text:
    Lynn YEM, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 83-2964.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.

      William A. Meadows, Jr. and Mark Hektner, South Miami, for appellant.
    Jim Smith, Atty. Gen., and Kent A. Zaiser, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

The natural mother appeals a final judgment adjudicating her child dependent and permanently committing the child to the Florida Department of Health and Rehabilitative Services (HRS) for subsequent adoption. We affirm.

The child in question was born on March 13, 1980, while her mother was imprisoned at Broward Correctional Institute (BCI) for the murder of a stepson. After her birth, the child’s father took the child and left her in her grandfather’s care. On November 13, 1982, the grandfather was found dead in his home and the child was found wandering the streets. She and the house where she had lived were filthy, and she had a severe case of diaper rash. The child was placed with HRS on that date. Although the child had previously visited her mother at BCI, HRS decided not to allow any more visits. HRS filed a petition for permanent commitment of the child on July 12, 1983, which was subsequently granted by the trial court. This appeal followed.

Permanent commitment is statutorily authorized when the court finds “that it is manifestly in the best interests of the child” and “that the parent has abandoned, abused, or neglected the child.” § 39.-41(l)(f), Fla.Stat. (1983). The applicable standard of proof is clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Torres v. Van Eepoel, 98 So.2d 735 (Fla.1957). In the present case, the trial court found that clear and convincing evidence established that permanent commitment was in the best interest of the child and that the child’s parents had both abandoned and neglected her. Neglect is statutorily defined as follows:

“Neglect” occurs when a parent or other legal custodian, though financially able, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

§ 39.01(26), Fla.Stat. (1983).

The mother argues that HRS failed to adequately prove that she neglected the child because it failed to prove her financial ability to provide for the child or that she could have prevented the conditions of the child’s environment. We find that the holding in Wright v. State, 409 So.2d 1183, 1184-85 (Fla. 4th DCA 1982) is particularly applicable in this case:

The purpose of the phrase “financially able” in subsection (2[6]) is to ensure that financially disadvantaged parents may not be divested of their children simply because they are poor. It does not, however, constitute a license for child abuse for either rich or poor. We need not draw that fine line which the circumstances of some future case will require of a court confronted with a deprivation of necessary food, clothing, shelter or medical treatment. The term “financially able” rather clearly applies in that situation and poverty, under appropriate circumstances, may be found to constitute a bar to a finding of dependency-
The present case does not stand or fall on such a determination. This minor child has been subjected to abuse by a custodian over some period of time without intervention by appellant, whom the record shows was fully cognizant of the situation. The “neglect” occurred when appellant permitted the “child to live in an environment (which) causes the child’s physical, mental, or emotional health to be significantly impaired.”
The statute used the disjunctive “or”. The term “financially able” modifies that provision which requires a showing of deprivation; it does not modify the provision which relates to environment. It was therefore not incumbent on the state to allege or prove that appellant was “financially able.”

Likewise, in the present case, we hold that the record supports the trial court’s finding that the mother, by her act of murdering her stepson resulting in extended incarceration, permitted her child to live in an environment which caused the child’s physical, mental or emotional health to be significantly impaired or in danger of being significantly impaired.

Additionally, we note that the fact that the mother never had actual custody of her child does not foreclose a finding of neglect. See In re J.L.P., 416 So.2d 1250 (Fla. 4th DCA 1982). We do not hold that long-term incarceration for conviction of a crime in and of itself works an automatic forfeiture of parental rights. An imprisoned parent, however, is not relieved of all parental responsibilities because of the imprisonment. It is apparent from the record in the present case that the mother had relatives living in the area, other than the child’s grandfather. There is no evidence, however, indicating she ever attempted to have these relatives undertake the care of the child or provide a decent environment for the child to live in. Thus, she has neglected her child by permitting the child to live in an environment condemned by the Florida Juvenile Justice Act. See § 39.-01(26) and § 39.41(l)(f)l.a.

In rendering this decision we recognize that the natural right of a parent is not to be lightly regarded and that to deprive a parent permanently of his or her child is drastic action. Noeling v. State, 87 So.2d 593 (Fla.1956). The overriding consideration, however, is the welfare of the child. Potvin v. Keller, 313 So.2d 703 (Fla.1975); In re Camm, 294 So.2d 318 (Fla.), cert. denied, 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974); Padilla v. Catholic Service Bureau, Inc., 315 So.2d 485 (Fla. 3d DCA 1975). The supreme court has stated that courts:

should in every instance be guided by an effort to consider first and primarily the welfare of the child. While the rights of the parents must, of course, always be observed, nevertheless, these parental prerogatives are to be evaluated in the light of what appears to be the best interests of the juvenile.

Noeling, 87 So.2d at 596. There is no doubt in the present case that the best interest of the child would be served by permanent commitment and subsequent adoption. The mother of the child does not even attempt to dispute this fact.

Since the trial court properly found that permanent commitment was in the best interest of the child and that the mother had neglected her child, the judgment of permanent commitment was authorized. § 39.41(l)(f)l.a. We, therefore, find it unnecessary to determine whether the trial court also properly found abandonment. Accordingly, the judgment of permanent commitment is affirmed.

      . The father’s only manifested interest in the child was to deliver her to the grandfather. Since the time the child was placed with HRS, the father has not initiated any contact, and has never requested to visit the child. He failed to contact his attorney or participate in the disposition hearing, although he had actual notice thereof. He is also not a party to this appeal. There is no dispute over the finding that the father has clearly neglected and abandoned the child.

      . Two experts testified on this issue. One doctor who examined the mother testified that her judgment was significantly impaired and found her to be narcissistic and egocentric. He also opined that the mother was not highly treatable, and that if she were given custody of the child, the child’s physical and emotional needs would be at risk. The other doctor testified that the mother had poor judgment and is unable to control anger. He opined that the mother could not provide for the child's physical and emotional needs in the long run, and that if the mother had custody of the child, the child’s well being would be in jeopardy. He recommended that the child be released for permanent adoption.

      . In fact, the mother essentially concedes the point on the last page of her brief when, while arguing that the evidence is insufficient to show neglect or abandonment, she states that "it may be preferable to order the permanent commitment of [the child] and to sever [the mother's] parental ties.’’


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jo Ann COWAN, Guardian of the Property of Robert Adam Cowan and Gregory Michael Cowan, Appellant, v. Maria V. Elena COWAN, Personal Representative of the Estate of Bernarr C. Cowan, Deceased, Appellee.
    No. 84-783.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Schwartz & Nash and William Jay Palmer, Miami, for appellant.
    Mandina & Ginsberg, P.A. and Marc R. Ginsberg, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed.


text:
    James DOYLE, Appellant, v. MACK FINANCE COMPANY, South Florida Mack Trucks, Inc., George Gerald Brigman, Robert C. Glover and United States Fidelity and Guaranty Company, a foreign corporation, Appellees.
    No. 83-1130.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1984.
    Wayne W. Pomeroy of Law Offices of Wayne W. Pomeroy, Fort Lauderdale, for appellant.

      Marcia E. Levine of Fazio, Dawson & DiSalvo, Fort Lauderdale, for appellees-Glover, South Florida Mack Trucks and USF & G.
    William R. Scherer of Conrad, Scherer & James, Fort Lauderdale, for appellees-Mack Finance and Brigman.
   PER CURIAM.

The petition for rehearing is granted. The original opinion is withdrawn and we substitute the following opinion:

Appellant challenges the propriety of an order granting a summary judgment. Our review of the record filed in this case leads us to conclude that the appellees, as the movants, failed to negate the existence of genuine issues of material fact. Consequently, the summary judgment is reversed and the cause remanded for further proceedings. See Landers v. Milton, 370 So.2d 368 (Fla.1979).

LETTS, HURLEY and DELL, JJ., concur.


text:
    JAYRE, INC., a Florida corporation, and Hillard Herzog, Appellants, v. BARCLAYSAMERICAN/BUSINESS CREDIT, INC., a Connecticut corporation, Appellee. FLAGSHIP NATIONAL BANK OF BROWARD COUNTY, Appellant, v. BARCLAYSAMERICAN/BUSINESS CREDIT, INC., a Connecticut corporation, Appellee.
    Nos. 84-128, 84-453.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Jack F. Weins, Boca Raton, George J. Blutstein, North Miami Beach, for appellants.
    Morgan, Lewis & Bockius and Phyllis S. Bean, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed.


author: PER CURIAM. GLICKSTEIN, Judge.

text:
    BELEN SCHOOL, INC., d/b/a Belen Jesuit Intercultural Center, Appellant/Cross Appellee, v. Joseph J. HIGGINS, Appellee/Cross Appellant.
    No. 83-1879.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Rehearing Denied Feb. 13, 1985.

      R. Lawrence Bonner of Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., Miami, for appellant/cross appellee.
    Bernard Berman of Bernard Berman, P.A., Fort Lauderdale, for appellee/cross appellant.
   PER CURIAM.

We reverse and remand with direction to enter judgment in favor of appellant/cross appellee, rendering the cross appeal moot.

HERSEY, GLICKSTEIN and BARRETT, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

GLICKSTEIN, Judge.

We deny the motion for rehearing on the basis that nothing new was brought to this court’s attention. We grant the request to explain our decision through opinion, however, in order that we may edify bench and bar.

