author: DANAHY, Judge.

text:
    James L. RODEN, Property Appraiser of Polk County, and Hobson Strain, Tax Collector of Polk County, Appellants, v. GAC LIQUIDATING TRUST, Theodore Bollt, Richard H. Millen, and S.Z. Bennett, as Trustees, Appellees.
    No. 83-2505.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1985.
    Rehearing Denied Feb. 4, 1985.

      Michael D. Martin and Stephen M. Martin, Martin & Martin, Lakeland, for appellants.
    Jack P. Brandon, Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Winter Haven, for appellees.
   DANAHY, Judge.

The property appraiser and the tax collector of Polk County appeal a final judgment setting aside the property appraiser’s 1982 assessed valuation of the appellees’ land and directing the appraiser to reassess that land in accordance with the findings of fact and conclusions of law set forth in the judgment. We reverse.

Between 1965 and 1969, GAC Corporation acquired substantial land holdings which include the property that is the subject of this suit. That property is referred to as River Ranch Acres. GAC Corporation registered the land with the then-existing Florida Installment Land Sales Board in accordance with law applicable at that time. Orders of registration were granted and GAC Corporation proceeded to market the land in one-and-one-quarter acre lots.

On October 1, 1980, GAC Corporation was reorganized under the bankruptcy laws and GAC Liquidating Trust (the Trust) was created. The Trust and its trustees were the plaintiffs in this case and are the appellees on this appeal.

In accordance with the bankruptcy reorganization, GAC Corporation transferred to the Trust all title to the remaining unsold parcels in River Ranch Acres. The purpose of the Trust was to liquidate these assets for the benefit of the creditors of GAC Corporation. The Trust presently owns 10,140 acres at River Ranch consisting of 8,112 one-and-one-quarter acre lots which are scattered and noncontiguous, giving a checkerboard appearance to the Trust property. The lots are unsold and unplatted. There are no utilities, dedicated roadways or other improvements serving the lots. Recorded right-of-way easements allow access to the lots, but these easements are unimproved. The parties concede that a purchaser of a parcel at River Ranch Acres would have to take a surveyor with him to find his parcel.

Appellant Roden, the property appraiser of Polk County, assessed the Trust property for the tax year 1982 at $800 per acre, the same assessment placed on the property for each of the prior eight years. The Trust brought suit challenging the validity of that assessment and the matter was heard nonjury. The Trust’s appraiser, Mr. Morse, reported comparable sales data in River Ranch Acres showing a low price of $960 per acre for nonroad frontage and a high price of $2,600 for road frontage. Morse, however, disregarded comparable sales and valued the property at $164.16 per acre. He took the Polk County Wetlands Ordinance into consideration. This ordinance prohibits development of more than ten percent of wetlands area. He also considered a Polk County ordinance which prohibited the issuance of a building permit for a lot not on a public road. He said that these were his major considerations.

The property appraiser presented Edwin Coleman as his witness. Coleman is the supervisor of the Real Estate Department of the Polk County Property Appraiser’s Office. Coleman testified that there have been thousands of parcels sold at River Ranch Acres for prices ranging from $300 to $2,500 per acre. He said that recent sales to in-state owners show a price of around $960 per acre from which was deducted realtor’s fees and costs of sale, reducing the figure to $816 per acre. Coleman confirmed that the assessment value of $800 per acre was based on these sales, which he viewed as comparable.

Both Morse and Coleman agreed that the highest and best use of the property was recreational, including hunting, fishing and camping. It was for this reason, according to Coleman’s testimony, that he did not take into consideration the County building ordinance or the wetlands ordinance. In his opinion, those restrictions on building were irrelevant to property which could only be used for recreational purposes.

The trial judge concluded that the sales being utilized by the property appraiser as comparable sales were not in fact comparable because they represented prices paid by persons who thought they were acquiring the rights to hunt the entire River Ranch acreage, when in fact no one was in a position to grant such hunting rights. The trial judge noted that the trust could not represent to prospective purchasers that they were acquiring any rights to hunt other than on their own property. The trial judge faulted the property appraiser for basing his appraisal primarily on those comparable sales and also for not taking into consideration (1) that the orders of registration issued to GAC Corporation had not been transferred to the Trust; (2) that there was a restriction on the issuance of building permits under a Polk County ordinance; (3) that Polk County had a wetlands ordinance restricting development of wetlands areas; and (4) that the Declaration of Trust controlling the activities of the trustees in liquidating the Trust assets did not contemplate that the Trust would market the property to individual purchasers on a per lot basis. The trial judge acknowledged that this last limitation was produced by federal income tax laws, which would penalize the Trust if it engaged in the business of selling individual parcels. Thus, in the view of the trial judge, the Trust was limited to a sale in bulk.

Section 193.011, Florida Statutes (1983), lists the factors which a property appraiser is to take into consideration in arriving at just valuation for ad valorem tax purposes. The first of these is the present cash value of the property, which is the amount a willing purchaser would pay a willing seller, exclusive of reasonable fees and costs of purchase, in cash or the immediate equivalent thereof in a transaction at arm’s length. The other factors listed in the statute are the highest and best use, location, quantity or size, cost, condition, income, and net proceeds of the sale of the property. A property appraiser is required to consider each factor enumerated in the statute, although he may assign to each factor such weight as he deems proper. Straughn v. Tuck, 354 So.2d 368 (Fla.1977).

Mr. Coleman of the Property Appraiser's Office testified in a conclusory way that all of the statutory factors were considered in arriving at the assessed value of the appel-lees’ land. His testimony touched on the various factors, showing that the property appraiser did consider the highest and best use, which is recreational, and the location, quantity and size of the property. He also took into consideration the condition of the property. Cost, income, and net proceeds from the sale of the property as received by the seller were considered but not taken into account as not being applicable in this particular situation.

We are persuaded that the property appraiser proceeded properly in accordance with the statute and his assessment should have been upheld. We believe the best indicator of the value of the property were the sales of comparable parcels in River Ranch Acres and that these were properly considered by the property appraiser to be comparable sales. As Mr. Coleman put it, “I think that in any circumstance we can’t discount the fact that people are paying money for the property. And as long as they are paying money for the property, it must have some value. I think that our office is — the dictates of the law are such that we must follow what the market value of the property is, and if we have enough sales and information to go on, that’s certainly what we try to do.”

We find nothing in the statute which requires the property appraiser to take into consideration the tax consequences to the property owner which might persuade the property owner to choose one avenue of disposing of the property over another. Thus, we do not place importance on the tax considerations pertaining to the Trust which might make it more advisable to the trustees to sell the property in bulk rather in parcels. Further, we see no reason why the building permit ordinance and wetlands ordinance should enter into the determination of assessed valuation of property which everyone agreed could only be used for recreational purposes. Finally, we find nothing in the record establishing that the Trust could not acquire the benefit of GAC Corporation’s land registrations; there is no indication that the trustees had made any serious effort in that, regard, possibly because of their desire to sell the property in bulk if possible.

The burden was on the appellees to establish by competent and substantial evidence that the property appraiser did not follow section 193.011 in determining the assessed valuation of the appellees’ property. In our view, the appellees failed to meet that burden. Accordingly, we reverse with directions that final judgment be entered for the appellants.

REVERSED AND REMANDED.

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

      . We note without comment that on February 9, 1984, the bankruptcy judge issued an order declaring that the Trust succeeded to the rights of GAC Corporation in the orders of registration granted for the lots in River Ranch Acres and directing that those orders of registration be transferred to the Trust forthwith. That order also authorized the trustees to sell the River Ranch property "in bulk, in whole or in part” for a price not to exceed $1,950 per one-and-one-quarter acre lot except for lots adjacent to public roads or located on the third tier from a public road and which have access thereto.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    INTERNATIONAL COMMERCIAL PROPERTIES, INC., a Florida corporation, and Edward Kerper, Appellants, v. Rodney J. O’DONNELL, Appellee.
    No. 84-797.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1985.

      Elizabeth J. Daniels and Scott Ugenfritz of Johnson, Blakely, Pope, Bokor & Rup-pel, P.A., Clearwater, for appellants.
    Rodney J. O’Donnell, pro se.
   PER CURIAM.

Defendants file this appeal from a $48,000 summary judgment rendered upon a contract and promissory note executed in consideration of the services of the plaintiff who obtained investors in a limited partnership. We reverse because plaintiff failed to demonstrate the lack of genuine issues of material fact with respect to the affirmative defenses involving (1) failure of a condition precedent to liability under the contract and note, (2) unenforceability of a claim for the sale of securities by an unregistered broker, and (3) capacity in which defendant Kerper signed the documents. Howdeshell v. First National Bank of Clearwater, 369 So.2d 432 (Fla. 2d DCA 1979). Admittedly, certain of these defenses were only raised in a motion to amend the answer which was filed a week before the summary judgment hearing. However, since the court granted the motion to amend nunc pro tunc as of the date of the hearing on the motion for summary judgment, these defenses must be considered as part of the pleadings.

Reversed and remanded.

