author: GRIMES, Acting Chief Judge.

text:
    Earl Eugene WENZEL, Appellant, v. STATE of Florida, Appellee.
    No. 83-404.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1984.
    Rehearing Denied Nov. 28, 1984.

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

Appellant was charged with second degree murder and was convicted of third degree murder. On appeal he contends that the trial court erred by: (1) failing to instruct the jury on excusable homicide; (2) instructing the jury on third degree murder without instructing on an underlying felony; and (3) failing to give appellant’s specially requested instruction on justifiable homicide.

On the night of November 3, 1981, George Southerland, Joyce Gunter, and Winston Shiver met at the 39 Truck Stop Restaurant in Plant City. As they were sitting in a booth, appellant and Eddie Yon entered the restaurant. The appellant was wearing a cowboy hat and had two earrings in one ear. Shiver addressed a disparaging remark to appellant. The appellant sat in the adjoining booth and words were exchanged.

Eventually, Southerland, Gunter, and Shiver left the restaurant and proceeded to Southerland’s car. The three of them sat in the front seat with Shiver on the passenger side. Shortly thereafter, appellant and Yon pulled up to the passenger side of the car in a pickup truck. Appellant asked Shiver and his companions what their problem was. According to Southerland, Shiver got out of the car and appellant shot him. Appellant then fired at Southerland. Southerland attempted to return fire, but only one bullet was successfully fired. Southerland denied firing his gun first.

Appellant testified that when Shiver exited the car, he said he was “going to get me a queer cowboy.” As Shiver reached into his pocket, appellant picked up a pistol from the front seat of the pickup truck and pointed it out the window. Appellant then said he saw a flash and by reflex fired the pistol, killing Shiver. Appellant fired two more shots in the direction of the flash and fled.

The court instructed the jury on second degree murder, third degree murder, manslaughter, and justifiable homicide. The court refused appellant’s request to instruct on excusable homicide. No instruction was requested or given on any underlying felony to third degree murder. The court gave the standard jury instruction on justifiable homicide but denied appellant’s specially requested instruction on the same subject.

Where there is any evidence which supports a theory of the defense, a defendant is entitled to have the jury ⅛ structed on the law applicable to his theory when he so requests. Bryant v. State, 412 So.2d 347 (Fla.1982). If appellant’s testimony were believed, he picked up the gun in self-defense and fired it by accident when he saw a flash. Therefore, his theory of excusable homicide was arguably supported by evidence in the case. The court erred in refusing his request to instruct on excusable homicide.

As to the trial court’s failure to instruct the jury concerning an underlying felony to third degree murder, we find that appellant did not preserve this issue for appellate review. To meet the objectives of the contemporaneous objection rule, an objection must be sufficiently specific both to apprise the judge of the putative error and to preserve the issue for intelligent review on appeal. Castor v. State, 365 So.2d 701 (Fla.1978). The record in this case shows that at the conclusion of the jury instructions given by the court, defense counsel only stated, “I also object to the third degree murder charge as it was given.” The failure to instruct on any felony underlying the lesser included charge of third degree murder is not fundamental error. State v. Fuller, 455 So.2d 357 (Fla.1984).

Finally, we find no error in the trial court’s refusal to give appellant’s specially requested instruction on justifiable homicide. The proposed instruction was as follows: “If the killing of one party is excusable or justifiable, then the unintended killing of another party is also excusable or justifiable.” A review of the evidence in this case clearly demonstrates that such an instruction would have been inappropriate. There was no basis to suggest that appellant’s unintentional killing of one party was predicated upon excusable or justifiable conduct directed toward another.

We hold that the trial court erred in failing to instruct the jury on excusable homicide. Accordingly, the judgment and sentence is reversed and the case is remanded for a new trial.

OTT and LEHAN, JJ., concur.

      . In light of our disposition of this case, we need not address appellant’s fourth point which involves an alleged sentencing error.

      . Homicide is not unlawful if excusably or justifiably committed. Therefore, the court’s refusal to give any instruction whatsoever on excusable homicide may have been error, even if it could be said that there was no evidence to support the defense. See Henry v. State, 359 So.2d 864 (Fla.1978).


source: Caselaw Access Project

author: COBB, Chief Judge.

license: Public Domain

text:
    Richard N. NAZARETH, M.D., Appellant, v. Carolyn SAPP and James Sapp, her husband, Appellees.
    No. 83-1293.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 1984.
    Rehearing Denied Dec. 6, 1984.
    Ronald L. Harrop of Gurney & Handley, P.A., Orlando, for appellant.
    T.G. LaGrone, Orlando, for appellees.
   COBB, Chief Judge.

Following a jury trial resulting in a defense verdict, the trial judge granted the plaintiffs’ motion for new trial based upon his perception of trial misconduct by defense counsel. The trial court found:

That a new trial should be granted in this cause on the grounds (1) that the jury’s verdict was influenced by matters outside the record; including the personal opinions of defense counsel; (2) the improper appeals of counsel for the Defendant to the jury’s emotions and prejudices which so permeated the jury’s decision by its cumulative effects to result in a miscarriage of justice; (3) that this Court erred in not sustaining the objection of Plaintiffs to the “afflication of litigiousness” argument of defense counsel, and failing to admonish the jury to disregard any such appeal; and (4) the totally unsupported assertions and closing argument by defense counsel of false issues, including specifically an assertion of collusion, subornation of perjury and extortion.
This determination is based upon the Court’s personal observation of the trial and the conduct of counsel for five (5) days made in the face [of] countless admonitions and warnings to counsel to conduct the trial with propriety.

We have reviewed the record and find that it amply supports the findings of the trial judge and his order granting a new trial. It is true, as argued on appeal, that many of the prejudicial remarks made by Attorney Handley in closing argument escaped objection below. But the law of Florida is to the effect that “if the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury, a new trial should be awarded regardless of the want of objection.” [Emphasis in original.] Tyus v. Apalachicola Northern Railroad Co., 130 So.2d 580, 587 (Fla.1961).

AFFIRMED.

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


author: BARFIELD, Judge.

text:
    Barry BONIFAY, City of Pensacola, Daniel Thomas Bowen and Mary Catches Bowen, Appellants, v. Barry E. DICKSON and John R. Williams, Appellees.
    No. AZ-138.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.
    Rehearing Denied Nov. 30, 1984.

      John B. Carr of Barnes & Carr, Pensacola, for appellant Bonifay.
    John W. Fleming, Asst. City Atty., Pensacola, for appellant City of Pensacola.
    John P. Welch of Jones & Welch, Pensacola, for appellants Daniel Thomas Bowen and Mary Catches Bowen.
    Artice L. McGraw of Cetti, McGraw, Bearman & Eddins, Pensacola, for appel-lees.
   BARFIELD, Judge.

Appellants challenge a final judgment quieting title in Dickson and Williams who, it is asserted, have failed to show the validity of their title. In addition, appellants contend that the trial court failed to recognize public and private interests in the disputed property. We agree and reverse.

This case is another in a series of disputes over the ownership of sections of a strip of waterfront property in a residential development known as East Pensacola Heights. The disputed property is located between Bayou Boulevard, a street that runs along the western perimeter of the development, and the waters of Bayou Te-xar. In 1909, the East Pensacola City Company conveyed the lots in Block 59, which are located across the street from the disputed strip, in deeds which referenced a plat of the subdivision made by J.E. Kauser in 1893. The Kauser map shows the development subdivided into lots and blocks and also shows an unnamed strip of land running along the western boundary of the subdivision between the platted lots and the shoreline of Bayou Texar. At the turn of the century there was apparently a wagon trail along this strip which became more extensively used over time until it was finally paved by the county and officially designated as Bayou Boulevard.

Appellants Daniel and Mary Bowen purchased lots in the southwest portion of Block 59 in the early 1940’s, at which time the shoreline of Bayou Texar ran alongside the dirt road now known as Bayou Boulevard. According to the Bowens, the land now in dispute was at that time covered with water. By 1946 it had become a boggy area, covered with thick brush and potholes of standing water. At some time in the early 1950’s, a road contractor working in the area received permission from the Bowens to dump sand onto the disputed property. The Bowens thereafter planted grass, trees and a garden, and have maintained and used the property up to the present time. In 1957 the Bowens gave the City of Pensacola an easement across the disputed property for installation of a sanitary sewer line.

As early as 1941, the' county installed culverts under Bayou Boulevard to carry storm water runoff. These storm sewers, and the areas surrounding them, were maintained by the City after the subdivision was annexed in 1953. According to the Bowens, much of the accretion which has occurred since 1953 has been caused by sand washed onto the disputed area by the storm drains from Stanley Avenue and Lee Street.

In 1976 Charles and Ellen Lea and Julia Tait purchased the lots in the northwest section of Block 59 by warranty deed which contained a legal description of the lots and included the following language:

... together with the Grantors’ right, title and interest, including riparian rights, in and to all or any part of the land and water bounded by a westerly extension of the South line of Lot 9, Block 59, running to the waters of Bayou Texar, and a northerly extension of the East line of Lots 9, 10, 11 and 12, Block 59, running to the waters of Bayou Te-xar.

