial writ and its use may be extended to new situations on a proper showing. State ex rel. Pooser v. Wester, 126 Fla. 49, 170 So. 736 (1936). The writ has traditionally been used to test the right of persons to exercise some right or privilege which derives from the state. Ex parte Smith, 96 Fla. 512, 118 So. 306 (1928). While it is true that Belle Island exercises no franchise or privilege granted by the State of Florida, it exists only by a grant of authority from St. Vincent and the Grenadines. Therefore, once we determine that it is appropriate, as a matter of comity, to recognize the law and judicial acts of St. Vincent, it follows logically that quo warranto should lie to test Belle Island’s authority to act when the jurisdiction of incorporation has restricted that authority, as here.

Since we find that the trial court committed no error, we affirm.

      . Both the debenture as a secured obligation and the appointment of private receivers are aspects of British law unknown in this country. Griffiths v. Secretary of State for Social Service, [1973] 3 All E.R. 1184.

      . While it might be argued that Feingold could have prevented the quiet title suit by defending it with a motion to dismiss, see Fleeger v. Clarkson Co., 86 F.R.D. 388 (N.D.Tex.1980), such a procedural maneuver would not afford him the full remedy he obtained by the judgment of ouster which included a prohibition of acts inconsistent with the rights of the receiver.


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

text:
    Jim GALL, Appellant, v. Harvey D. ROGERS, Appellee.
    No. 83-2213.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Rehearing Denied Aug. 30, 1984.
    Thomas P. Murphy and Victor J. Dirse, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Sally R. Doerner, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Plaintiff appeals a summary final judgment entered in favor of the defendant in an action for slander. Our review of the record convinces us that there exist genuine issues of material fact so as to preclude a summary disposition. Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978); see Lundquist v. Alewine, 397 So.2d 1148 (Fla. 5th DCA 1981).

Accordingly, the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.

DANIEL S. PEARSON, Judge,

concurring.

The statement in question was not absolutely privileged, as it did not “[arise] immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.” Ange v. State, 98 Fla. 538, 541, 123 So. 916, 917 (1929). See Pledger v. Burnup & Sims, Inc., 432 So.2d 1323 (Fla. 4th DCA 1983), rev. denied, 446 So.2d 99 (Fla.1984); Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977). Although Rogers’s statement is arguably protected by a qualified privilege, Abram v. Odham, 89 So.2d 334 (Fla.1956) (gubernatorial candidate had qualified privilege to make statements in response to and in defense of statements made by the pollster about his candidacy), there are questions of fact as to whether the privilege existed in this particular instance and whether Rogers’s statement, even if not shown to have been made with malice, exceeded the scope of the privilege, see Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907); Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978). Of course, if the fact-finder determines there is no privilege, then other issues concerning the actionable nature of the statement will need to be resolved.


text:
    CAS-KAY ENTERPRISES, INC., Appellant, v. SNAPPER CREEK TRADING CENTER, INC., Appellee.
    No. 83-2666.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Rehearing Denied Aug. 22, 1984.
    Robert T. Mann, Gainesville, for appellant.

      Wallace, Engels, Pertnoy & Solowsky and Sidney M. Pertnoy, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the order dismissing the appellant’s action to rescind its purchase of real property from the appellee and the summary final judgment entered in favor of appellee in its action to foreclose the purchase money mortgage given by the appellant to secure the balance of the purchase price of such sale of real property upon a holding that (1) the “integration” clause of the contract for sale stating that “no prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this contract” does not make the contract incontestable where, as here, the appellant based its action to rescind and its affirmative defense to the foreclosure action on the grounds that the contract was procured by fraud, compare Oceanic Villas, Inc. v. Godson, 148 Fla. 454, 4 So.2d 689 (1941) (action to rescind based on fraud in procurement survives integration clause), with Cassara v. Bowman, 136 Fla. 302, 186 So. 514 (1939) (action to rescind not based on fraud in procurement does not survive integration clause); and (2) since it does not appear from the pleadings or otherwise that the appellant knew that the alleged misrepresentations were false, or that they were obviously false, the mere fact that their falsity could have been ascertained through investigation did not prevent the appellant from relying on such alleged misrepresentations, Besett v. Basnett, 389 So.2d 995 (Fla.1980); Gold v. Wolkowitz, 430 So.2d 556 (Fla. 3d DCA 1983); North Miami General Hospital v. Royal Palm Beach Colony, Inc., 397 So.2d 1033 (Fla. 3d DCA 1981).

Reversed and remanded for further proceedings.


text:
    Richard H. PARNES and Sandra S. Parnes, Appellants, v. Jeffrey WILLNER, Sherill Willner, the Keyes Company and the Klock Company, Appellees.
    No. 84-338.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Rehearing Denied Aug. 30, 1984.
    Albert J. Zemlock, Miami, for appellants.
    Daniel Mones and Frank M. Marks, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The appellants have conceded that there is no record of their having challenged below the authority of their attorney to enter into the settlement agreement, and this challenge, having been made for the first time in their reply brief, is not preserved for review. The record does reflect that the only challenge made below to the agreement, and indeed the only challenge made in their initial brief, was that the written communication sent by appellants’ attorney did not constitute an offer of settlement which was capable of being accepted. The trial court correctly ruled that the latter challenge was without merit.

Affirmed.


author: SIMONS, STUART M., Associate Judge.

text:
    STEYR DAIMLER PUCH OF AMERICA, a corporation, Appellant, v. A & A BICYCLE MART, INC., a Florida corporation, Daniel R. Allegretti and Catherine Allegretti, Appellees.
    No. 82-2357.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 6, 1984.
    Lee B. Gartner of Sobo, Wellens & Baloc-co, Fort Lauderdale, for appellant.
    Don Lacy, and Earl Lee Butler of Butler & Pettit, P.A., Fort Lauderdale, for appel-lees A & A Bicycle Mart, Inc., and Daniel Allegretti.
   SIMONS, STUART M., Associate Judge.