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


author: DAUKSCH, Judge.

text:
    Darrell Wayne DEER, Appellant, v. STATE of Florida, Appellee.
    No. 84-995.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 1985.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a guideline sentence. The trial judge departed from the guidelines and sentenced the appellant to four years in prison for a third degree felony.

The basis upon which the judge departed was that:

The defendant’s personal history demonstrates his inability to conform to probation or to obey the law. He is a perpetual scofflaw.
O.K., Mr. Deer, I cannot help but find based upon your record that your personal history demonstrates your inability to conform to probation or to obey the laws which is perpetual.
Therefore, I am going to depart from the guidelines.

Appellant presents two issues. First, whether the trial court’s departure from the recommended range is based on clear and convincing reasons as Criminal Rule 3.701 d.ll. requires? Second, where the maximum legal term of imprisonment for appellant’s crime is five years, whether a departure sentence of four years incarceration is an excessive departure? This court has previously resolved both of these issues in favor of appellee.

In Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984), this court held that a sentencing court may depart from the guidelines recommended sentence on the basis of a defendant’s prior convictions even though those prior convictions had been used in arriving at the recommended sentence. In Hendrix, this court considered and rejected appellant’s argument, based on cases from Minnesota, that double-dipping sentences, like the instant one, are improper. Since the date of its release, other Florida courts of appeal have cited Hendrix with approval. See, e.g., McCuiston v. State, 462 So.2d 830 (Fla. 2d DCA 1984); Townsend v. State, 458 So.2d 856 (Fla. 2d DCA 1984); Dickey v. State, 458 So.2d 1158 (Fla. 1st DCA 1984); Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984). Based upon Hendrix, the lower court’s written reason for departing from the guidelines recommended sentence is clear and convincing. Appellant has not disputed the judge’s findings regarding his inability to conform to probation or to obey the law. He also has not disputed the finding that he is a scofflaw. We do not have the pre-sentence investigation report but assume it supports the findings.

With respect to the second issue appellant raises, this court has previously held that once clear and convincing reasons exist which cause a sentencing court to depart from the guidelines, the court may impose any sentence authorized by law. Gann v. State, 459 So.2d 1175 (Fla. 5th DCA 1984); Hankey v. State, 458 So.2d 1143 (Fla. 5th DCA 1984). The maximum term of imprisonment authorized by law in the instant case is five years. § 775.-082(3)(d), Fla.Stat. (1983). Therefore, the lower court did not err in imposing on appellant a departure sentence of four years incarceration.

The judgment and sentence are affirmed.

COBB, C.J., and COWART, J., concur.


author: GRIMES, Judge.

text:
    A.J. SACKETT AND SONS COMPANY, Appellant, v. Lee Gary FREY and Frances Frey, Appellees.
    No. 84-1667.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1985.
    Lynn H. Groseclose of Lane, Trohn, Clarke, Bertrand & Williams, Bradenton, for appellant.
    Eugene W. Harris of Smith, Cassidy, Platt & Harris, P.A., Lakeland, for appel-lees.
   GRIMES, Judge.

This is an appeal from a nonfinal order denying a motion to dismiss for lack of jurisdiction over the person.

Lee Frey, joined by his wife, Frances, sued A.J. Sackett and Sons Company, a Maryland corporation, for personal injuries suffered by Mr. Frey in an accident occurring on March 25, 1980, in Hardee County. The amended complaint alleged that Mr. Frey was injured as a result of a defective bulk fertilizer conditioner which was manufactured by Sackett and sold in the State of Florida on or about May 24, 1973. The Freys sought to obtain long-arm jurisdiction over Sackett under section 48.182, Florida Statutes (Supp.1970). Sackett moved to dismiss for lack of personal jurisdiction, but its motion was denied.

At the outset, Sackett argues that section 48.193, Florida Statutes (1979), is the applicable long-arm statute because Mr. Frey was not injured until 1980. Section 48.182 was repealed as of July 1, 1973, and replaced by section 48.193. Sackett’s position cannot stand because our supreme court in AB CTC v. Morejon, 324 So.2d 625 (Fla.1975), held that the controlling date for determining the applicable long-arm statute in a breach of warranty action was when the defective product was tendered for delivery rather than when the accident occurred. Accord Griffis v. J.C. Penney Co., 333 So.2d 503 (Fla. 1st DCA 1976). Therefore, the provisions of section 48.182 are applicable to the instant case. Since the jurisdictional allegations of the amended complaint track the statute and Sackett did not contest these allegations by affidavit or other proof, jurisdiction over Sackett was properly obtained insofar as the statute was concerned. See Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977).

Notwithstanding the statute, Sackett contends that it is not constitutionally subject to Florida jurisdiction because of insufficient minimum contacts with the state. In support of its position, Sackett filed an affidavit of a corporate officer stating that it maintains no manufacturing operations or offices within the state, has no salesmen or distributors within the state and does no advertising within the state.

Sackett relies primarily upon World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). In that case, New York residents who had purchased an automobile in New York later became involved in an accident in Oklahoma. They brought a products liability action in Oklahoma and included as defendants the retail auto dealer and a regional distributor. There was no evidence that either of these defendants did any business in Oklahoma or sold or sought to sell any products in that state. In reasoning that the defendants’ only contact with Oklahoma arose from fortuitous circumstances, the Supreme Court held that the state’s effort to exercise in personam jurisdiction over them offended the due process clause of the United States Constitution.

The facts of the instant case differ substantially from World-Wide Volkswagen Corp. By answer to interrogatory, Sackett admitted that it sold the subject bulk conditioner through an agent to a firm in Bradenton, Florida. The bulk conditioner was subsequently resold and moved to Hardee County where the accident occurred. A manufacturer who sells a piece of machinery in Florida can hardly take the position that he could not reasonably anticipate being hailed into a Florida court in a dispute over the quality of that machinery.

The Supreme Court itself in a contract action has ruled that a single transaction may be sufficient to satisfy the requirements of “minimum contacts” when the cause of action arises from the subject matter of the transaction. McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 25 L.Ed.2d 223 (1957). Other courts have held in tort actions involving defective products that in personam jurisdiction over a nonresident manufacturer may be constitutionally obtained by virtue of the act of the manufacturer in delivering the offending product into the state. E.g., Continental Oil Co. v. Atwood & Morrill Co., 265 F.Supp. 692 (D.Mont.1967); Waukesha Building Corp. v. Jameson, 246 F.Supp. 183 (W.D.Ark.1965). We hold that a nonresident manufacturer’s single sale of a product in Florida provides a sufficient minimum contact with the state to permit personal jurisdiction to be obtained over the manufacturer in a products liability action arising out of that product. Cf. Pennington Grain & Seed, Inc. v. Murrow Brothers Seed Co., 400 So.2d 157 (Fla. 1st DCA 1981) (in an action for faulty soybean seed, jurisdiction over Georgia producer upheld by reason of delivery of the seed into Florida).

Affirmed.

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


text:
    O.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2454.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

We reverse the trial court’s finding that O.T. committed a delinquent act by jointly possessing contraband quaaludes upon the binding authority of Brown v. State, 428 So.2d 250 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), and cases cited therein, and remand with directions to discharge.

Reversed and remanded with directions.


text:
    Javier VALDERRAMA, Appellant, v. The STATE of Florida, Appellee.
    No. 84-948.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Jeffery P. Raffle, Miami, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

The final judgments of conviction and sentences under review are affirmed upon a holding that the evidence error complained of was harmless beyond a reasonable doubt in light of the overwhelming evidence of guilt adduced at trial against the defendant Javier Yalderrama, including the defendant’s own trial testimony. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).


text:
    CHEMICAL BANK, as assignee of L.F. Dommerich & Co., Inc., assignee of Inland Credit Corp., Appellant, v. Seymour BERNSTEIN, Appellee.
    No. 83-2781.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.

      Albert J. Zemlock, Miami, for appellant.
    No appearance for appellee.
   PER CURIAM.

On the authority of Evans v. Parker, 440 So.2d 640 (Fla. 1st DCA 1983), and Margerum v. Ross Builders, Inc., 427 So.2d 261 (Fla. 5th DCA 1983), we reverse the dismissal of appellant’s action against appellee. See also Fla.R.Civ.P. 1.110(d).

ANSTEAD, C.J., HURLEY, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    Larry S. GOTTLIEB, Appellant, v. STATE of Florida, Appellee.
    No. 84-123.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.
    Richard L. Jorandby, Public Defender, and Lorrie Robinson, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. We agree with the trial court’s ruling that it had no authority to deviate from the minimum mandatory sentence mandated by section 893.135(l)(b)(2), Florida Statutes (1983) or to place the appellant in a community control program under the sentencing guidelines. See Florida Rule of Criminal Procedure 3.701(d)9.

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


text:
    Gerald ROBINSON, Petitioner, v. The ROYAL BANK OF CANADA, Respondent.
    No. 84-1468.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.

      Michael W. Moskowitz and Kenneth A. Rubin of Goldberg, Young & Borkson, P.A., Fort Lauderdale, for petitioner.
    Hywel Leonard of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for respondent.
   PER CURIAM.