In this case, appellant Belen School, Inc., (Belen) wanted to build a new school facility, for which purpose it required approximately $3,000,000. To this end, Belen had approached and dealt with several lending institutions. Dade Federal Savings & Loan Association had indicated a willingness to lend a portion of the funds, $1,000,000, if others could contribute the rest. At that time, Atlantic Federal Savings & Loan had offered $750,000, Flagler Federal Savings and Loan had offered $250,000, and First Federal Savings and Loan of Broward (later Glendale Federal) had acknowledged receipt of the loan package and promised to respond quickly. Belen, however, had not yet been able to obtain a mortgage contract nor final mortgage commitment at that point.

Belen then signed a contract with appel-lee Joseph Higgins, a mortgage broker, on February 27, 1979, under which it agreed to pay him 5% of the amount secured if he was able to perform under the contract. Appellee did some work toward obtaining mortgage commitments from various groups, and on March 26 did produce a letter from him giving four lenders who had “expressed a strong interest” in the financing. The four were the exact institutions previously mentioned and with which Belen had already been negotiating.

Mortgages were formally contracted for with this same group of four lenders, in the precise amounts already listed, with the addition of $500,000, supplied by Glendale Federal, on November 19, 1979. Higgins then sought his 5% commission, which Be-len refused to pay. He then sued under the contract for the commission, and received a jury award of $125,000 (5% of $2,500,000). Belen had unsuccessfully sought a directed verdict, a judgment notwithstanding the verdict, and a new trial. It appealed the final judgment and denial of these motions.

We were faced with the question of whether the trial court erred in entering a judgment in accordance with the jury’s verdict and in denying the motions for directed verdict, judgment notwithstanding the verdict, and new trial. We held that it did as a matter of law and ordered entry of a verdict for Belen.

This case had to be decided from an evaluation of whether appellee performed under the contract, there having been neither pleadings nor evidence addressed to quantum meruit or other basis for payment. Whether appellee performed depended on what constituted performance under the contract, and this dispute revolved around two parts of the contract, which are the preliminary clause:

We are herewith contracting for your services to assist us in obtaining a permanent mortgage in the amount of $3,000,000.00 for a period of twenty-five (25) years with interest terms not to exceed 10.25% for the above captioned property. In consideration of your services to obtain said mortgage, we agree to pay you the sum of 5 (five)% of the full amount of the mortgage desired, said sum due and payable to you as follows:

and clause 6:

(6) We agree that this letter contract will remain in full force and effect for a period of thirty (30) days from the date of acceptance, with any extensions beyond said date to be mutually agreed upon, and in the event any mortgage loan or commitment shall be obtained on the said property on or before said date, whether obtained by the undersigned or anyone, Joseph J. Higgins shall be entitled to a commission amounting to the percentage of the commitment above set forth. Further, we shall still remain obligated to you in accordance with the above contract, in the event we should consummate any transaction within three years after the termination date of this agreement with any lending institution introduced to us by you during said agreed upon period or extensions thereof.

Emphasizing the first paragraph, appellee said that the testimony that he rendered assistance in getting the institutions moving and committed justified the jury’s award. Appellant, on the other hand, maintained that all of the terms of the contract were to be considered and read as consistent with one another, and claimed that paragraph (6) more fully explained what assistance was contemplated.

In interpreting a contract, the meaning of which is in doubt, “an interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.” Restatement (Second) of Contracts § 203(a) (1979). With this principle in mind, a look at the two provisions indicates that only appellant’s construction gave a reasonable and effective meaning to all of the contract’s terms. Were one to accept appel-lee’s view, so long as he rendered assistance in getting mortgage commitments which are consummated within three years of the contract, then he was entitled to a commission. If this was what the parties intended, then why the thirty day provision for a signed commitment, no matter by whom obtained? Additionally, why have language referring to an institution introduced to us by you”? This construction makes no sense whatsoever, making most of paragraph six unnecessary or conflicting.

Obviously, paragraph 6 was intended to explain more fully what appellee was required to do under the contract. Belen was contracting for Higgins’ assistance in getting a signed commitment within 30 days because they needed the money and progress had been slow. The language “whether obtained by the undersigned or anyone” no doubt reflected both parties’ knowledge that substantial progress had been made with at least three institutions. This is consistent with the testimony that Higgins knew that Dade had indicated its willingness to lend the money and that it had been provided for in the contract. Failing its receipt of a signed commitment within 30 days, Belen was also willing to pay Higgins if he introduced them to a new lender who committed to a mortgage within three years. This interpretation of contractual performance was the only one that gave full and reasonable effect to all of the contract’s terms.

Additionally, this contract was Higgins’ standard form contract, with language drafted for his benefit, the only addition being insertion of the word “reasonable” in two places. It is a fundamental concept in contract law that a contract is interpreted against the person for whose benefit it was drafted, where its meaning is in doubt. This interpretative precept also militates against acceptance of appellee’s construction.

According to the contract, then, Higgins could have earned his fee from Belen by either speed or use of contacts to bring in new lenders. Neither party asserted that the speed requirement was met, there having been no signed commitment within the thirty days. The only remaining way for Higgins to have performed was for him to have introduced new parties who provided financing within three years of the contract. Clearly, all of the four were already in contact with appellant, and none was a new participant introduced through appellee’s efforts. There was absolutely no evidence that would support a contrary conclusion.

The jury’s award was fairly obviously based on the fact that appellee did render valuable assistance to Belen. They justifiably concluded that he played a major role in Belen’s finally getting a firm commitment, there being testimony that the deal was “lying fallow” before he began his efforts. The problem with an award under these circumstances was that this was not performance under the contract, but really amounted to an award under quantum me-ruit. The pleadings, however, did not allege any basis for award other than contractual, so the jury was unjustified in finding for appellee.

HERSEY and BARKETT, JJ., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Anthony Gerald VIAMARI, Appellee.
    No. 84-550.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.
    As Clarified on Denial of Rehearing Feb. 1, 1985.

      Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellee.
   OTT, Judge.

The state made an error in preparing a sentencing guidelines scoresheet which resulted in appellee’s presumptive sentence being lower than it should have been. The error was discovered after ap-pellee had tendered an open nolo conten-dere plea and the scoresheet had been accepted by the trial court, but prior to sentencing. The court refused to accept the correct scoresheet presented at the sentencing hearing. Sentence was imposed within the lower presumptive range. We reverse.

We believe the holding in Farber v. State, 409 So.2d 71 (Fla. 3d DCA 1982), is applicable to the instant case. In Farber, the trial court orally announced a sentence of six years’ incarceration followed by four years’ probation. Following the oral pronouncement, the state advised the court that the defendant was entitled to some two and a half years’ credit for time served in a sex offender program. The court then announced a change in the sentence to ten years’ incarceration followed by five years’ probation.

The third district upheld the second sentence, noting that pronouncement of a sentence is not final until, at the earliest, the sentencing hearing is concluded. Until that moment, the trial court “has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease, any earlier, in effect inchoate, pronouncement.” Id. at 73.

The same rationale applies to the case before us. Appellee’s plea was not negotiated. Sentence had not been imposed. The trial court had the authority to receive and consider any new information bearing on the sentence, including the corrected scoresheet. This would be the case whether the error was a mathematical mis-computation, misinterpretation of a provision in the guidelines, or the omission of information from the scoresheet. If the first scoresheet had been erroneously high, no doubt the court would have accepted a second scoresheet reflecting a corrected, lower presumptive sentence.

Under the circumstances, the state concedes that appellee should be given the opportunity to withdraw his plea.

REVERSED and REMANDED for further proceedings.

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

      . Defendant pled nolo contendere to several category 6 crimes. The initial scoresheet was prepared in reliance on a portion of the comment to rule 3.701(d)(5), Florida Rules of Criminal Procedure. The comment, appearing in the Sentencing Guidelines Manual prepared by the Sentencing Guidelines Commission, suggested that the scoring of prior convictions for similar offenses be limited to felonies. The comment was amended after preparation of the first scoresheet to delete this limitation. Said amendment was effective immediately. See R. Wesley, Director, Sentencing Guidelines Commission, Memorandum on Sentencing Guidelines Modification, Feb. 9, 1984. Neither the rule itself nor the committee notes thereto had limited scoring of similar offenses to prior similar felonies. It is logical to conclude that the comment in question was amended because it had misinterpreted the rule.
      Because the supreme court does not adopt or approve the comments, we feel that said comments are merely "helpful hints” to attorneys and are not binding. As such, any argument that the amended comment was unconstitutionally applied retroactively is without merit.


author: SCHWARTZ, Chief Judge. FERGUSON, Judge

text:
    Agustin CARVAJAL, as Personal Representative of the Estate of Rodolfo Carvajal, a minor, for the Benefit of Agustin CARVAJAL, individually, and Irmina Carvajal, Appellant, v. Rafael ALVAREZ, Sr., Elvira Alvarez, Rafael Alvarez, Jr., Osvaldo Alvarez, a minor, and Southeastern Fire Insurance Company, a foreign corporation, Appellees.
    No. 83-2532.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.