Appellant (Puch) sold merchandise to ap-pellee (A & A), and thereafter sued for payment. A & A counterclaimed alleging violation of the Florida Unfair and Deceptive Trade Practices Act. After granting summary judgment against A & A for the unpaid balance (subject to whatever result appertained on the counterclaim) and entering default against a guarantor on the account, the case proceeded to trial on the counterclaim. After A & A rested its counterclaim, the Court granted a verdict against it, but subsequently allowed the counterclaimant to amend to raise a count in common law fraud. The jury returned a verdict for the counterclaimant for compensatory and punitive damages. The guarantor then moved to set aside the default judgment that had previously entered against her on the original amount for the merchandise.

Although it is clear that the Court had discretion in granting amendments to the pleadings, even during trial, this liberality diminishes as the case progressed to trial. Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977). In examining the record of this case, the counterclaimant’s evidence as adduced at trial did not support its claim under the Florida Unfair and Deceptive Trade Practices Act and, moreover, would not support a count in common law fraud. If the matter had proceeded in normal course and the count in common law fraud had been originally pled, the plaintiff would have been forced to allege with particularity under Florida Rules of Civil Procedure 1.120(b) the particular acts of fraud upon which it relied. In this case we have merely the statement of counsel at the conclusion of the counterclaimant’s case that “we have a common law fraud. We have pled and proven every count of common law fraud.”

In searching the record for the essential elements of common law fraud, we find them to be lacking. There is insufficient evidence of either a knowing misrepresentation of specific material facts or justifiable reliance sufficient for this type of case. Nantell v. Lim-Wick Construction Company, 228 So.2d 634 (Fla. 4th DCA 1969). As a general rule fraud cannot be predicated upon a mere promise not performed. 14 Fla.Jur. Section 15. Alexander/Davis Properties v. Graham, 397 So.2d 699 (Fla. 4th DCA 1981).

The Judgment under review is reversed with instructions to re-enter a judgment for Puch against A & A and against the guarantor.

HURLEY and DELL, JJ., concur.


author:
PER CURIAM.
     GLICKSTEIN, J.,

text:
    Larry C. FRISARD, Appellant, v. Nancy Alexander FRISARD, Appellee.
    No. 83-933.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Sept. 7, 1984.

      William S. Cassel of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellant.
    Benjie S. Sperling, Miami, for appellee.
   PER CURIAM.

This is an appeal by a former husband, from a final judgment entered by a Florida court in an action solely concerned with the custody of the parties’ seven year old daughter, a Louisiana court having previously dissolved the marriage. We affirm.

Appellant contends that the trial court abused its discretion by (1) not accepting the opinion of a psychologist retained by appellant to the effect that the parties’ child should remain with appellant; (2) transferring primary residential care of the child from the father to the mother; and (3) refusing to order a psychiatric examination of the mother. We conclude that the trial judge did not abuse his discretion in any respect.

Competent evidence in the record establishes that in 1979, when the parties’ daughter was three years of age and the parties were residing in Louisiana as man and wife, appellant met another woman, who lived in Florida, commenced an affair with her and devised a scheme whereby he would remove the parties’ child from Louisiana and take up residence in Florida with the other woman while concealing the child’s whereabouts from the mother, who was abandoned without her child, funds, employment, to say nothing of transportation. Fortunately, appellee’s parents were alive, well and residing in Louisiana. The other woman became guilt-ridden and informed appellee of her child’s whereabouts. For the next two years, appellee was able to see her daughter in a car for a few minutes here in the spring of 1980, and for two days in early 1982.

Most important, there was ample evidence to substantiate placing the child in the primary residential care of appellee, who had proven herself to be strong by handling this traumatic rejection, abandonment, deceit and concealment without crumbling and without weakening of her resolve to be reunited with her child. Instead of retreating to a psychiatrist’s couch from and after this episode, notwithstanding her having been hospitalized in 1968 and 1969 for a serious psychiatric reason, she resided in her parent’s home, ultimately obtained a civil service position, took college level courses, attended church and maintained a very low social profile while engaged in two legal battles with appellant in the two states. The evidence further revealed that the child would attend school close to her new residence in Louisiana, would return home where her maternal grandmother would be present, thus eliminating the probability of any “latchkey” problem. The trial court apparently found no reason to believe the mother, who had been a caring, responsible mother who maintained the marital home during the child’s first three years, would depart from that caring and responsibility. Accordingly, there was sufficient record support for the trial court’s following recitation in the final judgment:

The court has concluded that the greater weight of the evidence does not support the Petitioner’s affirmative assertion, that the Respondent-Mother is presently not psychologically, socially or physically capable of rendering the necessary and best care to the said minor child.
Based upon the greater weight of the evidence and considering the best interests of the minor female child, LORI, now age six years, the court finds that her parents should have shared parental custodial responsibility and that NANCY ALEXANDER FRISARD should have the primary residential care of the minor, LORI CHARLENE FRISARD, at the end of the present 1983 school term.

Similarly, the record supported the following findings and conclusions of the trial court as to the psychologist retained by the husband:

The court has observed the parties and notes that their testimony portrays their sincere desire to each have custody and the primary residential care of their minor, LORI. DR. GREENBAUM, a psychologist, testified that he believed that LARRY C. FRISARD was the most supportive and thus the best parent to have custody of the minor. Upon questioning by the court, DR. GREENBAUM necessarily admitted that he had no opportunity to interview the mother, NANCY ALEXANDER FRISARD, and he acknowledge that the father, LARRY C. FRI-SARD, would register as the more supportive parent under the circumstances, which now indicated that the mother’s contact with the minor had been thwarted or denied by the father for the past three years in the six year life of the minor daughter.