Petitioner seeks review of an order denying his motion to stay proceedings filed against him in Florida in deference to the prior and concurrent jurisdiction of a Canadian Court over an essentially identical suit. We have certiorari jurisdiction. See Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982). We grant the writ and quash the order.

The trial court clearly departed from the essential requirements of law by refusing to decline jurisdiction as a matter of comity. See Bradley Investment, Inc. v. Vimy Investment, Inc., 359 So.2d 904 (Fla. 4th DCA 1978). A grant of stay is appropriate where two actions are pending simultaneously which involve the same parties and substantially the same causes of action. See Thomas v. English, 448 So.2d 623 (Fla. 4th DCA 1984).

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


text:
    Donald WILLIARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-2323.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1985.
    James Marion Moorman, Public Defender, and L.S. Alperstein Asst. Public Defender, Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Francis Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Donald Williard appeals a conviction and sentence for DWI-manslaughter. We affirm.

Williard contends initially that the trial court erred by denying his motion for a mistrial after the prosecutor asked the jury during closing argument to return a guilty verdict in order to send a message to the community that Williard’s alleged criminal conduct was unacceptable. That closing argument included the following:

MR. HALKITIS: Folks, I know defense counsel brought this up and he said, don’t be sympathetic to the victim here. He can’t be brought back. I submit to you, I don’t want you folks to have any sympathy for [the victim] because sympathy should not play a part in your deliberations. Not only should you not have sympathy for [the victim], you should not have any sympathy for the defendant. You know, it’s often been said that your job is the conscience of the community. When you folks speak, the community speaks. We want you, the attorneys, the Judge, everyone in this case wants you folks to speak. We want you to tell the members of this community that the defendant’s conduct on April 24 is unacceptable.
MR. FERGUSON: Objection. Improper prosecutorial comment.
THE COURT: Sustained.
MR. HALKITIS: We want you folks—
MR. FERGUSON: Judge, I would also move for a mistrial on that ground.
THE COURT: Denied.

Inflammatory comments of a prosecutor mandate a reversal of a defendant’s conviction unless the appellate court can determine from the record that the improper remarks did not prejudice the defendant. See Rahmings v. State, 425 So.2d 1217 (Fla. 2d DCA 1983).

The evidence produced at the trial revealed the following uncontradicted facts: Williard was driving a vehicle which crossed the center line of a highway, striking and killing the victim, who was riding a motorcycle. A toxicologist analyzed a sample of blood taken from Williard shortly after the accident and determined that his blood alcohol level was .178 percent. (Section 322.262(2)(c), Florida Statutes (1981), provides that if an individual has .10 percent by weight of alcohol in his blood, it shall be prima facie evidence that he was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.) Based upon a hypothetical, the medical examiner stated that a person in Williard’s position would have had a blood alcohol content of between .152 and .196 percent at the time of the accident. A volunteer with a local fire department and two state troopers, all of whom arrived at the scene shortly after the accident, said that they thought Williard was drunk because he smelled of alcohol, had a flushed face, and had bloodshot eyes. After being read his rights, Williard admitted to one of the troopers that he had drunk eight to ten 10-ounce cups of beer at a picnic.

Although a friend of Williard testified at the trial that he did not feel that Williard was intoxicated at the picnic, and while the fire department volunteer and one of the troopers admitted that Williard’s speech was not slurred, and although this trooper thought that Williard’s balance appeared fine, the toxicologist explained that a person who records a blood alcohol content of .178 percent can “mask” outward signs of intoxication.

Thus, even though the prosecutor’s comments to the jury were improper, we are satisfied beyond a reasonable doubt that the evidence adduced against Williard was so overwhelming that the statements of the prosecutor were harmless error. See Carr v. State, 430 So.2d 978 (Fla. 3d DCA 1983). See also Broomfield v. State, 436 So.2d 435 (Fla. 4th DCA 1983); Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982); Zamot v. State, 375 So.2d 881 (Fla. 3d DCA 1979).

Williard also argues that the court below erred by sentencing him in excess of the guidelines under which he elected to be sentenced pursuant to Florida Rule of Criminal Procedure 3.701. His guidelines scoresheet placed him in a prison term range of from 7 to 12 years. The trial court sentenced him to a 15-year term of imprisonment.

At the time Williard was sentenced, rule 3.701(d)(ll) stated:

Departures from the guideline sentence: Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.

In setting forth in writing his reasons for departing from the guidelines sentence, the court mentioned the following factor:

This Defendant drove his vehicle and he drove it after consuming a large quantity of alcoholic beverages and crossed into the oncoming lane of traffic, striking the young victim who was operating a motorcycle. Death immediately resulted.

It may be argued, and defendant does, that this factor was not properly a reason for departure from the guidelines because, in the words of rule 3.701(d)(ll), it “related to ... [the] instant offense.” However, that type of argument has been found to be without merit. See Mischler v. State, 458 So.2d 37 (Fla. 4th DCA 1984). In any event, this factor appears to have been only one of several other clear and convincing reasons for exceeding the guidelines. A departure from the guidelines should not be reversed simply because one of the reasons for the departure was invalid if other valid reasons exist. See Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984), and Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984).

AFFIRMED.

GRIMES, A.C.J., LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


author: CAMPBELL, Judge. GRIMES, Judge,

text:
    Brian C. CURTIS and Marsha Curtis, his wife, Appellants, v. Carol J. CICHON and Daniel MacIntyre, Appellees.
    No. 84-1017.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1985.

      Craig P. Moore, St. Petersburg, for appellants.
    Joseph H. Chumbley, St. Petersburg, for appellees.
   CAMPBELL, Judge.

Appellants seek review of the partial summary judgment limiting their recovery on a note to contribution from appellees according to appellees’ percentage of stock ownership in the corporate obligee.

In January, 1982, Bos’n Yacht Brokers, Inc., executed a promissory note in favor of Landmark Union Trust Bank of St. Peters-burg, N.A. (Landmark Bank). Bos’n Yacht Brokers, Inc., is owned by the following persons in the percentages indicated:

Carol Cichon 10% (Appellee)
Daniel MacIntyre 10% (Appellee)
Bela Jenks 20%
Brian C. Curtis 60% (Appellant)

At the time the note was executed, appel-lees and appellant Brian C. Curtis, together with Bela Jenks, who is bankrupt and not a party to the suit, each executed personal guaranties in favor of Landmark Bank and its heirs and assigns.

On February 7, 1983, Landmark Bank, assigned to “Brian Curtis or Marsha Curtis, without recourse,” the bank’s interest in the promissory note. At the time of the assignment, the principal balance due on the note was $12,000, together with accumulated interest of $433.64. Bos’n Yacht Brokers, Inc. defaulted on the note and appellants accelerated payment on the note. Appellants thereafter brought suit against appellees seeking collection on the note, together with appellants’ cost of collection.

Appellees answered and filed a motion for partial summary judgment which alleged that appellants were only entitled to obtain contribution for payment of the note from appellees in proportion to the benefits each party received. The trial court granted the motion and limited recovery to contribution in the amount of each parties’ stock ownership. Appellees were each ordered to pay ten percent of the amount outstanding on the note.

Appellants first argue that the trial court erred by entering the partial summary judgment limiting their recovery to contribution rather than basing their recovery on their status as assignees of the note. We affirm the entry of the partial summary judgment which precluded one guarantor from collecting payment from his co-guarantors for the full amount of the debt owed on the note, thereby avoiding his own percentage of liability. See, e.g., Freed v. Giulani, 164 So.2d 234 (Fla. 2d DCA 1964).

Appellants’ second point is that the trial court erred in limiting the contribution by appellees to their percentage of stock ownership. We agree. Appellees’ liability arises from the guaranty agreement, not from their status as stockholders. Guarantors are generally presumed to be equally liable for a proportion of the liability on the note guaranteed. See Hanrahan v. Barry, 363 So.2d 54 (Fla. 3d DCA 1978). Here, the guarantees provide for joint and several liability; they do not indicate any intent to apportion the guarantors’ liability according to their percentage of stock ownership. Therefore, we reverse on this point.

We also note that when one guarantor becomes insolvent, the remaining guarantors must divide that guarantor's percentage of liability among themselves. See Hanrahan v. Barry.

Therefore, we affirm in part and reverse in part. Absent any evidence of an agreement between the parties limiting their liability, on remand, the trial court should apportion liability equally among the three remaining solvent guarantors.

RYDER, C.J., concurs.

GRIMES, J., concurs and dissents with opinion.

GRIMES, Judge,

concurring in part and dissenting in part.

I fully agree that a co-guarantor cannot escape responsibility for his share of the obligation under a promissory note by purchasing the note from the obligee. However, I cannot agree that in a contribution action between each other, the co-guarantors are always equally liable in the absence of an agreement to the contrary.