      Magill, Reid, Lewis & Ricca and R. Fred Lewis, Miami, for appellant.
    Leland E. Stansell, Jr. and Joel E. Bernstein, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The plaintiff-appellant’s decedent, a fifteen year-old boy, fell off a horse as a result of riding in an allegedly dangerous fashion behind another rider on a single saddle. The sole point on appeal claims that the trial court improperly instructed the jury on the question of whether the boy had assumed the risk of injury so as to bar recovery. Since the jury could properly have concluded that his conduct constituted an “aberrant” form of the sport of horseback riding, the dangers of which the decedent voluntarily encountered and which were the very ones which caused the accident in question, we reject this contention. Gary v. Party Time Company, Inc., 434 So.2d 338 (Fla. 3d DCA 1983); O’Connell v. Walt Disney World Co., 413 So.2d 444, 447-48 (Fla. 5th DCA 1982); Strickland v. Roberts, 382 So.2d 1338 (Fla. 5th DCA 1980), review denied, 389 So.2d 1115 (Fla.1980); see Kuehner v. Green, 436 So.2d 78 (Fla.1983); Leahy v. School Board of Hernando County, 450 So.2d 883 (Fla. 5th DCA 1984). The judgment under review entered for the defendants pursuant to the affirmative answer to the special interrogatory on that issue is therefore

Affirmed.

FERGUSON, Judge

(specially concurring).

I agree with appellant that the act of riding double on a horse which only walked and trotted did not constitute aberrant behavior on the part of the deceased or his friend. I would reach the same result as the majority, however, for the reason set forth in the cross-appeal, i.e., that appellees breached no duty owed to the deceased.

      . It is unnecessary to treat the appellees' contention on cross-appeal that they were entitled to a directed verdict on the ground that no breach of duty had been established as to any of the defendants.


author: BARKDULL, Judge.

text:
    Richard E. THOMAS, Appellant, v. Edwin C. RATINER, Franklin B. Glinn and Ratiner and Glinn, P.A. and Tito Nieves, Appellees.
    No. 83-2362.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rehearing Denied Feb. 5, 1985.

      Kelner & Kelner and Milton Kelner, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Smathers & Thompson, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   BARKDULL, Judge.

Richard E. Thomas is a medical doctor employed at Glades General Hospital in Belle Glades, Florida, as Director of Emergency Services. He is also a member of the Florida Bar in good standing. On January 22, 1982, Richard E. Thomas, allegedly in his capacity as an attorney, entered into a retainer fee contract with the defendant, Tito Nieves, while Nieves was a patient in Glades General Hospital. Thereafter, Tito Nieves entered into a written retainer agreement with the law firm of Ratiner and Glinn who had orally been employed prior to signing with Thomas. Tito Nieves then discharged Richard E. Thomas. As a result thereof, Thomas brought the instant action seeking damages against Ratiner and Glinn for tortious and intentional interference with his retainer contract with Nieves. He also sued Nieves for services rendered. After a jury trial, the trial court entered the final judgments presently under review wherein Thomas was awarded zero damages against Ratiner and Glinn and costs were awarded to Ratiner and Glinn. Thomas recovered $5,489 from Nieves for services rendered plus costs. Ratiner and Glinn have cross-appealed the judgment in favor of Thomas and against them. Nieves has cross-appealed from the judgment in favor of Thomas and against him.

While several points have been raised on the main, and cross-appeals, we need to discuss only one in determining this appeal. By their cross-appeal all of the defendants allege the trial court erred in denying their motions for directed verdict on the ground that Thomas had solicited his contract with Nieves in violation of Section 877.02 Florida Statutes (1981) and that said act rendered Thomas’s contract void ab initio and incapable of being sued upon. We agree with this contention for the following reasons. Thomas contends that when he signed the contract with Nieves he was contacting him as a lawyer, not as a doctor, thus Section 877.02, Florida Statutes (1981) is not applicable to him and he was not guilty of violation thereof. This contention is simply without merit. Section 877.02(2) provides:

“It shall be unlawful for any person in the employ of or in any capacity attached to any hospital ... to communicate directly or indirectly with any attorney or person acting on said attorney’s behalf for the purpose of aiding, assisting or abetting such attorney in the solicitation of legal business or the procurement through solicitation of a retainer, written or oral, or any agreement authorizing the attorney to perform or render legal services.” (emphasis added)

Thomas was Director of Emergency Services at Glades General Hospital in complete charge of anything to do with emergency services. As such, he was an employee attached to the hospital when he obtained the retainer agreement from Nieves. Thomas was present in the hospital, in the hospital administrator’s office, when he was informed by the hospital administrator that Nieves wanted to see him. To permit him to now say that “I went to Nieves’' room as an attorney, not a doctor, so it is all right” would simply belie the facts. His knowledge of Nieves’ problem and his invitation to Nieves’ room were all gained by virtue of the fact that he was present in the hospital in his capacity as an employee. This cannot be changed by his mere statement that he is now a lawyer. Therefore, we find that Thomas acquired the retainer agreement from Nieves in violation of Section 877.02(2), Florida Statutes (1983). Said violation has rendered the retainer agreement void ab initio. The right to contract is subject to the general rule that the agreement must be legal and if either its formation or its performance is criminal, tortious or otherwise opposed to public policy, the contract or bargain is illegal. See 11 Fla.Jur.2d, Contracts § 81, Restatement of the Law, Contracts § 512. Certainly Section 877.02, Fla.Stat. (1983) renders formation of Thomas’ retainer agreement unlawful and solicitation of clients by an attorney is against public policy. Where a statute imposes a penalty for an act, a contract founded upon said act is considered void in Florida. See and compare 11 Fla.Jur.2d, Contracts § 85; Anno. 55 A.L.R.2d 481. Inasmuch as Thomas’ retainer agreement is void ab ini-tio, said contract cannot be the basis of a cause of action against any of the defendants herein and the trial court should have directed a verdict in their favor.

Therefore, the final judgments and cost orders appealed herein are reversed and the cause is remanded to the trial court with directions to enter directed verdicts for the defendants herein and to award them appropriate costs as prevailing parties.

Reversed and remanded with directions.

OPINION ON REHEARING

The appellant has urged in his petition for rehearing that because there can be interference with an unenforceable agreement, citing United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979); Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976); Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964); Tamiami Trail Tours v. Cotton, 432 So.2d 148 (Fla. 1st DCA 1983); Fearick v. Smugglers Cove, Inc., 379 So.2d 400 (Fla. 2nd DCA 1980); Allen v. Leybourne, 190 So.2d 825 (Fla. 3rd DCA 1966), the opinion entered in this cause is erroneous. We do not agree. In each of the cited cases, the contract alleged to be interfered with was unenforceable for some deficiency which did not render it void. An action may lie for interference with an unenforceable contract and even perhaps a voidable contract. No such cause of action lies for interference with a contract void as against public policy and which makes one who is a party thereto, as the appellant in the instant case, guilty of a criminal act for entering into such an agreement. See Section 877.02 of the Florida Statutes (1981). Therefore the petition for rehearing is denied.

      . Ratiner and Glinn have cross-appealed as to that judgment entered against them and in favor of Thomas in the amount of zero damages.


author: COBB, Chief Judge.

text:
    James Milton RAINES, Appellant, v. STATE of Florida, Appellee.
    No. 84-151.
    District Court of Appeal of Florida, Fifth District.
    Nov. 29, 1984.
    Rehearing Denied Feb. 7, 1985.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Chief Judge.

The appellant, James Milton Raines, upon revocation of a split sentence probation, was sentenced to twelve concurrent years imprisonment on each of four burglary counts, but was not credited with prior jail time served preceding probation. Clearly, this is improper under State v. Jones, 327 So.2d 18 (Fla.1976), and can be raised for the first time on appeal under State v. Rhoden, 448 So.2d 1013 (Fla.1984).

The sentence is reversed and remanded for correction in accordance with Jones.

REVERSED and REMANDED.

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


text:
    C.E.S. and C.P.S., minor children, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 84-724.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1984.
    Rehearing Denied Jan. 7, 1985.
    Robert C. Hill, Fort Myers, for appellants.

      Anthony N. DeLuccia, Jr., Dist. Legal Counsel, Fort Myers, for appellee Dept, of Health and Rehabilitative Services.
   PER CURIAM.

Affirmed under the authority of In the Interest of W.D.N., II, C.N. and C.N., 443 So.2d 493 (Fla.2d DCA 1984), wherein this court held that although the right to the integrity of the family is among the most fundamental rights, the parent’s rights are subject to the overriding concern for the ultimate welfare or best interest of the child. See also, In the Interest of J.L.P., 416 So.2d 1250 (Fla. 4th DCA 1982) (Our sympathy for the mother in this case cannot blind us to an overriding concern for the children’s welfare).

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


author: PER CURIAM. COWART, Judge,

text:
    Wayne L. AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 83-743.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    Rehearing Denied Feb. 12, 1985.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

This case involves constitutional law, a double jeopardy identity of offense problem, a due process problem resulting from the failure of a charging document to allege all essential constituent elements of an offense of which the defendant was convicted and the question of whether violations of constitutional double jeopardy and due process constitute fundamental error.

THE FACTS:

A bank employee was in a repossessed car in the bank parking lot inspecting it. The defendant entered the car, pushed the employee down, put a knife to her throat, and threatened to kill her if she did not give him her purse. When told she had no purse he demanded the car keys. When told the car did not run, he ran.

CONVICTION:

Charged with attempted armed robbery (count 1), aggravated battery (count 2), and burglary of a conveyance with an assault therein (count 3), the defendant was convicted of (1) attempted armed robbery (count one), (2) aggravated assault as a lesser included offense of the aggravated battery charged in count two, and (3) trespass while armed as a lesser included offense of the burglary with an assault charged in count three.