On May 26, 1977, the Leas and Tait obtained a quit-claim deed from their neighbors to the north for an area of waterfront property which included not only the land directly across the street from the lots owned by the Leas and Tait, but also for part of the property directly across the street from the Bowens’ lots. This latter portion of the waterfront property is the land in dispute.

On July 28, 1977, the Bowens filed a petition for injunction to restrain the Leas from erecting a fence along the northern border of the waterfront property claimed by the Leas; this case was dismissed without prejudice. In the spring of 1978, the Bowens obtained a survey of the waterfront property directly across from their lots and a building permit to erect a fence along the northern border of this property. When Mr. Lea tore down the fence erected by the Bowens, Mrs. Bowen had him arrested. Thereafter, the Bowens obtained a quit-claim deed from Agnes Leaman, their neighbor to the south, for the waterfront property directly across from their lots.

On March 30, 1981, appellees Dickson and Williams purchased the waterfront property claimed by the Leas. On July 28, 1981, Dickson and Williams filed suit to quiet title to the disputed parcel, claiming record title based on a chain of title from October 18, 1963, coupled with a claim of title by adverse possession; a second count sought damages for slander of title. The City of Pensacola was allowed to intervene, claiming the sanitary sewer easement from 1957 and claiming also that portions of the subject property are dedicated public street rights-of-way. Barry Bonifay, a subdivision lot owner whose deeds referenced the Kauser map, was also allowed to intervene, claiming an implied private easement of access across the disputed property.

At trial, Williams testified that the property appeared well kept at the time of the 1981 purchase, that he paid property taxes for 1981 and 1982, and that he hired a lawn care agent to maintain the property from March, 1981 to the present, but that he does not know who maintained it prior to his purchase. The Bowens defended the action, testifying to their use and possession of the property for forty years, but did not seek by counterclaim to quiet title in themselves. In his final judgment, the trial judge found, inter alia, that the accreted property in dispute is adjacent to property delineated on the Kauser map; that the intent of the original owners of the undes-ignated strip of land west of the blocks and lots may not be deduced from the plat as a roadway; that the City has permitted buildings to be constructed on portions of the undesignated part of the property; and that the proof of acceptance of a public dedication was insufficient.

In order to determine the interests of each of the parties in the disputed property, it is necessary to examine its history, starting with the map drawn by J.E. Kau-ser in 1893. The first issue to be determined is whether this map, with respect to which the lots in the development were conveyed by the East Pensacola City Company, constitutes an offer of dedication to public use of the platted roadways. Common law dedication, one of several processes by which an owner of an interest in' land can transfer to the public either ownership or a privilege of user for a public purpose, requires an intention to dedicate the property to the use of the public, acceptance by the public, and clear and unequivocal proof of these facts.

An intention to dedicate may be implied from the acts of the landowner, including filing a map or plat of the property designating the roadways thereon, or platting the land and selling lots pursuant to the plat, indicating thereon places for parks, public grounds, and streets. City of Palmetto v. Katsch, 98 So. 352 (Fla.1923). Although it appears that the Kauser map was recorded subsequent to the conveyance of the subject lots in 1909, an offer of dedication may be implied from the fact that these conveyances were made with reference to the Kauser map.

The next question is whether the dedicator intended to dedicate the unnamed strip of land in dispute, as well as the named streets designated on the map. Construing the plaf as a whole and resolving any ambiguity regarding the extent of the dedication against the dedicator and in favor of the public, Florida East Coast Ry. Co. v. Worley, 38 So. 618 (Fla.1905), we construe the map as evidencing the owner’s intention to dedicate the disputed strip, as well as the named streets.

It must also be determined whether the owner intended to dedicate for public use the entire strip, or only so much of it as was required for a public road, leaving an irregular strip of undedicated land on the water side of the road. In Brickell v. Town of Ft. Lauderdale, 78 So. 681, 683 (Fla.1918), the court observed:

A single undulating line is usually used for marking a water boundary not affected by tides, while several parallel waved lines are used to mark a water boundary where tides ebb and flow; and where these are found on a plat they should be taken to define a lot or street lying on the water, with nothing between it and the water, in the absence of anything appearing to the contrary on the plat or in the dedication.

We construe the map as indicating an intention to dedicate the entire width of the undesignated strip, from the lot lines to the water’s edge, for public purposes.

Acceptance of an offer of dedication may be expressed or may be implied from acts showing an intention to accept, including, among other things, use by the public or maintenance and improvement by the proper authorities of part of the land dedicated. In City of Pensacola v. Walker, 167 So.2d 634 (Fla. 1st DCA 1964), this court noted that a wagon trail existed along the disputed strip in the early 1900’s and that as it became more extensively used, it was graded and paved by the county and officially dedicated as Bayou Boulevard. The record reflects that in the early 1940’s the county installed culverts under Bayou Boulevard to carry storm water runoff, and that these culverts were maintained by the City after the subdivision was annexed in 1953. These acts of the public authorities in maintaining and improving the road and the storm sewer lines may be construed as indicating acceptance of the entire strip offered for dedication.

The Florida Supreme Court held in Indian Rocks Beach South Shore, Inc. v. Ewell, 59 So.2d 647 (Fla.1952), that public acceptance by use of the main thoroughfare of a platted subdivision constituted an acceptance of the offer to dedicate the entire system of streets appearing on the plat. A similar result was reached in Waterman v. Smith, 94 So.2d 186 (Fla.1957), in which it was held that an offer to dedicate two contiguous alleys was wholly accepted by the City’s action in paving one of them. In Smith v. City of Melbourne, 211 So.2d 66 (Fla. 4th DCA 1968), the court held there was a completed dedication of a 30-foot road right-of-way although the City had not paved the full width of the roadway. And in Dade County v. Harris, 90 So.2d 316 (Fla.1956), use of a portion of a highway right-of-way as a “grass parkway” was held not incompatible with dedication and user of the whole for highway purposes. Section 95.361, Florida Statutes (1977), which establishes a presumption of dedication when a road has been maintained by public authorities for four continuous years, but only to the extent in width that has actually been maintained for the prescribed period, does not limit the operation of common law dedication as discussed in the cited cases.

City of Pensacola v. Walker, supra, in which this court affirmed the chancellor’s finding that the evidence affirmatively established a lack of acceptance by the public of an offer to dedicate the disputed strip of land to public use, except as to the right-of-way of Bayou Boulevard, is distinguished from the instant case on its facts and should not in our opinion be extended to control the determination of ownership and other property rights with respect to land not involved in that litigation.

Although section 95.361, Florida Statutes provides for acquisition of fee title to the “dedicated” road, Madden v. Florala Telephone Company, 362 So.2d 475 (Fla. 1st DCA), appeal dismissed, 367 So.2d 1125 (Fla.1978), common law dedication leaves ownership of the land in the dedicator, giving to the public rights of easement only. Under the doctrine of estoppel in pais, the dedicator is precluded from exercising any right in the dedicated property which conflicts with the rights of the public. On acceptance of the dedication by the public, the public rights of easement take precedence over any title to the street acquired by purchasers of abutting lots.

The general rule is that the abutting lot owners own fee title to the middle of a dedicated street, Burns v. McDaniel, 140 So. 314 (Fla.1932). However, where the dedicated street runs along a navigable body of water, the abutting lot owners own the fee title to the entire width of the dedicated land, as well as title to the accretions formed along the street. See Burkart v. City of Fort Lauderdale, 168 So.2d 65 (Fla.1964), in which a recorded subdivision plat dedicated a street along a navigable body of water to the public, but provided that the riparian rights were reserved to the subdivider and its successors. The court held that the subdivider’s successors held the fee interest in the accretions which formed along the street, but that the accretions were subject to the street easement, so that the general public had the right to use the accretions for access to the water.

A careful examination of the Burkart opinion, and application of the principles enunciated therein to the facts of the instant case, leads to the conclusion that the Bowens hold fee title to the disputed property, since it lies directly across the street from their lots. However, this fee title is subject to the public easement, including the riparian rights incident to that easement. We make this statement by way of observation only, since the Bowens have not requested the trial court to quiet their title to the disputed property, nor has the City claimed a public easement encompassing the entire parcel. The foregoing and following analyses of the competing interests of the parties in the subject property are intended as a guide for future determinations regarding ownership of and easement interests in this and other similarly situated property.

In addition to public rights which may be created by dedication and acceptance, conveyances in reference to a plat may also create private rights in the purchasers of subdivision lots to have the public places described in the plat maintained for their designated uses. In McCorquodale v. Keyton, 63 So.2d 906, 910 (Fla.1953), the court stated the rule that when lots are sold with reference to a recorded subdivision plat, the purchasers acquire by implied covenant a private easement in lands of the grantors other than those specifically deeded, the purpose of the rule being “not to create public rights, but to secure to persons purchasing lots under such circumstances those benefits, the promise of which, it is reasonable to infer, has induced them to buy portions of a tract laid out in the plan indicated.” Appellant Bonifay asserts such a private easement across the disputed property. A similar claim was asserted in Bonifay v. Garner, 445 So.2d 597, 603 (Fla. 1st DCA 1984), in which this court found that the evidence presented “would support a finding that appellant, and others similarly situated, have an implied easement of access to the waterfront property west of Bayou Boulevard, unless these private easements have been extinguished by adverse possession, abandonment, nonuser, estoppel, or some other basis.” Bonifay’s deed and the referenced Kauser map support his claim of an implied easement across the property in dispute in this case, absent a finding that the easement has been extinguished.