According to 18 Am.Jur.2d Contribution §§ 24 and 25 (1965):

§ 24. Benefits.
Since the right to contribution is inherently equitable in nature, the rule logically follows that where the co-obligors have received unequal benefits from the common obligation, the portion of the contribution that each must bear is according to the benefit that each has received. While, in the absence of proof to the contrary, it is presumed that all the co-obligors were benefited in equal degree by the consideration received, this presumption is subject to rebuttal by proof that there was actually an inequality of benefits received. Thus, where several persons borrow money jointly but it is established that, individually, they received unequal parts of that money, they are liable to contribute, not equally, but in proportion to the amounts actually received by them. An obligor who has received no benefit will not be forced to contribute. Conversely, parties who received the entire benefit from the principal transaction are required to bear the entire burden and cannot compel contribution from their co-obligors, and their co-obligors cannot have contribution between themselves but only against the parties receiving the whole benefit.
§ 25. Interests.
The proportion of contribution may be governed by the interest of each of the co-obligors in the matter giving rise to the common obligation. If the obligation was incurred on account of property, the proportion is governed by the ratio of their respective interests therein. Thus, where contribution is enforced among grantees of several parcels of land for the payment of a mortgage which existed upon all the tracts before the severance and conveyance thereof by the common grantor, it is held that the proportion of contribution among the grantees is according to the value of their respective ■tracts of land.

Restatement of the Law of Restitution § 85 comment f (1937) states:

f. Proportionate share — unequal shares with individual obligations. Where persons are engaged in a common enterprise, their liability to contribution to each other is unequal if their interests in the enterprise are unequal or if they so agree.

See Maresh v. Jennings, 38 S.W.2d 406 (Tex.Civ.App.1931) (contribution between the makers of promissory notes is pro rated according to the benefits received). Hanrahan v. Barry lends no support to the majority view because in that case there was no proof to overcome the presumption that the three guarantors benefit-ted equally from the consideration received from the promissory note.

Here, the loan was made to Bos’n Yacht Brokers, Inc. Appellant Brian C. Curtis as a co-guarantor was a 60% owner of the corporation, while appellees each owned a 10% interest in the corporation. As such, appellant received 60% and appellees each received 10% of the benefits of the loan. The evidence of the co-guarantors’ unequal interests in the matter giving rise to the common obligation rebutted any presumption of equality. Therefore, in the exercise of its equitable jurisdiction, the trial court properly ordered contribution according to the percentages of benefits received. Because the bankrupt’s percentage of guaranty must be divided among the remaining guarantors, appellees’ obligations in contribution should each be 12⅛⅞%.


author: ORFINGER, Judge. COBB, Chief Judge,

text:
    George D. DUNN and Diane M. Dunn, Appellants/Cross-Appellees, v. SENTRY INSURANCE, etc., Appellee/Cross-Appellant.
    No. 83-710.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 1985.

      Raymond A. Haas and Dennis P. Dore, of Haas, Boehm, Brown, Rigdon & Sea-crest, P.A., Daytona Beach, for appellants/cross-appellees.
    Charles D. Hood, Jr., of Cobb & Cole, P.A., Daytona Beach, for appellee/cross-appellant.
   ORFINGER, Judge.

Appellants/cross-appellees George and Diane Dunn appeal a final judgment awarding $12,500.00 in damages plus $15,000.00 in attorney’s fees to appellee/cross-appel-lant Sentry Insurance Company arising out of an employment contract dispute. Appellants demonstrate no error, so with respect to the issues raised by appellants, the final judgment is affirmed.

By cross-appeal, Sentry suggests that the trial court’s award of attorney’s fees and costs was erroneous because it was inadequate. The trial court awarded Sentry $15,000.00 in fees, although Sentry actually expended $32,563.70 for the services of its counsel. Sentry’s costs in these proceedings totalled $5,535.00, but the court awarded $2,830.00. No explanation of how these costs were calculated appears in the record. Sentry’s claim to an award of attorney’s fees is based on the contractual provision between the parties which provides, in essence, that if Sentry is successful in any action to enforce the provisions of the contract, the Sales Representative (Dunn) agrees to pay to Sentry “reasonable attorneys’ fees to be fixed by the court

A contractual provision that the losing party will pay the prevailing party’s attorney’s fees is an agreement for indemnification, i.e., to indemnify the prevailing party for fees reasonably contracted or incurred. Borg-Warner Acceptance Corp. v. Philco Finance Corp., 356 So.2d 830 (Fla. 1st DCA 1978). Because the agreement is one for indemnification, the prevailing party under this agreement can recover no more than the amount he has actually paid or obligated himself to pay his attorney. Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1935); Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41 (1929). But this is not tantamount to saying that the party entitled to recover must be awarded the amount which he has paid or agreed to pay his attorney, if that amount is excessive or unreasonable. In Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So.2d 728 (Fla. 3d DCA 1980) the court observed:

The first question a trial court must answer when faced with a demand for attorneys’ fees is not what a reasonable fee might be in the absence of any fee contract between the claiming party and his attorney, but whether the actual fee agreement against which the claimant seeks indemnity is unreasonable: Specifically, whether the agreement is excessive, under the terms of the Fla.Bar Code Prof.Resp., D.R. 2-106(B). If the fee is not excessive, and it is enforcible by both parties thereto, that fee should be awarded. If the fee is excessive, then the court should proceed to the determination of a “reasonable” fee, i.e., a quantum meruit fee, based on the same factors it considered when it evaluated the fee contract. [Emphasis supplied].

Id. at 731.

The hourly fee of $55.00 charged by cross-appellant’s counsel would appear on its face to be reasonable, and there was expert witness testimony suggesting that a reasonable fee for prosecuting Sentry’s claim against the Dunns, and defending the Dunns’ counterclaim against Sentry, would be approximately $34,000.00. However, the trial court is not bound to arbitrarily and mechanically award the fee which the prevailing party has agreed to pay its counsel, where it is claimed that such fee is excessive. The trial court should first determine if the agreed upon fee is excessive or unreasonable, and if it is not, and the client has paid it or is obligated to pay it, that fee should be awarded. If the fee is deemed excessive or unreasonable, the court should proceed to determine what is a reasonable fee. See Trustees of Cameron-Brown, supra. Thus the trial court may find the agreed upon fee to be excessive for a variety of reasons, and if such finding is made, a lesser (and reasonable) fee shall be awarded.

No finding of excessiveness was made here, although the record suggests that such could have been the basis for an award of a lesser amount. For example, in response to the argument that too much time was devoted to this case by Sentry’s attorneys for the results achieved, Sentry says that winning the case was important to it, because many similar contracts with other sales representatives would be governed by the result here. While Sentry has the unquestioned right to consider the ripple effect of this case in contracting with its counsel, the trial court could conclude that the results obtained in this case did not justify the imposition of the higher fees on the Dunns. See The Fla.Bar Code Prof. Resp., D.R. 2-106(B). See also, Erickson Enterprises, Inc. v. Louis Wohl & Sons, Inc., 422 So.2d 1085 (Fla. 3d DCA 1982).

Here, the fee agreement between Sentry and its counsel is not on its face unreasonable and the trial judge awarded a lesser amount without finding that the fees paid by Sentry were excessive. Therefore, we set aside the fee award and remand this cause to the trial court for entry of findings as to whether the amounts requested by Sentry were reasonable or excessive, and for entry of an award of fees in accordance with such finding and this opinion. We find no abuse in the trial court’s discretion in its award of costs. We grant Sentry’s motion for appellate attorney’s fees and direct the trial judge to award Sentry a reasonable fee for the services of its counsel on appeal.

AFFIRMED in part and REVERSED in part and REMANDED.

DAUKSCH, J., concurs.

COBB, C.J., concurs in part, dissents in part with opinion.

COBB, Chief Judge,

concurring in part; dissenting in part.

I concur with the majority opinion except for its reversal of the attorney fee awarded by the trial court. The reversal is based on the absence of an express finding of exces-siveness by the trial court in regard to Sentry’s requested fee. There is no requirement that trial judges must support their decisions with such express factual findings. Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984). The fact that the trial judge rejected the requested fee and awarded a lesser one clearly is an implicit finding that the former was excessive.

The trial judge, as the fact finder, may have disbelieved the work hours claimed in support of the requested fee. He may have considered a number of the hours unnecessary in this case, therefore unreasonable. He may have considered the disparity between the amount of the recovery and the requested fee (two-and-a-half times greater) a proper factor for his consideration. See Folmar v. Davis, 108 So.2d 772 (Fla. 3d DCA 1959).

The amount awarded as an attorney fee is largely in the discretion of the trial judge, and should not be disturbed on appeal unless clearly unreasonable. Esch v. Forster, 123 Fla. 905, 168 So. 229 (1936). I would simply affirm.

      . This court previously reversed an order of the trial court denying Sentry’s motion for preliminary injunction in this case. See Sentry Insurance v. Dunn, 411 So.2d 336 (Fla. 5th DCA), pet. for rev. denied, 419 So.2d 1196 (Fla.1982).


author: ORFINGER, Judge.

text:
    Gregory Curtis BENJAMIN a/k/a John Doe, Appellant, v. STATE of Florida, Appellee.
    No. 83-1664.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 1985.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

From his conviction for resisting an officer with violence and simple assault, defendant appeals. We affirm in part and reverse in part.