1. CONSTITUTIONAL LAW — DOUBLE JEOPARDY — IDENTITY OF OFFENSES — ATTEMPTS:

Principles:
(1) The double jeopardy clauses of the state and federal constitutions prohibit a person from being twice put in jeopardy for “the same offense.”
(2) If one statutory offense includes all of the elements of another, those two offenses are constitutionally “the same offense” and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events.
(3) The conviction of a defendant of two crimes which are, in constitutional double jeopardy concept, “the same offense” violates the double jeopardy clauses of the state and federal constitutions and constitutes fundamental error.

The dissent in Baker v. State, 425 So.2d 36, 59 (part 10A) (Fla. 5th DCA 1982), warns of the difficulty in making an accurate substantive analysis for double jeopardy purposes when one of the offenses being compared is an attempt offense (§ 777.-04(1), Fla.Stat. (1983)). This is because the “act” element of every attempt is the same and is vague by its very definition. That element is “any overt act” that is reasonably calculated to lead to the commission of the offense which is primarily intended to be committed. A completed offense can properly be said to have some element that the attempt to commit that same offense does not have but the converse is not true. It cannot be correctly stated that an attempt contains an essential constituent element that the completed offense does not require because the “overt act” required by an attempt may be one of the “act” elements in the completed offense or it may not. The aspect of an attempt offense relating to the fact that the attempt does not contain all of the elements of the completed crime (i.e., the absence of some element necessary to complete the crime intended) is not itself a negative “element” of the attempt offense. Often the commission of one crime facilitates the accomplishment of another and the best method to commit one crime and to get away with it involves the commission of other, collateral, crimes. There are numerous common examples of this: the use of a weapon or firearm (§ 790.07(1) and (2), Fla.Stat. (1983)); the carrying of a concealed weapon (§ 790.01, Fla.Stat. (1983)), the commission of a burglary (§ 810.02, Fla.Stat. (1983), and the use of accessories after the fact (§ 777.03, Fla.Stat. (1983)), usually facilitate the commission of some other, more specifically intended, crime (such as murder, rape, robbery or theft), which latter crime usually carries a greater penalty than the “facilitating offense.” Of course, sometimes the crime with the greater penalty occurs incidental to the commission of a more specifically intended crime which carries a lesser penalty, as when a felony murder (§ 782.04, Fla.Stat. (1983)) occurs during the perpetration, or in the attempt to perpetrate, the underlying, more specifically intended, felony. Neither the relative penalties nor the primary intent of the defendant determines the substantive relationship between two criminal offenses which is determined by their respective essential constituent elements.

The analysis of two statutory offenses for substantive sameness or difference for double jeopardy and due process purposes is properly a two step test; the first step is to abstractly compare the elements of the two offenses and the second step compares the factual bases for the two prosecutions. However, the vague “any overt act” element of the offense of an attempt cannot, as a practical matter, be precisely compared for sameness or difference with elements of another offense. Therefore, when one offense is an attempt, meaningful analysis of the elements of the two offenses is thwarted and all that can be done is to go on to the second or factual test and determine if the facts that are being used to prove “the overt act” element in the attempt offense are the same facts that are used to prove the second offense. If both the attempt offense and the other offense are based on the same factual event, the two are, in substance, “the same offense” within the constitutional prohibition; otherwise, they are not. Here, the defendant was charged with attempted armed robbery as there was no taking of property because the victim had no purse and the defendant lost interest in taking the car keys when he learned the car was inoperative. However, the attempt to take was made by attempting to put the victim in fear in the classic manner — by threatening her life with a deadly weapon, which itself constituted the aggravated assault of which the defendant was convicted, as well as “the overt act” of the attempted armed robbery conviction. It is not “possible” to attempt to commit an armed robbery by threatening to do violence with a deadly weapon to a victim if he does not part with the possession of property in his possession without at the same time by the same act also committing an aggravated assault on that victim. Therefore, the two offenses are in law and in fact indistinguishable and it cannot be demonstrated that they are not “the same offense” within the constitutional double jeopardy prohibition. The result of an analysis of an attempt and some other offense will vary with the facts as it always does when compared offenses are in legal theory the same (because each offense does not have at least one element that the other offense does not have) and the second or factual step of the analysis depends on whether the two prosecutions are based on one or two separate and distinct factual events. If facts are such that after the occurrence of the facts constituting “the overt act” in an attempt to rob, the defendant commits further acts constituting a separate assault, aggravated assault or aggravated battery, etc., then it can be found that two separate and distinct factual events exist and supports two separate and distinct offenses and authorizes two convictions. On the other hand, when one completed offense is itself “the overt act” in an attempt to commit another offense, then the attempt offense includes all of the essential constituent elements of the completed facilitating offense, both offenses are in legal substance and in fact “the same offense” and constitutional double jeopardy prohibits the conviction of both of such offenses. The result is that constitutional double jeopardy permits an accused to be convicted of a completed armed robbery and an aggravated assault based on a single factual event but, depending on the facts, may or may not permit conviction of an attempted armed robbery and a related aggravated assault.

This is the very essence of the recent holding by the supreme court in State v. Pinder, 375 So.2d 836 (Fla.1979), and by this court in Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984), rev. granted, No. 65,176 (State v. Snowden), that constitutional double jeopardy prohibits the conviction of felony murder and the underlying felony upon which the felony murder charge is based. This is the proper conceptional basis for the recent holdings by the Fourth District Court of Appeal that double jeopardy prohibits the conviction of the offense of use of a firearm in the commission of a felony (§ 790.07(2), Fla.Stat. (1983)) and the underlying felony upon which the use of firearm offense is based, see Bogard v. State, 451 So.2d 484 (Fla. 4th DCA 1984); Alvarez v. State, 445 So.2d 677 (Fla. 4th DCA 1984); Jackson v. State, 436 So.2d 1101 (Fla. 4th DCA 1983). But see State v. Baker, 456 So.2d 419 (Fla.1984); Gibson v. State, 452 So.2d 553 (Fla.1984); and the specially concurring opinion in O’Brien v. State, 454 So.2d 675 (Fla. 5th DCA 1984).

In this case the aggravated battery charge and the aggravated assault (count II) of which the defendant was convicted and the facts which supported that conviction also constitute the factual basis for “the overt act” element of the attempted robbery with a firearm offense (count I) of which the defendant was also convicted. Thus the defendant was twice put in jeopardy and convicted for what was in this case, in substance and in constitutional contemplation, “the same offense” and one of those two convictions should be reversed. On this point Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), might appear to be in point but it is not. Torrence presented the question of whether the allegation that the defendant “carried” a firearm in a count alleging an attempted armed robbery was a sufficient allegation to charge that the defendant “used” a deadly weapon to make an assault, so as to give the defendant “due process” notice of the essential constituent elements of the offense of aggravated assault (§ 784.021, Fla.Stat. (1983)) of which Torrence was convicted as a lesser included offense of the alleged attempted armed robbery count. Here, as to the allegations relating to the attempted armed robbery charge (count I) and the aggravated battery charge (count II), there is no due process issue because each offense is adequately alleged in a separate count and only the double jeopardy question is involved as to those two charged offenses.

II. CONSTITUTIONAL LAW — DUE PROCESS — CONVICTION OF OFFENSE NOT CHARGED:

Principles:
(4) The state and federal constitutions provide that in all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation against him and that no person shall be deprived of life, liberty or property without due process of law.
(5) A criminal charging document is adequate to charge, to inform the accused of the nature and cause of the accusation against him, to give due process notice of, and to place a defendant in jeopardy as to, a particular criminal offense only if the charging document alleges sufficient ultimate facts to support every essential constituent element of such offense.
(6) Conviction of a defendant of a crime with which he was not charged, and for which he was not lawfully tried, violates the constitutional requirement that an accused be informed of the accusation against him and also violates the due process clauses of the state and federal constitutions and constitutes fundamental error.
(7) A criminal charging document charging aggravated battery (§ 784.045, Fla.Stat.) does not necessarily and as a matter of law allege all facts essential to adequately charge and to give due process notice of an accusation of aggravated assault (§ 784.021, Fla.Stat.).

A due process question is presented by the conviction of Akins of aggravated assault as a necessary lesser included offense of the aggravated battery charged in count II. If the charges of aggravated battery and the aggravated assault are both based on the use of a deadly weapon (§ 784.-045(l)(b) and § 784.021(l)(a)), as they are in this case, in essence the legal question is whether simple assault (§ 784.011, Fla. Stat. (1983)) is a necessary lesser included offense of simple battery (§ 784.03, Fla. Stat. (1983)). It is not. This legal point is considered in some depth in the specially concurring opinion in Savino v. State, 447 So.2d 411 (Fla. 5th DCA 1984), and need not be repeated here.