This leaves for determination the rights of appellees Dickson and Williams, plaintiffs in the quiet title action. Appel-lees’ claimed title to the disputed property appears to be based upon two theories: record title based upon a chain of title beginning with a conveyance in 1963, and title by adverse possession under color of title. We will treat the claim based upon chain of title first. Our earlier analysis leads to the conclusion that the Leas and Tait held fee simple title to the waterfront property directly in front of their lots, which title they conveyed to Dickson and Williams in 1981, subject to the public and private easements thereon. However, the language in appellees’ chain of title does not give them any title to the disputed property, which lies directly in front of the Bowens’ lots. Although found in “warranty deeds”, this language, with respect to the disputed property, is in the nature of a “quit-claim” deed, conveying only that interest which the grantor holds in the described property. Appellees’ claim to the disputed property based upon their chain of title therefore fails.

The final issue is whether ap-pellees have shown valid title by adverse possession under color of title. Although adverse possession cannot operate to divest the public or governmental unit of rights in a dedicated plat, Laube v. City of Stuart, 107 So.2d 757 (Fla. 2d DCA 1958), fee title may be acquired and private rights of easement extinguished by adverse possession, Bonifay v. Gamer, supra. In order to acquire rights by adverse possession, ap-pellees were required to prove seven years of continuous, exclusive, open and notorious, adverse possession under “color of title”. Section 95.16, Florida Statutes (1977).

Seven years prior to the initiation of this quiet title action the lots in the northwest section of Block 59 were owned by one Kirkpatrick, whose deed contained language similar to that already quoted. This raises the question of whether a quitclaim deed may be used to establish color of title where the grantor had no interest in the property allegedly conveyed. This question was answered in the affirmative in Deverick v. Bailey, 174 So.2d 440 (Fla. 2d DCA 1965), in which the court reversed a summary judgment, finding that the allegations and affidavits as to adverse possession were sufficient to create a genuine issue of material fact. However, in a later appeal, Deverick v. Bailey, 224 So.2d 361 (Fla. 2d DCA 1969), the court affirmed the lower court’s finding that appellant had not proven title by adverse possession, where her color of title was based upon a warranty deed from her daughter, pursuant to a quit-claim deed from Shannahan, in which Shannahan’s only basis of title was a sales agreement or option to purchase which was more than twenty-five years old and which the court found had long since become void. Since the doctrine of color of title is available only in cases where the instrument purporting to be a conveyance is accepted in good faith and in the honest belief that it vests title in the claimant, Simpson v. Lindgren, 133 So.2d 439 (Fla. 3d DCA 1961), the question of whether a quit-claim deed establishes color of title depends upon the circumstances under which it is given and received. Although the original 1963 deed upon which appel-lees’ chain of title is based may not have constituted good faith color of title, the ensuing series of deeds could be found to constitute color of title, as long as the grantees did not know that their grantors had no interest in the disputed property.

Although appellees may have shown color of title, the record does not support a finding that they and their predecessors in interest have been in continuous, exclusive, open and notorious, adverse possession of the disputed property for at least seven years prior to the filing of the quiet title action. Appellees testified that they have paid taxes for 1981 and 1982, and have engaged a yard maintenance service to maintain the property since their purchase. However, their possession dates from March 30, 1981. Appellees have presented no evidence regarding any acts of possession by their predecessors in interest prior to 1976, and insufficient acts by the Leas to constitute “adverse possession”. On the contrary, the Bowens testified that they have continuously maintained the property since the 1940’s.

Because appellees, plaintiffs in the quiet title action, have failed to establish valid title to the disputed property, we must reverse the judgment of the trial court. We recognize that our decision regarding the parties’ interests in this section of the waterfront property bordering Bayou Te-xar will have implications for future determinations of property rights to other sections of the strip, including the trial court’s further consideration of the issues in Bonifay v. Garner, supra. We do not resolve the issues raised by our observations and analyses, as they pertain to possible claims by appellants and others to property rights in the disputed parcel. Our decision is limited to the finding that Dickson and Williams did not carry their burden of showing valid title to the subject property. The judgment is REVERSED and the cause is REMANDED to the trial court for issuance of an order that the plaintiffs take nothing by the quiet title action.

JOANOS and WIGGINTON, JJ., concur.

      . See Bonifay v. Garner, 445 So.2d 597 (Fla. 1st DCA 1984) and cases cited therein.

      . See City of Pensacola v. Walker, 167 So.2d 634, 635 (Fla. 1st DCA 1964).

      . Lea later won a $10,000 judgment against Mrs. Bowen for malicious prosecution.

      . However, there are no specific formalities necessary to constitute an effective common law dedication. 2 R. Boyer, Florida Real Estate Transactions § 30.02 (1984).

      . See also Earle v. McCarty, 70 So.2d 314 (Fla. 1954); Burkart v. City of Fort Lauderdale, 168 So.2d 65 (Fla.1964), and Feig v. Graves, 100 So.2d 192 (Fla. 2d DCA 1958).

      . Attached to the motion for rehearing filed by the City and Bonifay was a copy of a portion of a survey of the area by Waring Chapman and Farquhar made in January, 1889, with reference to which Block 53 (not involved in this dispute) was conveyed in 1890. This survey shows a roadway along the disputed strip, indicated by two parallel lines and designated as “Lake Boulevard South.” There is no indication that this survey was ever recorded or that any other lots were conveyed with reference to it. We consider the recorded 1893 Kauser map controlling in this cause.

      . 2 R. Boyer, Florida Real Estate Transactions § 30.05 (1984).

      . For the most part, the strip of land in dispute (the parties are not claiming an interest in the land under Bayou Boulevard) did not exist at the time of acceptance by the county, but is a product of accretion over the past forty years.

      . The Court’s specific findings are as follows:
      1) This cause was heard by the Court in an action filed by the Plaintiffs to quiet title to property created through accretion, which accreted property is adjacent to property delineated on a revised map of East Pensacola from a resurvey made in 1893 by J.E. Kauser, C.E.
      2) That the map or plat contained no dimension thereon as to the width of the lots or streets. The blocks and lots do not extend on the map to the water body. Depicted on the map is a meander line of the water body in the front of said blocks, which line is not designated on said map as a roadway or by any other designation. The map or plat was not recorded until 1915.
      3) That the evidence adduced at Final Hearing revealed that several homes and structures had been erected on the undesignated portion of property adjacent to the water body in the near proximity of the subject property impeding vehicle travel of that portion of the roadway.
      4) That evidence additionally indicates that the original owners of the entire tract did not convey any of the property which is the subject of this suit. It is apparent from the testimony that the original owners did not exercise dominion over said property in question nor did they pay taxes on same.
      5) That the map or plat pertaining to the subject property was a resurvey of the property by J.E. Kauser, C.E., made in 1893, which survey was not recorded until August 30, 1915. The subject property, lying and being to the West of Block 59, is an undesignated strip of property meandering along the Bayou. That the intent of the original owners of the property may not be deduced from the plat as a roadway inasmuch as there is no designation as such or even any distances reflected on the plat from the property line to the body of water.
      6) That the City has permitted buildings or structures to be constructed on a portion of the undesignated part of the property which lies adjacent to the waterbody impeding any vehicular traffic on said undesignated strip. As was determined in City of Pensacola v. Walker, 167 So.2d 634, "The proof of acceptance by the public of an offer of dedication must be ‘clear, satisfactory and unequivocal’.” The proof of acceptance by the public falls far short of the standard set by the rule in Mumaw, therefore, it is hereby:
      ORDERED AND ADJUDGED:
      1. That'this Court has jurisdiction over the subject matter hereof and the parties hereto, and that the equities of this cause are with the Plaintiffs.
      2. That the title of the Plaintiffs, BARRY E. DICKSON and JOHN R. WILLIAMS, in and to the following-described lands in Escambia County, Florida, to wit:
      That portion of land lying West of and adjacent to Block 59 and to the waters of Bayou Texar, according to map of East Pensacola Heights, by J.E. Kauser, dated 1893, and recorded in Deed Book 77, at Page 520, of the public records of Escambia County, Florida, described as follows: Beginning at the Northwest corner of Lot 9 of said Block 59; thence run North 41°00’40" West for 156 feet more or less to the waters of said Bayou, hereinafter referred to as Point “B”; thence beginning again at the Point of Beginning run South 49°39’20" West along the Northwest line of said Block for 38.87 feet; thence run North 90°00’ West for 81.30 feet; thence run North 49°00'40" West for 106 feet more or less to the waters of said Bayou; thence meander Northeasterly along said waters to aforesaid Point “B" for the end of this description, less Bayou Blvd. right-of-way.
      Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, be and the same is hereby, confirmed in and to the Plaintiffs, BARRY E. DICKSON and JOHN R. WILLIAMS, as a good and valid fee simple title, free and clear of any and all rights, titles or claims of the Defendants named herein, and the said Defendants named herein, be and they are hereby, forever barred and foreclosed of all rights, titles, interests and claims in and to said land.