The final issue raised by appellant is without merit for a number of reasons. First, his motion sought appointment of a psychiatrist to examine appellee based upon reference to her hospitalization and her refusal to disclose the details of same. Appellant’s appendix reflects her disclosure of the details, which were ancient history. There was not only no evidence of any psychiatric nor psychological problem or treatment therefor after 1969, but most important, as we recited earlier, the strength and ability to function on appel-lee’s part during the critical years of separation and uncertainty (1980-1983) was un-contradicted. Appellant’s motion was denied without prejudice; and his renewed motion during the trial, based on the earlier history, did not result in the trial court’s abuse of discretion by its refusal to have appellee examined. Mental or psychological examinations are not automatic, and should not be. First, these clearly are not always warranted, as in the case here; therefore, court appointment is unjustified. See Florida Rule of Civil Procedure 1.360(a) concerning the requirement of a “good cause” showing, and Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). Second, the cost may be an unnecessary burden on the parties.

The judgment on appeal is AFFIRMED.

HERSEY and WALDEN, JJ., concur.

GLICKSTEIN, J., specially concurs with opinion.

GLICKSTEIN, J.,

concurring specially:

The writer appends the following thoughts which are personal to him. First, this case has taken three years to litigate the custody of a little girl. Second, the subject of the entire litigation was never represented by a guardian ad litem. In French v. French, 452 So.2d 647 (Fla.4th DCA 1984), the writer expressed his views fully on the priority to be given cases involving children and the necessity for consideration of appointment of guardians ad litem to represent children where status, custody or visitation is being litigated. Third, the Florida Legislature has delineated the basic criteria upon which trial judges should be basing their decisions in child custody/shared responsibility cases. Section 61.13(3), Florida Statutes (1983), provides:

(3) For purposes of shared parental responsibility and primary physical residence, the best interests of the child shall be determined by the court’s consideration and evaluation of all factors affecting the best welfare and interests of the child, including, but not limited to:
(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.
(b) The love, affection, and other emotional ties existing between the parents and the child.
(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) Any other factor considered by the court to be relevant to a particular child custody dispute.

The foregoing criteria are not peculiar to Florida. As stated in a most informative article for all of the judiciary, Freed and Foster, Family Law in the Fifty States: An Overview, 17 Family Law Quarterly, 365, 415 (1984):

Specific standards for custody appear in a number of state statutes. The guidelines used are either taken from the Uniform Dissolution of Marriage Act verbatim or are revisions thereof.
Typical is Michigan’s statute:
Sec. 3. “Best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the ... parties involved and the child.
(b) the capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the ... parties involved.
(g) The mental and physical health of the ... parties involved.
(h) The home, school, and community record of the child.
(i) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k)Any other factor considered by the court to be relevant to a particular child custody dispute.

An overview worthy of careful perusal is found in Atkinson, Criteria for Deciding Child Custody in the Trial and Appellate Court, 18 Family Law Quarterly 1 (1984). Atkinson examines this topic in three principal divisions. First he discusses nineteen particular factors used by the trial courts as well as general standards applied in initial determination and modification of child custody. Next he addresses standards for joint custody and split custody. Third he summarizes standards for appellate review. Atkinson urges that many custody case problems could be overcome if trial judges making custody determinations would make findings of fact.

The trial judge’s findings should reflect conscious awareness of the criteria applied. Existence of such findings would greatly enhance review.

      . This opinion was prepared by Glickstein, J.

      . An equally thorough article is Jones, Judicial Questioning of Children in Custody and Visitation Proceedings, 18 Family Law Quarterly 43 (1984).


text:
    Jerome BRITT, Appellant, v. STATE of Florida, Appellee.
    No. AW-436.
    District Court of Appeal of Florida, First District.
    July 12, 1984.
    Rehearing Denied Sept. 4, 1984.
    Jerome Britt, pro se.
    Jim Smith, Atty. Gen., Henri C. Cawthon, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of an order denying his Fla.R.Crim.P. 3.850 motion for post-conviction relief. By his Rule 3.850 motion appellant sought to have vacated a sentence for the offense of attempted murder in the first degree, upon an assertion that the double jeopardy clause of the Fifth Amendment precludes such a sentence in conjunction with a cotemporaneous sentence for robbery. We find that appellant’s motion fails to allege a factual predicate upon which the requested relief could be granted, and we therefore affirm the order appealed.

The record indicates that “during the course of a robbery [appellant] shot a cab driver _” In his motion for post-conviction relief appellant describes his offenses only as robbery and attempted murder in the first degree. Murder in the first degree encompasses both felony-murder and premeditated murder, see § 782.-04(1)(a), Florida Statutes, and the factual assertions of the record below do not negate the conclusion tht this case was prosecuted on a premeditated theory. Although under Florida law a defendant may not be sentenced for both felony-murder and the predicate felony, see Hawkins v. State, 436 So.2d 44 (Fla.1983); State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the absence of a clear allegation that appellant’s plea and conviction were predicated on a felony-murder theory precludes the relief requested.

Even were this case clearly one involving sentences for robbery and attempted felony-murder predicated on such robbery, still the requested relief would be properly denied. Appellant’s motion in the trial court, his memorandum in support thereof, and his appeal to this court challenge only the sentence imposed for the attempted first degree murder. While the legislature has not authorized multiple sentences for a defendant convicted of both a predicate felony and felony-murder, such a defendant may be sentenced for the greater offense of felony-murder. See Hawkins v. State, supra; State v. Hegstrom, supra. Appellant’s motion for relief is addressed only to the propriety of his attempted murder sentence, and does not include a challenge to his robbery sentence. Appellant has thus presented only a limited challenge to a permissible sentence, and is therefore not entitled to the relief requested.

The order appealed is affirmed.

MILLS, WENTWORTH and BAR-FIELD, JJ., concur.