Because statutory assault (§ 784.011, Fla.Stat.) and statutory battery (§ 784.03, Fla.Stat.) (and, consequently, aggravated assault (§ 784.021, Fla.Stat.) and aggravated battery (§ 784.045, Fla.Stat.)) are substantively different acts and offenses (meaning that each such criminal offense has one or more essential constituent elements that the other offense does not have), the alleging of one such offense and the conviction of the other offense, violates constitutional due process. It is violative of constitutional due process to convict one of a crime not charged and this can be done by alleging and charging one act or crime (aggravated battery in count II in this case) and convicting of another act or crime (aggravated assault in this case) which is not charged. In addition to the cases cited in the dissent in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), supporting these principles, see also Hamilton v. State, 129 Fla. 219, 176 So. 89, 112 A.L.R. 1013 (1937) (due process requires allegations of every material fact an essential element of offense charged with precision and certainty.)

The same problem is involved with the defendant’s conviction of trespass while armed (§ 810.08(2)(c)) under the charge in count three of burglary of a conveyance with an assault therein (§ 810.02(2)(a)) in that an essential constituent element of the offense of trespass while armed (§ 810.-08(2)(c)) is that the offender is armed with a firearm or other dangerous weapon, or arms himself with such while committing a trespass in a structure or conveyance, and the charge in count three totally fails to contain any allegation that the defendant was armed with a firearm or other dangerous weapon. Trespass while armed (§ 810.08(2)(c)) is not a necessarily lesser included offense of burglary with an assault (§ 810.02(2)(a)) and count three did not contain the additional allegation necessary to make it a permissive included offense of the offense alleged in that count. Therefore, as to count three the defendant was also convicted of an offense not charged and his constitutional due process rights thereby violated.

III. CONSTITUTIONAL LAW — VIOLATION OF DOUBLE JEOPARDY AND DUE PROCESS — FUNDAMENTAL ERROR:

Principles:
(8) Criminal convictions subject to fundamental error resulting from violation of basic constitutional double jeopardy or due process rights are per se harmful and reversible without any showing of prejudice, in the absence of an effective waiver.
(9) A waiver of a basic constitutional right, or of the fundamental error resulting from its violation, must be made knowingly, intentionally and intelligently, and cannot be implied from ignorance, silence, inadvertence, or inaction.
(10) Fundamental errors are not subject to contemporaneous objection rules or harmless error statutes and are subject to correction at any time, on direct appeal, by post-conviction proceedings or by extraordinary remedy.

The prohibition against double jeopardy and the guarantee of due process are constitutional rights of the highest order. Of course, most, if not all, constitutional rights, including the right against double jeopardy and due process, may be waived. However, to be valid, waivers of fundamental constitutional rights, and of errors resulting from their violations, must be made knowingly (with specific knowledge of the right or its violation), intentionally (purposefully and by affirmative action) and intelligently (with the aid and advice of competent, effective counsel) and cannot be merely implied from ignorance, silence, inaction or inadvertence. In addition to the cases cited in the dissent in Torrence v. State, supra, supporting this proposition, see the dissent in W.J.W. v. State, 446 So.2d 248, (Fla. 6th DCA 1984). See also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (standard for determining validity of waiver of fundamental constitutional right is whether there is record showing of intentional and intelligent relinquishment or abandonment of that right); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (defense guilty plea constitutes waiver of several fundamental constitutional rights, including privilege against compulsory self-incrimination, right to trial by jury and right to confront one’s accusers, record must show that the defendant entered his plea of guilty voluntarily and with understanding); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (waiver of right to counsel must be knowingly and intelligently made). See also United States v. Brown, 569 F.2d 236 (5th Cir.1978) (a valid waiver requires an intentional relinquishment of a known right); Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981). As to waiver of right to jury trial, see, e.g., Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed.2d 854 (1930), overruled on other grounds, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); Powers v. State, 370 So.2d 854 (Fla. 3d DCA 1979); Fla.R.Crim.P. 3.260. For the procedure necessary to waive the defendant’s constitutional right to a jury instruction as to lesser included offenses in capital cases, see Harris v. State, 438 So.2d 787 (Fla.1983). A conviction for a violation of a statute which is constitutionally invalid on its face is fundamental error, Trushin v. State, 425 So.2d 1126 (Fla.1983), even when raised on appeal following a nolo conten-dere plea. Alexander v. State, 450 So.2d 1212 (Fla. 4th DCA 1984).

Many provisions of criminal rules, in effect bestow procedural rights not given by the constitution or statutes or enlarge upon such substantive rights. Other provisions of criminal procedure rules merely implement or effectuate substantive rights given by constitution or statute. There is a great difference between these types of rules which is often ignored. A violation of a pure rule right does not constitute fundamental error and is not reversible error per se and is subject to the harmless error statute (§§ 59.041 and 924.33, Fla.Stat. (1981)) and to the contemporaneous objection rule (which is itself usually merely a rule provision, see, e.g., Fla.R.Crim.P. 3.390(d)) and waivers implied for failure to object to violations, or non-applications of, rule rights. However, because purely rule rights are subject to these doctrines of implied waiver and harmless error does not mean that those doctrines are applicable to organic rights guaranteed by federal and state constitutions which may be merely implemented or supplemented by rule rights. Rights guaranteed by constitutions can be enlarged by rights given by rules but such constitutional rights may not be limited by court adopted rules. This difference has been recognized as to some rights, such as rule rights relating to speedy trials, but its significance has sometimes been overlooked as to other constitutional rights, such as those relating to due process and double jeopardy. If not effectively waived violations of fundamental constitutional rights are subject to correction at any time whether on direct review by appeal, by post-conviction relief or in habeas corpus proceedings. In many cases where relief from violations of such constitutional rights have been denied on direct appeal relief has been ultimately given in other proceedings on other grounds.

Garcia v. State, 444 So.2d 969 (Fla. 5th DCA 1983); Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981), rev. den., 411 So.2d 381 (Fla.1981); Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980), explicitly hold that violations of constitutional double jeopardy' rights do not, constitute fundamental error which can be raised for the first time on appeal. Those holdings and the cases upon which they are based are in error. Actually the three cases from this court are contrary to three other cases in which this court has implicitly held to the contrary and granted relief from double jeopardy violations where such violations were raised for the first time on appeal. See, e.g., Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981) and Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981). That Muszynski involves a double jeopardy violation and its correction as fundamental error although not raised in the trial court is obvious from close study. See McGee v. State, 438 So.2d 127 (Fla. 1st DCA 1983). The First District Court of Appeal has recently held a double jeopardy violation to be fundamental error. Solomon v. State, 442 So.2d 1030 (Fla. 1st DCA 1983). Other cases have impliedly held the same way by granting relief from double jeopardy violations, see, e.g., Brown v. State, 452 So.2d 605 (Fla. 2d DCA 1984). This court should expressly recede from Chapman, Drakes and Garcia and embrace the correct principles of constitutional law and fundamental error that underlie Vela, Goss and Muszyn-ski.

SUMMARY

Akins’ conviction of attempted armed robbery should be affirmed but his conviction of aggravated assault under the charge of aggravated battery in count two and of trespass while armed under the charge of burglary of a conveyance with an assault should be reversed as fundamental errors resulting from the violation of both constitutional double jeopardy and due process rights. This court should not dispose of the serious constitutional issues in this case by a PCA which under Article V, Sec. 3(b)(3), is effective to deny a defendant’s right to have the supreme court exercise jurisdiction to review a decision of this court that conflicts with decisions of another district court of appeal or of the supreme court on the same point of law.

      . Art. 1, § 9, Fla. Const.; See Bean v. State, No. 84-153 (Fla. 5th DCA September 28, 1984) [9 FLW 2082].

      . U.S. Const, amend. V.

      . State v. Baker, 456 So.2d 419 (Fla.1984); Bell v. State, 437 So.2d 1057 (Fla.1983). See generally, the dissents in Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1982); Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983), rev. granted, No. 64,775 (State v. Rodriquez ), and O'Hara v. State, 448 So.2d 524 (Fla. 5th DCA 1984), rev. granted, No. 65,116 (State v. O'Hara).

      . See State v. Baker, 456 So.2d 419 (Fla.1984).

      . Similarly the absence of an intent to commit a sexual battery is not a negative "element” of a lewd assault on a child (§ 800.04, Fla.Stat.) and the absence of an intent to kill is not a negative "element” of an aggravated assault with a deadly weapon (§ 784.021(l)(a), Fla.Stat.), which the State is required to prove but merely serves to distinguish those offenses from other, more serious, offenses.

      .See the dissent in Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983), rev. granted, No. 64,775 (State v. Rodriquez), at 241 ¶ 2 "Analysis of the Elements of Two Statutory Offenses to Determine Substantive Difference or Sameness”, and at 242 ¶ 3 "Analysis to Determine if there is a Different Factual Basis for Two Prosecutions for ‘The Same Offense' ”. See also the dissent in Baker v. State, 425 So.2d 36 (Fla. 5th DCA 1983), at 42 and 44.

      . See Bell v. State, 437 So.2d 1057 (Fla.1983); Borges v. State, 415 So.2d 1265 (Fla.1982).

      . See, e.g., Brown v. State, 430 So.2d 446 (Fla.1983); Holmes v. State, 453 So.2d 533 (Fla. 5th DCA 1984).

      . The threat of the early day English highway robber was succinct: "Your money or your life!”

      . Cf. Royal and Ellison v. State, 452 So.2d 1098 (Fla. 5th DCA 1984).