      .The question is not before us at this time. However, we would find that although the chancellor’s findings in Walker may have been justified by the unique circumstances of that case, the Walker court’s reliance upon Mumaw v. Roberson, 60 So.2d 741 (Fla.1952) was inappropriate, in that Mumaw was factually totally distinguishable from Walker.

      It remains a mystery to us that the appellate court characterized one of the chancellor’s findings as "the recording of the plat might be held to be an implied offer to dedicate the disputed strip of land to public use” and did not determine the question of whether there was intention to dedicate. Since the court apparently held that there was an acceptance of a part of the offer to the extent of the right-of-way of the public street, it is only logical that acceptance followed an offer. To think that there could be an acceptance in the absence of an offer is illogical.

      . 2 R. Boyer, Florida Real Estate Transactions § 30.07 (1984).

      . Id.

      . Id.

      . Id. § 30.05.

      . Except for the 1981 deed conveying the waterfront property to appellees, which describes the property by metes and bounds, the deeds in appellees' chain of title, starting with the 1963 conveyance, use language similar to that used in the 1976 conveyance to the Leas and Tait, quoted in the text.

      . Bonifay v. Garner, 445 So.2d 597 (Fla. 1st DCA 1984), involved a claim of title based on deeds to appellee and his predecessors in interest conveying "any right that (grantors) may have to the riparian rights belonging to any of the foregoing lots or blocks”. The claim of title .was also based upon adverse possession, where "color of title”, not possession, was the issue. The trial court’s holding that there had been no public dedication of the undesignated strip was not challenged on appeal.


author: NIMMONS, Judge.

text:
    James CUTHBERT, Appellant, v. STATE of Florida, Appellee.
    No. AW-272.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Rehearing Denied Dec. 11, 1984.

      Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Cuthbert appeals his convictions and sentences for attempting to cause a riot (Count 1), aggravated assault (Count 2) and aggravated battery (Count 3). These offenses arose out of a major disturbance which occurred at the Cross City Correctional Institution where Cuthbert was an inmate. Cuthbert was tried by jury and convicted on each of the above counts. We affirm the convictions. However, sentencing errors occurred which require resen-tencing.

The trial court adjudged the defendant to be a habitual offender under Section 775.084, Florida Statutes (1988). However, the court failed to make the requisite findings necessary to sentence a defendant as a habitual offender. Although finding: (1) that the defendant had been previously convicted of a felony within the requisite period prior to the commission of the new offense for which he was to be sentenced; (2) that he had not been pardoned from that earlier conviction; and (3) the earlier conviction had not been set aside in any post-conviction proceeding; nevertheless, the court failed to make the requisite findings to support the conclusion that sentencing the defendant as a habitual offender was necessary for the protection of the public from further criminal activity of the defendant as required by Section 775.084(3). See Eutsey v. State, 383 So.2d 219, 226 (Fla.1980); Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984); Adams v. State, 376 So.2d 47 (Fla. 1st DCA 1979); Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976).

Actually, the sentences imposed by the trial court did not exceed the statutory máximums and, therefore, extended terms under the habitual offender law were not imposed. Instead, the trial judge, for purposes of the application of the sentencing guidelines under Fla.R.Cr.Pr. 3.701, relied upon his adjudication of habitual offender status in reclassifying aggravated battery (the offense chosen as the “primary offense at conviction”) from a second degree felony to a first degree felony. By doing this, 42 more points were added to the defendant’s guidelines score. ■ This moved the defendant’s score into the next higher sentence range cell. This was error. The habitual offender law neither mandates nor authorizes the reclassification of offenses. The trial court relied upon the following Committee Note to Rule 3.701 d.10:

If an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category.

Such reliance was misplaced. Section 775.-084 only authorizes the imposition of sentences which exceed the normal statutory maximum. The crimes are not reclassified. See Webb v. State, 410 So.2d 944

(Fla. 1st DCA 1982); Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978).

Next, the state argues that even if the primary offense (aggravated battery) could not be reclassified under the habitual offender law, it could be so reclassified under Section 775.087(1), Florida Statutes (1983) because of the defendant’s use of a weapon. Such argument is, of course, without merit inasmuch as Section 775.-087(1), by its own explicit terms, has no application to offenses in which the use of a weapon is already an essential element. The information specifically charged the defendant with aggravated battery under Section 784.045(l)(b). That section requires the use of a deadly weapon and the information so alleged. See Webb v. State, supra, and Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978).

The other point raised by the appellant asserts that the evidence was insufficient to support the conviction under count one of attempting to cause a riot. We find such assertion to ,be without merit and therefore affirm the convictions.

Finally, our review of the record has disclosed certain obvious inadvertent errors in the judgment which should, on remand, be corrected by the trial court. The judgment erroneously reflects that the Count II crime of aggravated assault is a second degree felony. It is, of course, a third degree felony. Also, the Count III crime is erroneously reflected to be aggravated assault instead of aggravated battery. We also note that the guidelines scoresheet erroneously shows the primary offense at conviction to be “attempting to cause a riot” whereas the transcript of the sentence proceeding shows that the trial judge actually used the aggravated battery offense as the primary offense. The trial court, on remand, should direct the preparation of a new guidelines scoresheet.

Affirmed in part, reversed in part and remanded for resentencing consistent with this opinion.

SHIVERS and WENTWORTH, JJ., concur.

      . The trial judge also added 12 more points by scoring victim injury as "severe” instead of "moderate.” This moved the defendant's score into an even higher sentence range cell. However, no issue is raised regarding the 12 additional points.

      . In its brief, the state argues that a “Comment” to d.10 contained in the "Guidelines Manual” prepared by the Florida Sentencing Guidelines Commission lends support to the trial court’s construction of d.10 as authorizing reclassification of the primary offense by reason of habitual offender status. The state also suggests that such "Comments,” along with the Rule, have been adopted by the Florida Supreme Court. The portion of the Comment relied upon by the state is as follows:
      The legislature has also provided that enhanced penalties may be imposed under specific circumstances (§ 775.084, Fla.Stat. (1981), habitual offender, § 775.087, Fla.Stat. (1981), use of a weapon or firearm in commission of a felony, and § 775.0845, Fla.Stat. (1981), wearing a mask while committing an offense). Thus, a felony of the first degree may be reclassified as a life felony, a felony of the second degree reclassified as a felony of the first degree, and a felony of the third degree reclassified as a felony of the second degree.
      In the first place, while the Rule’s Committee Notes have been adopted as a part of the Rule, see The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So.2d 824 (Fla.1984), no such imprimatur has been accorded the Commission’s Comments. Secondly, although one might reasonably construe the subject comment as expressing the view that d.10 authorizes reclassification of the primary offense by reason of habitual offender status, such view is patently erroneous. Indeed, the Commission itself has acknowledged as much by recognizing the confusion generated by its above quoted comment and striking the same:
      The elimination of that language should make clear that the extended term provision of the Habitual Offender statute is separate and distinct from the provisions of those statutes which permit enhancement by reclassification of felony degree.
      Minutes, Sentencing Guidelines Commission meeting, March 16, 1984.

      . The question arises, what with all the various recent changes in the Florida sentencing law wrought by Sentencing Guidelines and the "Correctional Reform Act of 1983” (Chapter 83-131, Laws of Florida), as to the present viability of the habitual offender law. As best we can tell, the habitual offender law is not directly affected by these new provisions in Florida's sentencing milieu. Under current practice, if the trial court, in accordance with the provisions of Section 775.084, finds the defendant to be a habitual offender and that it is necessary for the protection of the public to sentence the defendant to an extended term, the court will still be able to impose an extended term up to the periods of time set forth in Section 775.084(4); provided, however, that if the term exceeds the sentencing guidelines range, the court will have to comply with Rule 3.701 d.ll by stating in writing "clear and convincing reasons" for departure from the guidelines. See Brady v. State, 457 So.2d 544 (Fla. 2nd DCA 1984). Probably, in most cases, the reasons which the trial judge articulates, as required under Eutsey v. State, 383 So.2d 219 (Fla. 1980), see also Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984), for the imposition of a habitual offender extended sentence will also constitute clear and convincing reasons for departing from the guidelines. But such reasons would still have to be set forth in a written statement by the court as required in Rule 3.701 d.ll notwithstanding the fact that the findings of fact required by the habitual offender law may be either in writing or reported in the transcript of the sentencing hearing. See Eutsey at p. 226.