      . In a memorandum filed in support of his motion Britt refers to "the underlying felony robbery"; however, he continues to describe the greater offense as attempted murder in the first degree, and does not otherwise assert that his plea and conviction were predicated on a felony-murder theory.


author: HURLEY, Judge. BERANEK, Judge,

text:
    In re ESTATE Of Mark Daniel ZIMBRICK, Deceased. Susan E. ZIMBRICK, Appellant, v. Kevin Williard ZIMBRICK, as Personal Representative of the Estate of Mark Daniel Zimbrick, Deceased, Appellee.
    No. 83-2458.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.

      Christopher J. Ema of MacLean, Amato, Arlen & Anderson, Pompano Beach, for appellant.
    Stuart R. Michelson of Michelson, Young & Maurodis, P.A., Deerfield Beach, for ap-pellee.
   ON MOTION TO DISMISS

HURLEY, Judge.

In order to rule upon appellee’s motion to dismiss the appeal, we must determine the legal effect of a “premature” motion for rehearing — that is, a motion for rehearing filed before the trial court reduced its oral pronouncement to writing. Two cases, Karl A. Kandell Associates, Inc. v. Urbanek, 391 So.2d 782 (Fla. 4th DCA 1980) and Tri-State Systems, Inc. v. Seminole County, 302 So.2d 168 (Fla. 4th DCA 1974), suggest that a premature motion is a nullity which does not suspend rendition of a final order. Today we revisit and recede from these cases.

The present appeal arises from a probate proceeding in which the divorced parents of a deceased son disagree as to which parent should serve as the personal representative of their son’s estate. Each parent filed a petition for administration and an objection to the other being named personal representative. The following dates and events comprise the background for the instant motion to dismiss.

Sept. 22, 1983 — Hearing at which the trial court announced its decision to appoint the father personal representative.
Oct. 3, 1983 — Mother filed motion for rehearing pursuant to Rule 1.530, Fla. R.Civ.P.
Oct. 4, 1983 — Trial court signed and filed written order appointing father to serve as personal representative.
Oct. 14, 1983 — Trial court denied mother’s motion for rehearing.
Nov. 14, 1983 — Mother filed notice of appeal.

Relying on Urbanek and Tri-State, the father has moved to dismiss the mother’s appeal. He contends that because her motion for rehearing was premature, i.e., filed before the trial court filed its written order, it is a nullity and, therefore, did not suspend rendition of the court’s October 4th order. Consequently, he argues that the appeal must be dismissed because the 30-day appeal period expired before the mother filed her notice of appeal.

Our analysis begins with the basic rule that an authorized and timely motion for rehearing suspends rendition of an order until the court has disposed of the motion for rehearing. See Rule 9.020(g), Fla.R.App.P. The issue is whether a “premature” motion for rehearing is “timely.” The starting point is Rule 1.530(b), Fla.R.Civ.P., which provides in pertinent part:

A motion for a new trial or for rehearing shall be served not later than 10 days after rendition of verdict in a jury action or the entry of judgment in a nonjury action.

Tri-State Systems, Inc. v. Seminole County, supra, examined the above rule and concluded that it did not contemplate a motion for rehearing absent a written judgment. Therefore, the court held that a premature motion for rehearing was a nullity which did not suspend rendition of a final order. A closer reading of the rule, however, reveals that it is silent on the efficacy of a premature motion for rehearing. In fact, the rule seems to focus its attention in the opposite direction. Rather than prohibit early filing, the rule specifies an appropriate cutoff date for service — the “motion ... shall be served not later than

Since the language of the rule is not definitive, we turn to the interpretation given the analogous federal rule. Rule 59(b), Fed.R.Civ.P., states:

A motion for a new trial shall be served not later than 10 days after the entry of the judgment.

It has been suggested that the similarity between Rule 1.530(b), Fla.R.Civ.P., and Rule 59(b), Fed.R.Civ.P., permits invocation of the following maxim:

Generally, it must be assumed that in adopting a rule identical to a Federal rule that our Supreme Court intended to achieve the same results that would inure under the Federal rule. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla. 1st DCA 1962). Recently this court, speaking through Judge McNulty, said:
... it’s well known that our Rules of Civil Procedure are patterned very closely after the Federal rules, and it has been the practice of the Florida courts closely to examine and analyze the Federal decisions and commentaries under the Federal rules in interpreting ours. [Citation omitted.]

Zuberbuhler v. Division of Administration, 344 So.2d 1304, 1306 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978).

A study of the cases construing Rule 59(b) discloses that federal courts have eschewed the limitations which we have placed on the state rule. For example, in Partridge v. Presley, 189 F.2d 645 (D.C.Cir.), cert. denied, 342 U.S. 850, 72 S.Ct. 79, 96 L.Ed. 642 (1951), the court held:

Appellee’s argument that the motion for a new trial was premature because it was filed before the actual entry of judgment must be rejected, since Rule 59(b) of the Federal Rules of Civil Procedure requires a motion for a new trial to be “served not later than 10 days after the entry of the judgment.” It is perhaps somewhat unusual practice to move for a new trial before the actual entry of a judgment, but to do so is not forbidden by Rule 59(b).

189 F.2d at 646.

The Tenth Circuit, citing the principle that “the rules must be liberally construed to effectuate the ends of justice and to promote the consideration of appeals on their merits,” reached the same conclusion in Director of Revenue v. United States, 392 F.2d 307 (10th Cir.1968). See also McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851 (S.D.Cal.1963); Annot., 45 A.L.R.Fed. 104 (1979); 6A J. Moore, Moore’s Federal Practice, ¶ 59.09[1] (2d ed. 1983).

On reflection, we have determined that the federal cases reflect the better view. Nothing in the language of Rule 1.530(b), Fla.R.Civ.P., requires that a motion for rehearing be invalidated simply because it bears an earlier time stamp than the final order to which it is directed. Therefore, we recede from our holdings in Urbanek and Tri-State, supra, and, in place thereof, adopt the rationale of the foregoing federal cases.