Benjamin was charged with resisting an officer with violence under section 843.01, Florida Statutes (1983) (Count I) and assault on a law enforcement officer under section 784.07(2) (Count II). A jury found him guilty as charged on Count I, and guilty of simple assault on Count II.

Among other points raised, appellant contends that the trial court erred in refusing a requested jury instruction on resisting arrest without violence, under Count I of the information. It is appellant’s contention that resisting arrest without violence is a lesser included offense of resisting arrest with violence, only one step removed, and the failure to so instruct the jury is reversible error, per se, relying on State v. Abreau, 363 So.2d 1063 (Fla.1978).

The State argues first, that the issue was not preserved for appeal, and next, that the requested instruction was not re'quired because resisting arrest without violence is not listed as a lesser included offense in the standard jury instructions in criminal cases. See, In the Matter of the Use By the Trial Courts Of the Standard Jury Instructions In Criminal Cases, 431 So.2d 594 (Fla.), modified, 431 So.2d 599 (Fla.1981). We find that the issue was properly preserved for appeal. Defense counsel requested the instruction, verbalized the basis of the request to the court and the request was denied because the court stated that resisting without violence was not a lesser included offense of resisting with violence. Under these circumstances, the failure to object or to restate the grounds in the form of an objection does not preclude appellate review. Thomas v. State, 419 So.2d 634 (Fla.1982); Williams v. State, 414 So.2d 509 (Fla.1982).

Under the current rules of criminal procedure, there are two categories of lesser included offenses:

1) Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.

431 So.2d at 596.

A necessarily lesser included offense is one whose constituent elements are included within the elements of the greater offense. State v. Baker, 452 So.2d 927 (Fla.1984); Bell v. State, 437 So.2d 1057 (Fla.1983); Borges v. State, 415 So.2d 1265 (Fla.1982). All the statutory elements of a necessarily lesser offense are proved in proving the greater offense. Cannon v. State, 456 So.2d 513 (Fla. 5th DCA 1984); Foster v. State, 448 So.2d 1239 (Fla. 5th DCA 1984).

At first blush, it would appear that resisting without violence is a necessarily lesser included offense of resisting with violence, but a close inspection of the elements of the offenses, as interpreted by the case law, does not support that view. One of the essential elements of the crime of resisting an officer without violence (section 843.02) is the lawfulness of the arrest or activity in which the officer is then engaged. Johnson v. State, 395 So.2d 594 (Fla. 2d DCA 1981). But, the use of force or violence against a person reasonably known to be a police officer is unlawful even where the arrest is not lawful. As stated by this court in State v. Barnard, 405 So.2d 210 (Fla. 5th DCA 1981):

Thus, after July 1, 1975, section 843.01 must be read in pari materia with section 776.051; the end result being that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest.

Id. at 210. See also, Davis v. State, 381 So.2d 285 (Fla. 1st DCA 1980); Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978).

Thus it becomes unnecessary for the State to prove the lawfulness of the arrest where the charge is brought under section 843.01, resisting arrest with violence. Because an essential element of resisting without violence (the lawfulness of the arrest) need not be shown in proving the offense of resisting arrest with violence, the former is not a necessarily included offense of the latter.

This holding does not preclude, however, the possibility that resisting without violence may be a Category 2 lesser included offense, based on the charging document and the proof at trial. Here, the information alleged the essential elements of the crime of resisting without violence, and the evidence adduced by defendant at trial supported his theory of defense that there was no violence directed at the officer. Under these circumstances, the defendant was entitled to an instruction on the lesser included offense of resisting without violence. Fla.R.Crim.P. 3.510(b). See Lee v. State, 368 So.2d 395, n. 1, (Fla. 3d DCA 1979).

As a lesser included offense (albeit in Category 2), the crime of resisting an officer without violence is one step removed from the crime of resisting with violence. Our supreme court has declared it to be reversible error for a trial court to refuse to instruct on a lesser included offense one step removed from the crime for which a defendant is convicted when that instruction has been properly requested. Such instruction is required, so that

[t]he jury is given a fair opportunity to exercise its “pardon” power by returning a verdict of guilty as to the next lower crime.

State v. Abreau, 363 So.2d 1063. The necessity for giving instructions on lesser included offenses so as to afford the jury the opportunity to exercise its pardon power has been asserted by the supreme court as recently as State v. Baker, 456 So.2d 419 (Fla.1984). The instruction was required here, and the failure to give it requires reversal for a new trial.

We have examined the other issues raised by appellant and find them to be without merit. Accordingly, we affirm the conviction for assault, but reverse the conviction for resisting an officer with violence, and remand for a new trial on that count only.

AFFIRMED in part, and REVERSED in part, and REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, JJ., concur.

      § 776.051(1), Fla.Stat. (1979):
      A person is not justified in the use of force to resist an arrest by a law enforcment officer who is known, or reasonably appears, to be a law enforcement officer.


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

text:
    Joan Connor ORR, et al., Appellants, v. BELK LINDSEY STORES, INC., Appellee.
    No. 84-68.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 1985.

      George L. Clapham, Orlando, for appellants.
    Lora A. Dunlap and Reinald Werrenrath, III, of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The Orrs appeal from an order dismissing with prejudice their third amended complaint against Belk Lindsey Stores, Inc., for malicious prosecution. We agree with the Orrs that the complaint sufficiently pleaded all of the required elements of a malicious prosecution action and accordingly reverse the order- of dismissal.

In a malicious prosecution action, the plaintiff must plead and prove a concurrence of the following six elements:

(1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conforming to legal standards resulting to the plaintiff.

Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984); Cazares v. Church of Scientology of Cal., 444 So.2d 442 (Fla. 5th DCA 1983). Here the parties raise only the question of whether the first and second elements set out above were sufficiently pleaded by the Orrs.

In their third amended complaint, the Orrs alleged in relevant part as follows:

3. On October 19, 1980, Pam Folsom was employed by the Defendant [Belk Lindsey] as a clerk; that on the same date, John Guy Warrington, was also employed by the Defendant as a store detective. Both were working at the Defendant’s store at approximately 4:30 in the afternoon on that date.
4. At that time, Pam Folsom informed John Guy Warrington, that:
1. The Plaintiff was in BELK LINDSEY
2. The Plaintiff was a known shoplifter
3. The Plaintiff had been apprehended by BELK’s security in the past for shoplifting.
5. John Guy Warrington, acting as the agent of the Defendant, subsequently executed a sworn statement to the Orlando Police Department stating that he had observed the Plaintiff remove an Agner Reversible Coat from a rack within the Defendant’s store, stuffed it inside her pants and left the store with the coat. A copy of the statement is attached hereto and marked Exhibit “A.”
6. As a direct result of John Guy War-rington’s sworn statement, the Orlando Police Department arrested the Plaintiff on December 12, 1980, at which time she was booked, fingerprinted, photographed and incarcerated in the Orange County jail. Prior to that time, she had never been arrested, charged or convicted of a crime. As a direct result of a sworn statement of John Guy Warrington, an Information was filed by the State of Florida against the Plaintiff charging her with violation of Florida Statute 812.014, that the Plaintiff was tried before a jury beginning May 27, 1981, and was found not guilty on May 29, 1981. A copy of the Information is attached and marked Exhibit “B” and the Amendment thereto is attached and marked Exhibit “C.”
7. The Defendant, through its agent, John Guy Warrington, did not have probable cause to execute the sworn statement marked Exhibit “A” because:
1. The Plaintiff had never been apprehended by BELK security in the past for shoplifting.
2. The Plaintiff was not a known shoplifter in the Colonial Mall and had in fact never had been stopped, questioned, or accused of being a shoplifter at any location within Colonial Mall, or at any other place.
3. It was shown during the trial of the criminal charges against the Plaintiff that it was impossible for her to stuff an Agner Reversible Coat in her pants and leave the store.
8. The Defendant’s employees’ acts as set forth herein were done maliciously, falsely, unreasonably and without probable cause.

It is clear that the first element of a malicious prosecution action, that of the commencement of an original criminal proceeding, was sufficiently pleaded. The Orrs alleged not only that Mrs. Orr had been arrested, but also that an information had been filed against her and that she had been tried on the charge of grand theft. In light of these allegations, the “commencement of criminal proceedings” element was sufficiently pleaded and did not render the complaint subject to dismissal. See Erp v. Carroll, 438 So.2d 31, 40 (Fla. 5th DCA 1983) (“Here it is generally considered that ... criminal prosecutions are commenced with the filing of an information”).

The second element of a malicious prosecution action, that is, that the defendant instigated or was the “legal cause” of the criminal proceedings against the plaintiff, also was sufficiently pleaded. The general rule is that if the defendant merely gives a statement to the proper authorities, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer or if the officer makes an independent investigation, the defendant is not regarded as having instigated the proceeding. However, if the defendant’s persuasion is the determining factor in inducing the officer’s decision or if he gives information which he knew to be false and so unduly influences the authorities, then the defendant may be held liable. Prosser, The Law of Torts 837 (4th ed. 1971). See also Florida East Coast R. Co. v. Groves, 55 Fla. 436, 46 So. 294, 297 (1908). Here, the Orrs alleged that the acts of the Belk Lindsey employees were done “falsely.” The Orrs also alleged that there was absolutely no basis for the accusation that Mrs. Orr was a “known shoplifter” and that Belk Lindsey knew or should have known for at least five years that its employees had referred to her as a “known shoplifter.” Accepting all facts pleaded as true and drawing all inferences in favor of the Orrs, the complaint satisfies the “legal causation” element by in essence alleging that Belk Lindsey employees gave false information to public officials. Pokorny v. First Federal Sav. & Loan Ass’n, 382 So.2d 678 (Fla.1980), the case relied upon by the trial court, is clearly distinguishable as in that case there were no allegations that the defendant’s employees gave false information to public officials who later detained Pokorny.