      . Section 775.087(1) provides in part:
      (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: ...


author: LEHAN, Judge.

text:
    Dennis WOOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2463.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 11, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals from an order revoking his probation, a conviction for grand theft, and sentences imposed for burglary, the charge for which he had been put on probation, and grand theft. We affirm the revocation of probation and the conviction for grand theft but remand for correction of the sentence.

On June 23, 1982, defendant was placed on four years probation for burglary. On March 28, 1983, an affidavit of violation of probation was filed alleging that defendant had violated his probation by committing a grand theft on February 22, 1983. The evidentiary hearing on the charge of violation of probation was held at the same time as the trial for the grand theft charge. After the trial was concluded, but before the jury returned with a verdict, the trial court determined that defendant had violated his probation.

Defendant contends that the trial court failed to make an adequate finding that the greater weight of the evidence had shown defendant had committed the crime. We disagree. The record supports the trial court’s revocation of probation based on the evidence heard at trial.

Defendant also contends that the trial court erred in denying his motion to suppress the stolen property which resulted in the charge of grand theft against defendant. We disagree. The motion to suppress alleged that the search and seizure was warrantless, unreasonable, and a violation of defendant’s rights under the Fourth Amendment to the United States Constitution. At the hearing on the motion to suppress the state responded that a warrant was unnecessary because section 232.-256, Florida Statutes (1983), allows school officials to search a student’s locker if there is reasonable suspicion that the locker contains an illegally possessed object. The state argued that the defendant had not alleged lack of reasonable suspicion as a ground for his motion and that the state, therefore, would not present the testimony of its witnesses to prove the existence of reasonable suspicion. Defense counsel nevertheless neither raised nor argued lack of reasonable suspicion and, in effect, by only arguing other aspects unrelated to reasonable suspicion, acceded to the state’s argument.

Although under Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981), the burden of proof to establish an exception to the Fourth Amendment shifts to the state when a defendant shows a warrantless governmental search of his person or effects, in this case the state did carry its burden. If, as here, the state prima facie carries its burden of proof by showing that section 232.256 applies and the defendant accedes to the state’s position, defendant has not preserved the point for appeal because the trial court was given no opportunity to address the issue which defendant now raises on appeal. The reasonable suspicion required by section 232.256 is different from probable cause. State v. D.T.W., 425 So.2d 1383 (Fla. 1st DCA 1983).

As his final point, defendant raises several alleged errors in sentencing. First, although the sentences on the grand theft charge and burglary charge are to run concurrently, defendant was given credit for twenty-seven days time served only on the burglary charge, not on the grand theft charge. We agree with defendant that credit for time served should apply to both concurrent sentences. Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984). Also, in the court’s oral pronouncement of sentence, the defendant was ordered to pay a total of $30.00 in court costs, but the written judgment shows an imposition of $50.00 in costs. The written judgment should be corrected to conform to the oral pronouncement of sentence.

Finally, defendant relies upon Jenkins v. State, 444 So.2d 947 (Fla.1984), and King v. State, 445 So.2d 1108 (Fla. 2d DCA 1984), for his contention that because he was not given notice of the court’s intention to impose court costs and an opportunity to object, those costs should be stricken. However, those cases involved indigents, and defendant had not been declared indigent at the time of sentencing.

The revocation of probation and the conviction for grand theft are affirmed, but the cause is remanded to the trial court for correction of the sentencing consistent with this opinion.

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


text:
    STANDARD HEATING SERVICE, INC., Appellant, v. GUYMANN CONSTRUCTION, INC., and Ohio Casualty Insurance Company, Appellees.
    No. 84-533.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 11, 1984.

      Robert B. Bennett, Jr., Sarasota, for appellant.
    Steven Carta of Simpson, Henderson, Savage & Carta, Fort Myers, for appellees.
   LEHAN, Judge.

Appellant furnished for a construction project diesel fuel and other petroleum products to an excavation firm which was under a subcontract with the appellee general contractor. Appellant sued the general contractor and the surety on a Labor and Material Payment Bond which had been furnished by the general contractor in connection with the work. Appellant’s complaint alleged two counts, one for nonpayment of a statutory bond and the other for nonpayment of a common law bond. The trial court dismissed both counts. We affirm.

The record shows that the Notice of Commencement which was not recorded by the owner of the project until February 12, 1982, was not timely recorded because construction apparently began on October 16, 1981. See § 713.13,' Fla.Stat. (1981). Notice of the bond was served by the owner upon appellant on March' 9, 1983. Thereafter, appellant’s notice of intent to rely upon the bond was served upon the general contractor, the surety, and the owner on March 28, 1983.

Regarding the dismissal of Count I on a statutory bond, appellant contends that the trial court erred in determining that the products supplied by appellant (diesel fuel, motor oil, lubricants, and other petroleum products) were not “materials” within the meaning of section 713.23, Florida Statutes (1981). Also appellant contends the trial court erred in determining that appellant failed to timely serve his notice to contractor and notice of nonpayment.

Appellee concedes, and we agree, that the trial court erred in determining that the products supplied were not “materials.” The furnishing of diesel fuel constituted the furnishing of materials under section 713.23. See Miami-Dade Water and Sewer Authority v. Progress Supply, Inc., 389 So.2d 253 (Fla. 3d DCA 1980).

However, we believe the trial court was correct in determining that the notice to contractor was not timely served. Section 713.23(l)(d) provides in part:

Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in writing that the lienor will look to the contractor’s bond for protection on the work. If a notice of commencement is not recorded, or a reference to the bond is not given in the notice of commencement, and in either case if the lien- or not in privity with the contractor is not otherwise notified in writing of the existence of the bond, the lienor not in privity with the contractor shall have 45 days from the date the lienor is notified of the existence of the bond within which to serve the notice. (Emphasis added.)

Thus, in this case notice of intent to rely upon the bond was required to be served within 45 days after appellant was notified of the existence of the bond. Appellant contends that it was not notified of the bond until March 9, 1983, when the notice of bond was served. Based upon that date, appellant’s notice of intent to rely on the bond, served on March 28, 1983, was timely. On the other hand, appellee contends that appellant received notice of the existence of the bond on February 12, 1982, the date of recording and posting of the Notice of Commencement. Based upon that date, appellant’s notice was untimely. We agree with appellee.

The fact that the Notice of Commencement was recorded late does not mean that it did not provide notice of the existence of the bond. The Notice of Commencement did provide such notice. The fact that the name and address of the surety was not given in the notice, as required by section 713.13, does not mean that appellant did not receive the requisite notice. Appellant did not need the surety’s name and address because appellant’s notice of intent to rely on the bond was required to be made to the contractor, not the surety. § 713.23(l)(d), Fla.Stat. (1981). Appellant was not prejudiced by the omission of the surety’s name and address.

Appellant also contends that the trial court erred in determining that Count II did not state a cause of action because the bond was not a common law bond. We disagree. A payment bond is a common law bond if it provides more expansive coverage than that provided for in the statute. See Southwest Florida Water Management District v. Miller Construction Co., Inc. of Leesburg, 355 So.2d 1258 (Fla. 2d DCA 1978); State, Department of Transportation v. Houdaille Industries, Inc., 372 So.2d 1177 (Fla. 1st DCA 1979). The bond here was no more expansive than a statutory bond provided for by section 713.-23, Florida Statutes (1981). The fact that the bond here specifically applied to the furnishing of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment, whereas, the statute applies to the furnishing of “materials” (which includes fuel, see Progress Supply, supra) is of no moment. The bond provided no more expanded coverage than a statutory bond. Furthermore, the bond’s definition of a claimant appears no more expansive than the requirement of section 713.23 that a statutory bond cover lienors. See § 713.01(10), Fla.Stat. (1981).

Affirmed.

RYDER, C.J., and SCHOONOVER, J„ concur.


author: CAMPBELL, Judge.

text:
    T.A. O’B., Appellant, v. STATE of Florida, Appellee.
    No. 84-1098.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 11, 1984.
    Jerry Hill, Public Defender and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

In this case, appellant, a child, appeals from an adjudication of delinquency based on a nolo contendere plea to a charge of possession of cannabis. Appellant had filed a motion to suppress the evidence of the cannabis, arguing that the discovery of the cannabis resulted from an unlawful search. After the trial court denied the motion and the right to appeal the denial was reserved, the plea of no contest was entered. We reverse the order of the trial court and direct that the evidence of the cannabis be suppressed and appellant discharged.

The essential facts show that at approximately 11:00 a.m. on January 12, 1984, appellant and another student were observed heading behind the cafeteria at Riv-erdale High School in Lee County, Although the area was allegedly “off limits,” there was no sign posted as such. Appellant’s knowledge of this policy was demonstrated only by the assumption of the teacher who performed the search. According to the teacher who observed appellant, though there were no signs posted, it was “general knowledge” among students that this area was off limits.

The teacher testified that the two students exhibited “suspicious” behavior, that there seemed to be an “exchange” going, and that they were startled and jumped when he arrived. The “exchange” is not further described by the teacher. One of the students had an unlit regular cigarette in his hand. The teacher could not identify which student. Students are not permitted to smoke. The teacher did not smell the odor of marijuana.