The decision of the Supreme Court in Williams v. State, 324 So.2d 74 (Fla.1975), provides further support for today’s holding. Williams dealt with the efficacy of a notice of appeal filed prior to the rendition of the judgment. There the court held:

[A] notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.

Id. at 79.

Williams recognized that it was a senseless waste of counsel’s time and client’s money to require dismissal of one appeal, only to permit the perfection of a new appeal, Sloman v. Florida Power & Light Co., 382 So.2d 834 (Fla. 4th DCA 1980). Put another way, Williams refused to place form over substance, W.B.D., Inc. v. Howard Johnson Co., 382 So.2d 1323 (Fla. 1st DCA), petition for review denied, 388 So.2d 1114 (Fla.1980), and thereby reinforced a litigant’s right of access to the courts. The same principle governs the case at bar.

Therefore, we hold that appellant’s motion for rehearing, filed prior to the rendition of the trial court’s order, was “timely” within the meaning of Rule 9.020(g), Fla.R.App.P. Thus, the motion for rehearing postponed rendition of the final order, from October 4, 1983, to October 14, 1983, the date on which the trial court denied the motion for rehearing. Since appellant’s notice of appeal was filed within thirty days of October 14, 1983, this court has jurisdiction to hear the appeal, see Rule 9.110(b), Fla.R.App.P. Accordingly, appellee’s motion to dismiss is denied.

ANSTEAD, C.J., and DOWNEY, LETTS, GLICKSTEIN, DELL and WALDEN, JJ., concur.

BERANEK, J., dissents as to opinion and concurs in result only with opinion, in which HERSEY, J., concurs.

BERANEK, Judge,

dissenting as to opinion; concurring in result only.

I dissent from the majority opinion but agree that the appeal is timely. The majority concludes that the final order being appealed was entered when it was filed. I disagree. “Entry” under Rule 1.530(b) in nonjury actions means recording, not filing. The Supreme Court specifically so held in Casto v. Casto, 404 So.2d 1046 (Fla.1981). The final order here was recorded on November 30, 1983. Thus, the notice of appeal filed November 14, 1983, was premature but such a notice was specifically held to be timely under the “limbo” theory in Williams v. State, 324 So.2d 74 (Fla.1975). Since we can salvage this appeal under previously established law, I see no reason to create another new form of authorized “premature motion” and thereby encourage this kind of inappropriate practice. I would simply deny the motion to dismiss in an order citing Southern Atlantic Construction Corp. v. First Corporation of DeSoto County, 419 So.2d 729 (Fla. 4th DCA 1982).

I also believe the majority sets a dangerous course for lawyers by shortening the time in which rehearing may be sought. For unexplained reasons, the majority draws a distinction between final orders and judgments as to when they are entered. Under Casto a final judgment is entered when recorded. Under the majority view, a final order is entered when filed. Filing occurs earlier than recording and Section 28.223, Florida Statutes (1983), requires that all final orders in probate be recorded. A lawyer who follows Casto may not perceive the difference between a final order and a final judgment and will serve his (untimely) motion for rehearing based on the recording date rather than the earlier filing date. I am at a loss to understand why the majority labors so to reach this unfortunate result when the motion for rehearing was clearly timely under Casto v. Casto, supra.

      . We considered receding from Urbanek and Tri-State in Florida Coast Bank of Pompano Beach v. Kimmett, 446 So.2d 134 (Fla. 4th DCA 1983), but decided to await a case which framed the issue more clearly.

        . The order on appeal was entered in an adversary probate proceeding, see Rule 5.025(a)(2), Fla.R.P. & G.P., and, thus, the Rules of Civil Procedure govern. See Rule 5.025(b)(2), Fla. R.P. & G.P.

      . Rule 5.100, Fla.R.P. & G.P., provides in pertinent part:
      All orders and judgments of the court determining rights of any party in any particular proceeding in the administration of the estate of a decedent or ward shall be deemed final and may, as a matter of right, be appealed to the appropriate district court of appeal ....
      The court's October 4th order effectively determined the mother’s rights with respect to the administration of her son’s estate. Thus, it is a "final” order subject to plenary appeal. Accord In re Estate of Baker, 327 So.2d 205 (Fla.1976). Rule 5.100, Fla.R.P. & G.P., is an example of the collateral order exception doctrine. This well-established rule permits plenary review of a narrow class of orders entered prior to final judgment. To come within the narrow exception of the collateral order doctrine, "a trial court order must, at a minimum, meet three conditions. First, it 'must conclusively determine the disputed question’; second, it must ‘resolve an important issue completely separate from the merits of the action'; third, it must ‘be effectively unreviewable on appeal from a final judgment.”’ Flanagan v. United States, — U.S. -, 104 S.Ct. 1051, 1055; 79 L.Ed.2d 288 (1984) (quoting from Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)); see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
      The order on appeal, then, is "final,” but it is not a "final judgment.” This distinction is significant because Rule 1.530(b), Fla.R.Civ.P., — the rule which set the time for filing a motion for rehearing — speaks in terms of "entry of judgment in a non-jury action.” The Supreme Court, in Casto v. Casto, 404 So.2d 1046 (Fla.1981), interpreted this phrase to mean the date of recording as opposed to the date of filing. Casto, however, dealt with a final judgment of dissolution and we believe its holding should not be expanded to encompass orders. On this point we part company with the dissent which equates orders with final judgments in non-jury actions. Thus, we hold that the time for appealing the order in question began to run from the date of rendition, i.e., the date on which it was filed with the clerk. See Rule 9.020(g), Fla.R.App.P.

      . Moore's Federal Practice provides this historical commentary:
      Under the early English common law "the motion for a new trial preceded the entry of judgment, which was not entered upon the verdict as a matter of course, nor at all until after the first four days of the next term after trial." Rule 59(b) requires that a motion for new trial be served "not later than 10 days after the entry of the judgment.” This wording was designed to be broad enough to permit the motion to be made both before and after the entry of the judgment.
      6A J. Moore, Moore’s Federal Practice ¶ 59.09[1] (2d ed. 1983) (footnotes omitted).