REVERSED and REMANDED.

DAUKSCH and SHARP, JJ„ concur.

      . See Cazares v. Church of Scientology; Bolton v. Smythe, 432 So.2d 129 (Fla. 5th DCA 1983).


text:
    Anthony Charles BOGAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-3, 84-4.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.
    James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation in case numbers 82-7926-A and 82-10378-A, having found the evidence sufficient to support the trial court’s determination that appellant committed both of the probation violations alleged. We agree with appellant’s assertion, however, that the court’s written order sentencing appellant to three and one-half years concurrent imprisonment on each count departs from its oral pronouncement imposing a three-year concurrent sentence on each count. Because the written judgment and sentence must not vary from the oral pronouncement, Alphonse v. State, 430 So.2d 538 (Fla. 2d DCA 1983), we remand this case to the trial court with directions to conform the written sentence with its oral pronouncement.

Affirmed and remanded with directions.

OTT, A.C.J., FRANK, J., and BOARD-MAN, EDWARD F„ (Ret.) J., concur.


text:
    Paul A. O’BYRNE, Appellant, v. STATE of Florida, Appellee.
    No. 84-148.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.

      Bennie Lazzara, Jr., P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We conclude that the circumstantial evidence presented in this case was sufficient to establish the requisite intent by appellant under section 893.135(l)(e), Florida Statutes (1981), for a finding of guilt.

Affirmed.

CAMPBELL, A.C.J., LEHAN, J., and PACK, R. WALLACE, Associate Judge, concur.


text:
    McKinley GLOVER, III, Appellant/Cross-Appellee, v. The SCHOOL BOARD OF HILLSBOROUGH COUNTY, Appellee/Cross-Appellant.
    No. 84-334.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.

      Steven D. Merryday of Glenn, Rasmussen, Fogarty & Merryday, Tampa, for appellant/ cross-appellee.
    R. Douglas MacPherson of Few & Ayala, Tampa, for appellee/cross-appellant.
   PER CURIAM.

Appellant, McKinley Glover, III, a teacher in the Hillsborough County School System, has appealed from a final judgment granting in part and denying in part his request for the issuance of a writ of mandamus. The appellee School Board of Hillsborough County, has cross-appealed. We affirm in part and reverse in part.

At the conclusion of a public hearing before the school board, charges that had been initiated by the superintendent of schools against appellant were dismissed. Appellant then requested that the school board deliver to him a copy of its findings and a copy of the transcript of the hearing, that it preserve a copy of the transcript in the school board office, and that it pay the attorney’s fees and costs appellant incurred in defending the charges that had been brought against him. Upon the school board’s refusal of these requests, appellant filed a petition seeking a writ of mandamus requiring the school board to perform them as duties under the terms of the Teacher Tenure Act, chapter 69-1146, section 10, Laws of Florida (amending chapter 21287, section 10, Laws of Florida (1941)). Appellant, pursuant to section 57.105, Florida Statutes (1983), sought an additional award of attorney’s fees incurred because of the mandamus action.

The trial court ordered the school board to comply with all of appellant’s requests, except it refused to order the school board to pay the attorney’s fees and costs incurred by appellant in defending himself at the school board hearing. The trial court also found that the school board failed to raise any justiciable issue of law or fact in the mandamus action except with respect to those attorney’s fees and costs. It therefore awarded to appellant a reasonable attorney’s fee pursuant to section 57.-105 for the other portions of the mandamus action. Appellant filed a timely notice of appeal, and the school board filed its cross-appeal.

We agree with the school board’s contention that the trial court erred in awarding attorney’s fees to Mr. Glover in the mandamus action, but affirm the judgment in all other respects. Section 57.105 provides:

Attorney’s fees. — The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

Statutes authorizing an award of attorney’s fees are in derogation of the common law and therefore must be strictly construed. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). In Whitten, the supreme court cited with approval the case of Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980), in which the district court of appeal held that in order to find a complete absence of a justiciable issue of law or fact, the trial court must find that the action is so clearly devoid of merit, both as to law and fact, as to be completely untenable. This was interpreted as being tantamount to a finding that the action is frivolous.

We hold that in order to properly award attorney’s fees pursuant to section 57.105, it is necessary to find that the entire action, not merely a portion thereof, was devoid of merit both as to law and fact. In the case sub judice, the trial court did not find that the entire action was devoid of merit; therefore, it erred in awarding attorney’s fees pursuant to section 57.105.

We, accordingly, reverse that portion of the final judgment awarding attorney’s fees to the appellant in the mandamus action, but affirm the judgment in all other respects.

Affirmed in part and reversed in part.

SCHOONOVER, A.C.J., LEHAN, J., and BOARDMAN, EDWARD F. (Ret.), J., concur.


author: LEHAN, Judge.

text:
    Rose Marie ANDERSON, a/k/a Rie C. Anderson, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, PSYCHOLOGICAL SERVICE OFFICE, Appellee.
    No. 84-359.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.

      William E. Sizemore of Thompson, Size-more <& Gonzalez, P.A., Tampa, for appellant.
    Frank Vickory, Tallahassee, for appellee.
   LEHAN, Judge.

Rose Anderson appeals a final order issued by the Department of Professional Regulation (DPR) which denied her application for licensure as a mental health counselor. The DPR concluded that she was not entitled to be “grandfathered” in as a licensed mental health counselor under the relevant statute. We reverse.

Anderson had worked for six years as a mental health counselor and co-owns a counseling firm with her partner, a licensed psychologist. She filed her application pursuant to a then recently enacted grandfather provision, Act of April 21, 1982, ch. 82-179, § 37, 1982 Fla.Laws 603, 619. An administrative hearing was held, after which the hearing officer recommended the ineligibility of Anderson under that provision because she had not earned a master’s degree from a college or university approved by the United States Department of Education (DOE). The Department of Professional Regulation adopted the recommendation without comment.

Prior to 1981, the practice of mental health counseling was not regulated by statute. In 1981, the legislature made it a misdemeanor for a person to be held out to the public as a mental health counselor without being licensed by the state. § 490.012(2), Fla.Stat. (1981). In order to be eligible to take the examination for li-censure, one had to have, among other things, a master’s degree from a college or university accredited by an accrediting agency approved by the United States Department of Education (DOE). § 490.-005(2)(c)(2), Fla.Stat. (1981). In 1982, the legislature enacted the above referenced grandfather” provision to cover those people who had been practicing as mental health counselors prior to the license requirement and who applied by September 30, 1982 for license. That provision stated in part that the department “shall license a person in mental health counseling ... who:

(a) is a legal resident of this state;
(b) has received a minimum of an earned master’s degree ... at a college or university approved by the United States Department of Education ...
(c) has 3 year’s experience in the practice of mental health counseling.”

Chapter 82-179, § 37, Laws of Florida.

The Department of Professional Regulation apparently agreed with the hearing officer’s conclusion that the 1982 statute’s requirement that the college be approved by the Department of Education meant the same as the 1981 statute’s requirement that the college be accredited by an accrediting agency approved by the Department of Education. We disagree. We must presume that when the legislature worded the 1982 statute differently it intended a different meaning. We conclude that a college “approved by the department of education” is not the same as a college “accredited by an accrediting agency approved by the department of education.”

In ascertaining the intended scope of “approved,” we must give the word its natural, plain meaning if that meaning is “not entirely unreasonable or illogical in its operation.” Vocelle v. Knight Brothers Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960). Anderson cites Black’s Law Dictionary 132 (4th ed. 1968) for the definition of “approved” as including “to sanction officially.” Black’s also includes within that definition, “to be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done by another; ... think or judge well of ....”

Anderson had received her master’s degree in mental health counseling from International College. The hearing officer recognized that International College was qualified to receive direct financial assistance from the federal government. The hearing officer also recognized that the DOE included that college on its list of institutions at which students may receive federal aid, such as loans. Further, if the quality of education received at a college or university is to be considered, as the Department argues, it would seem relevant that at least three institutions which are accredited by an accrediting agency approved by the DOE accept transfer credits from International College.

Accordingly, we conclude that International College had been “approved” by the DOE under a broad, yet plain, interpretation of the above referenced statute. It is not illogical or unreasonable to infer that the legislature meant for the statute to have a broad meaning even if the standards for licensure were thereby less strict than those to be otherwise applied. “Grandfather” provisions of a licensure statute which permit licensing of those who have been engaged in a particular business, occupation or profession before enactment of the statute commonly, if not typically, include less strict standards to be applied to those to be “grandfathered.” See, e.g., Solomon v. Sanitarians’ Registration Board, 155 So.2d 353 (Fla.1963); Fuller v. Watts, 74 So.2d 676 (Fla.1954); Burford v. Florida State Board of Architecture, 342 So.2d 853 (Fla. 1st DCA 1977).