The students were asked to follow the teacher to the Dean’s office. The teacher testified if students were found in the “off limits” area, his instructions were to “check their whereabouts and if it warrants a search, bring them in.” (Emphasis supplied.) Appellant was subjected to a pat-down search which revealed nothing. Had they refused to be searched, the sheriffs department would have been notified. The students were directed to place their possessions on a table. Appellant’s wallet was picked up off the table, opened and a marijuana cigarette was found.

Appellant argues that the search conducted by the school officials was not based upon the reasonable suspicion standard which is required to sustain a search of a student’s person or affects. Nelson v. State, 319 So.2d 154 (Fla. 2d DCA 1975); State v. D.T.W., 425 So.2d 1383 (Fla. 1st DCA 1983); State v. F.W.E., 360 So.2d 148 (Fla. 1st DCA 1978); § 232.256, Fla.Stat. (1983). We agree. In fact, the teacher who stopped and searched appellant was never asked, nor did he testify, as to what his reasonable suspicion was concerning appellant. Appellant was not identified as the student who had the unlit regular cigarette. The teacher also testified that while smoking regular cigarettes was prohibited on school grounds, the possession of regular cigarettes is not pursued. In response to whether such possession is permitted in school, his response was, “Not actually. But we don’t press it if they’re hid. If they’re concealed in a purse or a pocket. And, you know, if they’re brought out in the open, they’re confiscated.” Thus, by his own standard, he had not observed either student do anything that should have caused him to do more than confiscate the exposed regular cigarette from whichever student possessed it. To go further, under these circumstances, when no reasonable suspicion was articulated, subjecting the students to a pat-down search and searching the wallet was not reasonable.

This is analogous to the holding of this court in A.B. v. State, 440 So.2d 500, 501 (Fla. 2d DCA 1983), in that the record contains virtually no information bearing on the standard, and factors to be considered in regard to the standard, as established in Nelson v. State and State v. D.T.W. Appellant’s motion to suppress should have been granted and appellant discharged.

Reversed and remanded for proceedings consistent herewith.

RYDER, C.J., and LEHAN, J., concur.


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

text:
    Albert NAGY, Appellant, v. STATE of Florida, Appellee.
    No. 83-1038.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    Rehearing Denied Dec. 6, 1984.

      C.A. Van Hook, III, DeLand, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Nagy argues his conviction for second degree murder should be reversed because the record establishes the defense of self-defense as a matter of law. Although we have so ruled upon occasion, Brown v. State, 454 So.2d 596 (Fla. 5th DCA 1984), in this situation where there are facts in dispute, some which support the jury’s adverse determination, we must affirm. McCauley v. State, 405 So.2d 1350 (Fla. 5th DCA 1981); Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1980); Shiver v. State, 327 So.2d 251 (Fla. 4th DCA 1976).

In this case, there was evidence incompatible with Nagy’s position that he was not the aggressor but acted in self-defense. They support the jury’s conclusion that after McLaughlin’s car stopped, Nagy approached McLaughlin before he exited it, and that Nagy fired at McLaughlin as he was still sitting or getting out of the driver’s seat. Further, McLaughlin’s car was not stopped on Nagy’s premises. Thus, there is sufficient evidence to uphold the jury’s determination. Tibbs v. State, 397 So.2d 1120 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Vecta Contract v. Lynch, 444 So.2d 1093, 1094 (Fla. 4th DCA 1984).

Therefore, the judgment appealed is

AFFIRMED.

COWART, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

I respectfully dissent. Albert Nagy was convicted of second degree murder. Had I been in his shoes, I cannot say that I would have acted any more reasonably. There was nothing whatever in his actions or conduct “evincing a depraved mind regardless of human life.” § 782.04(2), Fla.Stat. (1983). The victim, Ray McLaughlin, was twenty-six years old, six-foot-three-inches tall and weighed two hundred forty pounds. Nagy was twice as old and no match physically for McLaughlin. McLaughlin was a bully and intimidated Nagy and others, including the police who would not approach him without a backup. McLaughlin had been placed on probation for a battery of Nagy. Even this did not deter him and he continued to harass and threaten Nagy.

In contrast, Nagy was a peaceful and law abiding person. He and his wife operated a small business in Orange City. Nagy worked hard, got along well with his neighbors, and led a productive existence. Were it not for McLaughlin, he would probably have continued his life in harmony with his chosen community.

Nagy sought help from the police and the State Attorney’s office. The police said they could not help, but warned Nagy that McLaughlin was dangerous and reputedly carried a firearm. Avoidance was not practical because McLaughlin worked at a business in close proximity to Nagy’s and the two shared the same parking area. The State Attorney’s ‘ office pegged Nagy, an Hungarian immigrant with a heavy accent, as an eccentric or pest and made no attempt to investigate Nagy’s claims or to obtain a revocation of McLaughlin’s probation. Only when his pleas for help were •fruitless did Nagy arm himself. When he did, he selected a .22 caliber pistol and loaded it with .22 shorts, hardly a load which could be expected to inflict a mortal wound on a two hundred forty pound man.

On the day of the shooting, Nagy, thinking McLaughlin had left, prepared to close. As was his custom, he was taking down some sawhorse barricades around the parking area at the rear of his building bordering the alley used by customérs as well as McLaughlin. At this moment, McLaughlin entered the alley in his car. There were no witnesses other than Nagy and McLaughlin. It was obvious that McLaughlin was driving at a high rate of speed for the alley area because he struck one of the barricades with sufficient force to shatter it. Nagy stated that he had to dive out of the way when McLaughlin tried to run him down. Nagy also claimed that the shattered sawhorse was the one he was picking up and that he suffered an injury to his hand when the sawhorse was struck. Nagy stated that McLaughlin then backed up and jumped out of the car. At this point, Nagy claimed that he retreated to the door of his store only firing the single shot when McLaughlin was directly in front of him with an upraised arm.

In contrast to Nagy’s version of the events, the state claimed that McLaughlin was shot as he entered his vehicle. The ejected cartridge casing and the location of the body and bloodstains admittedly support the state’s version. Even if the state’s version is accurate, clearly there was nothing in defendant’s conduct that evinced a depraved' mind.

“Depraved mind” within the second degree murder statute has been variously defined as importing malice in the sense of ill will, hatred, or evil intent, and as an inherent deficiency of moral sense and rectitude.... It has also been stated that malice is not limited in its meaning to hatred, ill will and malevolence, but “denotes a wicked and corrupt disregard of the lives • and safety of others ... a failure to appreciate social duty.” (citations omitted)

Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969).

Here, Nagy did everything in his power to avoid McLaughlin. He sought help and found none, only a warning that his tormentor was dangerous and reputedly armed. Nagy armed himself only when it was apparent that he could expect no assistance. Even then, he did his best to avoid McLaughlin, waiting until McLaughlin had apparently left the area before he went outside. There is absolutely nothing to indicate that he failed to appreciate his social duty. In fact, his actions indicate a strong awareness of social duty. The worst that can be said is that he misjudged the danger.

The question then is not whether Nagy was properly convicted of second degree murder, but whether he was guilty of any crime. Whether murder or manslaughter is of small consequence, because the minimum mandatory penalty is the same (three years) in both instances. “The taking of life is not justified as self-defense unless the defendant used all reasonable means in his power and consistent with his own safety to avoid the danger and avert the necessity of killing the deceased.” 16 Fla.Jur.2d Criminal Law § 1088 (1979). The state contends that the killing was not on Nagy’s premises so he had a duty to retreat. However, the duty to retreat must be consistent with one’s own safety and must be weighed against the apprehended danger. In my opinion, it must also be weighed against the steps that the defendant has taken to avoid a confrontation. Here, Nagy had every reason to believe McLaughlin was going to carry through with his threats to “get” him. McLaughlin was clearly the aggressor. Nagy had done nothing whatever to invite the assault. Nagy’s “retreat” had been going on for weeks.

Here, there was a “failure to appreciate social duty,” but it was McLaughlin’s failure, not Nagy’s. Nagy is the victim, not McLaughlin. The trial judge should have granted Nagy’s motion for judgment of acquittal.

      . However, we are in sympathy with the sentiments expressed by the dissenting opinion. Had we been on Nagy's jury, he would not have been convicted. But that is not our prerogative as appellate judges.

      . The trial judge imposed the minimum mandatory penalty but ordered that Nagy could serve his term in the county jail and provided that Nagy could be on work release at his place of business.


author: FLEET, J. LEONARD, Associate Judge.

text:
    William E. PHARES, Nancy Phares, his wife, James Wesley Carter and Carol Ann Carter, his wife, Appellants, v. Harley G. COWLES and Grace D. Cowles, Appellees.
    Nos. 84-288 and 84-587.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 21, 1984.
    John T. Brennan and Robert V. Schwerer of Brennan, McAliley, Hayskar, McAliley & Jefferson, Fort Pierce, for appellants.
    Michael H. Meares and James C. Cunningham, Jr., of Shutts & Bowen, Miami, for appellees.
   FLEET, J. LEONARD, Associate Judge.