      . As indicated, Rule 1.530, Fla.R.Civ.P., and its federal counterpart, Rule 59(b), Fed.R.Civ.P., specify when a motion for new trial must be served. Sadowski v. Bombardier, Ltd., 527 F.2d 1132 (7th Cir.1975), underscored the distinction between service and filing when it said:
      To attribute to Rule 59 a time requirement for filing is to disregard the plain and unambiguous language expressed in the rule and to imply careless draftsmanship of the Federal Rules of Civil Procedure.

        Id. at 1134.

      . Casto v. Casto, 404 So.2d 1046 (Fla.1981), has been the subject of criticism and controversy. See Pruitt v. Brock, 437 So.2d 768, 771 n. 2 (Fla. 1st DCA 1983). It does, however, remain the controlling precedent in this state.


text:
    Lilianan GUELMAN and Lidia Guelman, Appellants, v. Elba Formente DE GUELMAN, and Steven Brotman, as Personal Representative of the Estate of Mario Guelman, Deceased, Appellees.
    No. 83-1141.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Aug. 17, 1984.

      Fink & Golden and Richard Fink; Miami, for appellants.
    Englander & Burnett and Malvin Eng-lander, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

A trial court will be sustained in its interpretation of the law of a foreign country if its interpretation is consistent with that given by an expert on the law of such foreign jurisdiction, even though such expert opinion may be in dispute. In Re: Evers’ Estate, 160 Fla. 225, 34 So.2d 561 (1948); Mori v. Matsushita Electric Corporation of America, 380 So.2d 461 (Fla. 3d DCA 1980); Clausi v. Casner Motors, Inc., 112 So.2d 587 (Fla. 3d DCA 1959).

A marriage is presumed valid. Teel v. Nolen Brown Motors, Inc., 93 So.2d 874 (Fla.1957); In Re Estate of Lee, 360 So.2d 1111 (Fla. 3d DCA 1978); Grace v. Grace, 162 So.2d 314 (Fla. 1st DCA 1964); Accord: In Re Estate of Marden, 355 So.2d 121 (Fla. 3d DCA 1978). It is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage. See and Compare: State v. Lawrence, 120 Fla. 836, 163 So. 231 (1935); Hillsborough County Aviation Authority v. Taller & Cooper, Inc., 245 So.2d 100 (Fla. 2d DCA 1971); Hunter v. Carmichael, 133 So.2d 584 (Fla. 2d DCA 1961). In light of the above, we find no error in the trial court (probate division) finding that the marriage was validly entered into in Bolivia in 1971 and that the decedent and his wife were domiciled in Florida at the time of the death of the decedent in 1976. Ogden v. Ogden, 159 Fla. 604, 33 So.2d 870 (1947); Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); Walker v. Harris, 398 So.2d 955 (Fla. 4th DCA 1981); In Re Estate of Lee, supra; Grace v. Grace, supra.

Therefore the final order under review is hereby affirmed.

Affirmed.


author: DOWNEY, Judge.

text:
    David A. GIBSON and State Farm Mutual Automobile Insurance Company, Appellants, v. Nancy B. TROXEL, et al., Appellees.
    Nos. 83-115, 83-594.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1984.
    Rehearing Denied Sept. 7, 1984.

      Charles B. Green, Jr., of Dickman & Green, and Nancy Little Hoffman, P.A., Fort Lauderdale, for appellants.
    Montgomery, Lytal, Reiter, Denney & Searcy, P.A., and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellees.
   DOWNEY, Judge.

David Gibson and State Farm Insurance Company, defendants in a personal injury action arising out of a motor vehicle accident, seek review of (1) an order taxing costs and awarding an attorney’s fee to the plaintiffs’ lawyers and (2) an order denying their motion to enter judgment on a jury verdict in their favor.

Nancy Troxel and her husband sued Gibson and State Farm for damages arising out of an accident that occurred on March 7, 1978. They also sought damages in the same complaint against William Butcher and Allstate Insurance Company for injuries sustained in a second accident occurring July 3, 1980. At the commencement of the trial the jury was advised that plaintiffs had voluntarily dismissed Butcher and Allstate from the case. Gibson and State Farm admitted responsibility for the accident and a verdict was directed for plaintiffs on liability. The case went to the jury on the question of damages including whether Nancy Troxel had sustained a permanent injury that would meet the no fault threshold.

During closing argument, defendants’ counsel suggested to the jury that the plaintiffs had been adequately compensated for their damages by Butcher and Allstate. He also stated that plaintiffs made no claim- for medical bills because they were paid by their own carrier. Plaintiffs’ counsel objected to each of those comments, requested a curative instruction, which was given, and expressly stated on each occasion that he did not want a mistrial. After the jury had retired, it sent to the court a question that had to do with plaintiffs’ evidence concerning permanent injury. The jury retired again and shortly made it known they had reached a verdict. However, before the verdict was announced plaintiffs moved for a mistrial because of the earlier comments of defense counsel, and the court granted the motion. After the court granted the motion for mistrial, the jury was brought back to the courtroom, and a verdict was handed to the court. Thereupon, defense counsel asked the court to proffer the verdict. Plaintiffs’ counsel objected to such a proffer on the ground that the declaration of mistrial made any verdict moot. The circuit court responded that, if this court reversed the decision to declare a mistrial on the grounds that it was error to grant a mistrial, then the publishing of the verdict would avert a retrial. The court then read the verdict and announced it; it was favorable to the defendants.