      . The analytical problem of comparing an attempted armed robbery with an aggravated assault must be contrasted with the problem of comparing a completed armed robbery with an aggravated assault. The elements of a completed robbery and completed armed robbery are much more distinct than "the overt act" element of an attempt and permit a resolution and differentiation of the offenses at the first step comparison of the essential constituent elements of the offenses, which is not possible when one offense is an attempt. For example, aggravated assault is substantively different from, and is, therefore, not a necessarily lesser included offense of a completed armed robbery because aggravated assault requires that the assault be made with a deadly weapon (an aggravated battery requires the battery to be made by using a deadly weapon) whereas, armed robbery merely requires that the defendant have carried the deadly weapon.’ See State v. Baker, 452 So.2d 927 (Fla.1984); Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978); Owens v. State, 444 So.2d 951 (Fla. 2d DCA 1984). Cf. Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), but note that the charge in Torrence was attempted robbery and the issue was due process, not double jeopardy.

        .See also Hayes v. State, 368 So.2d 374 (Fla. 4th DCA 1979), and Mays v. State, 450 So.2d 299 (Fla. 3d DCA 1984).

      . U.S. Const, amend. VI; Art. I, § 16, Fla. Const.

      . U.S. Const, amend. V; Art. I, § 9, Fla. Const.

      . See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); Fulk v. State, 417 So.2d 1121 (Fla. 5th DCA 1982); State v. Moss, 395 So.2d 561 (Fla. 5th DCA 1981).

      . See, e.g., West v. State, 149 Fla. 436, 6 So.2d 7 (1942); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983); Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980); Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980), cert. den., 388 So.2d 1110 (Fla.1980).

      . See, e.g., Garcia v. State, 444 So.2d 969 (Fla. 5th DCA 1983); Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981); Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980); Bell v. State, 262 So.2d 244 (Fla. 4th DCA 1972).

      . See, e.g., Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); State v. Whisnant, 80 So.2d 611 (Fla.1955).

      . See, e.g., Chapman v. State, 442 So.2d 1024 (Fla. 5th DCA 1983); Wilson v. Eastmoore, 419 So.2d 673 (Fla. 5th DCA 1982).


author: GRIMES, Acting Chief Judge.

text:
    CLARA P. DIAMOND, INC., a Florida Corporation, Appellant, v. TAM-BAY REALTY, INC., a Florida Corporation, Appellee.
    No. 84-1876.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1984.
    Carl A. Bertoch of Bertoch & Mann, P.A., Tallahassee, and T. Whitney Strickland, Jr., Tallahassee, for appellant.
    Howard L. Killian, Tampa, for appellee.
   ON MOTION TO DISMISS

GRIMES, Acting Chief Judge.

Summary judgment for appellee was entered on December 22, 1983. On January 3, 1984, appellant filed a motion to enlarge the period of time for filing a motion for rehearing, alleging that its attorney had not received a copy of the summary judgment until December 28,1983. On January 3, 1984, the court entered an order extending the time within which to file a motion for rehearing until January 9,1984. Appellant filed a motion for rehearing on January 9, 1984. The motion for rehearing was denied on July 18, 1984. Appellant filed a notice of appeal from the summary judgment on August 16, 1984. Appellee now moves to dismiss the appeal as untimely on the ground that the motion for rehearing was ineffective because it was not filed within ten days of the rendition of summary judgment.

Florida Rule of Appellate Procedure 9.020(g) provides that the filing of a timely motion for rehearing shall postpone rendition of an order until its disposition. Florida Rule of Civil Procedure 1.530(b) specifies that a motion for rehearing shall be served not later than ten days after the entry of judgment in a nonjury action. Florida Rule of Civil Procedure 1.090(b) states:

(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, [may] order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect but it may not extend the time for making a motion for new trial, motion for rehearing or motion to alter or amend a judgment or a motion for relief from a judgment under Rule 1.540(b) or for taking an appeal or filing petition for certio-rari or for making a motion for a directed verdict.

Since appellant filed its motion for enlargement before the expiration of the prescribed ten-day period, the question arises whether the limitation upon extending the time for making a motion for rehearing which appears near the end of the rule refers to subsection (1) as well as subsection (2). Appellee suggests that since the rule consists of only a single sentence, the limitation appearing at the end of the sentence necessarily applies to the whole sentence. On the other hand, the rule is easily susceptible to the construction that the limitation only applies to subsection (2) because of the absence of a semicolon after the words “excusable neglect.”

Our sister court in Feinberg v. Feinberg, 384 So.2d 1304 (Fla. 4th DCA 1980), had occasion to address this very point. Without considering the ambiguity created by the lack of a semicolon, the court read rule 1.090(b) to specifically prohibit the trial court from extending the time for filing a motion for new trial or rehearing even pri- or to the expiration of the period originally prescribed. The court reasoned that the limitation was designed to promote finality. Left unsaid was the counterargument that there is less need to impose the limitation on subsection (1), because only a motion filed under subsection (2) can lead to setting aside an order retroactively.

Appellee refers to an editorial note to rule 1.090, formerly rule 1.6(b), found in 30, 31 Florida Statutes Annotated 53 (The Harrison Company 1980 rev.), which quotes from Massey and Westen, Seventh Survey of Florida Law; Civil Procedure, 20 U. Miami L.Rev. 594, 606 (1966), as follows:

“As a general rule, when an act is required or allowed to be done within a specified time, the court, for good cause shown, has discretionary power to enlarge the period for performance. If the request therefor is made before the expiration of the prescribed period, the extension may be granted with or without notice, but if the motion for an extension is made after the prescribed period, notice must be given to the other parties and an extension may be granted if failure to act was the result of excusable neglect.
“However, the newly amended Rule 1.6(b) has expanded the areas in which the court is without power to grant an extension of time to include motions to alter or amend judgments under Rule 2.8(g), as amended, and for relief from judgments under Rule 1.38(b). The exception to the court’s discretionary power to extend time is also applicable under Rule 3.16, as amended, to petitions for a rehearing on motion of the parties, and to orders for a rehearing when the court is acting sua sponte. These exceptions, of course, are in addition to those previously contained in Rule 1.6(b), and which are still retained — specifically, a court may not extend the time for making a motion for a new trial, or for taking an appeal, or for making a motion for a directed verdict. As amended, Florida Rule 1.6(b) is now substantively identical with Federal Rule 6(b), with the exception that time cannot be extended under the Florida rule for a motion non obstan-te veredicto.”

Rule 1.6(b) referred to by the authors, though otherwise identical to the present rule 1.090(b), did contain a semicolon after the words “excusable neglect.” When the rules of civil procedure were recodified in 1968, the semicolon was omitted from rule 1.090(b).

One might argue that by omitting the semicolon the rules committee intended for the limitation to apply only to subsection (2). However, it is more likely that the committee inadvertently dropped the semicolon, thereby making ambiguous a rule which had up to that time clearly precluded enlargements of time to file the enumerated motions. Florida Rule of Criminal Procedure 3.050, pertaining to enlargements of time, is similar to rule 1.090(b) except that it contains a semicolon after the words “excusable neglect.” There is little reason to believe that the committee intended a different rule for civil practice. See H. Trawick, Florida Practice and Procedure § 26-1 (1983 ed.). See also Cross References under rule 1.530 found in 30, 31 Florida Statutes Annotated 549 (The Harrison Company 1980 rev.), which states: “Extension of time for filing motion prohibited, Rule 1.090.”

Rule 1.090(b) as written was sufficiently ambiguous to place the burden upon appellant to make sure that an extension could properly be granted. The language of the rule was at least susceptible to the Fein-berg interpretation, and as the only appellate decision on the subject, Feinberg represented the law of the state. Chapman v. Pinellas County, 423 So.2d 578 (Fla. 2d DCA 1982). Therefore, appellant cannot complain that it was misled. We do, however, recommend that the civil rules committee consider the addition of a semicolon to rule 1.090(b) so as to remove any doubt.

The enlargement of time for appellant to file a motion for rehearing was unauthorized. Thus, the motion for rehearing was untimely filed and could not toll the time for filing an appeal from the summary judgment. Accordingly, the appeal is dismissed as untimely filed.

SCHEB and SCHOONOVER, JJ., concur.


text:
    BREVARD SECURITY PATROL, INC., et al., Appellants, v. Roger PUGH, Appellee.
    No. 83-1629.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 1984.
    Rehearing Denied Feb. 7, 1985.
    Elmo R. Hoffman, Parker, Johnson, Owen & McGuire, Orlando, for appellants.
    Richard A. Sherman, Fort Lauderdale, and Knudson & McGreal, P.A., Merritt Island, for appellee.
   PER CURIAM.

A security company was the named insured in an errors and omissions liability insurance policy. The security company was also the lessor of a vehicle and the employer of a security guard. While operating the leased vehicle the employee stopped at a traffic light and was rear-ended by another car. The two drivers agreed to pull off the roadway and exchange information but the other driver drove off. While pursuing the other driver the employee accidently but negligently struck and injured a motorist.

The acts of the employee in chasing the hit and run driver and causing the injuries to the motorcyclist were not acts “arising out of the operations of the named insured” within the meaning of that language in this errors and omissions policy. The business of the employer was to help protect buildings and businesses. It was not the business of the employer or the employee to chase errant drivers.

REVERSED AND REMANDED for entry of judgment in favor of Great Southwest First Insurance Company.

DAUKSCH, ORFINGER and COWART, JJ., concur.