IDENTIFICATION OF PARTIES

Appellants, Phares and Carter, were Defendants below. Appellees, Cowles, were Plaintiffs below.

The parties to this appeal will be referred to herein according to their identification below.

HISTORY AND FACTS OF CASE

In October, 1973, Defendant Phares purchased a tract of land abutting Eleven Mile Road in St. Lucie County. The southern edge of the purchased land ran east from Eleven Mile Road a distance of approximately 1312 feet. About six weeks later, in December, 1973, from a different grantee, Plaintiff Cowles purchased a tract of land abutting the entire eastern border of the property owned by Defendant Phares. In 1978, Defendant Phares sold to Defendant Carter a piece of land having a width on its southern border of about 168 feet and, on its eastern border, a width that extended the length of Defendant Phares’ property.

As a result of these three real estate transactions, the juxtaposition of the various properties now under consideration is as set out by the map below:

NORTH LOCATED AT TOP OF MAP

Plaintiffs, in February, 1980, brought suit against both defendants for the purpose of establishing a public road across the southern sixty feet of their property in order that plaintiff would have access to Eleven Mile Road. Plaintiff sought the relief requested pursuant to section 704.-01(2), Florida Statutes, alleging a way of necessity should be recognized by the court below.

On July 14, 1981, the trial judge entered an order denying the Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint stating, in relevant part:

That upon the attorney for Plaintiffs announcing that he was only claiming that a public road existed and that he was not basing this claim on a private or prescriptive easement as there was no adversity or hostility as to the use of the roadway, nor was the use by the Plaintiff or his successors inconsistent with the Defendants or their successors use of said private road. That based on said pronouncement, the Court denies the Motion to Dismiss as to Count II.

Upon the conclusion of a non-jury trial, the court below made known, orally, its decision to declare the establishment of a public road across the property of the Defendant Phares, only. Because the trial judge desired that a survey be furnished clearly delineating the parameters of the road in question, the entry of a written final judgment was deferred until the receipt thereof. When the survey was furnished to the trial court it became known for the first time that the roadway sought by plaintiffs to be established actually traversed lands of persons not made parties to the instant suit. Once it was realized that indispensable parties had not been joined, Defendant Phares moved the court for a new trial, which motion was granted over the objection of plaintiff. The written order granting the new trial was entered on February 15, 1982.

Cowles, understandably, took issue with the grant of the new trial and, on March 11, 1982, pursued an appeal to this court to which appeal Defendant Phares responded with a cross appeal and a request that the appeal of plaintiffs be dismissed as being premature, there being no final judgment from which an appeal could be taken. This court, on May 11, 1983, granted the Motion to Dismiss thereby terminating all appellate proceedings then pending. 430 So.2d 995. When returned to the trial court, the necessary parties were joined in the litigation and the trial judge entered, on February 1,1984, a written order finding a public road over and upon property owned by Defendant Phares. By order dated February 23, 1984, an order taxing costs against Defendant Phares was entered by the court below.

Defendants, by timely filed notices of appeal, seek review of both the order declaring a public road to exist and of the order taxing costs against them in reference to the first appeal. These appeals were consolidated for disposition.

ANALYSIS OF LAW AND RULINGS OF THIS COURT

The learned judge below entered his order declaring and establishing a public road by prescription. Such a ruling requires that the following elements have been found to exist:

(1) that the public had a continuous and uninterrupted use and enjoyment of the lands in question as a road for at least 20 years, and
(2) that the road in question have an ascertainable termini and width, and
(3) that the use by the public of the land in question was adverse to the claim of the landowner or under a claim of right adverse to the interest of the landowner.

Appellee, on page five at footnote 2 of his Answer Brief, candidly admits that the court below was in error when it ruled that an easement by prescription did not require the establishment of adversity. The law cited by appellee and appellant on this very vital point are identical, i.e. Downing v. Bird, 100 So.2d 57 (Fla.1958), and Couture v. Dade County, 112 So. 75 (Fla.1927). Taking into account the concession of the appellee, coupled with the status of the record on appeal, this court is of the opinion that the court below is in error and must be reversed. Downing v. Bird, supra.

Appellee’s assertion that the result reached by the court below is correct for reason that the record establishes a statutory way of necessity as contemplated by section 704.01(2), Florida Statutes, is without merit. It is not our ruling that a statutory way of necessity could not be established, rather we are saying only that the record, in its present posture, does not now permit such a finding by this court. The determination of whether there is an entitlement of a statutory way of necessity should be presented to the court below upon proper pleadings filed by Appellee Cowles with all proper parties being joined in any such action.

The court below did not abuse its discretion when each of the parties hereto were directed to bear one-half of the costs of the first appeal by them to this court. The appeal by Cowles and the cross appeal by Phares were both dismissed, thus placing the parties in a position wherein neither of them could be said to have qualified as a “prevailing party.” In the absence of an ability to identify with a relative degree of certainty just who the prevailing party might be, it would be inappropriate to assess costs. Rogers v. Board of Medical Examiners, 364 So.2d 1239 (Fla. 1st DCA 1978). There being no demonstration of abuse of discretion, the judgment below in reference to the division of costs is affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent herewith.

HERSEY and WALDEN, JJ., concur.


author: BARKETT, Judge.

text:
    Paul Ray HANABURY, Appellant, v. STATE of Florida, Appellee.
    No. 84-310.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Dec. 28, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   BARKETT, Judge.

The appellant, Paul Ray Hanabury, appeals the trial court’s denial of his motion to correct sentence. Appellant asserts the sentence imposed was in excess of the sentencing guidelines. We agree, reverse, and vacate the sentence.

On September 14, 1983, the appellant entered a no contest plea to burglary of a dwelling, manufacture of a controlled substance, armed trespass of an occupied structure, possession of burglary tools, and obstruction by false information.

On October 19, 1983, the appellant elected to be sentenced under the sentencing guidelines. He scored ninety-five (95) points on the sentencing guideline score-sheet, which called for a recommended sentence of four years. The trial judge sentenced him to: (1) four years in prison for the burglary charge; (2) a one-year jail sentence for the misdemeanor to run concurrently with the sentence imposed for the burglary; and (3) five years probation on each of the other three felony charges to run consecutively to the prison sentence but concurrently with each other. Appellant thus received a nine-year sentence. The maximum sentence he could have received under the guidelines was four and one-half years absent a finding of clear and convincing reasons by the trial judge for departing from the guidelines.

Appellant filed a motion to correct sentence contending that his prison sentence, combined with the consecutive probation, exceeded the maximum sentence he could receive under the guidelines. The motion to correct sentence was denied.

Florida Rule of Criminal Procedure 3.701(d)(12) states:

Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.

At the time of sentencing, on October 19, 1983, the committee note read:

(d)(12) The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range.

However, at the present time, committee note (d)(12) reads:

(d)(12) The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed-cannot exceed the maximum guideline range, nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.

Appellant elected to be sentenced under the guidelines as they were on October 19, 1983. He should be entitled to rely on them as they were when he made the election. Accordingly, we vacate the sentence and remand for the imposition of a sentence in accordance with the sentencing guidelines.

GLICKSTEIN and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    Stephen P. ANTUNA, Bank Account Owner, Appellant, v. Frederick Vaughan DAWSON, John E. Malloy, Susan A. Malloy, his wife, jointly and severally, and Savings of America, garnishee, Appellees.
    No. 84-454.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Rehearing Denied Jan. 4, 1985.

      Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellant.
    Alan W. Kaback, Coral Springs, for ap-pellee — Frederick Vaughan Dawson.
    Robert S. Zippin of Michelson & Zippin, P.A., Fort Lauderdale, for appellees — John E. Malloy and Susan A. Malloy, his wife.

      Martin J. Alexander and Jeffrey Allan Hirsch of Holland & Knight, Fort Lauder-dale, for appellee — Sav. of America.
   HERSEY, Judge.

This is an appeal from orders denying post-judgment motions to intervene and for relief from judgment. A simultaneous attempt to appeal a final judgment in garnishment is untimely.

Dawson obtained a money judgment for breach of contract against Malloy and garnished Malloy’s bank account with Home Savings of America. The bank’s Answer of Garnishee indicated that the account was held by Malloy and appellant Antuna “as joint tenants with the right of survivor-ship.” Antuna is not a resident of Florida. The only address for the account with the bank was the residence address of Malloy. Thus, while the garnishee bank attempted to give both depositors notice of the garnishment, the notices went only to Malloy’s address. However, seven days prior to the date set for final hearing on the writ of garnishment, Antuna, briefly visiting in Florida, was served with several documents concerning the garnishment (which included notice of the hearing), “by a lady who jumped out of a car” as Antuna was leaving a bank at 5:20 in the afternoon. Because he was required to leave for Germany from Atlanta the next day, Antuna contacted the attorneys for Dawson, Malloy and the bank, apprising each of them of his dilemma. The following day he telephoned the court from Atlanta, leaving a message with the judge’s secretary that the account in question was partially his ■ and that he was leaving for Germany.