Thereafter, the defendants moved for entry of judgment on the verdict, and the plaintiffs moved to tax costs and impose sanctions against the defendants. The circuit court entered an order that (a) taxed $1350 in costs against defendants payable to the Court Administrator to cover the time of the clerk, judge, and jury wasted by causing a mistrial, (b) taxed $344 in court costs payable to the plaintiffs, and (c) imposed sanctions against the defendants “for attorneys’ fees as a result of the misconduct involving defense counsel’s closing argument, in the amount of $5,000.00 payable to [plaintiffs’ counsel].” That order is the subject of Case No. 83-115. At a subsequent hearing the court denied the motion for judgment upon the verdict, which order the defendants seek to have reviewed in Case No. 83-594.

After oral argument this court requested counsel to file supplemental briefs on the question of our jurisdiction to review the order denying the motion for judgment on the verdict. Having given full consideration to that question, we hold the order is not subject to appeal because it requires a determination of the validity of the order granting a mistrial, an order that is not subject to appellate review. Gore v. Hansen, 59 So.2d 538, 40 A.L.R.2d 1281 (Fla.1952). Esneault v. Waterman Steamship Corporation, 449 F.2d 1296 (5th Cir.1971); Martinez v. Winner, 548 F.Supp. 278, 309 (D.Colo.1982).

The defendants contend that A & P Bakery Supply & Equip. Co. v. H. Hexter & Son, Inc., 149 So.2d 883 (Fla. 3d DCA 1963), is authority for reviewing an order of mistrial. However, that reliance is misplaced because in A & P the jury returned a verdict which the court refused to accept. The court thereafter ordered a mistrial. On appeal the district court held the order reviewable because though labeled an order granting a mistrial, it was, in fact, an order granting a new trial. The latter is presently reviewable pursuant to Florida Appellate Rule 9.110(a)(3) while the former is not reviewable. Another case defendants rely upon to demonstrate jurisdiction is State ex rel. Sebers v. McNulty, 326 So.2d 17 (Fla.1975). There, a motion for mistrial was made during the trial, but the judge reserved ruling. After the trial was over the court held argument on the reserved motion and granted a new trial. The Supreme Court held that when made (during trial) the motion was properly labeled a motion for mistrial. However, at the time the court ruled (post trial) it was properly a motion for new trial. Thus, it is apparent that, where a court grants a mistrial and orders a new trial prior to rendition of a verdict, the order is not reviewable; whereas, when the order is rendered after verdict, it is the equivalent of an order granting a new trial which is reviewable pursuant to Rule 9.110(a)(3). We hold that when the court granted plaintiffs’ motion for a mistrial the trial was concluded and the jury verdict received after that order was a nullity. Thus, there was nothing upon which to enter judgment.

Turning now to the order assessing costs, we hold there was no basis upon which to assess any costs at this particular stage of the proceedings, nor is there any basis for assessing attorney’s fees. This order was apparently entered as a sanction against Gibson and State Farm because the court felt their counsel was responsible for causing the mistrial after the court had expended several days of time and efforts of the court system. Accordingly, the court assessed $1350 for the expenses of the system,, i.e., the time of the clerk, judge, and jury. The other $344 was for ordinary assessable court costs payable to the plaintiffs. The assessment of an attorney’s fee for plaintiffs’ attorney was also part of the sanction. Court costs are assessable only as provided by statute and then only at the termination of the case. Sears Roebuck & Co. v. Richardson, 343 So.2d 678 (Fla. 1st DCA 1977). There is no authority to assess costs to reimburse the system. State v. JLP, 435 So.2d 392 (Fla. 5th DCA 1983). Similarly, attorney’s fees may be awarded only when provided for by agreement, by statute, or for creating a fund, unless they are accorded as a fine or sanction for indirect contempt, Miller v. Colonial Baking Co. of Alabama, 402 So.2d 1365 (Fla. 1st DCA 1981). No such finding is made here.

In view of the foregoing, the order dated December 16, 1982, assessing costs is reversed. The appeal from the order dated February 24, 1983, is dismissed.

LETTS and HERSEY, JJ., concur.


author: BARFIELD, Judge.

text:
    C & H CONSTRUCTION and Aetna Insurance Company, Employer/Carrier/Appellants, v. Michael LEYMAN, Employee/Claimant/Appellee.
    No. AT-383.
    District Court of Appeal of Florida, First District.
    July 19, 1984.
    Rehearing Denied Sept. 6, 1984.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker, St. Peters-burg, for employer/carrier/appellants.
    Thomas Cassidy of Smith, Cassidy, Platt & Harris, Lakeland, for employee/claimant/appellee.
   BARFIELD, Judge.

In this workers’ compensation case the court is again faced with a challenge to the award of rehabilitation benefits by the deputy commissioner on the grounds that the claimant did not first apply to the Division of Workers’ Compensation for evaluation before embarking on a rehabilitation program. The legal predicate for the appeal is that two cases from this court, Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982) and Paradise Fruit Company v. Floyd, 425 So.2d 9 (Fla. 1st DCA 1982) conflict with Walker v. New Fern Restorium, 409 So.2d 1201 (Fla. 1st DCA 1982) and Hurricane Fence Industries v. Bozman, 413 So.2d 822 (Fla. 1st DCA 1982).

Neither in Bailey nor in Paradise Fruit Company is there any factual basis recited which would aid the appellant or this court in evaluating the statutory reference concerning application to the Division for evaluation. The overlapping of panel members concurring in all four cited cases would suggest that the factual background in each case led to the correct result.

The decisions in Walker and Hurricane Fence Industries follow full discussions of the factual backgrounds for the rulings. What is abundantly clear from those cases is that application to the Division for evaluation is not a jurisdictional prerequisite to recovery of rehabilitation benefits. Such procedure is established by statute to provide a resolution for dispute when rehabilitation services are not voluntarily offered by the employer or accepted by the employee. The provisions of Section 440.49, Florida Statutes (1981) are not indispensable, but are certainly the preferred procedure as they lend order and direction to a timely resolution of the issue of rehabilitation services and should normally be followed. Walker involved a situation where there was substantial but inexact compliance with the procedure with no prejudice to the employer shown because of the deviations from the procedure. Hurricane Fence Industries involved a situation like the one at issue here where the claimant’s desire for rehabilitation was made known to the carrier and the employer but they did nothing to provide the services, instruct the claimant on how to seek that help or invoke the procedure themselves until after the claimant had followed another path to obtain the needed services. The claimant is not precluded from obtaining services independent of the employer and the Division, but when he does so he obtains those services at the risk he will not persuade the deputy commissioner that those particular services were necessary.