We recognize that a witness from the Department of Education testified that his department did not “approve” colleges or universities. That testimony apparently depended upon the DOE’s definition of that term, which is not determinative of the issue before us. The issue here is the Florida legislature’s meaning which we have construed above.

Reversed and remanded for proceedings consistent herewith.

OTT, A.C.J., and BOARDMAN, EDWARD F. (Ret.) J., concur.


author: RYDER, Chief Judge.

text:
    James W. HALLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-684.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.

      John L. Riley, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

James W. Hallman appeals a trial court order which denied his motion to dismiss and an order which withheld adjudication of guilt and placed him on probation. We reverse.

On February 5, 1981, the state filed an information charging that appellant committed grand theft on June 23, 1980. A capias was issued on that same date. The capias was served on appellant on September 8, 1983, over two years and seven months after the date of its issuance.

In a motion to dismiss, appellant alleged that he had continuously lived at the address which was listed on the complaint and the capias, and that he had been available for trial. Appellant also alleged that the delay in his arrest and pending trial had resulted in great prejudice to him because his memory had dimmed and a material witness had since died. After a February 22, 1984 hearing, the trial court denied the motion to dismiss on the ground that appellant had not made a showing of actual prejudice. Appellant then entered a plea of nolo contendere and reserved the right to appeal the speedy trial issue.

The constitutional right to a speedy trial attaches upon the filing of an information. Howell v. State, 418 So.2d 1164, 1167 (Fla. 1st DCA 1982). There are four factors to consider as a guide when determining whether a constitutional speedy trial violation has occurred: (1) whether the length of the delay is presumptively prejudicial; (2) the reason for the delay; (3) whether the appellant has timely asserted his rights, and (4) whether actual prejudice has resulted from the delay. State v. Roundtree, 438 So.2d 68, 70 (Fla. 2d DCA 1983), petition for review denied, 447 So.2d 888 (Fla.1984); Howell, 418 So.2d at 1171.

In Howell, our sister court found that a fourteen and one-half month delay from the time of the filing of the information until the hearing on the motion to dismiss was presumptively prejudicial. 418 So.2d at 1171. Likewise, this court has found that a twenty-three month delay between the filing of the information and the hearing on the motion to dismiss to be presumptively prejudicial. Roundtree, 438 So.2d at 71. The delay of over two and one-half years between the filing of the information and Hallman’s arrest, and the more than three year delay between the filing of the information and the hearing on Hallman’s motion to dismiss was presumptively prejudicial.

In Hallman s case, the delay was due to the negligent lack of diligence by the state. Although the state alleged that a deputy had made one or more visits to Hallman’s residence and left a card requesting that Hallman contact the deputy, this cannot be considered to be a valid attempt to serve the capias, especially because Hallman lived at the same address during the entire three-year period. Hall-man asserted his right to a speedy trial by filing his motion to dismiss.

In this case, Hallman’s defense was actually prejudiced because a material witness who had investigated the alleged grand theft had died, and because Hall-man’s memory had dimmed regarding the material facts of the alleged grand theft.

Under the limited facts of this case, we hold that the lengthy negligent delay by the state did result in actual prejudice which impaired appellant’s ability to prepare his defense. The order denying appellant’s motion to dismiss is reversed and the order placing him on probation vacated.

GRIMES, J., and LOGAN, PAUL E., Associate Judge, concur.


text:
    Esther R. COX, Appellant, v. Jack A. COX, Appellee.
    Nos. 84-862, 84-2221.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.
    Bertha P. Sanchez of Villanti & Sanchez, New Port Richey, for appellant.
    William R. Webb, New Port Richey, for appellee.
   DANAHY, Judge.

In these consolidated appeals, the wife challenges orders dismissing her motion for contempt and her petition for modification of the final judgment of dissolution of marriage. We reverse.

The marriage of the parties was dissolved by a final judgment entered on September 29, 1981. That judgment approved and incorporated an agreement of the parties entitled “Property Settlement Agreement” and retained jurisdiction for the enforcement of executory provisions. Paragraph 18 of the agreement provided as follows:

The Husband shall pay the Second Mortgage on the Wife’s house ..., as lump sum alimony, as they become due, and the Wife shall be held harmless by the Husband for any liability associated with the Second Mortgage owed to Southeast Bank of Pasco with the approximate balance due of $19,921.60.

The husband made payments pursuant to paragraph 13 until September of 1983. On September 26, 1983, the wife obtained an agreement from the Southeast Bank of Pasco to accept a certificate of deposit from the wife as collateral in lieu of the second mortgage, so as to assist the wife in selling the property. Subsequently, the wife did sell the property. Apparently, it was these events which caused the husband to stop making the mortgage payments.

Because of the husband’s refusal to make any further payments, the wife filed a motion for contempt seeking enforcement of paragraph 13. She also filed a motion to modify the terms of the final judgment so as to direct the husband to make the paragraph 13 payments directly to the wife. The trial judge ruled that as a matter of law the obligation of the husband under paragraph 13 did not constitute alimony, but rather represented a monetary inducement to the property settlement agreement. Accordingly, the trial judge granted the husband’s motion to dismiss the wife’s motion for contempt and the motion was dismissed. By separate order, the trial judge dismissed the petition for modification on the same grounds.

We find nothing in the record establishing that the payments required in paragraph 13 were anything other than what they were labeled — lump suip alimony. Therefore, contempt is an appropriate means for enforcing the provisions of the paragraph. Witter v. Witter, 443 So.2d 417 (Fla. 2d DCA 1984); Masters v. Masters, 443 So.2d 388 (Fla. 2d DCA 1983); Brisco v. Brisco, 355 So.2d 506 (Fla. 2d DCA 1978). Payments may be a proper form of alimony even though they are to be made to a third party. Stith v. Stith, 384 So.2d 317 (Fla. 2d DCA 1980).

Accordingly, we reverse both orders under review and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Keith Evan TESSIER, Appellant, v. STATE of Florida, Appellee.
    No. 84-1340.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.

      James Marion Moorman, Public Defender, and Joel E. Grigsby, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We reverse defendant’s conviction and sentence for possession of a controlled substance, a violation of section 893.13, Florida Statutes (1983). We affirm his conviction and sentence for introduction or possession of a controlled substance into or upon the grounds of a county detention facility, a violation of section 951.22, Florida Statutes (1983). We conclude that the trial court was incorrect in denying defendant’s motion to either dismiss one count of the information which alleged both offenses or require the state to elect which was to be prosecuted.

The question here is whether the two offenses are separate offenses. If so, convictions for both offenses are not prohibited. The test is “[i]f each crime ... requires an element of proof that the other does not, then ... [t]hey are separate offenses.” State v. Baker, 456 So.2d 419 (Fla.1984). In this case, all elements of the simple possession offense under section 893.13 are contained within the elements of the introduction or possession of contraband offense under section 951.22. Section 951.22 proscribes the introduction or possession of contraband into a county detention facility and specifically includes “controlled substances” as being within the definition of contraband. Section 893.13 proscribes the unlawful possession of controlled substances. Thus, we conclude that these two offenses are not separate offenses. See Dees v. State, 397 So.2d 1145 (Fla. 2d DCA 1981).

Accordingly, the conviction and sentence under section 893.13 are vacated.

Affirmed in part, reversed in part and remanded for proceedings consistent herewith.

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


author: CAMPBELL, Judge.

text:
    CITY OF TREASURE ISLAND, Florida, sitting as the Board of Adjustment and Appeals, Petitioner, v. Edward P. LANDT, Respondent.
    No. 84-2214.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.

      W. Douglas Baird, St. Petersburg, for petitioner.
    Edward P. Landt, pro se.
   CAMPBELL, Judge.

Petitioner, City of Treasure Island, petitions for review of an order and opinion of the Circuit Court of the Sixth Judicial Circuit in Pinellas County. We have jurisdiction. Fla.R.App.P. 9.030(a)(2)(B); City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982).

The court below was acting in its review capacity in regard to a decision of the City of Treasure Island’s Board of Adjustment and Appeals. Respondent had appealed to the Board of Adjustment an administrative decision of petitioner which denied his application for a permit to construct a vinyl awning or cover to be permanently affixed to the boat davits and lifts attached to his dock at his residence. The Board of Adjustment denied his appeal on the basis that to grant the permit would violate sections 6-18.1 and 706.01 of the Treasure Island Code of Ordinances.

The court below reversed the decision of the Board of Adjustment by finding that the awning respondent applied for would not violate either ordinance provision. It appears that the court below simply substituted its judgment for that of the Board of Adjustment on undisputed facts and ordinance provisions that are clear and unambiguous. That is an improper standard of review by the lower court.