In Antuna’s absence the matter came on for final hearing and based upon Malloy’s testimony that he had a 100% interest in the bank account, a final judgment in garnishment was entered for the creditor.

Shortly thereafter, returning to the country and learning of the judgment, Antuna unsuccessfully moved for relief from the judgment and for permission to intervene in the garnishment proceedings.

The focus is on whether the requirements of due process have been met. The court had jurisdiction over the bank account (the property). Antuna had notice that a hearing would be held which would affect his asserted interest in that property. The applicable statute (discussed in the latter portion of this opinion) provided him with a means to ensure a hearing on the issue of his claim to an ownership interest in a portion of the fund, by simply filing an affidavit. Because of circumstances, he did not comply with this statutory requirement.

Several questions are raised: (1) Did An-tuna have a protectable interest in the bank account and thus in the litigation? (2) Did Antuna waive his right to be heard by failing to comply with the statute? (This depends upon whether the notice was adequate under the statute and, if so, whether the scheme is infirm as denying due process when the claimant is required to defend without being given the opportunity to plead his defenses, conduct discovery and otherwise assert his ownership interest as a party to the lawsuit.) (3) Even if Antuna loses on all fronts of the initial inquiry, should he nonetheless have been given relief from the judgment under all of the factual circumstances?

The threshold question is one of standing. If, under Florida law, the funds in a joint bank account are available to answer for the debt of one of the joint depositors, then Antuna’s attempts to intercede in the litigation are merely an exercise in futility in the absence of special circumstances giving rise to a claim of constructive or resulting trust or some other extraordinary remedy. He claims only a one-half interest by virtue of actual contribution to the account; thus, no unique remedy applies. The general rule is that “property which is not actually and in ‘good conscience’ deemed to be owned by the debtor may not be secured by the judgment creditor. 38 C.J.S. Garnishment § 71 (1943); 6 Am.Jur.2d Attachment and Garnishment § 92 (1963).” Ginsberg v. Goldstein, 404 So.2d 1098, 1099 (Fla. 3d DCA 1981). In contrast, an account held by husband and wife as tenants by the entireties is beyond the reach of a creditor of either one of the tenants. Such funds are immune from garnishment except where the debt was incurred by both spouses. Gibson v. Marr, 395 So.2d 1278 (Fla. 4th DCA 1981). This seeming (but not actual) exception to the general rule exists because the law creates a conclusive presumption that each spouse owns the entire account subject to the other spouse’s expectancy. No such presumption inheres in other forms of joint ownership. Antuna had an interest in the garnished bank account to the extent of his original contribution and pro rata share of accretions, if any, which could not be reached for application to the debt of his co-depositor. For variations, see Annot., 11 A.L.R.3d 1465 (1967). Thus, Antuna, having a protectable interest, has standing and is a real party in interest in the litigation.

It is a well-established principle that “before a final judgment authorizing the judgment creditor to reach the funds held by the garnishee is entered, the interests [of the joint depositor] in the funds should be conclusively determined and the applicable law applied thereto.” Huckabee v. PIC Investigations Corp., 262 So.2d 474 (Fla. 3d DCA 1972).

Chapter 77, Florida Statutes (1983), provides the mechanism for raising the issue of whether one other than the judgment debtor has an interest in the account which the creditor seeks to subject to garnishment. This chapter provides for notice to be given to such a third party claimant who is, in turn, afforded the opportunity to assert his interest by filing an affidavit to that effect. He is then entitled to a hearing to determine the validity and extent of his interest. § 77.16, Fla.Stat. (1983). Such a procedure appears to comport with minimal due process requirements. As in a mortgage foreclosure where the court obtains jurisdiction over the real property (here the joint account), entitlement to that property may be adjudicated without obtaining in personam jurisdiction over adverse claimants, provided only that they are given notice and an opportunity to be heard. Georgia Casualty Co. v. O’Donnell, 109 Fla. 290, 147 So. 267 (1933); T.J.K. v. N.B., 237 So.2d 592 (Fla. 4th DCA 1970). The garnishment statute meets these minimal requirements and is therefore not facially unconstitutional. It remains to be determined whether application of the statute here amounts to “as applied” unconstitutionality.

Antuna was, in relation to this litigation, a third party. “[T]he rights of third parties may not be adjudicated unless such third parties have been first fully implead-ed and as parties given an opportunity to adequately present their defenses, since these statutes must be enforced so as to afford due process.” Tomayko v. Thomas, 143 So.2d 227, 229 (Fla. 3d DCA 1962). The court in Tomayko further criticized the trial court proceedings in that case by pointing out that “the opportunity to be heard must be full and fair, not merely colorable or illusive.” Id. at 230. The court held that an opportunity should have been provided the third party to file defenses in writing. Another court has also found garnishment proceedings faulty on due process grounds for failure to allow a reasonable time within which to file an answer or other pleading. Goodson v. Caldreon, 265 So.2d 74 (Fla. 1st DCA 1972). For these same reasons we conclude that Antuna was deprived of due process on the facts of the present case. Even so, we do not jump from that conclusion to a reversal. The constitutional infirmity resides in the final judgment, not the post-judgment orders, and Antuna’s notice of appeal comes too late as a frontal attack on the original proceedings.

We are left with the inquiry whether the issue can or should be reached by motion for relief under Rule 1.540(b), Florida Rules of Civil Procedure, which provides:

(b) Mistakes, Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.
Writs of coram nobis, coram vobis, au-dita querela and bills of review and bills in the nature of a bill of review are abolished and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action.

In our view the motion for relief should have been granted. Antuna claims a one-half interest in the account. As an attorney he is presumed to know the law, and was in part justified in assuming that his interest would be revealed and therefore preserved at the final hearing. For whatever reason, the judgment debtor apparently testified that the money in the account was his own. We will not use convoluted reasoning to attempt to label this “mistake” or “inadvertence.” We do hold that the circumstances fit within the spirit of the group of reasons constituting phrase (1) under subsection (b) of Rule 1.540. There also appears to be a basis for alleging that fraud and misrepresentation occurred within the contemplation of reason (3). In any event, Antuna should have been permitted to reopen the issues and to present his evidence in due course. Denial of the motion was therefore an abuse of discretion.

Accordingly, we reverse the post-judgment orders and remand this cause to the lower tribunal for further appropriate proceedings.

REVERSED and REMANDED.

HURLEY and BARKETT, JJ., concur.


author: WIGGINTON, Judge.

text:
    Bruce W. WYMAN, Appellant, v. STATE of Florida, Appellee.
    No. AX-466.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.

      Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Henri C. Caw-thon, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   WIGGINTON, Judge.

Appellant appeals his conviction of burglary of a structure, asserting that he was improperly sentenced under the sentencing guidelines, Florida Rule of Criminal Procedure 3.701. We agree with appellant that the record does not contain any proper evidentiary basis to support the trial court’s departure from the guidelines on the ground that appellant “induced another to commit a criminal offense together with defendant.” Therefore, we reverse the sentencing order and remand for resentenc-ing under the sentencing guidelines.

JOANOS and BARFIELD, JJ., concur.


author: WENTWORTH, Judge.

text:
    Robert SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. BA-41.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1984.
    Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of sentences imposed, after a violation of probation, for two' counts of burglary. We find that the court erred by applying Fla.R.Crim.P. 3.701(d)(14) (1984) prior to the provision’s effective date, thereby impermissibly exceeding the Fla.R.Crim.P. 3.701 presumptive guidelines sentence. We vacate the sentences appealed and remand the cause for resentencing.

In 1983, pursuant to sentencing guidelines then in effect, appellant was placed on concurrent terms of probation for two counts of burglary. Appellant thereafter violated a condition of his probation and in June 1984 the court revoked the probation and sentenced appellant to a thirty month term of imprisonment for each burglary offense. Such a penalty departs from the presumptive guidelines sentence then applicable, and therefore “must be accompanied by a written statement delineating the reasons for the departure.” See Fla.R.Crim.P. 3.701(d)(ll). While a violation of probation may be an adequate reason for departure from the guidelines, see Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984), in the present case the trial court declined to provide the required written statement. The court’s reliance upon Fla.R.Crim.P. 3.701(d)(14) was improper, inasmuch as that provision was not yet effective when appellant’s sentence was imposed. Accord, Randolph v. State, 458 So.2d 64 (Fla. 1st DCA 1984). Furthermore, Rule 3.701(d)(14) does not apply upon remand for resentencing; appellant is entitled to be resentenced under the guidelines in effect at the time the sentence being reviewed was imposed. See Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), rehearing denied, September 20, ■ 1984; Carter, supra, fn. 3. On remand, should the court again depart from the recommended guidelines sentence, it must express the reason for such departure in writing.

Accordingly, appellant’s sentences are vacated and the cause remanded for resen-tencing.

SHIVERS and NIMMONS, JJ., concur.

      . Rule 3.701(d)(14), effective July 1, 1984, provides that:
      Sentences imposed after revocation of probation or community control must be in accord-anee with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.