      . See Grieb v. Citizens Casualty Company of New York, 33 Wis.2d 552, 148 N.W.2d 103 (1967); Albert J. Schiff Associates, Inc. v. Flack, 73 A.D.2d 329, 425 N.Y.2d 612, aff’d, 51 N.Y.2d 692, 435 N.Y.S.2d 972, 417 N.E.2d 84 (1980).


text:
    CITY OF CLEARWATER, Appellant, v. UNITED STATES STEEL CORPORATION, Appellee.
    No. 84-391.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1984.
    Rehearing Denied Feb. 7, 1985.
    Charles L. Siemon and Susan G. Connelly of Siemon, Larsen & Purdy, Chicago, Ill.; Frank X. Kowalski, Chief Asst. City Atty., Clearwater, for appellant.
    Dennis P. Thompson of Richards, No-dine, Gilkey, Fite, Meyer & Thompson, P.A., Clearwater; Thomas F. Icard, Jr., and James 0. Davis, III, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee.
   PER CURIAM.

Appellant, City of Clearwater, Florida, appeals from an order denying its motion for relief from summary judgment. We affirm.

In 1979, the Circuit Court in and for Pinellas County, Florida, entered a summary judgment determining that the City of Clearwater was bound by a contract of annexation between it and appellee’s predecessor in interest. The summary judgment enjoined the city from enforcing an ordinance that would rezone property belonging to appellee, United States Steel. This court affirmed that summary judgment on March 5, 1980.

On January 24,1984, the appellant filed a motion for relief from summary judgment pursuant to Florida Rule of Civil Procedure 1.540(b). The appellant sought relief from the summary judgment on the grounds that the judgment was void, prospective application of the judgment was no longer equitable, and equity commanded relief from the final summary judgment. This motion was denied and a timely notice of appeal was filed.

We find that the court did not err in denying appellant’s motion for relief from the summary judgment on the particular grounds set forth in appellant’s motion and therefore affirm.

SCHEB, A.C.J., SCHOONOVER, J., and BENTLEY, E. Randolph, Associate Judge, concur.


author: BARKETT, Judge.

text:
    Dennis Richard SOBCZAK, Appellant, v. STATE of Florida, Appellee. Thomas Grover VAUGHN, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1191, 83-1315.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 27, 1985.
    Richard L. Jorandby, Public Defender, and Stephen W. Benedict, Asst. Public Defender, West Palm Beach, for appellants.

      Dennis R. Sobczak, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BARKETT, Judge.

Defendants below contend that identification testimony resulting from a lineup conducted without defense counsel should have been suppressed. We agree and reverse.

The defendants were arrested for armed robbery and afforded a first appearance before a magistrate. Subsequent thereto an order was obtained from a second judge which provided that “both defendants shall participate in lineups arranged by police authorities with reasonable notice to the attorney for each of both defendants.”

Defendant Sobczak was not represented by counsel. Defendant Vaughn informed police that his attorney was a Mr. Jugo. Mr. Jugo was duly notified of the lineup.

On the day of the lineup, Jugo’s office called the police department and informed them that Jugo was home ill and that, furthermore, he had not been retained by Vaughn because Vaughn could not afford private counsel. Jugo’s office suggested that the police contact the public defender’s office. The public defender was never contacted on behalf of either appellant and the lineups were held without counsel being present.

A person’s sixth and fourteenth amendment right to counsel under the United States Constitution attaches only at or after the time that adversary judicial criminal proceedings have been initiated against him by way of a formal charge, a preliminary hearing, an indictment, an information, or an arraignment. Kirby v. Illinois, 406 U.S. 682, 689-690, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411, 417 (1972). In the instant case, the execution of an order by a judge ordering the defendants to participate in a lineup must surely be viewed as an adversary judicial proceeding for purposes of sixth and fourteenth amendment rights. However, we need not reach the federal issue in the present case.

The trial judge's order specifically established the right of these defendants to counsel at the time that he required their participation in the lineup.

Furthermore, even in the absence of such an order, the defendants were entitled to counsel under Florida law. Article I, section 16, of the Florida Constitution guarantees the right to assistance of counsel in all criminal prosecutions. Rule 3.130, Florida Rules of Criminal Procedure, provides that the right to assistance of counsel attaches as early as the defendant’s first appearance, which should occur within 24 hours of arrest. State v. Douse, 448 So.2d 1184 (Fla. 4th DCA 1984). Rule 3.111(a), Florida Rules of Criminal Procedure, provides that a person is entitled to appointment of counsel when he is formally charged with an offense, or as soon as feasible after custodial restraint, or upon his first appearance before a committing magistrate, whichever occurs first.

Because appellants’ right to counsel had attached at the time of the lineup, and because appellants were not afforded counsel, the lineup was illegal and evidence thereof was inadmissible. Furthermore, it appears from this record that the in-court identification may have been tainted by the illegal lineup. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Hearns v. State, 262 So.2d 907 (Fla. 4th DCA), cert. denied, 268 So.2d 533 (Fla.1972).

Accordingly, the defendants’ convictions are vacated and this matter is remanded for a new trial in accordance herewith.

DOWNEY and DELL, JJ., concur.


text:
    VSM DEVELOPMENT, INC., Jeffrey Collins, Inc., as general partners of M & C Venture, a Florida general partnership, Appellants/Cross-appellees, v. AMERICAN CAST IRON PIPE COMPANY, Appellee/Cross-appellant, and Foote Brothers Corporation, a Florida corporation, Sonny Lloyd, Inc., Sonny Lloyd, individually, Biscayne Federal Savings & Loan Association, Aetna Casualty and Surety Company, and American Centennial Insurance Company, Appellees.
    No. 83-2475.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Robert C. Martin and Jeffrey Allen Hirsch of Holland & Knight, Fort Lauder-dale, for appellants/cross-appellees.
    Dennis G. King of Dennis G. King, P.A., Miami, for appellee/cross-appellant — American Cast Iron Pipe Co.
   PER CURIAM.

AFFIRMED. See Midway Shopping Mall, Inc. v. Airtech Air Conditioning, 253 So.2d 900 (Fla. 3d DCA 1971).

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


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    In re the FORFEITURE OF 1978 YANK VESSEL “RAINBOW CHASER,” SERIAL # KBDUBW190378, REGISTRATION FL. # 7465 CU; 52' IN LENGTH.
    No. 84-424.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 12, 1985.
    Alan R. Soven of the Law Offices of Alan R. Soven, P.A., North Miami Beach, for appellant Rafael Alberto.
    Stuart R. Michelson of Michelson, Young & Maurodis, P.A., Deerfield Beach, for ap-pellee City of Deerfield Beach.
   PER CURIAM.

AFFIRMED.

GLICKSTEIN and BARKETT, JJ., concur.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

This is a forfeiture case in which the appellant, a boat owner, was unsuccessful in his attempt to convince the trial court that he “neither knew or should have known” that the boat was being used for illegal purposes. § 943.43(2), Fla.Stat. (Supp.1980). Upon review of the record I cannot in good conscience agree that there is competent substantial evidence to support the trial court’s ruling. There are a number of suspicious circumstances involved, including the appellant’s inability to explain conflicting evidence as to the purchase price of the vehicle. There is, however, no evidence establishing directly or by inference appellant’s knowledge that the boat was being used for illegal purposes. Cf. In Re 36' Uniflite, “Pioneer I,Reg. No. FL 7894 AH, 398 So.2d 457 (Fla. 5th DCA 1981).


text:
    Orestes RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2066.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Rehearing Denied Feb. 19, 1985.
    Jon W. Burke and Linda Dakis, Miami, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Orestes Rodriguez was found guilty by a jury of murder in the first degree. He alleges as error the trial court’s failure to use the Jury deadlock instruction approved by the Florida Supreme Court. Because we agree the deadlock charge actually given constituted fundamental error, we reverse and remand for a new trial.

This case was tried to a jury for a one-week period and was submitted late Friday afternoon. Following five hours of deliberation the jury reported a deadlock. The trial court, in the presence of the jury, indicated that five hours was an insufficient amount of time and that he could not “possibly consider this being a hung jury.” The jurors were instructed to return to court the following morning at 10:00 a.m. to resume deliberations. The jury returned Saturday morning and deliberated until 4:10 in the afternoon. At that time, the trial court gave the following charge to the jury:

THE COURT: Let’s have it quiet in the courtroom, please.
Ladies and gentlemen of the jury I want you to listen very carefully and listen to what I say and clear your minds at this moment.
I want you to know that everything that you are doing right now is appreciated and don’t think that it is not. I am not trying to cite you. I just want you to know we have all been through a lot together, all of us. We haven’t been through what you are going through, but that is not our function. We all appreciate it.
Your job is two fold in this case. The first aspect of this case is to listen and ladies and gentlemen I can’t ask for any more than that, what you have done, but the second aspect is the critical aspect and that is for you people to reach a verdict.
Two things have been asked, one has been performed thus far. Then we know what you’re going through. We do appreciate it. I want you to understand. I want to stress that everybody in this courtroom we’ve been together a rather long time now. What this involves, ladies and gentlemen, is a melting of divergent backgrounds and personalities into one decision. It sounds simple, it’s not but that is what it is. You must bring yourselves together to reach a verdict, ladies and gentlemen, not to fragment and split apart, because ultimately what it comes out is 12 heads into one, 12 mouths into one to speak that verdict that we are all looking for. I hope you all realize that, ladies and gentlemen.
I did some computation that are [sic] absolutely staggering on this matter. To me it is staggering. We have in excess of 62 hours. My computation is 62 hours of trial time involved here. Now I am counting two alternate jurors that we dismissed and I am taking 12 of you and I am multiplying that 62 hours. I come out with 724. Let’s call it man hours that you people have invested in this trial. Then you take myself, the judge, with my secretary two hours and the attorneys, the translators, the court clerk, the court reporter, everybody involved in this trial. We are over — well over a thousand hours here in this trial invested. Your particular hours invested in this matter will amount to 40 hour week. If you’re talking a great sum two months of working that’s what we have invested in this trial.
Ladies and gentlemen, last night there was a message that we were a hung jury. I never had a hung jury and I don’t want to accept that aspect. So I allow that out to you now so that you will understand that I know that you people can reach a verdict. Now I am going to give you a personal philosophy. I sat as judge in County Court and I have been in the Circuit Court as judge. I have handled and made decisions in well over 30,000 cases. That is a lot of work, ladies and gentlemen. A lot of decisions that I made I’ve gone home and I’ve gone to sleep and I have gotten up the next day feeling good about my past and continuing on with making these decisions.
Ladies and gentlemen you can make a decision in this case. I know that you can do it, because regardless of everything that took place before and everything that is going to take place when you go back into that room at this trial, ladies and gentlemen, is you. It’s nothing else. It is out of our hands. It is out of our control and it only amounts to you people melting your minds and personalities into one to reach a verdict. I have faith in you, ladies and gentlemen. I know you can do it. It was never promised it would be an easy road. You know what we went through before the trial was over in presentation.
Ladies and gentlemen you have so much invested in this. I have so much invested in this. We all have so much invested in this. We can’t do without you. I can’t put it in any clearer way, any better way, but I do know that a verdict can be reached. There are trials that go on all day long, you’re not involved. They do happen everything is important, but ladies and gentlemen the most important aspect right now at this time is you to set aside egos and personalities that are separating and melt them together into one cozy — together unite. I hope that I am clear.
Bill, if you will take them back into the jury room, please.
Please try if possible to deliberate a little harder, I guess. Thank you all very much.

Following the charge the jury retired and, twenty minutes thereafter, delivered a verdict of guilty.

The state argues that the giving of the instruction did not constitute reversible error because (1) the instruction amounted to nothing more than a “pep talk,” and (2) the defendant’s failure to object constitutes a waiver for the purposes of appeal. The state’s first position is without merit. The instruction given in the instant case was not the “balanced” type approved by the Florida Supreme Court in State v. Bryan, 290 So.2d 482 (Fla.1974). See also Gardner v. State, 405 So.2d 470 (Fla. 3d DCA 1981). Rather, the instruction could have only led the jurors to believe that they were required to return a verdict, thereby prejudicing the defendant’s right to a hung jury. Bryan, 290 So.2d at 484; Nelson v. State, 438 So.2d 1060 (Fla. 4th DCA 1983) (jury instruction which made it appear that unless a verdict was reached great waste would occur and the court’s confidence in the jury’s common sense would be betrayed constituted reversible error); Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976); Bell v. State, 311 So.2d 179 (Fla. 1st DCA 1975); Lee v. State, 239 So.2d 136 (Fla. 1st DCA), cert. denied, 240 So.2d 642 (Fla.1970).

In support of its second position the state relies upon Tejeda-Bermudez v. State, 427 So.2d 1096 (Fla. 3d DCA 1983); Sayan v. State, 381 So.2d 363 (Fla. 4th DCA 1980); and Armstrong v. State, 364 So.2d 1238 (Fla. 1st DCA 1977), cert. denied, 373 So.2d 456 (Fla.1979). The state’s reliance upon these eases is misplaced. Armstrong holds that the giving of an approved deadlock instruction before a jury impasse is indicated is not fundamental error. Tejeda-Bermudez holds that requiring a jury to continue to deliberate after reporting a deadlock is not error. We deem it significant that the deadlock instructions given in Armstrong and Tejeda-Bermudez were of the “balanced” type approved by the Florida Supreme Court. In the instant case, the trial court deviated substantially from the approved deadlock charge, and no subsequent curative instruction could have removed from the jurors’ minds the belief that they were required to reach a verdict.

The issue of whether a manifestly coercive deadlock charge is fundamental error appears to be a question of first impression in this state. In Nova v. State, 439 So.2d 255, 262 (Fla. 3d DCA 1983), this court stated:

Error which is said to be fundamental is, among others, one which “reaches down to the legality of the trial itself,” Hamilton v. State, 88 So.2d 606, 607 (Fla.1956); Gibson v. State, 194 So.2d 19 (Fla. 2d DCA 1967); involves a violation of a defendant’s rights which “will always be harmful, and it is very difficult for a court to determine when it is not,” Demps v. State, 416 So.2d 808, 810 (Fla.1982), quoting United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir.1979); in short, one that goes to the essence of a fair and impartial trial, State v. Jones, 377 So.2d 1163 (Fla.1979); Frankowitz v. Beck, 257 So.2d 918 (Fla. 3d DCA 1972). Because “[t]he right of an accused to a trial by jury is one of the most fundamental rights guaranteed by our system of government,” Floyd v. State, 90 So.2d 105, 106 (Fla.1956), and is the cornerstone of a fair and impartial trial, Florida Power Corporation v. Smith, 202 So.2d 872 (Fla. 2d DCA 1967), an infringement of that right constitutes a fundamental error.

Based upon the discussion that follows we conclude that the trial court’s error “[went] to the essence of a fair and impartial trial,” Nova, 439 So.2d at 262, and, therefore, constituted fundamental error.

The particular vices of the charge here are (1) it tainted the jurors’ decision-making process by exhorting them, as good citizens, to consider such extraneous and improper factors as the government’s fiscal health in arriving at a decision and (2) it instructed the jurors that they must reach a verdict. In Nelson, the court found a like charge required reversal where the error was preserved by a timely motion for mistrial. What was said there, however, supports our conclusion that reversal is required even in the absence of a timely objection or motion:

It is the genius of our jury system that twelve impartial persons, individually, applying a subjective standard, come to a common conclusion of defendant’s guilt beyond a reasonable doubt. This fundamental principle becomes subverted if a jury member is pressured to defer to the opinion of his peers, for unanimity is made a sham thereby. An objective standard is in effect substituted for the subjective, by virtue of the implication that the majority opinion is reasonable, and the minority, unreasonable.
Here the trial court may have led one or more jurors to capitulate, against his or her conscientious judgment, because the court made it appear that unless a verdict was reached great waste would occur and the court’s confidence in the jury’s common sense would somehow have been betrayed.

Nelson, 438 So.2d at 1062-63.

In the final analysis, the defendant was entitled to have his guilt or innocence determined by each individual juror considering and weighing the evidence presented, the law applicable to the case, and the positions of fellow jurors. The jurors should not have been required, as the trial judge told them, to consider the public moneys expended on the trial and to melt their “minds and personalities into one to reach a verdict.” These admonitions irreparably deprived the defendant of an impartial jury in violation of rights guaranteed the defendant by the federal and state constitutions. See Jones v. State, 92 So.2d 261 (Fla.1957) (trial court’s statement to jury which implied that a hold-out juror would be a stubborn mule or jackass held to constitute reversible error because it served to impede juror’s exercise of free and independent judgment); Bell (court’s statement that all six jurors had to agree served to impede juror’s exercise of free and independent judgment in violation of article I, section 16, Constitution of the State of Florida, requiring verdict of the jury be impartial). For the foregoing reasons, we reverse the conviction and sentence entered thereon and remand for a new trial.

Rodriguez also argues that the trial court erred by failing to suppress certain physical evidence. We conclude that the trial court correctly denied the motion to suppress. State v. M.N.M., 423 So.2d 987 (Fla. 3d DCA 1982); Dinkins v. State, 244 So.2d 148 (Fla. 4th DCA 1971).

Reversed and remanded for a new trial.

      . See Fla.Std. Jury Instr. (Crim.) 3.06.

      . The record does not reflect whether (1) the jury advised the judge that it was deadlocked at the time the charge was given, (2) counsel was provided notice of the judge's intention to give the charge, or (3) counsel was given an opportunity to be heard concerning the need for and the contents of the charge. See Rose v. State, 425 So.2d 521, 525 (Fla.1982) (Overton, J., concurring in part, dissenting in part), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).

      . The nature of the deadlock instruction at issue in Sayan cannot be determined from a reading of the opinion in that case.

      . The cases discussing this issue can be divided into three groups: (1) cases in which the error of a coercive charge was preserved by objection, see, e.g., Nelson v. State, 438 So.2d 1060 (Fla. 4th DCA 1983); Lee v. State, 239 So.2d 136 (Fla. 1st DCA), cert. denied, 240 So.2d 642 (Fla.1970); (2) cases in which it cannot be determined whether the defendant objected to the charge, see, e.g., Jones v. State, 92 So.2d 261 (Fla.1957); Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975), cert. denied, 336 So.2d 1184 (Fla.1976); Bell v. State, 311 So.2d 179 (Fla. 1st DCA 1975); and (3) cases in which the charge was found not to be coercive, see, e.g., State v. Bryan, 290 So.2d 482 (Fla.1974); Gardner v. State, 405 So.2d 470 (Fla. 3d DCA 1981).