The lower court was reviewing the action of the Board of Adjustment not on a trial de novo, but by review in the nature of certiorari review. Thus, the scope of review of the court below was whether the action of the Board of Adjustment afforded procedural due process, was supported by substantial competent evidence and whether it observed the essential requirements of law. City of Deerfield Beach; Bell v. City of Sarasota, 371 So.2d 525 (Fla. 2d DCA 1979); City of Ormond Beach v. State ex rel. Del Marco, 426 So.2d 1029 (Fla. 5th DCA 1983); Cherokee Crushed Stone v. City of Miramar, 421 So.2d 684 (Fla. 4th DCA 1982).

The respondent applied for a permit to permanently affix a vinyl awning or cover to the davits and lifts by which his sixteen-foot boat was supported over water. Section 706.01 of the petitioner’s Code of Ordinances provides that “no structures shall be erected or constructed beyond the established bulkhead or bulkhead line of any body of water except docks, davits and/or lifts.” Section 6-81.1 of the code provides that “no dock or wharf, pier or other structure ... shall be enclosed or covered by any means, either permanent or temporary.”

Since the court below applied an improper standard of review of the action of the Board of Adjustment, it thereby departed from the essential requirements of law. Accordingly, we grant certiorari and quash the order of the circuit court.

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


author: PER CURIAM. SMITH, Judge,

text:
    Steven R. SONSON and Barbara Sonson, Appellants, v. Leon BUCKLES, d/b/a Leon Buckles Land Preparation, Appellee.
    No. AX-303.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1985.

      Pamela A. Schneider of Wershow, Bur-well, Wershow & Schneider, Gainesville, for appellant Steven R. Sonson.
    Leonard E. Ireland, Jr. of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee.
   PER CURIAM.

AFFIRMED.

ZEHMER and BARFIELD, JJ., concur.

SMITH, J., concurs specially, with opinion.

SMITH, Judge,

specially concurring.

I concur in affirmance of the trial court under the rationale of Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971), since appellants delayed their motion to dismiss the equitable mechanic’s lien foreclosure action until the cause had been fully tried, at which time the trial court properly denied foreclosure of the lien, but also properly entered a money judgment based on the contractual obligation established by the evidence.


text:
    Charles MARTIN a/k/a Charles Fryson a/k/a Charles Clark a/k/a Charles Cobb a/k/a Slim, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1689.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Bennett H. Brummer, Public Defender and Steven R. Jacob, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Peri v. State, 426 So.2d 1021 (Fla. 3d DCA 1983); Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982); Russell v. State, 349 So.2d 1224 (Fla. 2d DCA 1977); Romero v. State, 341 So.2d 263 (Fla. 3d DCA 1977).


text:
    Larry RICKS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1741.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Bennett H. Brummer, Public Defender and Arthur W. Carter, Sp. Asst. Public Defender, John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski and Richard L. Polin, Asst. At-tys. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Steinhorst v. State, 412 So.2d 332 (Fla.1982); Sections 59.041 and 924.33, Florida Statutes (1983).


text:
    Earl DEVENNEY, Appellant, v. The ESTATE OF Bonnie DEVENNEY, Appellee.
    No. 84-799.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Michael H. Weisser, North Miami Beach, for appellant.
    Pardo & Pardo and Joseph Pardo, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. In Re Estate of Carpenter v. Carpenter, 253 So.2d 697 (Fla.1971); In Re Bailey’s Estate v. Bailey, 122 So.2d 243 (Fla.1960); Estate of Edwards v. City National Bank of Leesburg, 433 So.2d 1349 (Fla. 5th DCA 1983).


text:
    MIAMI NATIONAL BANK, Appellant, v. Delores NUNEZ, Appellee.
    No. 84-892.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey and C. Randolph Coleman and Mara Beth Sommers, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Kendall B. Coffey and Stevan J. Pardo, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Miami National Bank v. First International Realty Investment Corp., 364 So.2d 873 (Fla. 3d DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979); Gandy v. Park National Bank, 250 Colo. 298, 615 P.2d 20 (1980) (en banc); Franklin National Bank v. Palm Beach Builders, Inc., 28 Misc.2d 986, 221 N.Y.S.2d 133 (1961); Straus-Frank Co. v. Hughes, 138 Tex. 50, 156 S.W.2d 519 (1941).


text:
    George F. BENTZEL, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. BA-325.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1985.
    George F. Bentzel, pro se, for petitioner.
    Jim Smith, Atty. Gen., and Douglas B. Mac Innes, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

After a complete and thorough review of the record we deny petitioner’s Petition for Writ of Mandamus, or in the Alternative, Petition for Writ of Habeas Corpus.

SHIVERS, WENTWORTH and JOA-NOS, JJ., concur.


text:
    William Leslie AHRENS, Appellant, v. Janice AHRENS, Appellee.
    Nos. 83-911, 83-1800 and 83-2224.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant.
    Louis L. Williams of Farish & Farish, West Palm Beach, for appellee.
   PER CURIAM.

We have considered appellant’s four points on appeal from two orders of the trial court finding appellant in contempt and denying modification and find no error demonstrated with one exception: appellee admits the amount of arrearage for child support contained in the order of July 14, 1983 should be $1600 rather than $2100. Accordingly on remand the trial court shall modify the order of July 14, 1983 to show the arrearage to be $1600.

As so modified the orders appealed from are AFFIRMED.

DOWNEY, GLICKSTEIN and DELL, JJ., concur.


text:
    FAITH TABERNACLE OF FT. PIERCE, INC., a Florida not-for-profit corporation, Appellant/Cross-Appellee, v. The PENINSULAR FLORIDA DISTRICT COUNCIL OF THE ASSEMBLIES OF GOD, INC., a Florida not-for-profit corporation, Appellee/Cross-Appellant.
    No. 84-320.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    Joseph J. DeRoss, Jr., and Alberta S. Widman of Orr & DeRoss, Fort Pierce, for appellant/cross-appellee.
    Stephen P. Hoskins of Lloyd, Brown, Hoskins & Becht, Fort Pierce, and Richard A. Pettigrew and Sonia M. Pawluc of Morgan, Lewis & Bockius, Miami, for appel-lee/cross-appellant.
   PER CURIAM.

We have thoroughly reviewed the appellate presentation and find that no reversible error has been demonstrated.

Affirmed.

HERSEY and WALDEN, JJ., and FLEET, J. LEONARD, Associate Judge, concur.


author: DELL, Judge.

text:
    Elvera ISABELLA and Albert Isabella, Appellant, v. FLORIDA PATIENT’S COMPENSATION FUND, Appellee.
    No. 84-747.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    Sara Soto of Bailey & Dawes, Miami, for appellant.
    Betsy E. Hartley of Talburt, Kubicki, Bradley & Draper, Miami, for appellee.
   DELL, Judge.

Appellants seek reversal of a final summary judgment entered in favor of the Florida Patient’s Compensation Fund.

More than four and a half years after accrual of their claim for medical malpractice, appellants amended their complaint to add the Florida Patient’s Compensation Fund. On motion for summary judgment, the trial court held that under Sections 95.11(3)(f) and 95.11(4)(b), Florida Statutes (1983), the statute of limitations had expired on appellants’ claim against appellee, and granted appellee’s motion on the authority of Owens v. Florida Patient’s Compensation Fund, 428 So.2d 708 (Fla. 1st DCA 1983).

Our decision in Florida Patient’s Compensation Fund v. Tillman, 453 So.2d 1376 (Fla. 4th DCA 1984), although issued after the trial court’s decision, requires reversal of the summary judgment in favor of appellee. We again acknowledge that this court’s decision is in direct and express conflict with the following cases: Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984); Burr v. Florida Patient’s Compensation Fund, 447 So.2d 349 (Fla. 2d DCA 1984); Owens v. Florida Patient’s Compensation Fund, 428 So.2d 708 (Fla. 1st DCA 1983), petition for review denied, 436 So.2d 100 (Fla.1983); Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied and appeal dismissed, 383 So.2d 1198 (Fla.1980); and Fabal v. Florida Keys Memorial Hospital, 452 So.2d 946 (Fla. 3d DCA 1984).

REVERSED and REMANDED.

HERSEY and WALDEN, JJ., concur.


author: BARKETT, Judge.

text:
    ESTATE OF Ernest SCHLEUSENER, Petitioner, v. Ronald STUART, Respondent.
    No. 85-67.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    M. Ross Shulmister of Law Offices of M. Ross Shulmister, Fort Lauderdale, for petitioner.
    No appearance on behalf of appellee.
   BARKETT, Judge.

This petition for writ of certiorari seeks review of an order denying a motion for summary judgment.

Certiorari is available only when the petitioner is able to demonstrate both a departure from the essential requirements of law and the lack of an adequate remedy by direct appeal after final judgment. Palm Beach Newspapers, Inc. v. Parker, 417 So.2d 323, 323 (Fla. 4th DCA 1982); Siegel v. Abramowitz, 309 So.2d 234, 235 (Fla. 4th DCA 1975). Petitioner has a remedy by direct appeal.

The petition for writ of certiorari is denied.

HERSEY and HURLEY, JJ., concur.