In this case the employer knew of the desire and need for rehabilitation services for six months before the hearing and did nothing until the eleventh hour. Just before the hearing date the employer made an appointment for the claimant to go to the Division for evaluation on a date to follow the hearing. We find it appropriate to reiterate what this court said in Hurricane Fence Industries,

Although we can appreciate the chafing effect this decision might have upon the employer, and others similarly situated, we hasten to point out that the failure of the employer or the carrier, or both, to become sufficiently informed so as to properly understand the self-executing nature of the worker’s compensation law, and the increased responsibilities imposed upon them by the recent legislation, cannot be raised in defense of an otherwise meritorious claim. The facts of this case all too obviously reveal the lack of communication by the carrier with the employer, and a lack of concern by the employer until such time as the prospect of economic detriment presented itself. Then it was “too little-too late.” The rehabilitation features of the workers’ compensation law now in effect call for “prompt” rehabilitation services. A “do nothing” approach on the part of the employer and carrier is no longer a viable alternative.

413 So.2d at 827 (footnote omitted).

AFFIRMED.

BOOTH and WENTWORTH, JJ., concur.


author: WIGGINTON, Judge.

text:
    CITY OF MIAMI, Appellant, v. Kenneth WILSON, Appellee.
    No. AV-264.
    District Court of Appeal of Florida, First District.
    July 19, 1984.
    Rehearing Denied Aug. 27, 1984.
    Jose Garcia-Pedrosa, City Atty., and Gisela Cardonne, Asst. City Atty., Miami, for appellant.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & De Castro, P.A., Miami, for appel-lee
   WIGGINTON, Judge.

Appellant City of Miami, a self-insured employer, appeals the deputy commissioner’s order finding appellee’s mononucleosis compensable and directing appellant to pay appellee approximately three weeks of temporary total disability benefits and appel-lee’s medical bills. We reverse.

Appellee, a thirty-eight year old firefighter-paramedic, allegedly contracted mononucleosis when, while attempting to provide emergency treatment to a self-avowed drug user, an intravenous needle that had been inserted into the arm of the rescuee, Mr. James, became dislodged and punctured appellee’s hand. The evidence also shows that the rescuee spat into the face of appellee. Due to the puncture wound, ap-pellee was treated at the emergency room of a hospital with shots to protect against hepatitis. Several weeks later, appellee was diagnosed as having mononucleosis, as a result of which he missed approximately three weeks of work.

At deposition, a hypothetical question framing the composite factual situation of this case was posed to Dr. Henriquez, the treating physician, who responded: “My opinion is that it is very possible that Mr. Wilson got mononucleosis from that source [James].” Upon closer inquiry, he amended his word “possible” to “probable.” He further stated that for James to have transmitted mononucleosis to appellee, James obviously would have had to have been a carrier of the disease. Relying on the testimony of Dr. Henriquez, the deputy commissioner found that appellee’s mononucleosis was compensable and awarded benefits accordingly.

We agree with appellant that the deputy commissioner erred in his ruling due to the fact that appellee failed to adequately show a causal connection between an industrial injury and his contraction of mononucleosis. Although appellee produced proof of a work related injury, the puncture wound, he presented absolutely no evidence to show that James either had mononucleosis or was a carrier thereof. Thus, there is no proof that appellee’s contact with James through the puncture wound or saliva was the transmitting link that resulted in appel-lee’s contraction of the disease.

This Court’s recent opinion in Department of Corrections, Avon Park Correctional Institute and Division of Risk Management v. Lussier, 451 So.2d 968 (Fla. 1st DCA 1984) resolved a similar issue involving proof of causal relationship with the disease hepatitis, holding that the doctor’s opinions and conclusions were not competent and sufficient as they were based on a fact not in evidence, i.e., that the alleged transmitter had carried the particular strain of hepatitis contracted by the claimant. Under the circumstances of the instant case, as in Lussier and the cases cited therein, we find no competent substantial evidence to support a finding of causal relationship between appellee’s injury and his contraction of mononucleosis. Accordingly, we hold that the deputy commissioner’s conclusion was error and the award of compensation benefits must be reversed. See Hillsborough County School Board v. Bigos, 396 So.2d 848 (Fla. 1st DCA 1981) and Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561 (Fla.1960).

REVERSED.

MILLS and SHIVERS, JJ., concur.


author: WENTWORTH, Judge.

text:
    Elijah BIVENS, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AW-251.
    District Court of Appeal of Florida, First District.
    July 19, 1984.
    Rehearing Denied Sept. 6, 1984.
    Elijah Bivens, pro se.
    Doris E. Jenkins, General Counsel, Tallahassee, Fla. Parole and Probation Commission, for appellee.
   WENTWORTH, Judge.

This appeal from the denial of a petition for writ of mandamus was initially dismissed as untimely. The stamped date on the notice of appeal was not clearly legible but appeared to indicate a filing date of December 12, 1983. By motion for rehearing appellant correctly asserts that the notice of appeal was filed on December 1, 1983, and was therefore timely. The appeal is accordingly reinstated.

On the merits, we affirm because the record contains evidence that appellant had previously been convicted of four or more felony convictions, at least two of which resulted in incarceration. He was therefore properly classified as a recidivist offender for purposes of formulating his presumptive parole release date. Fla.Admin.Code Rule 23-21.07(1).

Affirmed.

ERVIN, C.J., and BOOTH, J., concur.